By Isatou Sarr
Justice I. Janneh of Bundung High Court has rejected a medical examination report that the prosecution sought to tender as evidence as the Female Genital Mutilation (FGM) case resumed Thursday.
It will be recalled that three women are standing trial for performing female circumcision that allegedly resulted in the death of a one-year-old girl.
The ruling followed objections raised by defence counsel, who challenged the admissibility of the document under Section 40 of the Evidence Act.
The State is represented by Counsel W.S. Madu and Counsel W.M.K. Drammeh, while Senior Counsel L.S. Camara, Counsel F.K. Darboe and Counsel J. Jeng appear for the first accused, Fatou Conteh. Counsel F.K. Darboe also represents the second and third accused, Hawa Conteh and Oumie Sawaneh.
The disputed document is a police medical examination report said to have been prepared by Dr. Irma Fonst, initially listed as a prosecution witness.
However, the prosecution later filed notice to call Dr. Stephanie Awa Mendy, Deputy Head of Obstetrics and Gynaecology at Bundung Maternal and Child Hospital, to tender the report. The prosecution cited the fact that Dr. Fonst had completed her assignment in The Gambia and returned to Cuba.
Testifying before the court, Dr. Mendy stated that she stepped in because the maker of the document was no longer within the jurisdiction. She explained that the child had been brought to the hospital already deceased and that a diagnosis of hypovolemic shock secondary to circumcision was made based on medical history and examination. She added that her knowledge of the case derived from discussions led by Dr. Fonst during a morning meeting.
When the prosecution sought to tender the document pursuant to Section 40 of the Evidence Act, defence counsel objected, arguing that the law specifically required testimony from the head of department rather than a deputy. The defence further submitted that there was no evidence explaining the absence of the head of department, no proof of delegation, and no confirmation that the document had been written and signed by Dr. Fonst.
In a detailed ruling, Justice Janneh held that Section 40 of the Evidence Act was clear, specific and mandatory. While acknowledging that notice had been given and that the maker of the document was outside the jurisdiction, the court found that the prosecution failed to meet the strict statutory requirements.
The judge ruled that the witness was not the head of department as required by law and had not established that the document was written and signed by its alleged maker. He further emphasised that relevance alone did not override mandatory statutory safeguards.
The court accordingly upheld the defence objection and rejected the medical examination report, marking it “Rejected 5.”