By Bakary Ceesay
The Institute for Human Rights and Development in Africa (IHRDA) and two Gambian lawyers on 22 January 2020 filed a lawsuit against The Gambia before the African Court on Human and Peoples’ Rights, on behalf of seven Gambians, concerning the violation of citizens’ right to freedom of assembly and expression.
The seven Gambians include journalists, human rights activists and business people, who are basing on the actio popularis principle allowing individuals and organisations to bring communications on behalf of the general public.
The plaintiffs allege that The Gambia’s Public Order Act, enacted to prohibit association of private persons with military aims and for the maintenance of public order as regards public processions, upholds standards that are in violation of citizens’ right to freedom of expression (Article 9 (2)), freedom of association (Article 10), and freedom of assembly (Article 11).
The plaintiffs argue that section 5 (2) of the Act, which compels citizens apply for a licence from the Inspector-General of Police (IGP) or the Governor of the region concerned before organising any public procession, gives a lot of unilateral and discretionary powers to the said authorities, who can grant or reject the application as they deem fit, whereas there is no mechanism in place to allow for a review of their decisions.
More-so, section 5 (4) of the Act grants that a magistrate or police officer above the rank of sub-Inspector can stop any public procession where a license has not been issued or where the procession violates any of the conditions under which licence was given. Such assembly is considered as unlawful and all persons taking part can be charged with an offence liable to imprisonment and/or fine. Consequently, several recent attempts of peaceful protests, which apparently did not meet the provisions of the said Act, have been brutally repressed by forces of law and order, leading to public violence, destruction of property, injuries, arrests, detention and even death.
In May 2018, members of a political party, including one of the plaintiffs in this present suit, filed a petition at the Supreme Court of The Gambia challenging the constitutionality of section 5 of the Act, which they said was in contravention of the right to freedom of speech and expression, freedom to assemble and demonstrate peaceably without arms, and freedom to move freely within The Gambia, guaranteed under section 25 of the Gambian 1997 Constitution. The Court held that the said restrictions on the exercise of these rights were reasonable, constitutionally legitimate, permissible and justifiable in any democratic society.
The plaintiffs argue that the rights alleged to be violated are equally enshrined in the African Charter on Human and Peoples’ Rights and the International Covenant on Civil and Political Rights, to which The Gambia is party.
The plaintiffs request the Court to declare that Section 5 of the Public Order Act of The Gambia violates the right to freedom of assembly and expression; and that The Gambia violated the plaintiffs’ rights to freedom of assembly and expression in its disbandment and repression of some recent peaceful demonstrations. The plaintiffs also request the Court to order The Gambia to immediately repeal or amend Section 5 of the Act to align with international standards applicable to The Gambia.