What makes this more than a formal gap is the court’s direct treatment of the IGP’s discretion. The plaintiffs had argued that vesting the licencing power in the IGP, without binding criteria, rendered the right to assembly “unpredictable and subject to abuse.” The court’s response was to borrow, by analogy, the language of the Privy Council in Attorney General v Jobe:
“For the purpose of determining the constitutionality of the Act itself it must be presumed that judicial officers will do what the Act requires them to do; if in a particular case they fail to do so the person aggrieved has a remedy.”
Adapted to the present case, the court held:
“An actual or potential abuse of the discretion granted to the Inspector General of Police in relation to the issue of a licence cannot have any effect on the constitutional validity of Section 5 of the Act itself. The Inspector General of Police (IGP) must, however, exercise his discretion properly and for the purposes set out by Section 5 of the Act and of Section 25(4) of the Constitution. The court will presume that the IGP will do what the Act requires him to do; if in a particular case he fails to do so, the person aggrieved has a remedy now provided for under Section 37 of the Constitution.”
This passage reveals the assumption that carried the analysis: the court presumed that the IGP would exercise his discretion properly and treated that presumption of good conduct as a substitute for constitutional scrutiny of whether the law itself provides adequate constraints. But the constitutional standard the court had correctly stated does not ask whether the official is likely to behave well. It asks whether the restriction is reasonable and necessary in a democratic society. A law that depends for its constitutional validity on the presumed good conduct of the official it empowers is a law whose validity has not been tested at all. The Jobe analogy, drawn from a case about judicial officers operating within an established procedural framework, does not translate to an executive licensing official operating under a single, undefined discretionary standard with no procedural framework at all.
The absence of that constraint is not merely a procedural gap. American courts confronting comparable licensing regimes have treated it as a facial constitutional defect. In Shuttlesworth v City of Birmingham, 394 US 147 (1969), the city ordinance at issue conditioned public assembly on a permit granted at the discretion of the city commission, which was authorised to refuse where it judged the assembly contrary to the public welfare. The Supreme Court held that a law placing the exercise of expressive freedoms at the mercy of a licencing official without “narrow, objective, and definite standards” was unconstitutional on its face. The defect was not in the way the power had been used in any particular case, and still less in whether the commission was presumed to act in good faith. The defect was the absence of any meaningful constraint on its use in any case. An official who may refuse a permit whenever personally satisfied that a breach of peace is likely, without having to justify that satisfaction by reference to defined criteria and without any procedural accountability, holds a power that is constitutionally indistinguishable from a power to suppress assemblies at will.
The analogy to Plessy holds here, too. The Plessy court also identified a facially legitimate purpose, social order, and concluded that a formal restriction stopping short of outright denial was constitutionally tolerable. What it never asked was what the restriction actually did to those subject to it, and how it measured up to what the Constitution guaranteed them. In Darboe, Section 5 was found not to abolish the right of assembly. But the question of what Section 5 actually does to the practical enjoyment of that right, who bears its burden, whether its operation is the minimum necessary, and whether the discretion it confers is adequately constrained, was not asked. The presumption of official good conduct took the place of the answer.
III. The same bench, six months later: A stricter standard takes shape
In May 2018, the same five-judge bench delivered judgment in Gambia Press Union v. The Attorney General, SC Civil Suit No. 1/2014. The case concerned a constitutional challenge to Criminal Code provisions criminalising sedition and false news, arising under the same Section 25 and the same limitation clause at issue in Darboe v IGP case. The court’s analytical approach was markedly more developed, and what it announced across several critical paragraphs is best understood as a heightened standard of review for restrictions on entrenched constitutional rights.
At paragraph 25, the court held:
“The exceptions or restrictions created to the exercise of those rights and freedoms must be given careful and stricter construction.”
At paragraph 41, proportionality was embedded as an express requirement:
“Embedded within these fundamental criteria in meeting the test of constitutionality are that Parliament must be clear and unambiguous as to what right or freedom it is restricting, such restriction must be lawful, the legislative measure comprising the restriction must have a legitimate aim, and the restriction must be proportionate to the mischief being prevented or guarded against.”
And at paragraph 42, the court held that satisfaction of one criterion is not satisfaction of all:
“The legislation measure concerned must satisfy all these criteria as a whole, not just some of them, in order to stand the test of constitutionality. The fundamental rights and freedoms Chapter of the Constitution is entrenched for a reason: the framers of the Constitution consider respect for rights and freedoms enshrined therein to be sacrosanct and may only be interfered with in specific circumstances of each right and freedom as prescribed in the Constitution.”
Taken together, stricter construction means the court will not read exceptions generously in the state’s favor. Proportionality as an express requirement means the measure must be the minimum necessary interference, not merely a plausible response to a legitimate aim. “All criteria as a whole” means that identifying a legitimate purpose is the beginning of the analysis, not the end.
Returning to the Darboe analysis, the GPU standard asks the question the earlier judgment never did: not whether the IGP is presumed to act properly, but whether Section 5, as written, is proportionate to the public order aim it pursues. A provision whose constitutional validity rests on a presumption of executive good conduct rather than on defined legal constraints cannot satisfy that standard. Presumed good conduct is not a narrow, objective, and definite criterion. It is the absence of one.
Both judgments arose under Section 25 of the same Constitution, before the same bench, six months apart. GPU did not overrule Darboe, but it established a standard to which Darboe’s reasoning, on its face, cannot be reconciled.
IV. Emil Touray: The methodology settles into doctrine
Bai Emil Touray & 2 Others v The Attorney General, SC Civil Suit No. 001/2017, decided the same day as GPU by the same bench, concerned a constitutional challenge to provisions criminalising libel and the online spread of false news.
If any doubt remains that GPU represented the court’s settled methodology rather than a one-off departure, that judgment should put it to rest.
Emil Touray concerned a constitutional challenge to Criminal Code provisions criminalising libel and to section 173A of the Information and Communications (Amendment) Act, 2013, which criminalised the spread of false news over the internet. The court applied the GPU approach directly. At paragraph 29, reaffirming the three-part test from Darboe, the court stated:
“This Court outlines and relies on the three fundamental principles or criteria enunciated by this Court in Ousainu Darboe & 19 Ors v the Attorney General & Ors [2017] and confirmed in Gambia Press Union & 2 Ors v the Attorney General [2018] that must be collectively satisfied to establish constitutionality.”
At paragraph 30, the court added the proportionality requirement in express terms:
“As part of the process of satisfying these stated principles or criteria, it is important that any parliamentary enactment restricting a citizen’s exercise of a right or freedom must be clear, unambiguous, free from vagueness and proportionate to the mischief it is trying to prevent or guard against.”
And in its analysis of section 173A, the court did what the Darboe court had not: it examined the severity of the restriction independently, asking not merely whether a legitimate aim existed, but whether the penalty bore any reasonable relationship to the wrong the law was meant to address. Finding that it did not, the court held at paragraph 53:
“The prescribed penalty is disproportionate to the mischief it is trying to guard against… The prescribed penalty, when particularly compared to the penalties prescribed for similar offenses… goes beyond the reasonable boundaries of necessity and legitimacy and cannot therefore be upheld as necessary in a democratic society.”
On that basis, the court struck it down.
Emil Touray matters for another reason. It demonstrates that the court’s heightened methodology is not confined to press freedom cases. The court treated proportionality, conjunctive satisfaction of all criteria, and independent examination of each challenged provision as the standard approach for any constitutional challenge under Section 25. This is the standard to which assembly cases are equally subject.
Three decisions, same bench, same constitutional provision. The methodology is consistent. The gap is the assembly judgment in Darboe’s case.
V. What lower courts must do now
The practical consequences of GPU and Emil Touray extend beyond the Supreme Court itself. The High Court and the Court of Appeal regularly encounter criminal assembly charges brought under the Public Order Act. Darboe binds those courts as the only Supreme Court authority directly on Section 5. But they are equally bound by GPU and Emil Touray as the court’s settled articulation of how Section 25(4) challenges must be analysed. The tension between those authorities is not abstract. It lands in courtrooms where accused persons face prosecution for assembling without a police license, and where their counsel must decide how to frame the constitutional argument.
Before addressing that choice, it is worth being precise about what the High Court can and cannot do in this context, because the distinction matters practically.
Section 127(1)(b) of the Constitution vests exclusive jurisdiction in the Supreme Court to determine whether any law is inconsistent with the Constitution. The High Court cannot declare Section 5 of the Public Order Act unconstitutional. That power belongs to the Supreme Court alone. But the High Court’s constitutional role does not end there, and it would be a significant error to treat that jurisdictional boundary as a reason for lower courts to stay silent on constitutional questions altogether.
Section 37 of the Constitution, read together with the broader Chapter IV framework, guarantees every person the right to apply to the High Court for redress where any of the fundamental rights and freedoms recognised in the Constitution have been, are being, or are likely to be contravened. The High Court, by constitutional design, is a court of first instance for the enforcement of fundamental rights. Its jurisdiction in this domain is original, not derivative. It does not need to wait for the Supreme Court to act before it can give effect to the rights the Constitution protects.
What this means in practice is that the High Court can and must apply the GPU and Emil Touray standard when assessing whether a criminal prosecution for unlicensed assembly constitutes a violation of the accused’s right to peaceful assembly under Section 25(1)(d). It cannot strike down the law. But it can examine whether the law, as applied to the facts before it, operates in a reasonable manner, necessary in a democratic society, and proportionate to any legitimate public order aim. It can be found, on the evidence, that a prosecution arising from a peaceful assembly that presented no credible threat of disorder cannot be maintained consistently with Section 25(4), as that provision has been authoritatively construed in GPU and Emil Touray. That is an as-applied constitutional finding, not a declaration of invalidity. It is squarely within the High Court’s jurisdiction, and it is available to a properly advised defendant today.
