REPORT OF THE GAMBIA IN ACCORDANCE WITH ARTICLE 62
OF THE AFRICAN CHARTER ON HUMAN AND PEOPLES RIGHTS
INTRODUCTION
The Gambia is an anglophone country and has an estimated
population of 784,000 consisting mainly of subsistence farmers
growing rice and groundnuts, the country's primary export crop.
The Gambia is a secular state even though its population is
overwhelmingly Muslim and rural, with 85 per cent living in
the villages. The Gambia has a functioning multi-party system,
with no restriction whatsoever on the fOrmation of political
parties.
The Gambia became independent in 1965 under the leadership of President Jawara, who still remains the President.
Campaigns for elections are held every five years, and have
so been held since independence. Campaigns have always been
vigorous,active and open to all parties. The President,
head of the executive branch is directly elected on the basis
of universal adult suffrage for a five year term. Legislative
authority is vested in a unicameral legislature whose membership
has always included the opposition.
Separation of powers is
strictly adherered to in The Gambia, with the executive,
legislative and judiciary all independent of each other. The
legal system is modelled mainly on the English one but with the
application of the Sharia (Islamic), the Common (General) and
the Customary laws of the people.
The Gambia became a party to the African Charter on Human and
Peoples Rights on the 8th day of June 1983. The provisions of
the Charter are binding on the States that have ratified it.
The rights they recognise are expected to be law in those States.
In The Gambia the rights on the Charter are provided for either
specifically by law or administratively. All persons living in
The Gambia or who are subject to The Gambia's jurisdiction,
therefore, enjoy the rights guaranteed in the Charter without
distinction as to race, colour, sex, language, religion, political
or other opinion, national or social origin, property, birth or
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other status. Generally civil and political rights are
legislatively guaranteed under Chapter 3 of the Constitution.
This chapter which is entrenched i.e. its repeal or amendment
requires not only the approval of Parliament but also the
consent of the majority of citizens expressed through a free
and fair referendum provides for all the civil and political
rights which are recognised under the major international
instruments.
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.
ARTICLE 2 - ENJOYMENT OF THE RIGHTS AND FREEDOMS
RECOGNISED AND GUARANTEED IN THE CHARTER
AND ARTICLE 3 - EQUALITY BEFORE THE LAW
These are secured bysections 13 and 25 of the Constitution.
Section 13 ree3s
Fundamental
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
opinicns, 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;
(b)freedom of conscience, of
expression and ofasseMbly and
association; and
(c) protection for the privacy of
his home and other property and
from deprivation of property
without compensation,
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the provisions of this Chapter shall have
effect for the purpose of affording
protection to those rights and freedoms
subject to such limitations of that
protection as are contained in those
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 any provision that is
discriminatory either of itself or in its
effect.
(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 of origin,
political opinions, colour or creed whereby
persons of 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.
(4) Subsection (1) of 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 adpption,
marriage, divorce, burial, devolution
of property on death or other like
matters which is the personal law
of persons of that description;
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(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 or
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 specirically 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 or any office in a body
corporate established by law for public purposes
(6) Subsection (2) of this section shall
not apply to anything which is expressely 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
th• 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 Constituticn being such a restricttion 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.
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(8) Nothing in subsection (2) of this
section shall affect any discretion relating
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."
'freanstituticn provki3.3fermEriErdw7mn tole e4zd 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.
Female circumcision is practised 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, INVIOLTBILITY AND
INTEGRITY OF THE PERSON
This 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 if he dies as the result of a lawful act of
warf
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 recently to Government investigation
to the excessive use of force by some police officers leading to
the death of a Senegalese national, The case is still before the
Supreme Court.
Section 19 reads "Protection against
arbitrary search
or entry.
(1) Except with his own consent, no
person shall hie 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
(d) that authorises, for the purpose
of enforcing the judgement or
order of a court in any civil
proceedings, the search of any
person or irccerty 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".
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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: Pretection 2rom
slavery and
forced labour
(1) No person shall be held in
slavery or servitude.
(2) No person shall be required to
perform forded 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;
(c) any labour retired 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
period of public emergency or it
the event of any other emergency or
calamity that threaa- mns the life
and well-being of the community, to
tent that the requiring of
such labour is reasonably justifiable
in the circustances of any 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
(a)
any labour reasonably required
as part of reasonable and normal
communal or other civil obligations."
Section 17 readsProtection
from
inhuman
treatment.
(1) No person shall be subjected to
torture or inhuman 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."
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
brutality 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
confession from him. Two police officers have been
convicted and imprisoned in respect of this incident,
the first of its kind in the country.
ARTICLE 6 - RIGHT TO LIBERTY AND SECURITY
This right is secured by section 15 of the
Constitution.
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Section 15 reads:Protection of
right to
personal
liberty.
(1) No person shall be deprived of
his 7ersonal 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 estali,
lishod for The Gambia or some
other country, in respect of a
criminal offence of which he has
been convicted;
(b) in execution of the order of the
Supreme Court or the Court of
Arceal punishing him for contempt
of that court or of another court
or tribunal;
(c) in execution of the order of a
court made to secure the fulfilment
of any obligation imposed on him
by law;
(d) for the nurpose of bringing him
before a court in execution of the
order of a court;
(e) upon reasonable suscicion of his
having committed,or being about
to commit, a criminal offence under
law of The Gambia;
(f) under the order of a court or 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;
(g) for tho purpose of preventng 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 convicteci
prisoner from one country to another;
or
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(j) 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 e. easonably justifiable for
the takin, 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 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) ing 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 _day 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 to 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
creliminary to tril
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(6)
Any person who is unlawfully
arrested or detained by any other person
shall be entitled to compensation therefor
from that other person or from any other
person or authority on whose behalf that
other person was acting."
ARTICLE 7 - RIGHT TO HAVE ONES CAUSE HEARD
This right is secured by sections 20 and 28 of the
Constitution.
Section 20 reads:Provisions 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;
shall be informed as soon as
reasonably practicable, in a language
that he understands and in detail,
of the nature of the offence charged;
shall be given adequate time and
facilities for the preparation of
his defence;
(d) shall be :ermitted 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
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(f) shall be permitted to have without
leyment the assistance of an interpreter if he cannot understand the
language used at the trial of the
charge,
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 crder
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
give evidence at the trial.
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(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 obligation 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 he empowered to do
and may consider necessary or
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 public order,
(11) Nothing contained in or done under
the authority of any law shall be held tc 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;
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(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 lag cr 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.";
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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.
Trials in the regular court system are public
and respect constitutionally guaranteed individual rights.
Those 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 denied to those
charged with murder. Conviction for murder carries
with it the death sentence, but provides for appeal from
the Supreme Court to the Court of Appeal.
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(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
expressions shall be construed
accordingly?
Tike above provision guaranteeing freedom of religious
belief religiou.spractice and religinus-education are respectedThe country is wadosainantly muslim, but other religions are
allowed. There have been no reported cases of discrimination
The Christian religion is freely practised. Missionary
activity is permitted, and missionaries are active in several
parts pf 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.
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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
conscience,
(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 •nm 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
prevented from providing religious instruction
for persons of that community in the course
of any education provided at any places of
education which it wholly maintains or in
the course of any education which it other-.
wise provides.
(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
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ARTICLE 9 - RIGHT 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 trn 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 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 -
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(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 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 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."
The right 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
Constitutions
Section 23 reads:
Protection of
(1) Except with his own consent, no
freedom of
person shall be hindered in the enjoyment of
assembly and
his freedom of assembly and association,
association.
that is to say, his right to assemble freely
and associ'te with other persons and in
particular to form or belong to trade unions
or other associations for the protection of
his interests.
(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 -
21
(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 ether 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,
(I) 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.
(3) 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) 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 court, on the movement or
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;
(d) for the imposition of restrictions on
the freedom of movement of any person
who is not a citizen of The Gambia;
(e) for the imposition of restrictions on
the acquisition or use by any person
of land or other property in The Gambia;
(f) for the imposition of restrictions upon
tho 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
(h) for the imposition of restrictions
on the right of any person tc leave
The Gambia that are reasonably
required in order to secure the
fulfilment 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.
(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
overseas. Some have even emigrated and settled abroad and
acquired other nationality. The Gambia does not however
recognise dual nationality.
24
The Gambia permits temporary refu;a 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.
Infect 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.
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 myst 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 or voting. However financial limitations
and traditional familial obligations are serious hurdles
to increased participation of women in Gambian politics.
25
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.
TRTICLE 14 - RIGHT TO PROPERTY
This right is secured by section 13 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) recruires the payment of adequate
compensation therefor: and
26
(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 hald 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;
(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 only as may be
necessary for the purposes of
any examination, investigation,
trial or inquiry or, in the case
of land, for the purposes of the
carrying out thereon of work of
soil conservation or the conservation of other natural resources
or work relating to agricultural
development or improvement (being
work relating to such development
27
or improvement that the owner or
occupier of the land has been
required and has without reasonable excuse refused or failed to
carry out), 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
ago 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 liquidation, for the purpose
of its administration for the
bc,nefit of the creditors of the
bankrupt or body corporate and,
subject thereto for the benefit
of ether persons entitled to the
beneficial interest in the property;
or
(iv) —orerty subject to a trust for
Ja-rempamm of vesting the
pro;crty in persons appointed
as trustees under the instrument
creating the trust or by a court
or by order of n 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
28
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 provided
by Parliament.
(4) The provisions of this section
shall apply in relation to the compulsory
taking 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 MST ATTAINABLE
STATE OF PHYSICAL AND MENTDdi HEALTH
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
ARTICLES 21
AND 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
29
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 intake 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
advise it on all matters relating to the status of women.
The Council is serviced by a secretariat styled the Women's
Bureau.
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 family are of great importance in The
Gambia's conservation of Muslim society. Marrt- , , the
raising of children and religious instructions (7)-- 2 regulated
by a combination of personal preferences and ethnic and
religious tradition. The Government does not normally intrud:
in family matters. Family planning is encouraged, but has not
yet been enforced.
30
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 above
mentioned 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 arriti in 1991 as f-llows:"Subversion
against
foreign
States.
59A (1) Any person who, in relation to
any friendly State (a) prepares or endeavours to overthrow the Government by unlawful
means:
(b) prepares or endeavours to procure
by force any alteration of the law
or the policies of 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;
31
(e) causes or attempts to cause the
death of any member of the
Government or other citizer of
the State with a view to securing
the overthrow of the Government or
with intent to coerce any other
citizen of the State into opposing
the Government or otherwise into
withdrawing or withholding his
support from the Government; or
(f) conspires with any other person or
persons to effect any of the purposes
specified in paragraphs (a) to (f)
of this subsection;
commits an offence and is liable on conviction
to be sentenced to imprisonment for life.
(2) No person shall be prosecuted for
an offence under this section without the
written consent of the Attorney General."
ARTICLE 24 - PEOPLES° RIGHT TO SATISFACTORY
ENVIRONMENT
The Government has been striving to protect and preserve
the environment. Th this end the Ministry of Natural Resources
and the Environment has been preparing a national environmental
action plan.
The National Environmental Council has also been
established legislatively to advise government on appropriate
policy measures which need to be taken to protect the
environment.
ARTICLE 26 - INDEPENDENCE OF THE COURTS
The independence of the judiciary - one of the three
arms of government - is the foundation on which rests the
democratic system of government cherished by the Gambian
people and government. This independence arises from the
acknowledgement that a virile, efficient and independent
judiciary is the most secure guarantee for respect for the
rule of law, human rights and democratic government.
32
Such independence in The Gambia is secured in the
Constitution in several ways - through the mode of appointment of judges, their discipline and removal as well as
in their exercised jurisdiction over human rights matters.
Chapter VII of the Constitution which establishes the
judicature is an entrenched chapter - except with regards
to the matter of appeals to the Judicial Committee of the
Privy Council in England, the final appellate court of The
Gambia i.e. its provisions cannot be repealed or altered
except by way of approval through a referendum.
Firstly the appointment of judges though by the
President has to be in accordance with the recommendation
of the Judicial Service Commission (J.S.C.). The appointment of all other judicial officers is by the JSC itself.
The tenure of judges is secured through an elaborate removal
process. It can only be done for good cause, after inquiry
by a tribunal and upon a decision of the House of Representatives. The Constitution provides as follows:"Establishment
of Supreme
Court
Section 89. (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.
(2) The judges of the Supreme
Court shall be the Chief Justice and such
number, if any, of other judges (hereinafter
referred to as "the 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."
"Appointment
of Judges of
the Court of
Appeal and
Supreme
Court.
Section 90, (1) The President of the
Court of Appeal and the Chief Justice
shall be appointed by the President.
(2) The Justices of Appeal and
the puisne judges shall be appointed by the
President, acting in accordance with the
advice of the Judicial Service Commission."
33
"Tenure of
office of
Judges of
the Court
of Appeal
and Supreme
Court,
Section 91, (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,
(4) (a) A Justice of Appeal or 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 9ne-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 from
infirmity of body or mind or any other cause)
and proposing that the matter should be
investigated under this subsection,
(b) Where a motion under 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, shall declare the
motion to be passed,
(c) If a motion is declared to be
passed under subsection 4(b)
of this section (i)
the House shall, by
resolution, 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;
•
34
(ii) the tribunal shall investigate the
matter and shall report to the
Speaker of the House of 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 enquiry in accordance with the provisions of this
subsection, shall have the right
to appear and to hr represented
before the tribunal during the
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.
(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 accordance with the
provisions of this subsection,the
House does not remove such Justice of
Appeal or judge of the Supreme Court
from office.
(5) The prescribed are for the purposes of subsection (1) of this section is the age of sixty-five
years in the case of a Justice of Appeal and sixtytwo years in the case of a judge of the Supreme Court,
or such other age as may be prescribed by Parliament;
35
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 ^f tin Constitution -n the Su,lromo Court.
"Reference to
Supreme
Court in
cases involving interpretation of
Constitution,
Section 93. (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.
(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 "28. (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.
36
(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 ia referred
to it in flursuance of subsection (3) of
th..s section,
and may make such orders, issue such writs and give
such directions as it may consider appro,riato for
the purpose of enforcing or securing the enforcement
of any of the provisions of sections 13 to 27
(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.
(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 vexatious.
(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 arose shall dispose of the case in
accordance with that decision or, if that decision
is the subject of an appeal under section 95 cf
this Constitution to the Court of Appeal or to
the Judicial Committee, in accordance with the
decision of the Court of r\opeal or, as the case
may be, of the Judicial C-mmittee.
(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 uron it by this section.
(6) The Chief Justice may make rules with
respect to the practice and procedure of the Supreme
Court in relation to the jurisdiction and powers
conferred on it by or under this section (including
rules with respect to the time within which applications may be brought and references shall be made
fn
thp Slinrnme Court):'