Forced Marriage Overseas: The Gambia

Overview

Individuals from the United States will likely face hurdles if trying to avoid and/or escape forced marriages in The Gambia. Although laws exist to protect women and girls, discrimination and violence against women, particularly domestic violence, remains a significant problem and the constitutional rights of women are subject to traditional religious customs. A growing NGO community dedicated to ending domestic violence and other harmful practices is working closely with the government to address these issues, however, it is too soon to tell what the impact of recent legislative changes and program implementation will be, particularly in rural areas.

For further information and guidance for individuals from the U.S. that are facing or fleeing a forced marriage in The Gambia please contact the Forced Marriage Initiative.

Marriage in The Gambia

There are four types of marriages that are legally recognized in The Gambia: Muslim (Mohammedan) marriages, governed by Sharia law and the Muslim Marriage and Divorce Act of 1941; Christian marriages, governed by the Christian Marriage Act of 1862; Civil Marriages, governed by the Civil Marriage Act of 1938; and customary marriages, based on tradition and heavily influenced by Sharia law.¹ Given the demographics of the country, Customary and Sharia law govern nearly all Gambian marriages and as such, provisions in the 1997 Gambian Constitution and acts passed by the legislature are overridden by customary and religious law and in practice the Constitution applies to only civil marriages.

Most marriages are not registered with the government and many instances of forced marriage are not reported.²

Until recently, The Gambia did not have an official legal minimum age of marriage. However, in July 2016, President Yahya Jammeh declared marriage under the age of 18 to be illegal for both boys and girls, making The Gambia the 13th African nation to join the African Union’s campaign to end child marriage.³ Anyone involved in the marriage of a person under the age of 18 (including the parents, the spouse and religious leaders) can be punished by a sentence of up to 21 years in prison.⁴

In The Gambia gender has a considerable impact on an individual’s ability to determine whether, when and whom they marry. Although the Constitution ensures equal rights regardless of gender, it carves out exceptions in certain personal or family law matters, including marriage, divorce and inheritance which are governed by customary and religious law.⁵

Under customary and Sharia law, which govern over 90% of Gambian marriages, a marriage contract is made between the groom and the guardian of the bride. Traditionally, the consent of the bride’s family (not of the bride herself) is necessary for a valid marriage⁶ making it legally possible for a bride’s family to contract a marriage without the bride’s consent. In rural areas in particular, girls and adult women have little say in regards to whom they marry.⁷ It is too soon to tell whether there will be strict compliance with and enforcement of the President’s ban on marriage under the age of 18 in these communities.

Annulment is an available option for ending a marriage in The Gambia. A marriage governed by civil law can be annulled on several grounds, including fraud and lack of consent.⁸ Under customary and religious law, a marriage can be invalidated if one of the requirements for valid marriage were not met including consent of the female’s guardian, payment of the bride price, or presence of appropriate witnesses. However, based on observation of common practice, it is highly unlikely that a marriage could be annulled in The Gambia after it has been consummated.

Divorce is also available in The Gambia and either the husband, the wife, or a guardian of the wife may file for divorce.⁹ When a woman petitions for and is granted a divorce, she or her family is typically required to repay the bride price paid to them at the time the marriage was contracted.¹⁰ While there are several grounds for women to seek a divorce, force, fraud and coercion are not included.

Potential Risks and Protections in Country

Domestic violence is likely substantially underreported in The Gambia and forced and child marriage are prevalent. Observers note that domestic violence is substantially under-reported because of the social stigma associated with reporting¹¹ and the fact that more than 80% of women believe that their husband may be justified in beating them.¹²

With the exception of civil marriages, which are governed by the Constitution and require the consent of both parties, there are no laws in The Gambia governing forced marriage performed under customary and religious law. According to Sharia law, a girl who has reached puberty is eligible to be married regardless of her age¹³ and a 2010 Survey indicated that 46.5% of women in The Gambia married before the age of 18. In rural communities in particular, it is not uncommon for girls to be removed from school and forced into marriage.¹⁴

In 2013, the government of The Gambia passed two landmark pieces of legislation: the Domestic Violence Act and the Sexual Offences Act. Prior to the passage of the Domestic Violence Act, domestic violence was not specifically criminalized and could only be prosecuted under laws prohibiting other underlying criminal activity, such as rape or assault. Given that these laws were so recently enacted, it is difficult to gauge how well they have been enforced and historically the police have been reluctant to intervene in domestic violence cases, deeming such matters to be private family affairs.¹⁵

The Children’s Act bans all harmful traditional practices from being imposed on children under the age of 18, but does not define the traditional practices that are within its scope.¹⁶ In addition, the Women’s Act bars parents and guardians from removing female children from school to be married.¹⁷ While data on enforcement is not widely available, the prohibition on removing children from school for the purpose of marriage appears to be commonly disregarded.¹⁸

Efforts to assist women and children in situations of forced marriage and domestic violence have recently begun and organizations have formed partnerships with the government to conduct outreach and awareness raising and to provide direct services to Gambian women and children. Recent NGO activity in The Gambia has led to notable accomplishments that may empower victims of forced marriage to claim their rights and achieve broader social change. The Female Lawyers Association of The Gambia, for example, has worked with The Gambia Police Force to create a “One-Stop Center” to provide services for victims of gender-based violence.¹⁹

Unfortunately, individuals and NGOs have also been the target of efforts to silence and suppress their work advocating against domestic violence and other harmful practices.²⁰ In rural areas, traditional practices and cultural values, which tend to be unfavorable towards the advancement of women, are more strictly enforced than they are in urban areas. In addition, rural women do not have sufficient access to mainstream development initiatives designed to improve women’s standing in society.²¹

Special Challenges in Returning to the United States

Once a woman is married, she is considered to belong to her husband and his family, who then have the right to restrict her movements and activities. That said, available information does not suggest that proof of a husband or guardian’s permission is required for a married woman to exit The Gambia alone and individuals should always check the exit requirements for The Gambia for the most up to date information.

Assistance for Individuals from the United States

Get Help

The Tahirih Justice Center Forced Marriage Initiative
We are available to help individuals from the United States who are facing or fleeing forced marriage in The Gambia, including providing phone, text, and email support, connecting with the U.S. government and local resources, and coordinating shelter and services back in the United States.

The U.S. State Department
The State Department is available to assist U.S. citizens that are victims of forced marriage with replacement of travel documents and return travel to the United States. For updated information and travel alerts, please visit the department’s webpage on international travel in The Gambia.

U.S. Embassy in Banjul
Contact the consulate in the case of an emergency.
Tel: +(220) 439-2856 / +(220) 439-2858 / +(220) 439-1971 / +(220) 437-2856, x-2466 (after hours)
Email: ConsularBanjul@state.gov

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REFERENCES
¹ Organisation for Economic Co-Operation and Development Gender, Institutions, and Development Data Base, Gender Equality and Social Institutions in The Gambia, available at http://genderindex.org/sites/default/files/pdfs/GMB.pdf
² ibid
³ Kieran Guilbert, Gambia ban on child marriage could spark backlash, activist fears, Thompson Reuters Foundation, (July 8, 2016), available at http://news.trust.org/item/20160708121927-wamp9
⁴ Girls Not Brides, The Gambia, available at http://www.girlsnotbrides.org/child-marriage/gambia/
⁵ Constitution of the Republic of The Gambia, Art. 33(5), available at http://www1.umn.edu/humanrts/research/gambia-constitution.pdf
⁶ Johanna E. Bond, Culture, Dissent, and the State: The Example of Commonwealth African Marriage Law, (2014 Vol. 14(1)), Yale Human Rights and Development Journal, available at http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1098&context=yhrdlj
⁷ Jacques Lundja, Sexual Rights Initiative, Report on Gambia: 7th Round of the Universal Periodic Review (February 2010), available at http://sexualrightsinitiative.com/wp-content/uploads/Gambia-UPR-7.pdf
⁸ Robert Stibich, Family Law in Some English-Speaking African States, (1969(2)), Journal of Legal Pluralism, available at http://commission-on-legal-pluralism.com/volumes/02/stibich-art.pdf, pages 49-71
⁹ Jones Day, Legal Recognition of Same-Sex Relationships: Gambia, (August 22, 2014), available at http://www.samesexrelationshipguide.com/~/media/files/ssrguide/africa/legal-recognition-of-samesex-relationships–gambia.pdf
¹⁰ Annie Bunting, Benjamin N. Lawrance, and Richard L. Roberts, Marriage by Force?: Contestation over Consent and Coercion in Africa (2016), available at https://books.google.com/books?id=9YBEDAAAQBAJ&pg=PT157&lpg=PT157&dq=customary+law+gambia+puberty+can+get+married&source=bl&ots=
Ls6DypsHq9&sig=QBw1QAfubYGWXAItcHjh2LgtW8A&hl=en&sa=X&ved=0ahUKEwiDy9uw-KvRAhVFhlQKHa6uBugQ6AEIQDAG#v=onepage&q=customary%20law%
20gambia%20puberty%20can%20get%20married&f=false
¹¹ U.S. State Dept. Country Report, The Gambia, (2012) available at https://www.state.gov/j/drl/rls/hrrpt/2012humanrightsreport/index.htm?year=2012&dlid=204123#wrapper
¹² Patrick Idoko, Emmanuel Ogbe, Oley Jallow, and Amaka Ocheke, Burden of intimate partner violence in The Gambia – a cross sectional study of pregnant women, Reprod Health, 12: 34, (2015) available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4405825/
¹³ United Nations Women’s Bureau, National Review Report on The Beijing Declaration and Platform for Action-Beijing Plus 20, The Republic of The Gambia, (June 2014) available at http://www.unwomen.org/~/media/headquarters/attachments/sections/csw/59/national_reviews/gambia_review_
beijing20.ashx
¹⁴ UNICEF, Multiple Indicator Cluster Survey, (2010) available at http://www.gbos.gov.gm/nada/index.php/catalog/14/download/39
¹⁵ The Home Office, Operational Guidance Note: The Gambia, (Jan. 2014), available at http://www.refworld.org/docid/52de60d04.html; U.S. State Department Country Report, The Gambia, (2012) available athttp://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm?year=2012&dlid=204123
¹⁶ The Gambia, Children’s Act 2005
¹⁷ The Gambia, Women’s Act 2010
¹⁸ S. Chant & Touray, GAMCOTRAP Working Paper No. 1, (August 2012) available at http://www.gamcotrap.gm/content/images/stories/documents/Chant_Touray.pdf
¹⁹ The Home Office, Operational Guidance Note: The Gambia, (Jan. 2014), available at http://www.refworld.org/docid/52de60d04.html
²⁰ The Point, Women’s Bureau capacitises police officers on gender-based violence, (July 28, 2016) available at http://thepoint.gm/africa/gambia/article/womens-bureau-capacitises-police-officers-on-gender-based-violence
²¹ Convention on the Elimination of All Forms of Discrimination Against Women, List of issues and questions in relation to the combined fourth and fifth periodic reports of The Gambia, (July 2015), available at http://tbinternet.ohchr.org/Treaties/CEDAW/Shared%20Documents/GMB/INT_CEDAW_NGO_GMB_20893_E.pdf