The Supreme Court on Friday began hearing the State’s defence in the constitutional challenge to The Gambia’s ban on female genital mutilation (FGM), receiving testimony from two government witnesses on the legislative process that preceded the enactment of the Women’s (Amendment) Act, 2015.
The case, Almameh Gibba and Seven Others v. The Attorney General, challenges the constitutionality of Sections 32A and 32B of the Women’s Act, which criminalize FGM. The plaintiffs contend that the provisions violate Sections 17, 25, 28, 32, and 33 of the 1997 Constitution. The Attorney General denies those claims, and the State has now opened its defence after the plaintiffs closed their case.
Before witness testimony commenced, counsel for the plaintiffs, L.J. Darboe, raised a procedural objection, informing the court that he had not been served with the affidavit accompanying the witness statement of the State’s second witness.
State counsel A.A. Wakawa disputed the assertion, maintaining that all parties had been duly served with both the witness summary and the accompanying affidavit.
The State’s first witness, Neneh Touray, an official at the Ministry of Gender, Children and Social Welfare, confirmed that the witness statement she signed on Dec. 30, 2025, accurately reflected her evidence and adopted it as her evidence-in-chief. State counsel then applied to have the statement admitted into evidence.
Counsel Badjie, appearing for the plaintiffs, objected, arguing that the statement should be excluded because the accompanying affidavit had not been properly adopted.
During cross-examination, Touray acknowledged that she could not recall the names of the independent witnesses who were present when she signed her statement. Asked whether those witnesses were employees of the ministry, she responded that she did not know.
She also described the process of reviewing and signing her statement, taking the oath and having the affidavit stamped, although portions of her testimony suggested uncertainty about aspects of the attestation process.
On the substance of her evidence, Touray told the court that the government undertook extensive consultations before introducing legal restrictions on FGM.
She testified that consultations were conducted during the amendment of the Children’s Act in 2010 and again before the FGM provisions were incorporated into the Women’s Act. According to her, stakeholders consulted included civil society organizations such as GAMCOTRAP, Wassu Gambia Kafo and other groups. She added that public sensitization efforts continued after the law was enacted through the Women’s Bureau under the Office of the Vice President.
Touray further testified that the Supreme Islamic Council had initially advised against including FGM provisions in the Women’s (Amendment) Act, recommending instead that the issue be deferred to allow for additional consultation and public sensitization. She said, however, that the Council was not excluded from subsequent engagement and remained involved in consultations throughout the process.
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The State’s second witness, Dr. Momodou Bittaye, Chief Medical Director of Edward Francis Small Teaching Hospital, adopted his witness statement as his evidence-in-chief.
Dr. Bittaye, who has more than 15 years of medical practice, referred the court to the Obstetric Outcomes of FGM Report, which he co-authored.
When State counsel sought to tender the report into evidence, counsel for the plaintiffs objected, arguing that the proper evidentiary foundation had not been established.
Counsel Wakawa responded that the objection was based on a technicality, submitting that the witness had identified the report, explained his role in preparing it and referenced it in paragraph eight of his witness statement.
Justice C. Jallow overruled the objection and admitted the report into evidence.
Dr. Bittaye was subsequently questioned about a Demographic and Health Survey on FGM conducted by the Gambia Bureau of Statistics in collaboration with partner institutions and published in both print and electronic formats.
When the State sought to tender an extract from the survey, counsel for the plaintiffs objected, arguing that it constituted secondary evidence contrary to Section 101 of the Evidence Act. He submitted that the document should have been produced as a certified copy and that photocopies did not satisfy the statutory requirements for admissibility.
State counsel argued that Section 101 was inapplicable because the document before the court was an extract rather than a full copy of the report and was therefore admissible.
Counsel for the plaintiffs maintained that the witness himself had described the document as an extract and argued that such extracts were susceptible to alteration.
After considering the parties’ submissions and reviewing the document’s compliance with the requirements of the Evidence Act, Justice C. Jallow upheld the objection and declined to admit the extract into evidence.
The hearing was adjourned with the State’s defence still ongoing. The matter is expected to continue at its next scheduled sitting.
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