the minister of Justice said the state disagrees with the decision of the
Supreme Court with regards to Public Order Act, a civil society activist has
described it as a terrible setback and disgrace for The Gambia especially given
the current trends within the sub-region and Africa at large.
Aboubacarr Tambedou said despite this disagreement by the state and public outcry from several quarters of the public, the state will still respect the decision in respect for the rule of law. “The government’s position has been the same as the plaintiffs, that is, provisions of the Public Order Act are unconstitutional,” he told reporters yesterday at a press conference.
Section 5(2) states that the IGP or Governor can only issue a permit if he “is satisfied that the procession is not likely to cause a breach of peace”.
In the case of the use of loudspeaker, the Act under Section 6(1) merely empowers the IGP or Governor to consent or not without stating any reasons or standards.
The Gambia Supreme Court on Thursday 23rd November dismissed a suit filed by Ousainou Darboe and 19 others, appealing against their conviction by a High Court under Jammeh’s regime to the Supreme Court then. In its ruling last week, Supreme Court states that sections of the Public Order Act are constitutional.
“The judiciary is an independent body and it will continue to work independently,” the Justice minister said, recalling that Gambian people had complained in the past that the previous regime did not respect the rule of law, which led to abuses at all levels of governance.
“These are new times. It means we must practice what we preach [which is] to respect the rule of law. The Supreme Court has been given a task to interprete our constitution; we must respect their decision even if we disagree with it,” Justice minister maintained.
Tambedou reiterated commitment of the government to rule of law, democratic principles and complete separation of powers.
He said the ministry received judgment this week and they will be dedicating time to analyze and absorb it before decision is taken as to the next course of action.
“In principle, there is a review process at the Supreme Court where a seven member panel can review the decision of the five-member panel. But we have not yet decided what to do yet,” he added.
Terrible setback, disgrace
“This decision by the Supreme Court is therefore a terrible setback and disgrace for the Gambia especially given the current trends within the sub-region and Africa and the world at large,” Madi Jobarteh, deputy director at the Association of NGOs in The Gambia has also said over the weekend.
According to Jobarteh, “the unconstitutionality and undemocratic nature of Sections 5 and 6 of the Public Order Act lie in the discretionary or arbitrary nature of the decision of the Inspector General of Police or a Governor to grant or deny a permit.”
He said the said provisions therefore place the right to protest at the whims and caprices of the IGP or the Governor regardless, yet the Supreme Court decided to ignore the unconstitutionality of these provisions.
“If the justices of the Supreme Court had paid enough attention to the limitations imposed by the constitution, then they would have realised that there is no more any need to give extra powers to the state to impose extra limitations. This creates double layer of limitations for which the end result can only be a violation of the right to protest and consequently of the constitution,” Jobarteh further argued.
He added that the provisions do not even cater for spontaneous protests that could emerge in the spur of the moment as citizens are compelled to react to urgent issues of legitimate public interest or concern. “This means the Public Order Act either severely dilutes citizens’ right to enjoy Section 25 at best or out rightly violates the constitution at worse or both,” he charged.
“A request for permit is a restriction of the right to protest hence a violation of freedom of assembly [and] a limitation to democracy, which is a contravention of the constitution,” he lamented, arguing further that the purpose of The Gambia Constitution is to create a democratic society based on the sovereign rights of citizens.
“This is why there is Chapter 4 entitled ‘Fundamental Rights and Freedoms’. These are entrenched rights for which the aim of the constitution is to protect citizens or right holders to enjoy them and to put an obligation on the State or the duty bearer to protect citizens to enjoy their rights. Hence the constitution does not envisage a system that will limit the enjoyment of these rights through a permit regime,” Jobarteh added.