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Friday, April 19, 2024

“Everyone is equal under the law”

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By Rohey Samba

Like thousands of concerned Gambians, I woke up last Wednesday to read the disturbing news on The Standard newspaper headlined, ‘Man allegedly had sex with a minor,’ with consternation. Amid the outrage and bewilderment, the news had caused, for it transpired during the holy month of Ramadan against the backdrop of an overwhelming Muslim population in The Gambia, new details emerged on the paper this Tuesday detailing how the man, who is a French Military Officer of European Union capacity, whatever that means, entered the minor from behind, a practise that is highly detestable in Islam.

Now, I am not a lawyer. Nor do I claim the merits or credibility of incisive knowledge about the law to the extent of the learned fellows. Yet I know two things to be self-evident. Firstly, that nobody is above the law. And finally, what is moral is not necessarily legal. Even though there is a sliver of disparity in contention for the latter point, as you will read on.

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People have used morality as the basis for law, religion and spirituality from time immemorial. And rightly so. Jus natural or natural law, as it is also called, is the progenitor of international law. Its role was summarized by proponents such as Vattel and Grotius as the law finding the underlying law in nature. In his treatise, ‘Droits Des Gents,’ Vattel stipulated that “Natural law is the law, which is derived by applying the necessary law to nations. It is necessary because nations are absolutely bound to observe it… It contains those precepts, which natural law dictates to States, and it is no less binding upon States than it is upon individuals, because States are composed of men, their policies are made by men, and their men are subject to the natural law in whatever capacity they act.”

Grotius called it the internal law of nations in as much as it is binding on the conscience of nations.
Natural law lost touch against royal absolutism due to its subjectivity, metaphorical implications and lack of emphasis on State practise. Yet its influence on international law, which is very much driven by positivism cannot be disputed.

Positivism proponents such as Anzilloti, who expounded on the theorem, ‘pacta sunt servanda,’ and Bynkershoek amongst others laid emphasis on State practise. They placed priority on State will and State interaction by consensual arrangement/governance. The role of positivism is manifest in the ICJ, Art 38, where all three of the four sources of international law are culled from positivists’ ideals, namely, treaties, customary law and general principles of law practised by civilised nations.

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Yet the normative approach, which succeeded positivism, is marked for putting the ‘death knell’ on positivism. It is widely described in certain circles as a return to the law of nature or jus natural. Some people validate this statement by referring to the fourth source of international law described in the Statute of the ICJ, i.e. judicial decisions and the writings of the most highly qualified publicists.

The normative approach while emphasizing State practise and custom, appeals to norms commonly known as peremptory norms of general international law. These norms can ’emerge’ from customs as outlined in Article 64 of the Vienna Convention on the Law of Treaties and can make a treaty void when it is in conflict with the norm.

A main feature of the norm is that the international community as a whole accepts it, giving it a broader perspective and focus. These norms are widely described as those norms that establish the freedoms of the high seas, abolish racism, slavery, child molestation, genocide etc. These norms return to the tenets of justice, equity and reasoning of mankind ascribed to morality or jus naturale.
‘Before mankind was, law is.” This is the premise on which jus naturale was conceived, and continues to be the premise on which all conceptions of law emerge.

Returning to the report of the sex offense by the French Military Officer, it was disheartening to read that due process was not followed after the accused was taken to the police station drawing a comment by one eyewitness to the case that, “The Colonel was walking around freely in the Station shouting, “I have a flight to catch,”” which makes us wonder whether he would have had the temerity to act this way had he been caught in the same despicable act in his native country of France.

Verily, I am not the font of knowledge. I am not a politician or a sympathiser of the opposition seeking to denounce the government of the day. Neither am I a seditious person exercising sedition. I write only as a concerned citizen of this country expressing my right as a member of the human family, to write against such acts as have outraged the conscience of mankind like child molestation, with a view to exercising my freedom of speech as enshrined in the Universal Declaration of Human Rights to which The Gambia is a signatory.

Granted, the information that the offender is a high ranking Officer of the French army was most shocking to me. With the requisite maritime officer training and certification for Cadet Officers, I know enough to discern that the ‘nature of an offense’ committed by an officer, including the circumstances surrounding it determine whether the infraction is treated as minor or carry the maximum imposable punishment.

In this crime committed in Gambian soil, involving a gross absence of self-discipline that amounts to a moral deficiency, the accused Officer deserves only to carry the maximum imposable punishment. Fact of the matter is, he should know better! His fellow Gambian Officers at the crime intervention unit should have also known better than to allow him to flaunt his authority and ride on his diplomatic immunity after being accused of such a heinous crime. He is a criminal. Until he is able to prove his innocence as accorded to him by French civil law, that’s what he’d be presumed.

The Officer’s remarks were both condescending and provocative, not because he is asserting his privilege as a European Military Officer serving in sub-Saharan Africa but because he acknowledges by his actions that if there’s a price to pay for his departure, it can be accommodated, even if it meant defiling our culture and the morals of the most vulnerable in our community, i.e. the children/minors.

Also coming to light in the same report was that numerous reported cases of child abuse from all across the country have gone cold, the police investigations never yielding any palpable results to secure the rights of victims. This has prompted the Child Protection Alliance youth coordinator to vow to pursue justice by organising solidarity marches and engaging lawyers if nothing is done about this particular case.

This disclosure of course, adds insult to injury. It is particularly sad because in The New Gambia driven by the catchword, Change, our collective spirits need to undergo a recovery from the oppressive, unruly Jammeh regime, which held us back for the past 22 years of his imperious rule where the law was applied erratically. It must be buttressed that ‘Everyone is equal under the law’ and that nobody is above the law! Therefore justice must be served, whoever the culprits are.

Fortunately, yesterday night one of my cousins sent me a WhatsApp video dubbed the night trail in New York in 1935, which is based on a true story. It was a trail which took place on a cold January evening in 1935 and was held in New York City. Accordingly, an old, tattered looking woman was on trail for stealing a loaf of bread. The mayor of New York City, Fiorello LaGuardia, happened to be the judge that night.
He asked her, “Did you steal the loaf of bread?” To which the old woman lowered her head and said, “That’s right, your Honor, I did steal the bread.”

The judge then asked, “What was your motive for stealing the bread? Were you hungry?”
Looking at the Judge, the woman said, “Yes, I was hungry, but I didn’t steal the bread for myself.”
“My son-in-law abandoned his family, and my daughter fell sick and their two children were starving, they hadn’t eaten in days. I couldn’t stand seeing them hungry; they are still so young.”
By the time she finished speaking, the whole courtroom had fallen silent.
The judge told the woman, “Everyone is equal under the law. For stealing bread, you can choose to either pay a $10 fine or go to prison for 10 days.”

Then the old lady said, “Judge I am willing to be punished for what I have done… but respectfully, if I had $10 I wouldn’t have stolen the bread. I am willing to go to jail. My only concern is who will take care of my daughter and grandchildren while I’m in jail?”
The judge paused for a moment and leaned back in his chair. He then reached into his pocket, pulled out a $10 bill and held it up for the court to see. He said loudly, “With this $10 bill I will pay for your punishment, you are free to leave”

He turned to the people in the courtroom and proclaimed, “In addition, I charge each person in the court 50 cents as a penalty for the indifference and ignorance in this community. An old woman should not have to steal bread to feed her family. Mr. Bailiff, go collect the money and give it to the accused.”
50 cents each came from the owner of the grocery store where the woman stole the bread, as well as from a dozen other defendants awaiting trail, and several police officers. They all felt honoured to contribute 50 cents and stood up to warmly applaud the verdict. The next day, the story was featured in the NYC newspaper, which reported that $47.50 had been given to the poor, accused woman.

The judge’s decision made a point of how complicit people had become in the suffering of others and how all are accountable in the crime. The message rippled throughout the city.
The relevance of this message to this topic of discussion expresses the complexes and complicity of the police and by extension the entire nation State in crimes committed against its citizenry and in this particular case, against children. The minor who was caught having sex with the French Officer from behind could have been anyone’s girl child. The implication of the crime is terrifying.

If the pattern of blatant neglect of reported child abuse cases, as was described in the report continues, the situation will be catastrophic for The Gambia. In the words of my religious sage, the late Serigne Abdoul Aziz Sy Junior, “A nation that neglects its women and children will never grow.”
The omen is obvious- the change of government is applauded but its lack of will to implement change is a liability. In the words of our national anthem, ‘Let justice guide our actions towards the common good and join our diverse people to prove man’s brotherhood.’

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