Dear Editor,
Mr Mai Ahmed Fatty’s recent commentary on the dispersal of peaceful demonstrators in Banjul is both legally unsound and misleading in its implications for constitutional freedoms in The Gambia. While Mr Fatty seeks to justify police intervention on grounds of “obstruction” and “potential harm,” his arguments collapse upon a closer examination of constitutional provisions, jurisprudence, and international human rights standards binding on The Gambia.
1. Constitutional right to assembly and expression
Section 25 of the 1997 Constitution guarantees every person the right to freedom of assembly and expression. These rights are not granted at the discretion of the executive or the police; they are inherent constitutional protections. The same provision allows restrictions only in narrowly defined circumstances—such as public safety or order—but those restrictions must be both **reasonable and proportionate**. The Constitution does not authorise the outright prohibition or violent dispersal of peaceful assemblies merely because they occur near businesses, banks, or even foreign missions.
2. International legal obligations
The Gambia is a signatory to the African Charter on Human and Peoples’ Rights (Article 11) and the International Covenant on Civil and Political Rights (Article 21). Both instruments affirm the right to peaceful assembly, subject only to restrictions strictly necessary in a democratic society. The African Commission has consistently ruled that vague references to “public inconvenience” or “potential disruption” are insufficient grounds for limiting assembly rights. Therefore, Mr. Fatty’s reliance on such arguments is inconsistent with The Gambia’s international obligations.
3. The test of proportionality
Established jurisprudence, including decisions of the ECOWAS Court of Justice and the African Commission, clarifies that restrictions on fundamental rights must meet a three-part test: legality, necessity, and proportionality. Even assuming that the protest might have caused some disruption to bank customers or road traffic, such inconvenience is minor compared to the significance of the rights at stake. The dispersal of protesters fails the proportionality test because less intrusive measures—such as rerouting traffic, negotiating protest zones, or providing police facilitation—were plainly available.
4. Mischaracterisation of peaceful protest as “obstruction”
Mr Fatty’s assertion that protesters’ rights cannot override others’ rights to access buildings or use ATMs is a mischaracterisation of the law. Courts worldwide, including in West African jurisdictions, have recognised that peaceful protest inevitably entails some level of disruption**. This is not an obstruction in the legal sense, but an inherent feature of democratic life. To conflate temporary inconvenience with unlawful obstruction is to distort the law in favour of executive suppression.
**5. Silence on the Substantive Grievance**
Most tellingly, Mr. Fatty’s statement is silent on the substantive issue that motivated the protest: the increase in data charges endorsed by PURA. In law, the legitimacy of state action is always tied to its responsiveness to citizens’ grievances. A regulatory body entrusted to protect consumers cannot hide behind the police to shield itself from public accountability. By defending police dispersal while ignoring the regulatory failure at the heart of the protest, Mr Fatty presents an argument that is politically convenient but legally deficient.
6. The Role of the Police in a Democracy**
In a democratic system, the duty of the police is not merely to enforce order but to facilitate the exercise of constitutional rights. The UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials stipulate that force should only be used when strictly unavoidable. That law enforcement should actively enable peaceful assemblies. The actions of the police in this case—and Mr Fatty’s defence of them—contradict these principles.
Conclusion
Mr Fatty’s exposition, though couched in legal language, fails to withstand constitutional or international legal scrutiny. It represents not an objective interpretation of law but an attempt to rationalise state suppression of legitimate dissent. The right to protest cannot be reduced to a privilege contingent on the convenience of banks, businesses, or diplomatic neighbours.
In a democracy governed by law, the state must uphold its citizens’ rights even when doing so proves inconvenient. To suggest otherwise is to hollow out the very meaning of constitutionalism in The Gambia.
Open Gambia
