In August 1996, Gambians voted for a new constitution which subsequently came into force in 1997, ushering in the second republican constitution under a civilian style military dictatorship. The approved constitution has the death penalty clearly stated which was initially carried out under Dawda Jawara’s government in 1985 when one Mustapha Danso was executed for killing a Field Force Commander, Mahoney, but later placed a moratorium on it. This moratorium was later lifted by Jammeh in 1995 few months after seizing power. Section 18 of the 1997 constitution, clearly talks about Protection of the right to life that:
18. (1) No person shall be deprived of his or her life intentionally of right to life except in the execution of a sentence of death imposed by a court of competent jurisdiction in respect of a criminal offence for which the penalty is death under the Laws of The Gambia as they have effect in accordance with subsection (2) and of which he or she has been lawfully convicted.
(2) As from the coming into force of this Constitution, no court in The Gambia shall be competent to impose a sentence of death for any offence unless the sentence is prescribed by law and the offence involves violence, or the administration of any toxic substance, resulting in the death of another person.
(3) The National Assembly shall within ten years from the date of the coming into force of this Constitution review the desirability or otherwise of the total abolition of the death penalty in The Gambia.
Therefore, section 18 (1 and 2) clearly outline the protection of one’s right to life but with the exception that such a right can be deprived by a competent court of law when the offender’s action involves violence, toxic substances which may have resulted in the death of another. However, subsection 3 mandates the National Assembly to review what it call ‘the desirability or otherwise of the total abolition of the death penalty’ which is expected to have been done within ten years after the coming into force of the 1997 constitution. In line with the reviewing of this particular provision, law makers were to do this at most in 2007, to decide on the desirability or total abolition of the penalty. But clearly, the National Assembly under the former government failed to carry out this mandate.
Mr. President, this however, did not attract public attention as a matter of concern until the implementation of the law in August 2012 when former president Jammeh decided to order for the execution of nine death row inmates.
However, the rest were spared after the so-called appeals by some elders for Jammeh to stop the execution. This action of Jammeh was greeted with public outcry and condemnation both locally and internationally. Some condemned the implementation of the law, arguing that the National Assembly had failed in its responsibility to review that provision in line with section 18 (3) while others condemned the manner in which the execution was done.
We might not question the legality of the execution at the time because the constitution was and still silent about the consequence of the failure of law makers in reviewing the said provision, thus it could arguably be legal to have executed those sentenced to death by a competent court of law but the manner in which the execution was done is what should be questioned. Whether lethal injection or firing squad was used to execute the inmates remains very unclear to this day. But fundamentally, did family members have access to the dead inmates to give them decent burials according to their religions and traditions? These are the moral issues that should have been raised which we could blame the former government of not respecting.
Mr. President, death penalty is today one of the most controversial laws in the world as some countries continue to implement it while others have abandoned it in totality. This does not necessarily imply that the law should be totally abolished in the Gambia. It does not equally imply that we should continue having the death penalty as a law. My argument here is for the National Assembly to be cognizant of its role in reviewing this law. It is exactly twenty years since the coming into force of this law without review by our law makers and the constitutional provision requires them to do such a review within 10 years after coming into force of the constitution.
It is therefore fundamental for us to think about the urgency of the matter. But since coming into office, your government seems quiet on this particular law and has not made any clear stance on it, I stand to be corrected. But since the ‘New’ Gambia should be characterized by a total system change, we expect our law makers to be up to date on issues that are of urgency. We are fully aware that there is to be a total constitutional overhaul which is expected to include the review of this particular law, but it must be understood that it is long overdue for the National Assembly to do such a review. This therefore serves as a reminder that there are important provisions in our constitution that require urgent attentions and not petty amendments like upper age limit. But it is twenty years today without such a review by law makers. What is your government’s stance on this urgent matter? Remember that, right to life is sacrosanct and inalienable as a God-given right and must be protected.
Yours in the service of the nation
Essa Njie
