The status of the findings of the African Commission on Purohit and Moore V The Gambia : Seventeen Years of Nothingness

It took two mental health advocates to raise the sorry situation of mentally-ill persons in The Gambia at the continental and global stages. In 2001, Ms. H. Purohit and Mr. P. Moore filed a Communication at the African Commission on Human and People’s Rights (the Commission) against the Republic of The Gambia on behalf of “patients detained at Campama, a Psychiatric Unit of the Royal Victoria Hospital, and existing and ‘future’ mental health patients detained under the Mental Health Acts of the Republic of The Gambia”[1].  The complainants made the following allegations against The Gambia:

a.     The governing mental health law in the Gambia was obsolete

b.     There is no definition of “lunatic” in the Lunatics Detention Act and no provisions and requirements establishing safeguards during the diagnosis, certification and detention of the patient

c.      Overcrowding in Campana

d.     No consent to treatment or subsequent review of continued treatment.

e.      no independent examination of administration, management and living conditions within the Unit itself

f.      patients detained in the psychiatric unit are not even allowed to vote.

g.     no provision for legal aid.

h.     provision for a patient to seek compensation if his/her rights have been violated.

On admissibility of the Communication, meaning whether the complainants had exhausted local remedies as condition for presentation of a complaint, The Gambia concedes that;

the Lunatics Detention Act does not contain any provisions for the review or appeal against an order of detention or any remedy for detention made in error or wrong diagnosis or treatment. Neither do the patients have the legal right to challenge the two separate Medical Certificates, which constitute the legal basis of their detention[2]

The Gambia submitted that the vulnerable groups have recourse to constitutional protection pursuant to section 7(d) of the 1997 Constitution of The Gambia. Also, it contended that the complainants could have sought tortious remedies for wrongful diagnosis. The Gambia promised amendment of the Lunatics Detention Act as it was imperfect.

in 2003,tThe Commission found The Gambia to be in violation of Articles 2 (non-discrimination) , 3 (equality before the law and equal protection), 5 (respect of the dignity and no cruel or inhuman treatment), 7 (1)(a) (right to appeal) and (c) (right to defense and representation), 16 (enjoyment of best state of physical and mental health) and 18(4) (special measure of protection for the aged and disabled) of the African Charter. The findings against The Gambia were as laudable as the recommendations of the Commission. The Gambia was strongly urged to:

a.     as soon as possible, repeal the Lunatics Detention Act and replace with a new legislation for mental health in The Gambia.

b.     create expert body to review cases of persons detained under Lunatics Detention Act.

c.     Provide adequate medical and material care for persons suffering from mental health problems in the Gambia.

Enforcement of the Decision and Outcomes:

There is no report from The Gambia about the implementation of the recommendations as requested by the Commission. The government of The Gambia was requested to “report back to the African Commission when it submits its next periodic report in terms of Article 62 of the African Charter on measures taken to comply with the recommendations and directions of the African Commission in this decision”.

The Next Periodic Report, and in fact the only Periodic Report after the Purohit decision, was the Combined Report on the African Charter on Human on Peoples’ Rights for the Period 1994 and 2018 and Initial Report under the Protocol to the African Charter on the Rights of Women in Africa (1994-2018). Surprisingly, there was no specific information on the implementation of the foregoing three recommendations of the Commission. The Lunatics Detention Act is still the extant law in The Gambia on mental health and no report or data is available on the creation of the review body and on its proceedings and recommendations on the cases of persons detained under the Lunatics Detention Act. Although the Campama Unit was closed and a better and more spacious detention facility was opened at Salagi Called Tanka Tanka, more mentally-ill persons are seen on the street more frequently now than before.

Seventeen years and counting, The Gambia has failed to implement the key recommendation of the African Commission. The Lunatics Detention Act which was enacted in 1917 and last amended in 1964 is not repealed or amended to capture the concerns of the Commission and the changed circumstances in the country. Equally, the draft Mental Health Bill as recommended by the Commission is on hiatus at the National Assembly.

The procedure in case of the lunacy or other incapacity of an accused person is still regulated by the Criminal Procedure Code and the Lunatics Detention Act. The appearance, bail and detention of an Accused Person who is of unsound mind and incapable of making his or her defense rest with the trial court and the minister responsible for health.

In 2012, the Summary Report of the WHO Country Office on Mental Health in The Gambia attributed the poor situation of mental health in The Gambia to;

mental health services are very limited in the Gambia; there are significant gaps in capacity, human resources, materials, medication and outreach services, most of which stem from very limited budget allocation (about 0.5% of the national health budget is spent on mental health services).[3]

Is the 2012 situation of mental health in The Gambia different from the current situation?

Would Purohit and Moore be glad with the no-progress report about the reform of mental health law and situation in The Gambia?

An anatomy of the National Health Policy 2012 – 2020 provides a measure of lack of progress for mental health in The Gambia. The Policy ends this year and its objective of improving access to quality mental health care for all Gambians is far from achieved. The formulated policy measures such as implementing the Mental Health Policy and Strategy; strengthening the capacity for the diagnosis, Management, prevention and control of mental and neurogical disorder; providing quality, equitable and affordable mental health services; revise the Lunatics Detention Act; and develop Mental Health Bill, have not happened as planned. These measures which were basically uplifted from the moribund Gambia Mental Health Strategic Plan 2007 – 2012 are either not fully implemented or not implemented at all. For example, Strategy 7 was to “strengthen community involvement and participation in mental health care delivery” through, among other activities, the creation of “local associations of psychological rehabilitations involving formal health care providers, community leaders and traditional healers within each health division”. Until today, this strategic activity did not happen. There are no in-patient mental health units to “accommodate twelve patients” in all the hospitals and major health centers in the country. Families arrange for transport and bear the cost of ferrying their mentally-ill persons to Polyclinic in Banjul or to Tanka Tanka Psychiatric Unit.

Consequently, what the Purohit Decision exposed about mental health in The Gambia and what research showed is the existing moribund and obsolete legislations and policies. The Lunatics Detention Act of 1917 and the Criminal Procedure Code 1935 have outlived their efficacy and usefulness to the management and trial of mentally ill persons. The Draft Mental Health Bill is comatose at the National Assembly without any chance of being revived soonest. The National Mental Health Policy of 2007 is outdated and the Mental Health Strategic Plan 2007 – 2012 has phased out with nothing much to ride home about.

Until seriousness, more budgetary allocation and specialized trainings are provided to the Mental health sector of the health system of the Gambia, over 118, 000[4] persons with mental health problems will continue to suffer and be discriminated.

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 About the Author:

Simon Sabally is a Gambian living and studying outside of The Gambia. He writes on law and constitutional matters, especially on the Constitution of The Gambia, 1997.

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[1] Purohit and Moore v. The Gambia, African Commission on Human and Peoples' Rights, Comm. No. 241/2001 (2003)

[2] Ibid. para.27

[3] Point Newspaper, “Mental Health in The Gambia, Sep. 25, 2012

[4] Sanneh, Amie, “Over A Hundred Thousand Gambians Suffer From Mental Health Problems” Foroyaa Newspaper, Aug. 28, 2018.

Parliamentary sovereignty: The Gambia’s perspective

Kalipha MM Mbye

Head of Table Office, National Assembly of The Gambia

Abstract

 The fundamental principle underlying the 1997 Constitution of the Republic of The Gambia is the ‘separation of powers’. This paper discusses Parliamentary sovereignty (it also referred to as ‘Parliamentary Supremacy) in the Gambian context as well as the doctrine of separation of powers. The Constitution of The Gambia is the supreme law of the land and any law or rule that contradicts it is void to the extent of the inconsistency.[1] This suggests that Parliament is not sovereign or the provision impairs Parliamentary supremacy. Whether that is true or not, this paper seeks to provide some opinion or answers on the matter. The paper also discusses the various powers that Parliament has over other organs of the State – the Executive and the Judiciary. Finally, the paper concludes on Gambia’s limited Parliamentary supremacy with comparative analysis of the English absolute Parliamentary supremacy.

 Introduction

The fundamental principle underlying the 1997 Constitution of the Republic of The Gambia is the ‘separation of powers’. The principle developed by the 18th century French philosopher, Montesquieu, divides or shares the powers of the State among three organs: The Executive, the Legislature (Parliament) and the Judiciary. The Executive powers are exercised by the Executive comprising the Government and its servants such as the civil servants, the police; the Legislative powers are exercised by Parliament (National Assembly and the judicial powers are exercised by the Judiciary, the judges.[2] The preamble of the 1997 Constitution, basically, promotes this principle of separate of powers by clearly defines the functions of the organs of State; their independence secured as well as provide checks and balances to ensure harmonious working relationship for the ‘common good’.

Parliamentary sovereignty is the other word for parliamentary supremacy. The doctrine of Parliamentary sovereignty is the principle that Parliament is the supreme law-making authority in the country – can make and unmake any law. Generally, the principle embodies that the Judiciary cannot set aside a law made by Parliament and Parliament can undo a law made by its preceding Parliament.[3]

 Does the 1997 Constitution safeguard Parliamentary supremacy?

As discussed earlier, parliamentary supremacy gives Parliament absolute authority to make and unmake law any law it wishes and this cannot necessarily be overruled by another organ of the State, in particular the court. For instance, in the United Kingdom where this doctrine is strictly applied, the Parliament is the highest source of law and as far as the law is made in accordance with the Parliamentary rules of procedure the courts MUST apply it.[4]

Furthermore, a prominent legal philosopher, Dicey (1982), explained in accordance with Parliamentary supremacy, Parliament has:

‘under the English Law, the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.’

Thus, under the British Constitution, suggest that no matter how cruelty, or public outcry, has the law made by Parliament, the law still remains valid and the courts would, in theory, be obliged to uphold the law.

However, under the 1997 Constitution, Parliament is subservient to the Constitution. The Constitution is the supreme law of the land and any law or rule that contradicts it is void to the extent of the inconsistency.[5] This suggests that Parliament is not sovereign, or the provision impairs Parliamentary supremacy. Whether that is true or not, this paper seeks to provide some opinion or answers on the matter.

Parliamentary sovereignty in Gambian context

 Establishment

The Parliament is established by the Constitution through an entrenched provision of the latter.[6] This connotes that Parliament exist by the will of the people and no authority, body or organ of State – neither the Executive nor the Judiciary, has the mandate to scrap its existence, except the people through a referendum. Even with the people’s power to scrap its existence, Parliament itself has to consent to it, first, before reaching them – the people.[7] Thus, one can opine that this provision on the existence of the Parliament has satisfied the principle of ‘Parliamentary sovereignty’.

 Legislative powers

Parliament is vested with the ‘exclusive’ jurisdiction to make laws through bills passed by it and assented to by the President.[8] Bills duly passed by Parliament and assented become law.

Theoretically, the President must assent to a Bill passed by Parliament before it can become a law.[9] However, this is more of a ‘ceremonial role’ under the Constitution. The President is required, within thirty days, to assent to a Bill presented to him or her or return it with, comment(s), requesting for reconsideration by Parliament. Where Parliament reconsiders the Bill requested by the President and revolved by votes supporting the Bill with or without the comments requested by the President, it shall again present the Bill to the President for assent and the President is statutorily compel to assent to the Bill within seven days.[10] In fact, in practice, the President has always given consent to Bills passed by Parliament.

This indicates that Parliament is granted the exclusive law-making power of the State; the President’s role is more of cosmetic and, in principle, for the Executive, as the executing organ, to be put on notice of laws being made in Parliament.

Where it is acceptable for the Judiciary, for instance the Supreme Court, to check Parliament on the law it makes, it does not mean that the judiciary has the power to strip Parliament off its power of law-making. Rather, it is a check in two-fold – whether Parliament has gone beyond its limit or whether it was made in accordance with the procedure enshrined in the Constitution or other laws.

This was manifested in the case of Kemeseng Jammeh v Attorney General in 2001. In this case, Parliament was challenged at the Supreme Court for alleged amendment of an entrenched section of the Constitution without exhausting the procedure prescribed in the Constitution. The Court partially allowed the plaintiff’s application and held that the alleged amendment of section 1(1) and paragraph 13 of schedule II to the 1997 Constitution were made in excess of the legislative powers conferred by the 1997 Constitution and are accordingly null and void.[11] However, the Court refused the application to strike out the amendment in toto, arguing that the other parts of the amendment Act cannot be severed as it was within the province of Parliament and therefore cannot be declared a nullity.

Unlike in England, where the Constitution assigned no limits to the authority of Parliament over all matters and persons within its jurisdiction[12], in The Gambia, Parliament’s legislative powers have been limited.[13] Parliament has no power to make a law establishing a one-party or religious State and to alter the decision or judgement of a court in any proceedings to the prejudice of any party to those proceedings, or deprive any person retroactively of vested or acquired rights.

Finally, others may argue that other bodies such as Councils, subsidiary law-making authorities, do make laws. To the contrary, these bodies’ law-making functions are delegatory and exist under the pleasure of Parliament.

 Procedure of law making

 Generally, Parliament is granted the power to regulate its own procedure, proceedings and how to make law.[14] In other words, Parliament is the master of its own procedure and has been allowed to make its own rules of procedure – Standing Orders.

Furthermore, save for any rule specified in the Constitution or any other law, the courts are barred from enquiring into any ‘decision, order or direction of the National Assembly or any of its Committees or the Speaker relating to the Standing Orders of the National Assembly, or to the application or interpretation of Standing Orders, or any act done by the National Assembly or the Speaker under any Standing Orders’.[15] This means that the rules of procedure of Parliament, its interpretation and application cannot be questioned in any court. Procedurally, Parliament is above board.

 Powers over the Executive

 In accordance with the Constitution, the Executive power is vested in the President and this can be exercised by him or her directly or through his or her officers including the Vice-President or Ministers.[16] In a representative democracy like The Gambia, Parliament has tremendous powers to hold the Executive to account in numerous facets. Parliament has

The Executive, including the President and Cabinet, are accountable and answerable to Parliament in the administration of the State. Section 77 of the 1997 Constitution compels the President to, at a minimum of once each year, to attend a sitting of Parliament and address it on the condition of The Gambia, the policies of the Government and the administration of the State. Furthermore, subsection 2 provides that, Parliament can, if it so wishes, request the President to attend a sitting of it for the discussion of a matter of national importance.

Similarly, the Vice-President and Ministers are collectively responsible to Parliament for any action in Cabinet and also accountable to Parliament for the administration of the departments and other business of Government committed to them.[17]

Effectively, Parliament can, by a vote of no-confidence, a motion on grounds of mental or physical incapacity, or a motion on grounds of misconduct, remove the President from Office.[18] Similarly, Parliament has the power to pass a vote of censure against the Vice President or any Cabinet Minister based on abuse of office or violation of any provision of the Constitution, misconduct in office, or any cause of inability to perform the functions of his or her office. Once the vote of censure [motion] is passed by Parliament, the resident is imperatively required to revoke such appointment of the Vice President or a Minister.[19]

Oversight powers

Equally, Parliament has oversight duty over the Executive and to some little extent to the Judiciary. Parliament has the mandate and power to perform oversight overt the Executive, including its agencies, departments and institutions. The Vice-President or a Minister is compelled to report to Parliament on any matter concerning a department or other business of Government committed to him or her, when requested to do so.

Parliament has the power and mandate to perform oversight over the Executive and in doing so, can investigate or inquire into the activities or administration of ministries or departments of the State, and investigate any matter of public importance.[20] For instance, the Finance and Public Accounts Committee (FPAC) has the mandate to examine the audited accounts of government and the Report of the Auditor General on those accounts. Similarly, Public Enterprises Committee (PEC) is established as a standing Committee to perform oversight on State Owned Enterprises. The Committee monitors the operation of enterprises and to promote efficiency, transparency and probity. Essentially, all State machineries and institutions, including the Judiciary and independent institutions are accountable to Parliament in the administration of their activities and finances.

 Grey areas: Parliament v the Executive

It is arguable that the President under section 96(2) has equally the power to dissolve Parliament. However, this is debatable and may be subject to interpretation by the competent authority. Section 96(2) provides:

“…the President may, in the public interest, declare by Order published in the Gazette, that a general election of all members of the National Assembly shall be held on such date as he or she shall determine.” 

This is subject to interpretation in a ‘purposive’ or ‘mischief’ approach by the courts, as the word ‘in the public interest’ has a purpose and is pre-requisite for such a power to be legally triggered. In case of Ya Kumba Jaiteh v Clerk of the National Assembly and Ors., the Court expounded and reasoned on the interpretation of a statute that ‘…every enactment has a purpose; the Court must seek to ascertain and to promote the object and purpose of the enactment. Words, phrases, indeed whole sections should not be read in isolation from others. Often there are linkages between different enactments and between provisions in the same enactment which need to be read together and given effect in a holistic manner’.[21]

It is arguable that if the court was to interpret the application of section 96(2) by the President, it would ascertain whether the ‘public interest’ has arisen for a general election for Members of Parliament to be held earlier that its constitutional fixed term period. The court would further read section 96(2) together with the object and purpose of enactment – whether it was enacted to deal with a scenario where Parliament was holding the general public interest at random or Parliament was in extreme chaotic situation or at standstill in performing its functions.

 International relations

Parliament has crucial constitutional mandate and responsibility over how the State conducts its international relations. The President has the responsibility to conduct international relations and the negotiation of treaties and other international agreements with other State and international organisations. However, this power is constrained that it is subject to ratification of Parliament before any treaty or international agreement can come into force. In addition, the State cannot become a member of any international organization unless Parliament is satisfied that it is in the National interest and that the membership does not derogate from the country’s sovereignty.[22] Therefore, international relations are subject to legitimate Parliamentary scrutiny and oversight.

Similarly, the Constitution provides that the President cannot declare a war or make peace with any Nation or deploy any armed troops outside The Gambia without the prior approval of Parliament.

 Powers over the Judiciary

Judicial independence is a cornerstone of democracy and the rule of law, such as the independence of Parliament. The judicial powers are vested in the courts and are exercisable by the judiciary as per their jurisdiction.[23]

In as much as independence of the judiciary has been given great importance in the Constitutional arrangement, Parliament also has some degree of oversight and check over the judiciary. This does not impair the doctrine of separation of powers and the independence of the judiciary as discussed earlier, rather it complements the principle separation of powers – no organ should operate unchecked.

In addition, although, the Judiciary is granted the power to check on Parliament in accordance with section 127(1)(b), Parliament has also been granted the power to remove a judge from office if he or she is unable to exercise the functions of the office – whether arising from infirmity of body or mind, or for misconduct.[24] Furthermore, Parliament also decides or approves the annual budget of the Judiciary.[25] This means that Parliament has mandate to hold the judiciary to account in the performance of its legitimate functions. Powers of the judiciary are exercisable only by the courts as prescribed by or under the Constitution and Acts of Parliament.

Immunity

Parliament enjoys considerable immunity ranging from: freedom of speech and debate, protection from civil or criminal proceeding for anything said in Parliament, protection from arrest while on the way or from Parliament, and cannot be compel to appear as witness before any court proceeding while attending Parliament.[26] Parliament and its officers enjoy immunity while performing their legitimate functions.

Conclusion

 Based on the above analysis and provisions of the Constitution, it could be safely concluded that Parliament of The Gambia is sovereign, but that sovereignty is not absolute, unlike the Parliament UK which is absolute and unlimited. In the UK, a law made by Parliament might be unjust or contrary to the fundamental principles of governance; but Parliament was unconstrained, and if it erred, such errors may not be corrected by any other authority but only by itself.[27]

 The power of the judiciary to question the validity of an Act of Parliament would not necessarily mean a breach of the fundamental principle of Parliamentary supremacy. It depends on the manner in which it is exercise by the court and the Parliament’s right or power to legislate.[28] For instance, in the case of Jammeh v Attorney General, 2001 , the Court agrees to the fundamental principle that an Act of Parliament duly passed and in consistent with the Constitution cannot be nullified.

Finally, it also settled that the independence of Parliament is crucial in the discharge of its functions and any attempted impairment of this from the Executive [or even the Judiciary] would be a gross violation of both the letter and spirit of the Constitution and undermine the doctrine of Parliamentary independence.[29] Based on the letter and spirit of both the Constitution and the doctrine separation of powers, Parliament is immune and sovereign while performing its legitimate functions.

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About the Author:

Kalipha MM Mbye is the Head of Table Office at the National Assembly of The Gambia. Mr. Mbye holds LLB degree (Bachelor of laws) from the University of The Gambia. Currently, he is pursuing his LLM degree (Masters of Laws) at the University of Bradford, UK. He has his interests in parliamentary democracy, Constitutionalism, the rule of law and public international law.

Suggested citation: Kalipha MM Mbye, ‘Parliamentary sovereignty: The Gambia’s perspective’ Law Hub Gambia Blog (November 3, 2020) https://www.lawhubgambia.com/lawhug-net/parliamentary-sovereignty-gambia-perspective

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[1] The Constitution of the Republic of The Gambia, 1997, s 4

[2] Emily Allbon and Sanmeet Kaur Dua, Elliott and Quinn’s English Legal System (20th edn, Pearson 2019/2020) 5

[3] ibid

[4] Allbon and Dua (n 2 above) 5

[5] The Constitution of the Republic of The Gambia, 1997, s 4

[6] ibid, s 87

[7] ibid, s 226(4)

[8] ibid, s 100(1)

[9] The Constitution of the Republic of The Gambia, 1997, s 100(1)(5)

[10] ibid, s 100(3)(4)

[11] Jammeh v Attorney General (2002) AHRLR 72 (GaSC 2001)

[12] Erskine May: Parliamentary Practice, (19th edn, Butterworths)

[13] The Constitution of the Republic of The Gambia, 1997, s 100(2)

[14] The Constitution of the Republic of The Gambia, 1997, s 108(1)

[15] ibid, s 108(2)

[16] ibid, s 76(1)

[17] ibid, s 74

[18] Ibid, s 63, 66 and 67

[19] The Constitution of the Republic of The Gambia, 1997, s 75

[20] ibid, s 109(2)

[21] Ya Kumba Jaiteh v Clerk and Ors, SC NO: 001/2019 (unreported)

[22] The Constitution of the Republic of The Gambia, 1997, s 79

[23]ibid, s 120(2)

[24] ibid, s 141(3)

[25] The Constitution of the Republic of The Gambia, 1997, s 144(1)

[26] Ibid, s 113, 114, 115, 116, 117

[27] Erskine May: Parliamentary Practice, (25th edn,) https://erskinemay.parliament.uk/section/4535/extent-of-legislative-authority-of-parliament/ (accessed 02nd November, 2020)

[28] Jonathan L. Black‐Branch, Parliamentary Supremacy or Political Expediency?: The Constitutional Position of the Human Rights Act under British Law, Statute Law Review, Volume 23, Issue 1, 2002, Pages 59–81, https://doi-org.brad.idm.oclc.org/10.1093/slr/23.1.59 (accessed 02nd November, 2020)

[29] Ya Kumba Jaiteh v Clerk and Ors, SC NO: 001/2019 (unreported)

Secularism as a tool for state neutrality

Jointly written by Maria Saine & Wilson F. Okoi, Barrister & Solicitor of The Supreme Court of Nigeria. 

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[Editor’s note: This is Part VI of our special series titled “Constitutional Review in The Gambia: Contemporary Discussions.” The introduction to the special series is available here, Part I is available here, Part II is available here, Part III is available here, Part IV is available here.and Part V is here.]

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Secularism is the legal assertion that a State remains neutral as relates to religious matters The state does not adopt any religion as it’s religious representation and more importantly, there exist a clear separation between government institutions and religious institutions.   It may please you to note that the idea of secularism is open to debate because it is considered polemic by many.

Proponents of the notion that The Gambia should be secular view that:

1. It allows persons from different religions to exist together at the least common denominator; ensuring all their beliefs and rights. This assertion is said to be true because there is no preference of religious beliefs over another, people are therefore not inclined to believe that the state has a superior notional interest in one religious belief over another.      

2.  Some others assert that secularism allows more rights and freedoms to women, who are generally attributed to submissive roles in various belief systems. This is a candid topic of debate for differing religions who are naturally accustomed to differing spiritual views guiding human behavior with humans and human behaviour with ‘superior spirituality’.

3. It is also strongly recommended that the practice of secularism protects and promotes government administration to function on the basis of rational discourse rather than religious dogma.

On the other end however, opponents of secularism assert that humanist and secularist take religious views ‘off the public sphere’. Opponents of secularism are of the opinion that a State should have a religious view. Such ideologist are of the opinion for a variety of reasons.

First, the polity are less conscious about religious matters in the public sphere. Indeed, this infers that the states polity identifies government institutions and a religious preference as one.  

Second, a preferred religion gets patronage from the State. This is argued to be a negative and positive. The State religion is the preference of the State and therefore enjoys privileges that other religions (not adopted by the State) will not be opportune to.  Looking objectively, it is therefore negative. But from a subjective stand point (i.e. the view of those in the preferred religion of the State), it is not only in tandem with the major mass of the polity it is also the way that life should be lived.

Third, indeed, religious persons in the polity will argue concerns over the ‘moral compass’ of the nation. This is essentially because of the belief in ‘natural/divine law’ on the legal jurisprudence of same, and/or the belief that religion equates to morality.

From the foregoing, it is evident that the decision of a State to adopt a religion as it’s religious preference is a major step that guides governmental administration.

In The Gambia, the practice of secularism and its constitutionality became a point of case law jurisprudence on the applicability of secularism in The Gambia. In the case of KEMESENG JAMMEH v THE STATE, the legal validity of the Constitution of the Republic of The Gambia, 1997 (Amendment) Act, 2001 was put to the litmus test to examine whether section 1(1) of the Constitution describing The Gambia as a secular state was made ultra voires. The Supreme Court held that section 1(1) of the Constitution and paragraph 13 of schedule II to the 1997 constitution contained in the Amendment Act (6 of 2001) were made in excess of the legislative powers conferred by the 1997 Constitution and are accordingly null and void.[1] Meaning, the amendment failed to pass through an act of referendum. Hence, unconstitutional.

From the train of thoughts above and in my humble opinion, it is instructive to assert the following observations succinctly:

·      Secularism represents how a polity should be/is governed.  

·      Secularism does not in any way or form, infer life without religion neither does it infer that one decides how to worship God.

·      The absence of secularism is the presence of Religious preference in a State.

·      The concept of (non) secularism is practiced variantly owing to factors such as geographical area, culture, population and, the advancement in technology/industrialization amongst others.          

In a sum, secularism is a practice that I believe should be embraced because it maintains the existence of neutrality and exudes the characteristics of an ability to accommodate the diversity in the way life presents itself; liberally.   The State considers the views of every one and no religious preference is an option. Indeed, and legally so, secularism is the best guarantee of freedom of religion/belief – but the enemy of religious privilege.

Suggested citation: Maria Saine & Wilson F. Okoi, Secularism as a tool for state neutrality, 1 February 2019, at https://www.lawhubgambia.com/lawhug-net/secularism-as-a-tool-for-state-neutrality.

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[1] Jammeh v Attorney General (2002) AHRLR 72 (GaSC 2001)

Making Economic, Social and Cultural Rights a Reality in "New Gambia": Lessons from the 1997 Constitution

[Editor’s note: This is part II of our special series titled “Constitutional Review in The Gambia: Contemporary Discussions.” The introduction to the special series is available here and Part I is available here.]

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Judicial inquiry into Economic, Social and Cultural Rights (ESCRs) across the world has increasingly taken center stage in human rights discourse. In many cases relying on the progressive interpretation of ESCRs, courts have in numerous occasions found states actions inconsistent with domestic, regional and international standards relevant to the progressive realization of ESCRs. However, the major challenge courts face in addressing human deprivations have been largely due to the absence of normative domestic constitutional benchmarks to assess and measure states’ compliance with their international obligations. This has compelled courts to go beyond their traditional roles of merely interpreting positive law to venture into uncertain paths in their quest to protect and enhance human dignity. Thus, they became forums for constitutional dialogue and deliberative democracy. To that end, they have ordered: the halting of eviction orders on the basis of the right to adequate housing; states to reinstate social welfare benefits; states to reinstate essential medical programmes for the poor and required children from minority groups to be provided schools and deprived communities to have access to clean water.

On the other hand, courts in some jurisdictions declined any invitations for the enforcement of ESCRs on the basis that the content of such rights are notoriously uncertain and in avoiding ‘’purely political’’ decisions which are reserve for the executive, they have shied away from ESCRs. This school of thought is probably a steadfast servant of Lon Fuller’s polycentric effects theory. The pursuit of that theory is obviously not the essence of this contribution.

Therefore, this paper seeks to draw the attention of stakeholders in the constitutional review process to avail ESCRs their rightful constitutional positions in the new constitution as for the legitimacy of any government will be severely tested if it turns a ‘’blind eye’’ to the dire socio-economic conditions of its people. Equally, the enjoyment of ESCRs goes to the heart of human dignity which is the foundational basis for the enjoyment of all rights. The Gambia over the years relegated ECSRs as mere policy aspirations that were only pursued to meet political ends. The 1997 Constitution of the Gambia contains a bill of rights guaranteeing a limited number of ESCRs. These rights include the right to primary education, to property, and the right to join trade unions.  Thus, those rights that are expressly guaranteed in Chapter 4 of the Constitution can be enforced through a judicial process in terms of article 37. Fundamental rights such as the right to food, shelter, clean water, adequate standard of living only form part of the National Objectives, and as such makes it difficult for individuals and stakeholders to hold the government of the Gambia accountable for ESCRs violations through the judicial process.

What is required of the Gambia under international human rights law is to make efforts for the progressive realisation of ESCRs. This requires the Gambia to move as expeditiously as possible towards the full realization of ESCRs, bearing in mind that certain ESCRs cannot be achieved in the short term.  In General Comment No 3, the UN CESCR posits that these steps must be deliberate, concrete, and targeted as clearly as possible.  It further emphasized that there are certain ESCRs that impose immediate obligations that are capable of immediate application.  Thus, irrespective of resource availability ‘minimum core’ of ESCRs should be guaranteed. Therefore, guaranteeing ESCRs in the New Constitution will not only be symbolic in translating the political commitment/will to reality, but also ensure the prioritization of ESCRs in resource allocations, and will allow courts to ensure accountability for any violations. For the courts to go to the theater there should be adequate ESCRs sign posts in the New Constitution giving them directions.

To be continued…

Suggested Citation: Sainey Bah, Making Economic, Social and Cultural Rights a Reality in the ‘’New Gambia’’: Lessons from the 1997 Constitution, Law Hub Gambia Blog, 6 December 2018, at https://www.lawhubgambia.com/lawhug-net/newgambia-economic-social-cultural-rights.

Civil and Political Rights in The Gambia

Introduction 

The hallmark of the 22-year dictatorship of the former dictator Yaya Jammeh’s regime was the blatant abuse of human rights and disregard of the rule of law. This has generated a culture of impunity where State agents particularly security personnel could arbitrarily arrest, detain and torture or cause a citizen to disappear or kill with impunity. This situation had therefore cultivated a climate of fear in which citizens faced life and death situation everyday as they decide to either obey or challenge the regime. That notwithstanding, Gambians finally voted out the dictatorship in the 1 December 2016 presidential elections but not without undergoing a stiff political impasse following the rejection of the results by Jammeh. For 60 days, the country was stuck in a stalemate that had triggered diplomatic intervention by the international community with a threat of military action to force Jammeh to concede to the will of the people. The impasse prompted the Economy Community of West African States (ECOWAS) to remove the president-elect Adama Barrow out of the Gambia for safety reasons and to have him sworn-in in Dakar, Senegal on 19 January 2017. Few days later on January 23 Yaya Jammeh finally left the Gambia to seek asylum in Equatorial Guinea.

Background

In its 22-year misrule, the Gambia first witnessed a mass uprising on 10 and 11 April 2000 when the Gambia Students Union sought to submit a petition to the vice president at the time Isatou Njie Saidy to demand justice for the rape of a schoolgirl by paramilitary personnel at a sports meeting at the Independence Stadium in Bakau (10 kilometres away from Banjul) and the killing of another schoolboy Ebrima Barry by fire service officers in the semi-urban town of Brikama (about 40 kilometres from Banjul). As the students assembled to proceed to the office of the vice president, they were met with the full force of well-armed paramilitary contingent in Kanifing. What ensued was a direct confrontation and shooting that resulted into the death of 16 schoolchildren including a Red Cross volunteer and a three-month old baby with many more sustaining injuries.

The incident in Kanifing then generated protests across the country which were quelled with heavily brutal crackdown by both the police and the military. In several towns such as Essau, Barra, Farafeni, Brikama and Janjanbureh in the regions, scores of schoolchildren were shot and injured while hundreds more were detained and tortured for weeks. Eighteen years later, tens of survivors are either wheelchair-bound or on crutches and generally experiencing various forms of pain and disability.

The second time Gambians decided to stage a peaceful protest was sixteen years later on 14 April 2016 when Solo Sandeng, a youth leader of the largest opposition party UDP together with a dozen activists demonstrated for electoral reforms in downtown Kanifing (the biggest city in the Gambia) at Westfield. Naturally the group was met with a barrage of paramilitary forces that arrested all of them immediately. Within 24 hours it became known that Solo was tortured to death and hurriedly buried in an obscure grave in the coastal village of Tanji. The rest of his colleagues were subjected to severe torture including sexual violence.

The April 14 protest triggered the leadership of his party to march to the nearest police station the next day April 15 to demand his body, dead or alive. But even before they reached the station, they were also met with severe police crackdown. The party leader Ousainou Darboe and tens of his executive members and supporters were detained at the central prisons pending charges few weeks later.  Today, two years after that protest, about five of Solo’s colleagues have also died due to injuries from torture while many more are sick or in severe pain.

That mass arrest of the party leadership, supporters and citizens generally therefore gave rise to widespread demands for the opposition to coalesce for the December 2016 presidential election. After failing in many attempts in the past to form an opposition coalition, it became clear to everyone that only with a total opposition coalition could Gambians democratically remove the dictatorship. This realisation is informed by the fact that the regime was involved in electoral malpractices including interfering with the electoral commission in its favour amidst other widespread violations. In response Gambians had sought all means to remove the regime to no avail including the use of armed violence that over the past two decades the country witnessed several coup attempts as well as armed insurrections. Notable armed attacks to overthrow the regime came in 1996 in Farafeni, 1997 in Kartong and 2014 in Banjul where attackers (comprising former soldiers living abroad or Gambians serving in the US Army, with support from serving Gambian soldiers) actually entered State House in Banjul as Pres. Jammeh was out of the country, but fatally repelled. Several were caught and summarily executed while many more were detained, tortured and then court martialled and sentence to several years in jail.

The dictatorship did not only violently suppress civil and political rights, but as a consequence of that it also severely undermined the social and economic rights of Gambians. The blatant confiscation of private and community lands, properties and businesses by Pres. Jammeh was widespread and pervasive. Furthermore, the president also claimed to have a cure for HIV/AIDS, infertility, diabetes and many other diseases or health conditions for which scores of citizens were subjected to his treatment program leading to many deaths and high morbidity. The incidence of corruption and political patronage were entrenched to the point that, in practice there was no distinction between what belonged to the president and what belonged to the State. On many occasions, Jammeh had claimed to own the University of the Gambia, or the cameras of the national television or the vehicles that ministries use as well as claiming to be rich for many generations to come. Because of the way and manner he had personalised state institutions and resources, it meant that public institutions lacked the independence, professionalism and space to efficiently deliver public goods and services while citizens lack the space to hold them to account thus further aggravating the socio-economic conditions of the people. By 2016, the Gambia was one of the least developed countries of the world where 60% of the population live in poverty and one of the leading migrant producing nations in Africa.

Enter the New Dispensation

The government Pres. Adama Barrow came on the heels of a longstanding culture of abuse with scores of victims cutting across all strata of the society. Consequently the expectations and hope with which the people received the new dispensation was immensely huge and high. Even before he took office Candidate Barrow had said in his manifesto and campaigns that within six months of taking office he would repeal or reform all laws that infringe on fundamental rights and freedoms, undermine democracy and limit popular participation.

Since January 2017, there has been a largely open space in the Gambia where citizens actively enjoy their civil and political rights. Citizens have been able to speak out openly without fear of reprisal about issues in the society. Many more citizens continue to be bluntly critical, especially on social media, against the decisions and actions of the government in many ways. Radio stations and newspapers have been freely reporting on issues while in many instances citizens have protested in the streets against various issues or the government.

In May 2017 Kartong and Gunjur residents protested against the Chinese fishmeal company accusing it of polluting the environment with bad odour and dumping dead fish on the beach and liquid waste in the ocean. In Kololi (a neighbourhood in the Kanifing Municipality) the youths there also staged a peaceful demonstration against estate developers who were allocated community lands during the dictatorship. Since March 2017 residents in Bakoteh in the Kanifing Municipality have also been protesting at various times and in front of the mayor’s office against the longstanding dumpsite that releases hazardous fumes into the surrounding communities.

However, while there continues to be an open and free space for the exercise of civil and political rights, yet various decisions and actions by the new government have raised concern for the protection of human rights. For example, since taking office Barrow has not yet repealed or reformed any of the draconian laws he had promised to change during his campaign. Rather in November 2017, the Supreme Court of the Gambia went ahead to certify that the Public Order Act (POA) was in line with the constitution. Since 2009, the POA has been challenged for being unconstitutional because it contains provisions that give power to the Inspector General of Police to either grant or deny permit for protest. Observers and human rights activists had condemned the POA that it gives immense powers to the police that override the limits imposed by the constitution that guarantees the right to peaceful assembly and demonstration. In fact the Public Order Act was one of the laws targeted in Barrow’s manifestation for reform.

The Public Order Act was one piece of legislation that the former regime had consistently used to clampdown on citizens for merely exercising their civil liberties including engaging in political activity. It was because of the POA that in 2010 the opposition UDP’s campaign manager Femi Peters (late) was jailed for one year for organizing a political rally in Banjul without a police permit to use a public address system. Secondly it was because of this law that the UDP leader Ousainou Darboe and scores of his executive members and supporters were also jailed for three years in July 2016 for unlawful assembly when they marched to the police station to demand the body of their late party youth leader Solo Sandeng. Similarly it was because of the Pubic Order Act that the paramilitary forces were deployed against students in 2000 leading to the shooting to death of dozens.

Following violent riots in May 2017 by the youths in the communities of Farato (about 30km from Banjul) against the demolition of homes and in June 2017 in Kanilai (home village of the former dictator Jammeh) against the presence of ECOWAS military intervention forces in the community, it has now been noticed that the government appears to deny any form of protests. This came first in November 2017 when a youth movement, #OccupyWestfield sought a permit to protest against the poor electricity supply in the country. The police initially gave the permit only to withdraw it within 24 hours. Similarly in January 2018, a political science lecturer at the University of the Gambia Dr. Ismaila Ceesay was ‘invited’ to the police headquarters for questioning for comments he made in a newspaper interview. It turned out that when Dr. Ceesay arrived at the station, he ended up being detained overnight and then charged for ‘incitement to violence’. Following a public outcry mainly by students and the Gambian civil society, the police were forced to release him and drop the charges. These incidents, if anything to go by clearly show that the open and free space for human rights in the Gambia at the moment may not last long.

Even when the government had passed other laws that broadly speak to the promotion and protection of human rights yet there have been instances of inconsistencies that cause for concern. For example in December 2018 the government passed new laws setting up the Truth, Reconciliation and Reparation Commission, the Constitutional Review Commission and the National Human Rights Commission. These moves have been welcomed by activists, human rights organizations, development partners and citizens generally. However there have been concerns that the government has been selective in dealing with major human rights issues of the past. While the government was commended for opening investigations and prosecution into the murder of Solo Sandeng, many are concerned why similar action was not taken in the case of the April 10 and 11 students massacre or the murder of Deyda Hydara among others?

What is even more concerning to many has been the fact the new government has failed to repeal the Indemnity Act which as enacted in 2001 to exonerate public officials and security officers for their decisions and actions in the student massacre. The April 10 and 11 Commission of Inquiry held between May and August 2000 identified several officials and officers by name and rank for being responsible for the shooting of the students. Instead of prosecuting or disciplining those responsible as recommended by the Commission, the government rather went ahead to indemnify their actions by describing the incidents as a state of emergency. Thus when the new government came to power, the expectations generally have been that one of the first laws to undergo repeal would be the Indemnity Act to allow for the prosecution of perpetrators and compensation of victims. This has not happened yet.

In addition to the April 10 and 11 incident, there were also other incidents that many were of the opinion that the new government would open investigations into them in order to ensure justice. Some of these incidents include the mass killing of soldiers in November 1994 in the wake of an attempted coup, or the burning to death of the former finance minister Koro Ceesay in June 1995 as well as the shooting to death of veteran journalist Deyda Hydara in December 2004 including many cases of enforced disappearances and summary executions such as in August 2012 when nine inmates in the country’s major prison were killed.

It must however be noted that generally the president Adama Barrow continues to speak positively about protection of human rights. He has expressed his desire on many occasions that civil liberties will remain respected by his government. Marking his first anniversary in office, he said his government had removed the phenomenon of ‘management by fear’ by creating the enabling environment for the exercises of  civil and political rights.

Conclusion

The civil and political rights situation in the Gambia today is certainly better than what it was during the dictatorship; at least for the foreseeable future. But so long as the draconian laws that infringe on civil and political rights remain in the statutes and the necessary constitutional and institutional reforms are not conducted, especially among security institutions, there remains the possibility that Gambians may encounter an erosion of their human rights. So far the government is not demonstrating the necessary urgency and commitment to these reforms. While the right political statements continue to be made by the leadership yet there has not been commensurate practical steps to not only refrain from infringing on rights but to also expand rights. Apart from the Supreme Court ruling on the POA and the denial of permits to protesters, there is now growing number of police checkpoints around the country reminiscent of the dictatorship.

Some analysts have contended that political expediency or lack of experience or poor leadership or the combination of all seem to have engulfed or preoccupied the new government, while, others have noted that, after all politicians remain the same, i.e. at the end of the day it is about seeking and maintaining power  by any means. Time will tell.

How can young people shape The Gambia's democratic future?

The author gave a similar speech on the theme during the lecture on ‘The Gambia’s constitutional reform process’ organised by the International IDEA:  Institute for Democracy and Electoral Assistance and Faculty of Law, University of The Gambia, 16 March 2018.

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The role of young people in shaping democracy in The Gambia requires a deep historical reflection stretching from the struggles of our forefathers against colonialism and the struggle of young people in the defeat of a 22-year-old dictatorship in 2016. Therefore, the role of young people in shaping democracy today should not be seen as isolated efforts to ensure accountability and resistance to abuse of power, rather it should be seen as a continuity of struggles long conceived even well before the birth of our independence. However, that history will be worthwhile exploration elsewhere. Today I want to address the theme by first looking at the efforts at the regional level that were designed to enhance youth participation in democracy.

At the African regional level, the transformation of the Organisation of African Union (OAU) to the African Union (AU) in 2002 marked a renewed commitment to the promotion of democratic institutions and good governance in Africa. This commitment is premised on the recognition that inclusive participation, good governance and democracy are fundamental pillars of continental development. In 2013 the AU adopted the Solemn Declaration which called on African states to unite and articulate common development aspirations reflective of the continent’s contextual realities. That commitment gave birth to the adoption of Agenda 2063 which articulates Africa’s long-term development vision. Aspiration 6 of Agenda 2063 provides that the continent aspires for an ‘Africa, whose development is people-driven, relying on the potential of African people, especially its women and youth,’ As such, youth are critical to the realisation of Agenda 2063 as over 60% of the continent’s population is estimated to be under the age of 30.

Moreover, in recognition of the role of youth in ensuring democracy, the AU adopted other normative and institutional frameworks that require member states to enhance the participation of young people in democracy, governance and decision-making. These normative frameworks include the Youth Charter adopted in 2006, the African Charter on the Rights and Welfare of the Child (1990), the African Charter on Democracy, Elections and Governance (ACDEG) (2007), the African Charter on Human and Peoples’ Rights (1981), and the Constitutive Act of the AU (2002). All these instruments engender rights, duties and freedoms that enhance the meaningful participation of young people in issues that concern their well-being, aspirations, democracy and governance.

Based on these frameworks, the AU also devoted 2017 as the year of ‘Harnessing the Demographic Dividend through Investments in Youth’. In pursuance of this agenda the African Union Commission designed a roadmap that focuses on four pillars on youth investment. These pillars are Employment and Entrepreneurship, Education and Skills Development, Health and Wellbeing, and Rights, Governance, and Youth Empowerment. The fourth pillar which involves Rights, Governance and Youth Empowerment deals with a commitment to ensure youth participation, representation and inclusion in decision-making processes is guaranteed. The pillar also calls for an inter-generational dialogue that will foster learning for emerging young leaders in the continent.

Drawing from these standards, the AU shows a commitment to enable youth participation in democratic governance. However, the extent to which youth will effectively participate in democratic governance will depend on the level at which these frameworks are translated into realistic commitments and policies at the domestic level. Lack of political will and dictatorial tendencies can create a disjoint between regional standards and national efforts.

The Gambia is a party to many regional instruments and in fulfilment of her obligations have adopted policies and laws to enhance youth participation in democratic processes. Article 89 (1)(b) of the Constitution of the Gambia 1997, sets the minimum age limit to participate in parliamentary elections at 21 years. For presidency, Article 62(1)(b) sets the minimum age at 30 years. Moreover, Article 196 makes it mandatory on every Gambian to undertake national youth services after attaining the age of 18. In addition to the Constitution of the Gambia 1997, the government also adopted the National Youth Policy subsequent to the establishment of the Gambia National Youth council in 2000. The purpose of the NYC council is aimed at enhancing the participation of youth in national development.

The role of youth in shaping democracy in the Gambia was crystallised in the 2016 Presidential Elections when they rallied to elect a new leader that would pave the way for what would be the first democratic change of government in the history of the country since 1965. This change did not only allow the new government of The Gambia to close a dark chapter of bad governance since 1994, but also presents an opportunity for renewed commitment to the respect of human rights and democracy. In light of that change, the new government of President Adama Barrow pledges to embark on a comprehensive constitutional reform to further consolidate democracy and human rights protection in the Gambia.

The engagement and participation of youth in this election was unprecedented and critical. Due to their frustration over the autocratic regime of President Yaya Jammeh, they rallied behind the banners of opposition coalition to usher in democratic and constitutional change of government.

Beyond the 2016 elections, from civil society forums, government platforms and on the streets, young people in the Gambia manifest a strong commitment and ethos to ensure that the new government in Banjul lives up to its commitment to democracy, good governance and respect for human rights.

The change of government ensured by young people has also led to the widening of the democratic space in the Gambia where they are unhindered to hold government accountable through social accountability mechanisms. This has led to the formation of youth organisations that are contributing in the policy processes to proactively advance good governance, human rights and democracy. A-Plus Gambia is an example of a youth organisation that is making efforts to hold the government accountable through public expenditure reviews and monitoring of budget. Thus, through budget monitoring youth groups are able to assess the gaps that exist between policies and government actions to ensure the progressive realisation of socio-economic rights particularly local government service delivery. The significance of such activities by youth groups is not only important in shaping democracy but also engender discussions around alternative policy choices for the realisation of human rights.

Furthermore, youth are also involved in peace building efforts in the Gambia. On 9 and 11 May 2017, Gambian youth in partnership with young leaders from 22 African countries organised and hosted a conference under the theme ‘Youth, Peace building and Regional Solidarity: Lessons from Africa’. The conference was jointly funded by the government of The Gambia, UNESCO, and the African Council for the Development of Social Science Research. This conference provided an opportunity for stakeholders to reflect on the challenges and opportunities for youth in transitional systems. More importantly the young participants highlighted the need for intergenerational interaction and dialogue in sustaining peace and ensuring the durability of democracy. The conference also provoked discussions on gender equality, peace consolidation and youth participation in governance.

Nonetheless, as writers accurately put it that the youth bulge in Africa is a double-edged sword. While it can be a catalyst for economic growth and transformation when well-managed, but it can also spur violent conflict across the continent.

Going forward, our fears and aspirations as young people should dictate the pace of our constitutional making process. According to His Lordship the CJ Honourable Hassan B Jallow, ‘’the 1970 Constitution was a well-crafted constitution indispensable to the proper functioning of government’’ However, written constitutions are not a guarantee for democratic government based on constitutional conventions. He went further to say that ‘’the ultimate guarantee for good governance reposes not in the letter of the law, but in the will, commitment and determination of the people and their leadership to tread the path of justice and fair play.’’ It this commitment and will, we the young people of this country demand from our government. We are not negotiating our future in these trying moments of our times.

It is important to emphasise that democracy in this context is understood as popular governance that has its roots in the enlargement of the public sphere for people to constructively participate in the choice of governance they desire. As such, in this context democracy is not synonymous to western liberal democracy which does not give primacy to group rights as a basis for rights, freedoms and duties. The AU has over the years recognised African values as central to human rights, governance and democracy. Thus, Article 3(b) of the Charter for African Cultural Renaissance endears African states ‘to promote cultural democracy which is in separable from social and political democracy. The charter also calls on African states to strengthen the role of African values in promoting peace, good governance, social cohesion and human development. 

As young people, we look forward to an inclusive constitutional making process that will recognise our concerns and fears.