First and foremost, I must admit that I was frighten, terrified, and at some point even paralyzed, with a great deal of dismay, when I read the so-called alleged article written by lawyer Ibrahim Jallow Esq…, from the Daily Observer dated Tuesday 13th June, 2017.
For a start, let us look at the meaning of peaceful demonstration within the context of the 1997 Constitution. By virtue of Section 25 (1) – Freedom of speech, conscience, assembly, association and movement, and it reads:-
“(1) Every person shall have the right to –
(a) freedom of speech and expression, which shall include freedom of the press and other media;
(b) freedom of thought, conscience and belief, which shall include academic freedom;
(c) freedom to practice any religion and to manifest such practice;
(d) freedom to assemble and demonstrate peaceably and without arms;
(e) freedom of association, which shall include freedom to form and join associations and unions, including political parties and trade unions;
(f) freedom to petition the Executive for redress of grievances and to resort to the Courts for the protection of his or her rights.”
If we pay attention to the aforesaid section, it not a coincidence that the word “freedom” is mentioned 9 times in this particular provision. The word “freedom” becomes a common denominator in that section, not just for a mere rhetoric, but rather it exemplifies and magnifies the importance the constitution attaches to the exercise of these rights.
The constitution is very much descriptive and prescriptive about the way and manner as to how a peaceful demonstration supposed to be conducted. I think my friend lawyer Jallow is using the public space within the spirit of Section 25 (b). Unfortunately, lawyer Ousainou Darboe and co were operating within the same democratic space as provided by the constitution, and they end up earning the anger of the then government, and they found themselves been consumed by the law. Is no point here in reminding lawyer Darboe about obeying the law, simply because he is not part of the equation as to what happens in Kanilia, moreover, let me remind you that, lawyer Ousainou Darboe is one of the staunch disciples of Jeremy Bentham’s principle of “the law supposed to be the greatest happiness for the greatest number”. The father of utilitarianism, which evaluates actions based upon their consequences. Jeremy Bentham (1748 – 1832).
So for one to say “obey the law or be consumed by the law”, at most is a cautionary statement and has nothing to do with as to what the law says. One thing that we have to appreciate is that “what the law is and what the law supposed to be are two different things”. So at some point if not all the time we always consume the law, in fact I can comfortably argue that we are all consumers of the law on daily basis, a good example is the buying and selling that you are engaged in from your next door corner shopkeeper or from your favorite supper market (the contract of buying and selling), involves the “use” and “consumption” of the law.
In fact we consume the law in every inch of our movement: in the household, at work place, in the streets and even in our sleeps, unless those who suffer from the disease of a sleep-walk syndrome called automatism – hi, Jaye Sowe – but even that the law says if you know that you fight in your sleep or you use dangerous weapons in your sleep, the law requires that before you go to sleep, is your duty to make sure that you keep away all those knives and dangerous weapons around you. One cannot just wake up from the wrong side of the bed and go on the rampage by destroying anything that comes your way, otherwise Section 9 of our Criminal Code will apply – presumption of sanity – it reads:-
“Every person is presumed to be of sound mind, and to have been of sound mind at any time which comes into question, until the contrary is proved.” Meaning one’s sanity will only be questioned if one starts to behalf abnormally. The presumption of the law is that all of us are with the right compos mentis until we become non compos mentis.
So if I were Honorable Mai Fatty, I would have rather coined it this way – “consume the law or the law consumes you” meaning use the law wisely or the law uses you. To cut the long story short, the law is meant to be obeyed and not to be disobeyed, and every inch of the Gambian territory have to be administer by the Gambian law.
My learned colleague, with due respect, in your purported article, you claim to be an agency of Nemesis which is a choice, but a reminder of Section 220 – duties of a citizen – which will be dealt with further down the line.
Let me call your attention to Section 78, and let us look at it together so that we can make a sense out of it, because is an old adage that says “two heads are better than one” otherwise I am not bothered. Section 78 – National Security Council – and it states:-
“(1) There shall be a National Security Council which shall consist of –
(a) the President;
(b) the Vice-President;
(c) the Secretaries of State responsible for defence and internal affairs;
(d) the Chief of Defence Staff and two other members of the Armed Forces appointed by the President;
(e) the Inspector General of Police
(f) the Director General of the National Intelligence Agency; and
(g) the intelligence adviser to the President.
(2) The National Security Council shall be responsible for advising the President on all matters relating to the security of The Gambia and the integration of domestic and foreign policies relating to its security; and under the direction of the President, shall take appropriate measures to safeguard the internal and external security of The Gambia and to provide for the co-operation of the departments and agencies of the Government in that regard.”
Right from the above, me and my colleague will appreciate that, the Honorable Minister was not only acting as the Minister for homeland security, but also, he doubled in his capacity as a member of the Ten-member National Security Council. So by virtue of the duties of the council as the directing brain of the executive, with regard to internal and external security of The Gambia, and base on the Council’s preliminary assessment of the security situation with regard to the unfortunate incident in Kanilai, the Minister came up with a statement to that effect on behalf of the President.
Now, if you don’t mind, together let us look at Section 220 – duties of a citizen – and it reads:-
“(1) The exercise and enjoyment of rights and freedoms are inseparable from the performance of duties and obligations, and accordingly, every citizen shall:
(a) promote the prestige and good reputation of The Gambia and respect the symbols of The Gambia;
(b) uphold and defend the Constitution;
(c) foster national unity and live harmoniously with others;
(d) respect the rights, freedoms and legitimate interests of others and refrain from acting in a manner detrimental to the welfare of other person;
(e) serve The Gambia by working conscientiously in his or her chosen occupation;
(f) protect and preserve public property and expose and combat the misuse and waste of public funds and property;
(g) contribute to the well-being of the community in which the citizen lives;
(h) be loyal to The Gambia and contribute to its defence when necessary;
(i) co-operate with the appropriate agencies in the maintenance of law and order; and
(j) protect and conserve the environment of The Gambia.”
In-as-much as we want to criticize the Government;
In-as-much as we want to insult a State Minister; and
In-as-much as we want to undermine National Security, we need to be reminded of our responsibilities and duties as a private citizen with the application of section 220 as listed above. If some of our actions go uncheck, can be tantamount to a universal suicide at national level, and there is no victory or winner in a universal suicide package.
But in the case of a lawyer in addition to Section 220, by virtue of his or her forensic training, we will invoke the Code of Legal Etiquette by employing the service of the General Legal Council by virtue of Sections 4 and 32 of the Legal Practitioners Act 2015.
At this juncture, I would like to bring in the canons of legal ethic by Canadian Bar Association – which is in line with the spirit and intendment of our Legal Practitioners Act 2015 – and it reads:-
“The lawyer is more than a mere citizen. He is a minder of justice, an officer of the courts, his clients advocate and a member of an ancient, honorable and learned profession. In these several capacities, it is his duty to promote the interest of the State and serve the courts of justice, maintain the authority and dignity of the courts, be faithful to his clients, candid and courteous with his fellows, and true to himself”.
In the same vein, if the misconduct comes a National Assembly Member, we will rely on the Honorable Madam Speaker to invoke Section 45(9) of the Standing Order, in order to bring the member concerned to order or otherwise we will invoke Section 112 of the Constitution – Responsibilities of members – that members shall maintain and uphold the dignity of the House both inside and outside the House. Also the members shall discharge their duties and functions in the interest of the nation as a whole and in doing so shall be influenced by the dictates of conscience and the national interest.
Yes if a member of the House wants to be on the loose, fine is a choice, but the forum is inside that magnificent and monumental structure at the entrance of the capital city Banjul on the right hand side just adjacent to the “autrefois” Gambia High School. That freedom of speech and debate is available only in that corner and the member can said anything under the sun and he or she will not be impeached or questioned in any court or place outside the National Assembly under Section 113. At this juncture I would like to borrow from the I.G.P of The Gambian Constitution Dr. Hendry D.R. Carrol (M.R.G), one among his numerous accolades, that the immunity of the National Assembly Members is only limited to utterances and those not include acts, especially acts of violence. Triple Dr. Permission – and I stand to be corrected if I am wrong.
For those of you who were campaigning that there was an agreement between the once upon a time head of state and the current Government, I think you are displaying your limited knowledge of the Public International Law. In International Criminal Law or by international criminal justice system, AMNESTY can and shall never block any prosecution, even domestic prosecution is not a bar from facing justice at the international level for egregious crimes committed i.e. crimes against humanity, war crimes and genocide by the ICC standard on the principle of COMPLEMENTARITY by virtue of article 17. Besides, if some of you don’t stop the smear campaign, you may find yourself at the wrong end of the doctrine of “tater hinter dem tater” meaning “perpetrator behind perpetrator” or otherwise known as enablers. If I may borrow from Malick H.B. Jallow, Barrister and Solicitor of the Supreme Court of The Gambia.
Against this backdrop, if a lawyer comes into conflict with the law or a National Assembly Member, the law will not only consume you but rather, the law will CHOP you – if I may borrow from the marketing slogan of the COMIUM chop my dollar.
My Lord as the court pleases, another additional indictment, the non-disclosure of a privilege communication under a lawyer-client relationship by virtue of Section 172 of the Evidence Act 1994. Courtesy of lawyer L.S. Camara – Lang Bambi my regard.
Besides, if the law has to be respected by anybody anywhere, it has to start with the lawyer as a minister of the temple of justice. To be a lawyer, takes more than wearing the wig and the gown. Folks I am back.
Yes democracy permitted choice, but a choice that needs to be exercised with a great deal of responsibility. Simply, because to a greater and to a lesser extent, your rights stop where someone else’s rights begin.
As lawyers, in as much as we are faced with issues, we should equally try as much as possible to avoid being judgmental, over emotional, and opinionated. As the age long adage goes, “to whom much is given, much is expected”.
“Disclaimer” nothing stated or implied in this article should be taken out of context.
To be honest, I must admit, I did not, and I am not taking any pride in writing this kind of statement. Besides, this statement should not be seen as a competition for public space between a Lawyer Vs. A Law Apprentice (citation 2017 June). God bless.
May the law be with you!
