Gambia politico: Stop misconstruing the constitution


By Yanks Dabo

The biggest hypocrisy in the occupy Westfield debate at present is the blatant inference of an analogy between the Darboe and Co protest against the death of Solo Sandeng and the #Occupywestfield protesters, who claim to be protesting for the death of electricity supply in The Gambia.



Morally, there can be no moral equivalence between the two; simply because protesting against an unlawful murder of an innocent human being under state custody can never be equivalent to the lawful loss of electricity in a country.


To put it more eloquently, a loss of human life can never be equated to a loss of electricity, simple! Neither can the fight for the two be justifiably equated.

Legally as well, the two cannot be equated. The nuances are very significant.


But before coming to that, let me digress a bit: it is true that the 1997 constitution of The Gambia – which Yusupha Cham of Jollof News loves to deride as a toilet paper Constitution – guarantees the rights of every Gambian to freedom of peaceful assembly or protest. This is stipulated under Section 25(1)(d), but that is not a none qualifiable right of its own, which hundred percent guarantees or gives rights to citizens to protest willy-nilly whenever they prefers, as many are trying to misconstrue as their god given right.


This is because, the same constitution under Section 25(4) predicates that that right to freedom of assembly of the citizens can only be exercised, if it is not restricted by other laws of The Gambia, such as the public order laws cited by the police – in the occupy Westfield permit refusal decision- provided such restrictions are reasonable.


Hence the argument is not whether the police have rights or no rights to stop citizens from exercising their constitutional rights to protest, but whether any of those restrictions by the police is reasonable.


Now the distinction between the Darboe and Co protest and the occupy Westfield becomes clearer at this point. The Darboe and Co protest was precipitated by the state’s unlawful killing of an innocent protester, Solo Sandeng, after he surrendered to the police for what they described as unlawful protest. The position the occupy Westfield protesters are currently at or trying to reach, but they are not willing to succumb to the police order.


Therefore it is clear by analogy at this stage that the Occupy Westfield protesters are nowhere near the stage of the Darboe and Co protest scenario.


The Darboe and Co protest was precipitated by an unlawful conduct of state authorities or law enforcement. The reasonable behaviour of a reasonable state would be to prosecute those responsible for such an unlawful conduct of their citizen in custody, failure of which, legally deprived the state of any reasonable grounds to restrict the citizens right to a peaceful protest. This was what justify the actions of the Darboe and Co case, as constitutional and the state’s actions unreasonable. This is because the state was not acting reasonably in the first place, by their failure to address the unlawful killing of Solo, which was the grievance of the protesters.


That position is predicated by the famous legal doctrine that he who comes to equity must come with clean hands.


The same cannot be contended for the #Occupywestfield protesters; quite simply the State is under no obligation to prosecute NAWEC for the loss of electricity supply to citizens. This is because killing an electricity supply to citizens in The Gambia, regardless of how grotesque and brutal that may sound, is not illegal under the Gambian constitution or laws of The Gambia.


Therefore, the Gambia government is not wanting on its legal duties to prosecute any offender in this case. Furthermore, the state has taken positive steps to address the grievances of the protesters.


Hence by all measures, the state has a constitutional right to restrict their rights to such peaceful assembly, which is indeed reasonable.


Therefore it is deceitful and disingenuous to compare and contrast the Darboe and co protest to the Occupy Westfield protest!