,,African Commission on
Commission Africaine des Droits
kuman & Peoples' Rights
de l'Hornme et des Peu .pies
Ka iraba Avenue
P.O. Box 673
BANJUL,
The Gambia
Tel: (220) 392962
Fax: (220) 390764
Telex: 2346 OAII BJL GV
ACHPR/PR/GAM/XVI
16TH ORDINARY SESSION
25TH OCTOBER — 3RD NOVEMBER, 1994
BANJUL, THE GAMBIA
PERIODIC REPORT OF GAMBIA
say
.
INTRODUCTION
PHYSICAL FEATURES
The Republic of The Gambia is situated at approximately
thirteen degrees north of the equator. It occupies a narrow 350
k.m. long strip on both banks of the river with a width not
exceeding 50 k.m. and has a territorial expanse of 11,300 square
kilometres. It is bounded on the north, south and east by
Senegal a former French Colony and to the west by the Atlantic
Ocean. The country is divided into five regions, the Western
Division, the North Bank Division, the Lower River Division, the
MacCarthy Island Division and the Upper River Division. Each of
these divisions are headed by Divisional Commissioners,
responsible for the administration of the divisions.
POPULATION
In The Gambia census are taken periodically. The last
census was conducted in April 1993 however a final report of the
1993 census is yet to be published and so far only a provisional
report has been published. The Gambia has a population of
1,025,807 consisting of 514,530, males and 511,337 females.
Compared to the 1983 census figure of 687,817, there has been a
steep and startling increase in the country's population by 49.15
per cent.
It has been suggested by the Central Statistics i::hat apart
from fairly high natural growth rate (2.9 per cent per annum)
large scale influx across the international border giving rise
to a large number of immigrant could be a major cause for the
stupendous increase in population.
THE ECONOMY
The Gambian economy is mainly agrarian and monocultural.
Groundnut is the major cash crop and is produced mainly by men.
The men alone produce cotton for export. Over 8096 of the
population live in the rural area and are engaged in crop
production. Women are mainly engaged in the production of food
crops mostly for consumption such as rice. Vegetables sorghum,
millet and maize.
The Gambian economy is currently being diversified into
animal husbandry, oil seeds production, cotton production,
fisheries and poultry farming with a view to reducing over
reliance on groundnut farming.
2
The tourist industry has become the Gambia's most important
foreign exchange earner. The trade liberalisation policy has
provided a conducive atmosphere for the re-export trade to
thrive, however due to restrictions imposed by neighbouring State
there has been a decline in the re-exporting activities. the
country imports half of its food supplies including the staple
food rice, all of its fuel and capital goods and most other
manufactured goods.
THE POLITICAL SYSTEM
The Gambia is a member of the British Commonwealth since
independence in 1965. The Gambia was until 22nd July, 1994 under
the leadership of Sir Dawda Kairaba Jawara. The Gambia was
proclaimed a Republic in April, 1970 with Sir Dawda Jawara
becoming President. Under the 1970 Republic Constitution, the
tenure of presidential office is fixed to the House of
Representatives, so the general elections are not only for
members of the house but for the President. In July 1994 a
successfully coup d'etat brought into power Lt. Yahya Jammeh who
is Chairman and Head of State of The Armed Forces Ruling
Provisional Council.
The Armed Forces Provisional Ruling Council consists of five
military officers and the Attorney General and Minister of
Justice. There are civilian ministers four of whom are women.
THE LEGAL SYSTEM
The Gambian legal system is modelled on the English Legal
system. The law consists of the Common Law, doctrines of equity
and statute of General Application. In The Gambia, the Sharia
is regarded as Customary Law and is applicable for over 900 of
the population as its personal law. Therefore both English Law
and Sharia are administered contemporaneously The latter is
however restricted to matters like marriage, divorce and
inheritance. With the military takeover, parts of the
Constitution of The Republic of The Gambia 1970 has been
suspended, however chapter 111 of The Constitution which
guarantees civil and political rights is still in force.
As a party to the Charter, The Gambia is obliged under
Article 62 of the Charter to report to the Commission on measures
taken on progress made and on any difficulties encountered in the
discharge of its obligations under the Charter. This initial
report is seeking to discharge that duty.
3
ARTICLE 2 -
ENJOYMENT OF THE RIGHTS AND FREEDOMS
RECOGNISED AND GUARANTEED IN THE CHARTER
AND
ARTICLE 3 -
EQUALITY BEFORE THE LAW
These are secured by sections 13 and 25 of the Constitution.
Section 13 readsFundamental
rights and
freedoms
"Whereas every person in The Gambia is
entitled to the fundamental rights and
freedoms, that is to say, the right,
whatever his race, place of origin,
political opinions, colour, creed or
sex, but subject to respect for the
rights and freedoms of others and for
the public interest, to each and all of
the following, namely (a) life, liberty, security of the
person and the protection of the
law;
of
of
conscience,
(b) freedom
expression and of assembly and
association; and
(c) protection for the privacy of his
home and other property and from
deprivation of property without
compensation, the provisions of
this Chapter shall have effect
for the purpose of affording
protection to those rights and
such
subject
to
freedoms
limitations of that protection as
in
those
are
contained
provisions, being limitations
designed to ensure that the
enjoyment of the said rights and
freedoms by any person does not
prejudice the rights and freedoms
of others or the public
interest".
Section 25 reads
Protection
from discrimination
(1) Subject to the provisions of
subsections (4), (5) and (7) of
this section, no law shall make
is
that
provision
any
discriminatory either or itself
or in its effect.
4
(2) Subject to the provisions of
subsections (6), (7) and (8) of
this section, no person shall be
treated in a discriminatory
manner by any person acting by
virtue of any written law or in
the performance of the functions
of any public office or any
public authority.
(3) In
this
section,
the
expression "discriminatory" means
affording different treatment to
different persons attributable
wholly or mainly to their
respective descriptions by race,
tribe, place or origin, political
opinions, colour or creed whereby
persons or one such description
are subjected to disabilities or
restrictions to which persons of
another such descriptions are not
made subject or are accorded
privileges or advantages which
are not accorded to persons of
another such description.
(1)
of
(4) Subsection
this
section shall not apply to any
law so far as that law makes
provision (a) for the appropriation
of public revenues or
other public funds;
(b) with respect to persons
who are not citizens of
The Gambia;
(c) for the application, in
the case of persons of
any such description as
is
mentioned
in
subsection (3) of this
section (or of persons
connected
with such
persons), of the law
with
respect
to
adoption,
marriage,
divorce,
burial,
devolution of property
on death or other like
matters which is the
personal law of persons
5
of that description;
(d) for the application of
customary
law with
respect to any matter
in the case of persons
who, under that law,
are subject to that
law; or
(e) whereby persons of any
such description as is
mentioned in subsection
(3) of this section may
be subjected to any
disability
o r
restriction or may be
accorded any privilege
or advantage
which
having regard to its
nature and to special
circumstances
pertaining to those
persons or to persons
of any other such
description,
is
reasonably justifiable
in
a
democratic
society.
(5) Nothing contained in any law
shall be held to be inconsistent
with or in contravention of
subsection (1) of this section to
the extent that it makes
provision with respect to
standards or qualifications (not
being standards or qualifications
specifically relating to race,
tribe, place of origin, political
opinions, colour or creed) to be
required of any person who is
appointed to or to act in any
office in the public service, any
office in a disciplined force,
any office in the service of a
local government authority r any
office in a body corporate
established by law for public
purposes.
6
(2)
(6) Subsection
of
this
section shall not apply to
anything which is expressly or by
necessary implication authorised
to be done by any such provision
of law as is referred to in
subsection (4) or subsection (5)
of this section.
(7) Nothing contained in or done
under the authority of any law
shall be held to be inconsistent
with or in contravention of this
section to the extent that the
law in question makes provision
whereby persons of any such
description as is mentioned in
subsection (3) of this section
may
be
subjected
to
any
restriction on the rights and
freedoms guaranteed by sections
19, 21, 22, 23 and 24 of this
being
Constitution
such
a
restriction as is authorised by
section 19(2), section 21(5),
section 22(2), section 23(2) or
paragraph (a) or paragraph (b) of
section 24(3), as the case may
be.
(8) Nothing in subsection (2) of
this section shall affect any
relating
discretion
to
the
institution,
conduct
or
discontinuance of civil or
criminal proceedings in any court
that is vested in any person by
or under this Constitution or any
other law ".
The Constitution provides for men and women to be equal in
law. There is no discrimination in The Gambia based on race,
religion or language. The status of women is improving with
government encouragement through the work of the Women's Bureau
and the National Council for Women, and also through increased
educational opportunities.
Violence against women, usually wife beating is not
uncommon, particularly in rural areas, but there are no accurate
statistics to help determine the extent of the problem. The
Government does not sanction this practice, which is subject to
the provisions of the Criminal Code if brought to the courts.
The police do not normally intervene in domestic disputes, and
women are reluctant to go outside the family for redress.
7
Female circumcision is practiced in The Gambia reinforced
by traditional beliefs. However the Women's Bureau in the Office
of the President conducts an ongoing campaign, to inform women
of the negative effects of circumcision.
ARTICLE 4
-
RIGHT TO LIFE, INVIOLABILITY AND
INTEGRITY OF THE PERSON
The right is secured by sections 14 and 19 of the
Constitution. Section 14 reads "Protection
of right to
life
(1) No person shall be deprived of his life
intentionally save in execution of the
sentence of a court in respect of a criminal
offence under the law of The Gambia of which
he has been convicted.
(2) Without prejudice to any liability for
a contravention of any other law with
respect to the use of force in such cases as
are hereinafter mentioned, a person shall
not be regarded as having been deprived of
his life in contravention of this section if
he dies as the result of the use of force to
such extent as is reasonably justifiable in
the circumstances of the case (a) for the defence of any person
from violence or for the defence
of property;
(b) in order to effect a lawful
arrest or to prevent the escape
of a person lawfully detained;
(c) for the purpose of suppressing a
riot, insurrection or mutiny; or
(d) in
order
to
prevent
the
commission by that person of a
criminal offence, or
(e) if he dies as a result of a
lawful act of war.
8
In The Gambia there has been no reported political killings or
reports of disappearances. There have although in the past been
unsubstantiated reports of the use of excessive force by police
officers. This led to a Government investigation to the
excessive use of force by some police officers leading to the
death of a senegalese national. Three police officers were
subsequently charged with murder and tried. Two of them were
convicted and imprisoned in respect of this incident.
Section 19 reads "Protection
against
arbitrary
search or
entry
(1) Except with his own consent, no person
shall be subjected to the search of his
person or his property or the entry by
others on his premises.
(2) Nothing contained in or done under the
authority of any law shall be held to be
inconsistent with or in contravention of
this section to the extent that the law in
question makes provision (a) that is reasonably required in
the interests of defence, public
safety, public order, public
morality, public health, town and
country planning, the development
and utilisation
of
mineral
resources, or the development or
utilisation of any property for a
purpose
beneficial
to
the
community;
(b) that is reasonably required for
the purpose of protecting the
rights or freedoms of other
persons;
(c) that authorises an officer or
agent of the Government of The
Gambia,
a local
government
authority or a body corporate
established by law for public
purposes to enter on the premises
of any person in order to inspect
those premises or anything
thereon for the purpose of any
tax, rate or due or in order to
carry out work connected with any
property that is lawfully on
those premises and that belongs
to that Government, authority or
body corporate, as the case may
be; or
9
(d) that authorises, for the purpose
of enforcing the judgment or
order of a court in any civil
proceedings, the search of any
person or property by order of a
court or entry upon any premises
by such order,
and except so far as that provision or, as
the case may be, anything done under the
authority thereof is shown not to be
reasonably justifiable in a democratic
society".
ARTICLE 5 -
RIGHT TO THE RESPECT OF THE DIGNITY
INHERENT IN HUMAN BEINGS
This right is secured by sections 16 and 17 of the
Constitution.
Section 16 reads Protection from
slavery and
forced labour
(1) No person shall be held in slavery
or servitude.
(2) No person shall be required to
perform forced labour.
(3) For the purposes of this section,
the expression "forced labour" does not
include (a) any labour required in
consequence of the sentence
or order of a court;
(b) labour required of any
person while he is lawfully
detained that, though not
required in consequence of
the sentence or order of a
court,
is
reasonably
necessary in the interests
of hygiene or for the
maintenance of the place at
which he is detained;
10
(c) any labour required of a
member of a disciplined
force in pursuance of his
duties as such or, in the
case of a person who has
conscientious objections to
service as a member of a
naval,
military or air
force, any labour that that
person is required by law to
perform in place of such
service;
(d) any labour required during
any
of
public
period
emergency or in the event of
any other emergency of
calamity that threatens the
life and well-being of the
community, to the extent
that the requiring of such
reasonably
labour
is
in
the
justifiable
any
circumstances
of
situation arising or
existing during that period
or as a result of that other
emergency or calamity, for
the purpose of dealing with
that situation; or
reasonably
(e) any
labour
of
required
as
part
reasonable and normal
communal or other civil
obligations."
Section 17 reads:Protection
from inhuman
treatment
(1) No person shall be subjected to
torture or inhumane or degrading
punishment or other treatment.
(2) Nothing contained in or done
under the authority of any law
shall be held to be inconsistent
with or in contravention of this
section to the extent that the
law in question authorises the
infliction of any description of
punishment that was lawful in
The Gambia on 23rd April, 1970."
11
The Constitution outlaws torture and mistreatment of
prisoners. However prison conditions are severe and there were
in past years occasional reports of mistreatment of prisoners.
Since the prison reforms of 1988, there have been no further
reports of such incidents. Government allows prison visits of
the local Red Cross and by close family members.
In 1991 there was a report of alleged police brutally
leading to the death of a person in custody. He was suspected
of having committed a crime and is alleged to have been beaten
by the police to extract a confess on from him. Two police
officers have been convicted and imprisoned in respect of this
incident, the first of its kind in the country.
As a result of the recent coup d'etat a number of persons
have been detained under the state security detention of Armed
and Police personnel decree number 3 of 1994. However the decree
provides for a review of the detention order within thirty days.
This decree does not apply to civilians.
ARTICLE 6 - RIGHTS TO LIBERTY AND SECURITY
This right is secured by section 15 of the Constitution.
Section 15 reads:Protection of
right to
personal
liberty
(1) No person shall be deprived of his
personal liberty save as may be
authorised by law in any of the
following cases, that is to say :(a) in execution of the sentence
or order of a court, whether
established for The Gambia
or some other country, in
criminal
respect
of
a
offence of which he has been
convicted;
(b) in execution of the order of
the Supreme Court or the
Court of Appeal punishing
him for contempt of that
court or of another court of
tribunal;
(c) in execution of the order of
a court made to secure the
any
fulfillment
of
obligation imposed on him by
law;
12
(d) for the purpose of bringing
him before a court in
execution of the order of a
court;
(e) upon reasonable suspicion of
his having committed, or
being about to commit, a
criminal offence under law
of The Gambia;
(f) under the order of a court
of with the consent of his
parent or guardian, for his
education or welfare during
any period ending not later
than the date when he
attains the age of eighteen
years;
purpose
of
(g) for
the
preventing the unlawful
entry of that person into
The Gambia, or for the
purpose of effecting the
expulsion, extradition or
other lawful removal of that
person from The Gambia or
for the purpose of
restricting that person
while he is being conveyed
through The Gambia in the
course of his extradition or
removal as a convicted
prisoner from one country to
another; or
(h) to such extent as may be
necessary in the execution
of a lawful order requiring
that person to remain within
a specified area within The
Gambia, or prohibiting him
from being within such an
area, or to such extent as
may
be
reasonably
justifiable for the taking
of proceedings against that
person with a view to the
making of any such order or
relating to such an order
after it has been made, or
to such extent as may be
reasonably justifiable for
13
restraining
that
person
during any visit that he is
permitted to make to any
part of The Gambia in which,
in consequence of any such
order, his presence would
otherwise be unlawful.
(2) Any person who is arrested or detained
shall be informed as soon as reasonably
practicable, in a language that he
understands, of the reasons for his arrest
or detention.
(3) Any person who is arrested or detained
(a) for the purpose of bringing him
before a court in execution of
the order of a court; or
(b) upon reasonable suspicion of his
having committed, or being about
to commit, a criminal offence
under the law of The Gambia;
and who is not released, shall be brought
without undue delay before a court
(4) Where any person is brought before a
court in execution of the order of a court
in any proceedings or upon suspicion of his
having committed or being about to commit an
offence, he shall not be thereafter further
held in custody in connection with those
proceedings or that offence save upon the
order of a court.
(5) If any person arrested or detained as
mentioned in subsection (3) (b) of this
section is not tried within a reasonable
time, then, without prejudice to any further
proceedings that may be brought against him,
he shall be released either unconditionally
or upon reasonable conditions, including in
particular such conditions as are reasonably
necessary to ensure that he appears at a
later date for trial or for proceedings
preliminary to trial.
(6) Any person who is unlawfully arrested
or detained by any other person shall be
entitled to compensation therefore from that
other person or from any other person or
authority on whose behalf that other person
was acting."
14
ARTICLE 7
- RIGHT TO HAVE ONES CAUSE HEARD
This right is secured by sections 20 and 28 of the
Constitution.
Section 20 reads:Provision to
secure
protection
of law
(1) If any person is charged with a
criminal offence, then, unless the charge
is withdrawn, the case shall be afforded
a fair hearing within reasonable time by an
independent and impartial court established
by law.
(2) Every person who is charged with a
criminal offence (a) shall be presumed to be innocent
until he is proved or has pleaded
guilty;
(b) shall be informed as soon as
reasonably practicable, in a
language that he understands and
in detail, of the nature of the
offence charged;
(c) shall be given adequate time and
facilities for the preparation of
his defence;
(d) shall be permitted to defend
himself before the court in
person or, at his own expense, by
a legal representative of his own
choice;
(e) shall be afforded facilities to
examine in person or by his legal
representative
the
witnesses
called by the prosecution before
the court, and to obtain the
attendance and carry out the
examination of witnesses to
testify on his behalf before the
court on the same conditions as
those applying to witnesses
called by the prosecution; and
(f) shall be permitted to have
without payment the assistance of
an interpreter if he cannot
understand the language used at
the trial of the charge,
15
and except with his own consent the trial
shall not take place in his absence unless
he so conducts himself as to render the
continuance of the proceedings in his
presence impracticable and the court has
ordered him to be removed and the trial to
proceed in his absence.
(3) When a person is tried for any criminal
offence, the accused person or any person
authorised by him in that behalf shall if he
so requires and subject to payment of such
reasonable fee as may be prescribed by law,
be given within a reasonable time after
judgment a copy for the use of the accused
person of any record of the proceedings made
by or on behalf of the court.
(4) No person shall be held to be guilty of
a criminal offence on account of any act or
omission that did not, at the time it took
place, constitute such an offence, and no
penalty shall be imposed for any criminal
offence that is severer in degree or
description than the maximum penalty that
might have been imposed for that offence at
the time when it was committed.
(5) No person who shows that he has been
tried by a competent court for a criminal
offence and either convicted or acquitted
shall again be tried for that offence or for
any other criminal offence of which he could
have been convicted at the trial for that
offence, save upon the order of a superior
court in the course of appeal or review
proceedings relating to the conviction or
acquittal.
(6) No person shall be tried for a criminal
offence if he shows that he has been
pardoned for that offence.
(7) No person who is tried for a criminal
offence shall be compelled to given evidence
at the trial.
16
(8) Any court or other adjudicating
authority prescribed by law for the
determination of the existence or extent of
any civil right or obligation shall be
established by law and shall be independent
and impartial; and where proceedings for
such a determination are instituted by any
person before such a court or other
adjudicating authority, the case shall be
given a fair hearing within a reasonable
time.
(9) Except with the agreement of all the
parties thereto, all proceedings for the
determination of the existence or extent of
any civil right or obligations before any
other adjudicating authority , including the
announcement of the decision of the court or
other authority shall be held in public.
(10) Nothing in subsection (9) of this
section shall prevent the court or other
adjudicating authority from excluding from
the proceedings persons other than the
parties thereto and their legal
representatives to such extent as the court
or other authority (a) may by law be empowered to do and
necessary
or
may
consider
expedient in circumstances where
publicity would prejudice the
interests of justice or in
interlocutory proceedings or in
the interests of public morality,
the welfare of persons under the
age of eighteen years or the
protection of the private lives
of persons concerned in the
proceedings; or
(b) may by law be empowered or
required to do in the interests
of defence, public safety or
pubic order.
(11) Nothing contained in or done under the
authority of any law shall be held to be
inconsistent with or in contravention of (a) subsection 2 (a) of this section
to the extent that the law in
question imposes upon any person
charged with a criminal offence
the burden of proving particular
facts;
17
(b) subsection 2 (d) of this section
to the extent that the law in
question
prohibits
legal
representation in proceedings
before a court, by whatever name
called administering customary
law or before another court on
appeal from such a court;
(c) subsection 2(e) of this section
to the extent that the law in
question
imposes
reasonable
conditions that must be satisfied
if witnesses called to testify on
behalf of an accused person and
to be paid their expenses out of
public funds; or
(d) subsection (5) of this section to
the extent that the law in
question authorises a court to
try a member of a disciplined
force for a criminal offence
notwithstanding any trial and
conviction or acquittal of that
member under the disciplinary law
of that force, so, however, that
any court so trying such a member
and convicting him shall in
sentencing him to any punishment
take into account any punishment
awarded
him
under
that
disciplinary law.
(12)In the case of any person who is held
in lawful detention the provisions of
subsection (1), paragraphs (d) and (e) of
subsection (2) and subsection (3) of this
section shall not apply in relation to his
trial for a criminal offence under the law
regulating the discipline of persons held in
such detention.
(13)In this section "criminal offence"
means a criminal offence under the law of
The Gambia."
The regular court system is composed of the Supreme Court
and the Court of Appeal. Courts of first instance include the
Magistrates or District Courts, Customary or Area courts. The
nature of the case usually determines which court has
jurisdiction. In principle Customary and Sharia courts have
jurisdiction only if both plaintiff and defendant agree to it.
Sharia courts are however limited to followers of Islam.
18
Trials in the regular court system are public and respect
constitutionally guaranteed individual rights. These include a
presumption of innocence, the right to be present at a public
trial, to confront witnesses and present evidence and to be
represented by legal counsel. In capital cases, the Government
provides counsel for defendants. Bail is rarely granted to those
charged with murder. Conviction for murder carries with it a
life sentence but provides for appeal from the Supreme Court to
the Court of Appeal.
Death sentences imposed by the courts consequent upon a
murder charge have in practice always been commuted to a
custodial sentence. In 1983 therefore the Government of The
Gambia abolished the death penalty and is looking forward to
becoming a State Party to the U.N. Second Optional Protocol to
the International Convention on Civil and Political Rights.
ARTICLE 8
-
FREEDOM OF CONSCIENCE PROFESSION
FREE PRACTICE OF RELIGION
This right is secured by section 21 of the Constitution.
Section 21 reads:Protection of
freedom of
conscie,,ce
(1) Except with his own consent, no person
shall be hindered in the enjoyment of his
freedom of conscience, including freedom of
thought and of religion, freedom to change
his religion or belief and freedom, either
alone or in community with others, and both
in public and in private, to manifest and
propagate his religion or belief in worship,
teaching, practice and observance.
(2) Except with his own consent (or, if he
is a minor, the consent of his guardian) no
person attending any place of education
shall be required to receive religious
instruction or to take part in or attend any
religious ceremony or observance if that
instruction, ceremony or observance relates
to a religion other than his own.
(3) Every religious community shall be
entitled at its own expense to establish and
maintain places of education and to manage
any place of education which it wholly
maintains; and no such community shall be
providing
religious
from
prevented
instruction for persons of that community in
the course of any education provided at any
places of education which it wholly
maintains in the course of any education
which it otherwise provides.
19
(4) No person shall be compelled to take
any oath which is contrary to his religion
or belief or to take any oath in a manner
which is contrary to his religion or belief.
(5) Nothing contained in or done under the
authority of any law shall be held to be
inconsistent with or in contravention of
this section to the extent that the law in
question makes provision which is reasonably
required -
(a) in the interests of defence,
public safety, public order,
public morality or public health;
or
(b) for the purpose of protecting the
rights and freedoms of other
persons, including the right to
observe and practise any religion
without
the
unsolicited
intervention of members of any
other religion;
and, except so far as that provision or, as
the case may be, the thing done under the
authority thereof is shown not to be
reasonably justifiable in a democratic
society.
(6) References in this section to a
religion shall be construed as including
references to a religious denomination, and
cognate expressions shall be construed
accordingly."
The above provision guaranteeing freedom of religious belief
religious practice and religious education are respected. The
country is predominantly muslim, but other religions are allowed.
There have been no reported cases of discrimination. The
Christian religion is freely practiced. Missionary activity is
permitted, and missionaries are active in several parts of the
country.
Adherence to a particular religion confers no official
benefit/advantage or disadvantage in civil, political economic,
military or other sectors.
Koranic and Christian schools exist alongside the public
school system.
20
ARTICLE 9 - RIGHTS TO RECEIVE INFORMATION AND EXPRESS
AND DISSEMINATE OPINIONS WITHIN THE LAW
The Constitution provides for freedom of speech and
expression. The Government does not attempt to censor published
materials. Whether they originate within or outside the country.
Both the opposition and the independent press are openly
critical of the Government. Criticism of the government is
tolerated to a degree, for example if it is libel, then
Government will intervene. There is also open discussion of
political, social and economic issues.
There is no television in The Gambia, but Senegalese
broadcasts can be received. The Government even though it
dominates the media through Radio Gambia, does not interfere with
the two commercial radio stations, which mainly broadcast music.
Foreign magazines and newspapers are available in the capital and
are not censored. There is however no university in The Gambia,
but a college does exist, where students have formed an
association. The National Union of Gambian students in Sierra
Leone have been active in The Gambia whilst on vacation.
The Constitution provides under section 22 as follows:Protection of
freedom of
expression
(1) Except with his own consent, no
person shall be hindered in the enjoyment
of his freedom of expression, including
freedom
to
hold
opinions
without
interference, freedom to receive ideas and
information without interference, freedom to
communicate ideas and information without
interference (whether the communication be
to the public generally or to any person or
class of persons)
and freedom from
interference with his correspondence.
(2) Nothing contained in or done under the
authority of any law shall be held to be
inconsistent with or in contravention of
this section to the extent that the law in
question makes provision -
(a) that is reasonably required in
the interests of defence, public
safety, public order, public
morality or public health;
21
(b) that is reasonably required for
the purpose of protecting the
reputations rights and freedoms
of other persons or the private
lives of persons concerned in
legal proceedings, preventing the
disclosure
of
information
received in confidence,
maintaining the authority and
independence of the courts or
regulating the technical
administration or the technical
operation
of
telephony,
telegraphy,
posts,
wireless
broadcasting or television; or
(c) that imposes restrictions upon
public officers, and except so
far as the provision or, as the
case may be, the thing done under
the authority thereof is shown
not to be reasonably justifiable
in a democratic society."
The rights is subject to laws relating to libel and
slander/defamation as well as sedition which are designed to
protect the rights and reputations of other persons and communal
peace and harmony.
ARTICLE 10 - RIGHT TO FREE ASSOCIATION
ARTICLE 11 - RIGHT TO ASSEMBLE FREELY
These rights are secured by section 23 of the Constitution:
Section 23 reads:
Protection of
freedom of
assembly
and
association
(1) Except with his own consent, no person
shall be hindered in the enjoyment of his
freedom of assembly and association, that is
to say, his right to assemble freely and
associate with other persons and in
particular to form or belong to trade unions
or other associations for the protection of
his interests.
22
(2) Nothing contained in or done under the
authority of any law shall be held to be
inconsistent with or in contravention of
this section to the extent that the law in
question makes provision -
(a) that is reasonably required in
the interests of defence, public
safety, public order, public
morality or public health;
(b) that is reasonably required for
the purpose of protecting the
rights. or freedoms of other
persons; or
(c) that imposes restrictions upon
public officers, and except so
far as that provision or, as the
case may be, the thing done under
the authority thereof is shown
not to be reasonably justifiable
in a democratic society."
Gambians freely exercise their constitutional rights of
assembly and association. However prior authorisation for public
demonstrations is required in the interests of public safety and
order.
There is no legal compulsion to join any association or
organisation. There is no requirement for registration of
political parties and no prohibition in their formation. Labour
organisations - of employers and employees - are freely
established.
ARTICLE 12 - RIGHT OF FREEDOM OF MOVEMENT
This right is secured by section 24 of the Constitution.
Section 24 reads:"Protection of
freedom of
movement
(1) No person shall be deprived of his
freedom of movement, that is to say, the
right to move freely throughout The Gambia,
the right to reside in any part of The
Gambia and immunity from expulsion from The
Gambia.
(2) Any restriction on a person's freedom
of movement that is involved in his lawful
detention shall not be held to be
inconsistent with or in contravention of
this section.
23
(3) Nothing contained in or done under the
authority of any law shall be held to be
inconsistent with or in contravention of
his section to the extent that the law in
question makes provision (a) for
the
imposition
of
restrictions on the movement or
residence within The Gambia of
any person or on any person's
right to leave The Gambia that
are reasonably required in the
interests of defence, public
safety or public order;
(b) for
the
imposition
of
restrictions on the movement or
residence within The Gambia or on
the right to leave The Gambia of
persons generally or any class of
persons in the interests of
defence, public safety, public
order, public morality or public
health and except so far as that
provision or, as the case may be,
the
thing done under the
authority thereof is shown not to
be reasonably justifiable in a
democratic society;
(c) for
the
imposition
of
restriction, by
order of a
on the movement or
court,
residence within The Gambia of
any person or on any person's
right to leave The Gambia either
in consequence of his having been
found guilty of a criminal
offence under the law of The
Gambia or for the purpose of
ensuring that he appears before a
court at a later date for trial
of such a criminal offence or for
proceedings preliminary to trial
or for proceedings relating to
his extradition or lawful removal
from The Gambia;
of
(d) for
the
imposition
restrictions on the freedom of
movement of any person who is not
a citizen of The Gambia;
24
imposition
of
(e) for
the
restrictions on the acquisition
or use by any person of land or
other property in The Gambia;
(f) for
imposition
of
the
restrictions upon the movement or
residence within The Gambia or on
the right to leave The Gambia of
any public officer;
(g) for the removal of a person from
The Gambia to be tried or
punished in some other country
for a criminal offence under the
law of that other country or to
undergo imprisonment in some
other country in execution of the
sentence of a court in respect of
a criminal offence under the law
of The Gambia of which he has
been convicted; or
imposition
of
(h) for
the
restrictions on the right of any
person to leave The Gambia that
are reasonably required in order
to secure the fulfillment of any
obligations imposed on that
person by law and except so far
as that provision or as the case
may be, the thing done under the
authority thereof is shown not to
be reasonably justifiable in a
democratic society.
(4) If any person whose freedoms of
movement has been restricted by virtue of
such a provision as is referred to in
subsection (3) (a) of this section so
requests at any time during the period of
that restriction not earlier than three
months after the order was made or three
months after he last made such a request, as
the case may be, his case shall be reviewed
by an independent and impartial tribunal
presided over by a person appointed by the
Chief Justice from among persons who are
entitled to practice as a barrister or a
solicitor in The Gambia.
25
(5) On any review by a tribunal in
pursuance of subsection (4) of this section
of the case of any person whose freedom of
movement has been restricted, the tribunal
may make recommendations concerning the
necessity or expediency of the continuation
of that restriction to the authority by whom
it was ordered:
Provided that authority, unless it is
otherwise provided by law, shall not be
obliged to act in accordance with any
such recommendations."
Article 12 however goes further than our section 24 in
relation to the right to leave any country including one's own.
This is not provided for.
The Constitution entitles its citizens to move freely
throughout The Gambia, reside in The Gambia and immunity from
expulsion.
Gambians travel abroad in large numbers and many study
Some have even emigrated and settled abroad and
overseas.
The Gambia does not however
acquired other nationality.
recognise dual: nationality.
The Gambia permits temporary refuge for refugees. In 1990
a small number of refugees from Liberia settled in The Gambia.
There is no local legislation relating to the right of
asylum and to refugees but The Gambia is party to all the major
international, instruments relating to refugees - both U.N. and
OAU - and has scrupulously been observing them.
Infact The Gambia maintains an open-door policy with regard
to immigration which accounts for the large number of nationals
from the countries in the subregion within The Gambia.
ARTICLE 13 - RIGHT TO PARTICIPATE FREELY IN THE
GOVERNMENT OF ONE'S COUNTRY
There are provisions for this right in our Elections Act,
Presidential Elections act and the Constitution.
The Gambia is also a party to the Civil and Political Rights
Covenant.
26
In The Gambia citizens have the right to change their
governments through peaceful means. The President and Members
of Parliament from various constituencies are popularly elected.
Since independence in 1965 Presidential and Parliamentary
elections are held regularly every five years. The President as
head of the executive is elected by universal adult suffrage.
Citizens must be at least 18 years of age to vote. During each
election opposition parties participate in free and fair
elections, under which not only the right to vote is guaranteed,
but balloting is in secrecy and maximum security is guaranteed
for people to vote freely.
Gambian politics however have been male dominated, though
women face no legal impediments to political participation of
voting. However financial limitations and traditional familial
obligations are serious hurdles to increase participation of
women in Gambian politics.
The Constitution provides for government through an
Executive President who is directly elected on the basis of
universal adult suffrage every five years. The legislature, from
whom other members of the executive are also drawn is also
directly elected on the basis of universal adult suffrage.
For the purpose of these elections the country is divided
into thirty-six constituencies each of which elects one member
of the House of Representatives.
In both elections the Constitution and the Elections Act
provide that every Gambian of 21 years of age who is not subject
to certain legal disqualifications is entitled to vote and
contest elections as a candidate.
The law also provides for the participation of all citizens
in referenda which are called to decide specific political
issues.
These provisions have been strictly adhered to since
independence in 1965 with elections being regularly held every
five years freely and fairly involving the participation of
opposition political parties which have always been represented
in the House of Representatives. The Constitution and all Acts
dealing with the election process have been suspended by the
military.
27
ARTICLE 14 - RIGHT TO PROPERTY
This right is secured by section 18 of the Constitution.
Section 18 reads:
"Protection
from deprivation of
property
(1) No property of any description shall be
taken possession of compulsorily and no
right over or interest in any such property
shall be acquired compulsorily in any part
of The Gambia except by or under the
provisions of a law that (a) requires the payment of adequate
compensation therefore; and
(b) gives to any person claiming such
compensation a right of access,
for the determination of his
interest in the property and the
amount of compensation, to the
Supreme Court.
(2) Nothing contained in or done under the
authority of any law shall be held to be
inconsistent with or in contravention of
subsection (1) of this section (a) to the extent that the law in
question makes provision for the
taking of possession or
acquisition of any property,
interest or rights (i)
in satisfaction of any
tax, rate or due;
(ii)
by way of penalty for
breach of the law,
whether under civil
process
or
after
conviction of a
criminal offence under
the law of The Gambia;
(iii)
as an incident of a
lease,
tenancy
mortgage, charge, bill
of sale, pledge or
contract;
28
(iv)
in the execution of
judgments or orders of
a court in proceedings
for the determination
of civil rights or
obligations;
(v)
in circumstances where
it is reasonably
necessary so to do
because the property is
in a dangerous state or
injurious to the health
of human beings,
animals or plants;
(vi)
in consequence of any
law with respect to the
limitation of actions;
or
(vii)
for so long as may be
for
the
necessary
of
any
purposes
examination,
investigation, trial or
inquiry or, in the case
of land, for the
purposes of the
carrying out thereon of
w o r k o f soil
conservation or the
conservation of other
natural resources or
work relating to
agricultural
development or
improvement (being work
relating
such
to
development or
improvement that the
owner or occupier of
the land has been
required and has
without
reasonable
excuse
refused
or
failed to carry out),
29
and except so far as
that provision or as
the case may be, the
thing done under the
authority thereof is
shown not to be
reasonably justifiable
in a democratic
society; or
(b) to the extent that the law
in question makes provision
for the taking of possession
or acquisition of any of the
following property
(including an interest in or
a right over property) that
is to say:(i)
enemy property;
(ii)
property
of
a
deceased person, a
person of unsound
mind or a person
who
has
not
attained the age
of eighteen years
for the purpose of
its administration
for the benefit of
the
persons
entitled to the
beneficial
interest therein;
(iii)
property
of
a
person
adjudged
bankrupt or a body
corporate in
for
liquidation,
the purpose of its
administration
for the benefit of
the creditors of
the bankrupt or
body
corporate
and,
subject
thereto for the
benefit of other
persons entitled
to the beneficial
interest in the
property; or
30
(iv)
property subject
to a trust for the
purpose of vesting
the property in
persons appointed
as trustees under
the instrument
creating the trust
or by a court or,
by order of a
court for the
purpose of giving
effect to the
trust.
(3) Nothing contained in or done under the
authority of any Act of Parliament shall be
held to be inconsistent with or in
contravention of this section to the extent
that the Act in question makes provision for
the compulsory acquisition of any interest
in or right over property where that
property, interest or right is held by a
body corporate established by law for public
purposes in which no moneys have been
invested other than moneys T:rovided by
Parliament.
(4) The provisions of this section shall
apply in relation to the compulsory caking
of possession of property of any description
and the compulsory acquisition of rights
over and interests in such property by or on
behalf of the Republic."
ARTICLE 15 - RIGHT TO WORK UNDER EQUITABLE AND
SATISFACTORY CONDITIONS
This right is secured under our non-discrimination clauses,
section 25 of the Constitution (supra).
ARTICLE 16 - RIGHT TO ENJOY THE BEST ATTAINABLE
SATISFACTORY CONDITIONS
ARTICLE 17 -
RIGHT TO EDUCATION
ARTICLE 18 -
THE FAMILY AS THE NATURAL UNIT
AND BASIS OF SOCIETY
ARTICLE 19 -
EQUALITY OF PEOPLES
ARTICLE 20 -
RIGHT TO SELF DETERMINATION
31
ARTICLE 21AND 22
RIGHT TO DEVELOPMENT
The Gambia has no specific legislation on the above
articles. Articles 16 - 22 of the Charter. The Gambia is
however a party to the Social and Economic Rights Covenant and
Government's entire policy is geared towards seeking for the
generality of the population those socio-economic rights set out
in the Covenant and Charter. For example, the thrust of
Government's new Ten Year Education Policy adopted in 1991 is to
democratise education and make it available to the vast majority.
Education and health attract a large proportion of public
investment.
Women continue to be in a disadvantaged position essentially
not because of any legal impediments but because their status
continues to be influenced largely by tradition. The low level
of female in-take in the school system (one-third in primary and
one-fourth in secondary schools) is now rising.
In order to enable it address the status of women, the
obstacles to their equality and thus be able to ensure their full
and active participation in the life of the nation, the
Government has by law created a National Women's Council to
advis it on all matters relating to the status of women. The
Council is serviced by a secretariat styled and Women's Bureau.
In addition a Multi-Sectoral Working Group on Girls
Education has been recently established under the Ministry of
Education. Because of the high priority presently given to
female education the working group is chaired by the Chief
Education Officer, who incidently is a woman. The working group
also comprises representatives of government, bi-lateral and
multi-lateral agencies, non-governmental organisations, the media
and the business sector.
The Gambia is also party to both the UN Convention on the
Rights of the Child and the African Charter on the Child. It has
also been implementing an immunisation programme designed to
enhance child and maternal health. The provisions of the
Maintenance of Children Act and the Children and Young Persons
Act also cater for the maintenance of children by
parents/guardians and for the humane treatment of children and
young persons by the judicial system.
The rights of the family are of great importance in The
Gambia's conservation of Muslim society. Marriage, the raising
of children and religious instructions regulated by a combination
of personal preferences and ethnic and religious tradition. The
Government does not normally intrude in family matters. Family
Planning is encouraged, but has not yet been enforced.
32
ARTICLE 23
-
PEOPLE'S RIGHT TO NATIONAL AND
INTERNATIONAL PEACE AND SECURITY
Government has been legislating to ensure that people do
not disrupt by their conduct, national peace and tranquility and
to make sure that peace and tranquility is maintained between The
Gambia and other countries. In fact The Gambia being a party to
the Organisation of African Unity Charter, and that of the United
Nations, has over the years been working towards international
and national peace and security in accordance with the principles
of solidarity and friendly relations as affirmed by the abovementioned Charters.
Chapter VIII of the Criminal Code makes it criminal for any
person to engage from within The Gambia in activities that can
adversely affect relations of peace and tranquility between The
Gambia and other friendly States.
Chapter VIII was amended in 1991 as follows:"Subversion
against
foreign
States
59A (1) Any person who, in relation to any
friendly State -
endeavours
to
or
(a) prepares
overthrow the Government by
unlawful means;
(b) prepares or endeavours to procure
by force any alteration of the
of
the
policies
law
or
Government;
(c) prepares or endeavours to carry
out by force any enterprise which
usurps the executive power of the
State in any matter of both a
public and a general nature;
(d) incites or assists or procures
any person to invade such States
with an armed force or unlawfully
to subject any part of the State
to attack by land, sea or air or
assists in the preparation of any
such invasion or attack;
33
ARTICLE 26
RIGHT TO AN INDEPENDENT JUDICIARY
Section 88 -
Establishment
of Court of
Appeal
(1) There shall be a Court of Appeal which
shall have such jurisdiction and powers as
may be conferred on it by this Constitution
or any other law.
(2) The Judges of the Court of Appeal shall
be (a) the President of the Court;
(b) such number, if any, of other
Judge (hereinafter referred to as
"Justices
of
Appeal"
which
expression
shall where the
context allows include the
President of the Court) as may be
prescribed by Parliament:
Pro,
:ided that the office of
a Ju -Ige of the Court of Appeal
shall not be abolished while
there is a substantive holder
thereof: and
(c) the Chief Justice and other
Judges of the Supreme Court ex
officio.
(3) The Court of Appeal shall be a superior
court of record and, save as otherwise
provided by Parliament, shall have all the
powers of such a court.
(4) When the Court of Appeal is determining
any matter, other than an interlocutory
matter, it shall be composed of an uneven
number of Judges, not being less than three.
Section 89 Establishment of
Supreme
Court
(1) There shall be a Supreme Court which
shall have unlimited original jurisdiction
to hear and determine any civil or criminal
proceedings under any law and such
jurisdiction and powers as may be conferred
on it by this Constitution or any other law.
34
(2) The judges of the Supreme Court shall
be the Chief Justice and such number, if
any, of other judges (hereinafter referred
to as "Puisne Judges") as may be prescribed
by Parliament.
Provided that the office of a Puisne
Judge shall not be abolished while there is
a substantive holder thereof.
(3) The Supreme Court shall be a superior
court of record and, save as otherwise
provided by Parliament, shall have all the
powers of such a court.
(4) The Supreme Court shall sit in such
places as the Chief Justice may appoint.
Section 90 Appointment of
Judges of
the Court
of Appeal
and Supreme
court
(1) The President of the Court of Appeal
and the Chief Justice shall be appointed
by the President.
(2) The Justices of Appeal and lie Puisne
Judges shall be appointed by the President,
acting in accordance with the advice of the
,-)-Jrlicial Service Commission.
(a) A person shall not be qualified
as a Justice of Appal or as a
Judge of the Supreme Court unless
(i)
he holds or has held
office as a Judge of a
court having unlimited
jurisdiction, in civil
and criminal matters in
some part of the
Commonwealth or in any
country outside the
Commonwealth that may
be prescribed by
Parliament or a court
having jurisdiction, in
appeals from such a
court; or
35
(ii)
he holds one of the
specified
qualifications and has
held one or other of
those qualifications
for a total period of
not less than seven
years.
(b) In this subsection "the specified
means
the
qualifications"
professional qualifications
specified under the Courts (or by
or und-.r any law amending or
replacing that Act) one of which
must be held by any person before
he may apply under that Act (or
under any such law) to be
admitted to practise as a legal
practitioner in The Gambia.
(4) If the office of the President of the
Court of Appeal is vacant or the President
of the Court of Appeal is for any reason
unable to exercise the functions of his
office, then, until a person has been
appointed to and has assumed the functions
of that office or until the person holding
that office has resumed those functions, as
the case may be, they shall be exercised by
such one of the other Judges of the Court
as may for the time being be designated ir
that behalf by the President.
(5) If the office of Chief Justice is
vacant or the Chief Justice is for any
reason unable to exercise the functions of
his office, then, until a person has been
appointed to and has assumed the functions
of that office or until the person holding
that office has resumed those functions, as
the case may be, they shall be exercised by
such one of the Justices of Appeal or the
Puisne Judges or such other person qualified
to be appointed as a Judge of the Supreme
Court as the President may appoint:
36
Provided that (a) a person may be appointed under
subsections (4) or (5) of this section
notwithstanding that he has attained
the age prescribed for the purposes of
section 91 (1) of this Constitution:
and
(b) a person appointed under subsections
(4) and (5) of this section may,
notwithstanding the assumption or
resumption of the functions of the
office of the President of the Court of
Appeal or the office of Chief Justice,
as the case may be, by the holder of
that office, continue to act as
President of the Court of Appeal or
Chief Justice, as the case may be, for
so long thereafter and to such extent
as may be necessary to enable him to
deliver judgment or to do any other
thing in relation to proceedings that
were commenced before him previously
thereto.
If the office of any Justice of Appeal is
vacant or if any Justice of Appeal is appointed
to act as President of the Court of Appeal or is
for any reason unable to perform the functions of
his office or if the President of the Court of
Appeal advises that the state of business of the
Court of Appeal so requires, the President,
acting in accordance with the advice of the
Judicial Service Commission, may appoint a person
qualified for appointment as a Justice of Appeal
to act as a Justice of Appeal.
(7) If the office of any Puisne Judge is vacant
or if any such Judge is appointed to act as Chief
Justice or is for any reason unable to perform
the functions of his office or if the Chief
Justice advises the President that the state of
business in the Supreme Court so requires, the
President acting in accordance with the advice of
the Judicial Service Commission, may appoint a
person who is qualified to be appointed as a
Judge of the Supreme Court to act as a Puisne
Judge of that Court:
Provided that a person may act as a Justice
of Appeal or as a Puisne Judge under subsections
(6) or (7) of this section, notwithstanding that
he has attained the age prescribed for the
purposes of section 91(1) of this Constitution.
37
(8) Any person appointed under subsections (6)
or (7) of this section to act as a Justice of
Appeal or as a Puisne Judge, as the case may be,
shall, subject to the provisions of section 91(4)
of this Constitution, continue to act for the
period of his appointment or, if no such period
is specified, until his appointment is revoked by
the President, acting in accordance with the
advice of the Judicial Service Commission.
Provided
that,
notwithstanding
the
expiration of the period of his appointment or
the revocation of his appointment, he may
thereafter continue to act a Justice of Appeal or
as a Puisne Judge, as the case may be, for so
long as may be necessary to enable him to deliver
judgment or to do any other thing in relation to
proceedings that were commenced before him
previously thereto.
Section 91 Tenure of
office of
Judges of
the Court
of Appeal
and Supreme
Court
(1) Subject to the provisions of this
section, a person holding the office of
a Judge of the Supreme Court shall vacate
that office when he attains the prescribed
age.
(2) Notwithstanding that he has attained
the age prescribed for the purposes of
subsection (1) of this section, a person
holding the office of a Justice of Appeal or
the office of a Judge of the Supreme Court
may continue in office for so long after
attaining that age as may be necessary to
enable him to deliver judgment or to do any
other thing in relation to proceedings that
were commenced before him before he attained
that age.
(3) A person holding the office of Justice
of Appeal or judge of the Supreme Court may
be removed from office only for inability to
exercise the functions of his office
(whether arising from infirmity of body or
mind or any other cause) or for misbehaviour
and shall not be so removed except in
accordance with the provisions of this
section.
38
(4) A Justice of Appeal of a judge of the
Supreme Court may be removed from his office
if notice in writing is given to the
Speaker, signed by not less than one-third
of all the voting members of the House of
Representatives, of a motion alleging that
a Justice of Appeal or a judge of the
Supreme Court, as the case may be, is unable
to exercise the functions of his office
(whether arising form infirmity of body or
mind or any other cause) and proposing that
the matter should be investigated under this
subsection.
motion
under
(b) Where
a
subsection 4(a) of this
section is proposed for
consideration by the House
of
Representatives,
the
House shall not debate the
motion but
the person
presiding in the House shall
forthwith cause a vote to be
taken on the motion, and, if
the motion is supported by
the votes of not less than
two-thirds of all the voting
members of the House
declare tie motion co be
passed.
(c) If a motion is declared to
be passed under subsection
4(b) of this section (i)
the House shall,
resolution,
by
appoint a tribunal
which
shall
consist of a
Chairman and not
less than two
other members, one
of whom shall hold
or shall have held
high judicial
office;
39
(ii)
the tribunal shall
investigate
the
matter and shall
report
to
the
Speaker of the
H ouse
o f
Representatives on
the facts thereof;
(iii)
the
Justice
of
Appeal or judge of
the Supreme Court
whose inability to
exercise the
functions of his
office is under
i n
e nquiry
with
accordance
the provisions of
this subsection,
shall have the
right to appear
a n d t o b e
represented before
the
tribunal
t h e
d uring
investigation by
the tribunal of
the facts of the
case;
( iv)
the House shall
consider
the
report of the
tribunal at the
first convenient
sitting of the
House after the
report is received
and may, on a
motion supported
by the votes of
not less than twothirds of all the
voting members of
the House, resolve
that the aforesaid
Justice of Appeal
or judge of the
Supreme Court be
removed from
office and if the
House so resolves,
he shall thereupon
cease to hold
office.
40
(d) If the question of removing
a Justice of Appeal or judge
of the Supreme Court from
office has been referred to
a tribunal under this
subsection, the House of
Representatives may by
resolution, suspend that
Justice of Appeal or judge
of the Supreme Court, as the
case may be, from performing
the functions of his office
and any such suspension may
at any time be revoked by
the House by resolution and
shall, in any case cease to
have effect if, upon
consideration of the report
of the tribunal in
with
the
accordance
provisions of this
subsection, the House does
not remove such Justice of
Appeal or judge of the
Supreme Court from office.
(5) The prescribed age for the purposes of
subsection (1\0 of this section is the age of
sixty-five years in the case of a Justice of
Appeal and sixty-two years in the case of a judge
of the Supreme Court, or such other age as may be
prescribed by Parliament;
Provided that an Act of Parliament, to the
extent to which it alters the prescribed age
after the appointment of a person to be a Justice
of Appeal or a judge of the Supreme Court shall
not have effect in relation to that person unless
he consents that it should have effect."
The Constitution also vests exclusive jurisdiction for the
interpretation of the Constitution on the Supreme Court.
Section 93
"Reference
to Supreme
court in
cases
involving
interpretation of
Constitution
(1) Where any questions as to the interpretation
of this Constitution arises in any proceedings in
any subordinate court and the court is of the
opinion that the question involves a substantial
question of law, the court may, and shall if any
party to the proceedings so requests, refer the
question to the Supreme Court.
41
(2) Where any question is referred to the
Supreme Court in pursuance of this section, the
Supreme Court shall give its decision upon the
question and the court in which the question
arose shall dispose of the case in accordance
with that decision or, if that decision is the
subject of an appeal under section 98 of this
Constitution to the Court of Appeal or the
Judicial Committee in accordance with the
decision of the Court of Appeal or, as the case
may be, the Judicial Committee."
In the matter of human rights the Supreme Court is also
given an entrenched jurisdiction to decide on all questions
relating to human rights and to make the necessary orders for the
enforcement of those fundamental rights and freedoms guaranteed
under the Constitution. Section 28 of the Constitution provides
for this purpose as follows (1) If any person alleges that any of the
provisions of sections 13 to 27 (inclusive) of
this Constitution has been, is being or is likely
to be contravened in relation to him (or, in the
case of a person who is detained, if any other
person alleges such a contravention in relation
to the detained person), then, without prejudice
to any other action with respect to the same
matter which is lawfully available, that person
(or that other person) may apply to the Supreme
Court for redress.
(2) The Supreme Court shall have original
jurisdiction (a) to hear and determine any application
made by any person in pursuance of
subsection (1) of this section; and
(b) to determine any question arising in
the case of any person which is
referred to it in pursuance of
subsection (3) of this section;
and may make such orders, issue such writs and
give such directions as it may consider
appropriate for the purpose of enforcing or
securing the enforcement (inclusive) of this
Constitution:
Provided that the Supreme Court may
decline to exercise its powers under
this subsection, if it is satisfied
that adequate means of redress for the
contravention alleged are or have been
available to the person concerned under
any other law.
42
(3) If in any proceedings in any subordinate
court any question arises as to the contravention
of any of the provisions of sections 13 to 27
(inclusive) of this Constitution, the person
presiding in that court may, and shall if any
party to the proceedings so requests, refer the
question to the Supreme Court unless, in his
opinion the raising of the question is merely
frivolous or vexations.
(4) Where any question is referred to the
Supreme Court in pursuance of subsection (3) of
this section, the Supreme Court shall give its
decision upon the question and the court in which
the question aros shall dispose of the case in
accordance with that decision or, if that
decision is the subject of an appeal under
section 95 of this Constitution to the Court of
Appeal or to the Judicial Committee, in
accordance with the decision of the Court of
Appeal or, as the case may be, of the Judicial
Committee.
(5) Parliament may confer upon the Supreme Court
such powers in addition to those conferred by
this section as may appear to be necessary or
desirable for the purpose of enabling that court
more effectively to exercise the jurisdiction
conferred upon it by this section.
(6) The Chief Justice may make rules with
respect to the practice and procedure or the
Supreme Court in relation to the jurisdiction and
powers conferred on it by or under this s.--:cion
(including rules with respect to the time
which applications may be brought and references
shall be made to the Supreme Court)."