By Sarjo Barrow, Esq
The Supreme Court correctly stated the constitutional test in 2017. Six months later, the same bench announced a stricter standard, one that the assembly judgment, on its face, did not apply. The case for revisitation rests on the court’s own jurisprudence.
Analysis grounded in SC 003/2016 · SC 1/2014 · SC 001/2017 · ECW/CCJ/JUD/01/20 · US First Amendment Doctrine
To the average person, courts serve as referees between a citizen and the state, or even among citizens. However, they are much more than most people understand. Courts are also the custodians of the document that gives those disputes their meaning. And because constitutional law is a living discipline, one that develops, refines, and, where the architecture of a decision warrants it, revisits, examining a past judgment is not an act of disrespect. It is an act of fidelity to the very idea of constitutional governance.
A hallmark of the common law tradition is the doctrine of stare decisis, the principle that courts stand by what has been decided and do not unsettle a settled law without a compelling reason. It is a doctrine of deep practical value. It gives citizens the ability to order their affairs in reliance on judicial pronouncements, and it protects the courts’ own institutional authority by insulating them from the appearance of deciding cases on whim or politics rather than principle. No serious constitutional commentator disputes its importance.
But stare decisis has never been, in the words of Justice Samuel Alito writing for the majority of the United States Supreme Court in Dobbs v Jackson Women’s Health Organisation, 597 US 215 (2022), “an inexorable command.” The common law has always recognised that adherence to precedent must yield where the prior decision was egregiously wrong, where its reasoning has been eroded by subsequent authority, or where a more rigorous standard has since superseded the analytical framework, it applied. Justice Alito’s observation was made in the context of the reversal of Roe v Wade, one of the most consequential decisions in American constitutional history. It drew on a long tradition of courts across common law jurisdictions acknowledging that the legitimacy of the judicial enterprise depends not on the permanence of any single judgment, but on the integrity of the reasoning that supports it. What distinguishes a principled revisitation from mere inconsistency is transparency: the court explaining, with precision, why the prior reasoning cannot stand against the standard the law now requires.
History’s most instructive example of that transparent fidelity came from the United States Supreme Court across two decisions separated by a single year. In Plessy v. Ferguson, 163 US 537 (1896), the court had upheld racial segregation under the doctrine of “separate but equal,” reasoning that physically separating citizens by race did not, on its face, deny them equal treatment under the law. The doctrine stood for nearly sixty years. What ultimately undid it was not a change in the constitutional text, but a change in what the court was willing to examine. In Brown v. Board of Education, 347 U.S. 483 (1954), the court looked past the formal equality of the separate facilities and asked what segregation actually did to those subjected to it. It found that separating Black children from white children in education “generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.” The formal rule, equal facilities, could not survive scrutiny once the court measured it against the real-world experience of those whose rights were at stake. Plessy was not overruled because the Constitution changed. It was overruled because the court finally applied the Constitution’s guarantee of equal protection to the law’s actual consequences rather than its surface appearance.
A year later, in Brown II, 349 US 294 (1955), the same court returned to address implementation, issuing guidance for how desegregation was to proceed with “all deliberate speed.” The court did not treat its prior work as complete. It acknowledged that a ruling of constitutional importance required ongoing attention to ensure it was realized in practice. That willingness to return, refine, and complete its own work transparently is precisely what gave Brown its enduring authority. Constitutional courts earn legitimacy not by treating every prior judgment as beyond scrutiny, but by subjecting their own reasoning to the same rigorous standards they demand of Parliament.
It is in that spirit that the following observations are offered about Ousainu Darboe & 19 Others v Inspector General of Police & 2 Others, SC Civil Suit No 003/2016, delivered on November 23, 2017. The question in that case was whether Section 5 of the Public Order Act, which requires citizens to obtain a police license before any public procession, was consistent with the right of peaceful assembly guaranteed by Section 25(1) (d) of the 1997 Constitution. A full bench of five justices, presided over by the Chief Justice, held that it was. That judgment has shaped the legal landscape of public assembly in The Gambia ever since. It merits, this commentary respectfully suggests, a careful second look, and the grounds for that second look lie not in external criticism, but in what the same court said six months later and has continued to say since.
I. Two kinds of limitation
No constitutional scholar, no court of record, argues that the right to peaceful assembly is unlimited. Thus, the question is never whether the state may regulate it. Instead, the question is how, to what degree, and by what mechanism the state may regulate the right to peaceful assembly.
Constitutional practice across democratic systems has developed a useful distinction between two types of limitation, horizontal and vertical. The first covers what scholars call time, place, and manner restrictions, rules that shape how a right is exercised without conditioning whether it may be exercised at all. Requirements about route, timing, or proximity to certain premises fall here. They are widely recognised as permissible, provided they are content-neutral, serve a genuine public interest, and leave adequate alternative means of expression open.
The second covers prior restraint mechanisms, which make the legal existence of an assembly conditional on advance authorisation from the state. A license or permit regime belongs here. It is structurally different from the first category because it places the burden on the citizen to obtain permission before exercising a constitutional right, rather than on the state to justify interference after the right has been exercised.
Section 5 of the Public Order Act belongs to the second category. It does not govern how a procession proceeds. It makes the procession’s very existence contingent on the Inspector General of Police being satisfied that it is “not likely to cause a breach of the peace,” a determination made without binding criteria, without any obligation to give reasons, and without a prescribed mechanism for challenging a refusal. Understanding which categorical position Section 5 occupies is the foundation for everything that follows.
II. The Right Test, the Wrong Application, and the Assumption That Did the Work
Section 25(4) of the 1997 Constitution establishes that any lawful limitation on the rights in Section 25 must be reasonable, necessary in a democratic society, and required in the interests of one of the specified purposes, including public order. These are conjunctive requirements. Satisfying the third, that a legitimate purpose exists, does not, on its own, satisfy the first or the second.
The Supreme Court in Darboe correctly identified the applicable framework:
“Under the Constitution any restrictions must satisfy three conditions for them to be lawful. They must be: (a) reasonable; (b) necessary in a democratic society; and (c) imposed for one or more of the purposes set out in Section 25(4) of the Constitution.”
The court then turned to Section 5 itself and described, in terms that are also accurate, what the provision actually does:
“Section 5 of the Act, by requiring a license issued by the Inspector General of Police (IGP) for a procession, places restrictions or limitations on the exercise of the right to assembly guaranteed by Section 25(1)(d) of the Constitution. It is worth emphasizing that the Act in particular places restrictions on the right; it does not purport to abolish or absolutely deny the exercise of the right; it imposes conditions or procedures for the exercise of the right, i.e., the issue of a license by the Inspector General of Police.”
Again, this is an accurate description of Section 5’s design. A licensing requirement is a restriction, not an abolition. The critical analytical step, however, was what the court then said about the IGP’s discretion under that licensing requirement:
“Whilst the Inspector General of Police has the discretion to refuse to grant a license, he can only do so on grounds of a potential breach of the peace, i.e., on public order or public security grounds.”
This sentence is the fulcrum on which the entire analysis turns, and it is where the judgment’s reasoning diverges from the constitutional framework the court had correctly stated. The court acknowledges that the IGP holds a discretion to refuse. It then constrains that discretion, in its own description, to a single ground: potential breach of the peace. But Section 5 itself imposes no such constraint in terms that are narrow, objective, or defined. The breach-of-peace criterion is the condition for issuing a license, not a defined standard with objective criteria, procedural requirements, or a burden of proof. The court read Section 5 as though it contained safeguards it does not contain, and then, having attributed those safeguards to the provision, concluded that the restriction was constitutionally sound.
The consequence of that reading is visible in the very next paragraph of the judgment:
“The right to assembly, as with other individual or collective rights, is usually exercised within the public space. As a result, its exercise by one may conflict with the exercise of the same right by others or with the exercise or enjoyment of other rights by other persons or with the needs for the maintenance of public order and security. Hence the need for some regulation or restrictions on the exercise of the right. Such restrictions on the grounds set out in Section 25(4) of the Constitution and Section 5 of the Act are thus reasonably justifiable in any democratic society. So long as they remain restrictions or limitations only and not purported abolitions of the right or are not such as would render illusory the enjoyment of the protected right.”
The word “thus” is doing the work that the three-part constitutional test was supposed to do. The court moved from the observation that assembly rights can conflict with public order directly to the conclusion that Section 5’s licensing regime is therefore reasonably justifiable, without ever applying the conditions it had stated at the outset. The three conditions, reasonable and necessary in a democratic society, imposed for a permissible purpose, were stated and then bypassed. The analysis resolved itself on one limb, the existence of a public order purpose, without independent examination of the other two.
Disclaimer: Closed circuit. The article is written for lawyers, Jurists, law students, or legal enthusiasts. The article is purposefully long because it addresses a significant constitutional case for legal scholars to debate.
