By Madi Jobarteh
It was the UDP that took the matter of the Public Order Act to challenge its constitutionality in May 2016. A heavyweight team of lawyers, namely Antouman Gaye, Hawa Sisay Sabally, Sheriff Tambadou, Neneh Cham and Combeh Gaye represented the party. But against their arguments, the Supreme, on 23rd November 2017 Court ruled that the Act is constitutional. Yet until today UDP or its lawyers did not speak up publicly as to their position on the judgment.
In a normal scheme of things, parties to cases like this would issue a statement to express their opinion, i.e. to agree or disagree with such judgment. Immediately the Supreme Court made its judgment the Minister of Justice issued a statement where he expressed respect for the judgment. Even when the judgment was in favour of the Government yet the Minister said they did not agree with the Supreme Court but reiterated respect for the independence of the Judiciary. Therefore why has UDP failed to also issue a statement until today?
But not just the UDP, why has all the political parties in the Gambia including NGOs especially The Gambia Bar Association failed to issue a public statement given that this act is a matter that directly affects their activities. Is it that our parties agree with the judgment of the Supreme Court or they do not just care about the rights of citizens of the Gambia? A demonstration of leadership would have required them to speak up to this matter because the right to demonstrate peacefully without a police permit is an entrenched right guaranteed in the constitution. Yet our political parties all remain mute on a major issue like this.
I am of the view that UDP owes it, first of all to Femi Peters to speak on this issue because he was the first politician to be jailed in 2010 under this most obnoxious and undemocratic law in post-independent Gambia. He was a man acting in his capacity as the Campaign Manager of UDP when he organized a rally in Banjul. He was arrested and charged for holding an assembly without permit to use a public address system as per Section 6 of the Pubic Order Act.
In his trial, his defense lawyer Ousainou Darboe likened Mr. Peters to Nelson Mandela who was also imprisoned under the same unjust laws. Darboe, at the time challenged the Public Order Act and described it as colonial. He contended that if Peters was sentenced because of that law then the court would be perpetuating colonial legacy in the Independent Gambia. Therefore if we travel to 2017 and the same Gambian Supreme Court certifies that law as constitutional it is morally and politically imperative that UDP issues a clear and direct statement on the matter. But to remain silent would be a disservice to Femi Peters.
Secondly it was again under this same bad and unconstitutional law that the entire UDP leadership and supporters were sentenced to three years in jail in July 2016 for protesting the death of Solo Sandeng. In fact if that Solo Sandeng were alive, he would have also been charged with them under the same bad law. Yet today the Supreme Court ruled in favour of this bad law and the UDP remains mute, even when it is the largest party that has suffered the most under this law.
Not only UDP but also no Gambian citizen or organization should remain silent if we are true to ourselves as genuine patriots and democrats. Who among us have not claimed that Solo was right to protest? Who has not called Solo Sandeng a hero? Yet how can we all remain silent when the law that caused the death of Solo and the incarceration of Ousainou Darboe is now said to be constitutional?
If we all remain silent then we are all guilty of double standards. It means we are agreeing that indeed the Public Order Act is constitutional hence we are therefore saying that Solo Sandeng was wrong to have protested. This means we are also condemning Ousainou Darboe and the entire UDP leadership for being wrong to have marched to demand our “Hero’s” body. It means the incarceration of Femi Peters was just and right.
Conscience should therefore dictate all Gambians that we must condemn this decision by the Supreme Court otherwise no one must ever celebrate Solo Sandeng as a hero and the trigger for our liberation. We cannot be celebrating Solo Sandeng yet at the same time agree with the Supreme Court on the Public Order Act. Either Solo was wrong or the Supreme is right or vice versa, but both cannot be right or wrong at the same time. I want to see which Gambia dare say that Solo Sandeng was wrong!
As far as Madi Jobarteh is concerned, my sense of honesty, patriotism and my conscience cannot allow me to judge that Solo Sandeng was wrong. Rather I strongly hold that the Supreme Court was totally wrong and Solo Sandeng was totally right.
Our Constitution guarantees the right to peaceful protest under Section 25(1)(d). Under its subsection 4, limitations were provided as to the enjoyment of the rights specified under Section 25. This is because such rights are not absolute. But the Constitution merely suggested limitations or restrictions. It never suggested denial of the right. Hence the Constitution has already given the powers to the State to limit the right to protest based on the specified reasons.
The unconstitutionality of the Public Order Act is that it gives power to the State to deny the right to assemble against and beyond the intention of the Constitution. Under Sections 5 and 6 of the Act, the IGP or Governor has the authority to deny a permit to embark on a procession or use of banners or public address system. By denying these elements of a peaceful assembly it means the Government has direct and effective powers to practically deny a citizen to enjoy Section 25(1)(d) of the Constitution. This means therefore the Public Order Act has gone beyond the limitations provided by the Constitution by giving power to the IGP or Governor to deny an entrenched right.
This power of denial is the crux of the matter. Hence the Supreme Court was wrong to maintain that the Public Order Act was constitutional because the Act has superseded the Constitution. One would have expected that the Supreme Court would rather declare the Act as unconstitutional and then go further to clarify the meaning, extent and forms of restriction, which could include the IGP to order a deferment of a protest or change of route or timing or place for an assembly. The IGP can even restrict the kind of language or materials to be used in a protest provided if there are security or public morality issues at play. All of these measures will tantamount to limitations that are constitutional.
But the Public Order Act contravened both Section 25(1)(d) and sub-section 4 simply because it gives the power to the IGP to deny altogether the right to peaceful assembly, which is not the intention of the Constitution. It is therefore highly concerning that UDP, PDOIS, NRP, PPP, NCP, GMC, GPDP and GDC as well as the Gambia Bar Association and all CSOs, business, UTG and all media houses and journalists have failed to speak to this all-important sovereignty issue!