The leader f the United Democratic Party (UDP) has written to the Attorney General and Minister of Justice, Abubacarr Tambadou as a ‘brother and colleague in law and justice’, citing that the banning of 3 Years Jotna as a move that contravenes the provisions of the Societies Act 1970
Below
reads Mr. Darboe’s letter:
3rd
February 2020
Hon.
Abubacarr M Tambadou
Attorney-General
and Minister of Justice
Attorney-General’s
Chambers
&
Ministry
of Justice
Marina
Parade
Banjul, The Gambia
My
Dear Colleague and brother,
Let
me once again congratulate you for filing a case against Myanmar at the
International Court of Justice (ICJ) for that country’s violation of the United
Nations’ Genocide Convention 1948. Even if the ICJ had ruled against The Gambia
on the issue of locus standi, the mere fact of filing the case is sufficient to
prick the conscience of all decent human beings. With the unanimous ruling of
the ICJ, the issue of the Rohingya Muslims can no longer remain unaddressed by
Myanmar and the International community. Thanks for this historic service to
humanity.
But
a few days after the ICJ agreed with you that the actions of the Myanmar
Government were in violation of the 1948 Genocide Convention, our own
government, on 26th January 2020 at about 3pm, by proclamation/declaration
banned the 3 Year Jotna Movement (Movement) which in my view is not in
accordance with the provisions of the Societies Act 1970, Cap 50:01 Laws of The
Gambia (the Act).
In
an interview with Mr. Gomez, host of “Coffee Time with Peter Gomez”, the
Honourable Minister for Information and the Government Spokesperson advanced
reasons why the Movement was banned. Amongst these are the fact that the
Movement was engaged in subversive activities and that it was un-registered.
Despite its non-registration, the government in good faith and guided by our
democratic credentials accommodated and dealt with the Movement.
I
do not wish to comment on the validity/veracity of the allegation that the
Movement was engaged in subversive activities. I however take liberty to state
that the non-registration of the Movement does not vest authority in the
executive branch of the Government to issue a banning Order on the Movement and
make consequential orders for the implementation of the banning Order.
Section
2 of The Act defines “society” to include “any club, company or partnership
whether registered under any law or not, or any group or association of two or
more persons”. I am of the firm view that the Movement is a group/association
of two or more persons. Its non-registration cannot be a valid and justified
reason for banning it.
But
a more serious and fundamental flaw is that the conditions precedent for a
legitimate banning (proscription) order have not been satisfied. Section 3 (1)
of the Act informs us that one or more of the activities mentioned in the
subsection must occur before a society can in law be considered as an unlawful
one.
It
does appear to me that it is not the pronouncement or declaration by the
executive that renders a society unlawful. There must be a trial under the Act
for a contravention of the provisions of section 3 (1) to justify the
proscription or banning of any society.
Section
3 (2) of the Act provides “A Court trying an offence under this Act may, during
the pendency of the prosecution, order the suspension of the society and
prohibit its office-bearers and members from engaging in any of its
activities”.
Further
Section 3 (3) states “The court may, after finding that a society is formed for
any of the purposes specified in subsection (1) of this section, or after its
formation has indulged or engaged in any activities mentioned therein, make an
order declaring the society to be unlawful and any order so made shall without
delay be transmitted to the Minister”. It is clear from the language of Section
3 (2) and (3) that the legislature has reserved to the courts the power and
authority to suspend a society or declare same unlawful because of its
contravention of any of the prohibited acts specified and enumerated in section
3 (1) of the Act. Unless the conditions stipulated in section 3 (3) of the Act
are satisfied the executive does not in my view have the power or authority to
declare any society including the Movement unlawful and proceed to ban same.
Of
course the legislature recognizes that the responsibility for the
administration of the Act is entrusted to the Minister (executive). And for
this reasons Section 3 (4) provides “The Minister shall on the making of the
order referred to in subsection (2) of this section, by Order published in the
Gazette proscribe such society and thereafter that society shall cease to
exist”. I believe the reference to subsection 2 must be the printer’s error. It
cannot be doubted that the subsection intended to be referred to is subsection
3 of section 3.
My
dear Colleague and Brother knowing your passion for strict adherence to, and
compliance with procedural rules that affect the liberty of individuals and
their constitutional right to freedom of association, I am convinced that this
serious and fundamental disregard of the provisions of the Act by the executive
would not have occurred had you been consulted. I also entertain no doubt that
since your attention has been drawn to the relevant provisions of the Act, you
will take, or cause to be taken, appropriate measures to remedy the situation-a
task that will involve a choice between doing what is morally right and what is
legally correct.
Whilst
assuring you of my highest consideration and personal esteem, I remain always
your Colleague and Brother in the service of the law and justice.
A.N.M.
OUSAINU DARBOE
