Ousainou Darboe & Co suit against Attorney General, others mentioned at Supreme Court

Thursday, May 18, 2017

The case filed by Ousainou Darboe, leader of the United Democratic Party (UDP), against the Attorney General, the Inspector General of Police (IGP) and the Director General of the National Intelligence Agency (NIA), was Monday mentioned at the Supreme Court.

The plaintiffs are Ousainou Darboe, Kemeseng Jammeh, Femi Peters, Lamin Dibba, Lamin Jatta, Yaya Bah, Babucarr Camara, Fakebba Colley, Ismaila Ceesay, Momodou Fatty, Dodou Ceesay, Samba Kinteh, Mamudu Manneh, Nfamara Kuyateh, Fanta Darboe, Lamin Njie, Juguna Susso, Momodou L.K.Sanneh, Yaya Jammeh and Masanneh Lalo Jawla.

The defendants are the Attorney General, the Inspector General of Police (IGP) and the Director General of the National Intelligence Agency (NIA).

The plaintiffs are seeking from the Supreme Court a declaration that the requirement of a license for any public procession under section 5 of the Public Order Act is illegal and unconstitutional as it violates Section 25(1) (d) and Section 25(2) of the constitution.

They are also seeking a declaration that section 5 of the Public Order Act laws of The Gambia which requires permit or any other authority for the convening or holding of public procession in any part of The Gambia is illegal, unconstitutional and made in excess of legislative authority having regard to Section 25 of the Constitution of The Gambia.

They also want the court to say that section 5 of the Public Order Act laws of The Gambia is inconsistent with Sections 25 (1) (d) and sections 25 (2) and void to the extent of the inconsistency pursuant to Section 4 of the Constitution of The Gambia.

They want an order striking out Section 5 of the Public Order Act laws of The Gambia on the grounds that it is unconstitutional, null, void and was made in excess of legislative authority.

A declaration that Section 69 of the Criminal Code is void for lack of certainty and vagueness, and for its inconsistency with 25(2) of the Constitution.

The writ to invoke the Supreme Court original jurisdiction disclosed that the plaintiffs were arrested on 16 April 2016 at Kairaba Avenue and were remanded in custody, arraigned before the High Court on 20 April, 2016 on seven counts, two of which were charges framed under Section 5 of the Public Order Act laws of The Gambia which are counts 5 and 6 and they all pleaded not guilty to the charges, whilst counts 1 and 2 were framed under Section 69 of the Criminal Code.

The writ also disclosed that most of the plaintiffs are members of the United Democratic Party and were at the time of arrest (safe for a few of them who were just picked up from the streets by paramilitary) while exercising their constitutional right to freedom to assemble and demonstrate peaceably and without arms, and to move freely within The Gambia.

The writ further disclosed that the plaintiffs were exercising their constitutional right to free speech and expression, noting that these rights are guaranteed under Section 25 of the constitution of The Gambia.

In the plaintiffs statement of case disclosed that they are members of the United Democratic Party and the 1st plaintiff, Ousainou Darboe, is the leader of the said party and that on 14 April 2016 some members of the said party led by Ebrima Solo Sandeng (who was arrested by the defendants on 14 April 2016 and was not seen alive or dead) embarked on a peaceful protest march calling for electoral reforms.

The statement also claimed that the paramilitary under the control of the State used brutal force to break the march and arrested several protesters.

On 16 April 2016, the 1st plaintiff called a press conference at his residence over the arrest and detention of the said persons and it was resolved that the members of the executive would march to the Police Intervention Unit at Kanifing to demand for the body of Ebrima Solo Sandeng after being informed that he was tortured to death.

That some of the plaintiffs went with the 1st plaintiff chanting “We need Solo Sandeng dead or alive” and waiving miniature Gambian flags. They were not armed and the State is not alleging the contrary.

That upon reaching the junction where the Africell is situated (about 800 metres from where they started out), the paramilitary without any warning to the protest marchers to disperse, disrupted the peaceful march by chasing and beating the plaintiffs some of whom were part of the march.

That some of them were arrested and taken away with various degrees of injuries, some of whom required stitching and other medical treatments which have not been made available to them apart from stitching some of the wounds.

That some of the plaintiffs were arrested at the gate of the 1st plaintiff’s residence at Pipe-Line whilst others were simply arrested indiscriminately by the paramilitary.

That the plaintiffs were arraigned at the High Court sitting in Banjul on 20 April 2016 on six counts and on 28 April 2016 the information was amended to include a seventh count, two of which are charges framed under Section 5 of the Public Order Act of the laws of The Gambia.

That counts 1 and 2 were framed under Section 69 of the Criminal Code and the plaintiffs pleaded not guilty to all the counts.

The plaintiffs therefore contend that the Supreme Court is empowered to hear the case under its both original and exclusive jurisdiction pursuant to Section 127(1) of the Constitution.

That Section 5 of the Public Order Act laws of The Gambia amounts to interferences with freedom of speech and expression; freedom to assemble and demonstrate peaceably and without arms, and freedom to move freely within The Gambia.

When the matter came up before the Supreme Court on Monday 15 May 2017, the lead counsel for the plaintiffs informed the court that the plaintiffs have filed their statement of claims and have also supplied all the authorities relied on by them.

In his respond, lawyer Binga D of the Attorney General Chambers informed the court that the respondents have also filed their briefs.

The matter was adjourned until 26 May 2017, at 9:00am.

Author: Bruce Asemota
Source: Picture: Foreign Affairs Minister Ousainou Darboe