by Madi Jobarteh
The Right to Demonstrate is Constitutionally Guaranteed and cannot be Denied!
The announcement by the IGP claiming that citizens have to first seek a permit in order to demonstrate is not based on law and I urge citizens to consider his statement only as a figment of his own imagination. The IGP is a duty bearer who is mandated by our Constitution and the Police Act to protect the fundamental rights and freedoms of citizens by enforcing the law. Law enforcement is basically human rights work since the law and order that are maintained are meant to ensure that the rights, life and property of citizens are protected by the police. Law enforcement entails protecting the rights of citizens to protest as they wish!
It is necessary that citizens realise that Section 25 subsection 1(d) guarantees the right to freedom of assembly and the right to demonstrate peacefully without use of arms or violence. Subsection 4 of this provision creates restrictions as to how the right to demonstrate may be exercised because to demonstrate is not an absolute right. The Constitution provides that this right can only be limited provided that such limitation is reasonable and backed by law, necessary in a democratic society and that such limitation serves a legitimate purpose such as protecting national security, decency or public order.
Section 25 of the Constitution did not state that the right to demonstrate can be denied. It only provides for restrictions in the best interest of society. Unfortunately, in the Gambia there is a Public Order Act which has directly and deliberately contravened the Constitution, yet the Supreme Court went ahead to shamefully rule in November 2017 that this colonial law was indeed constitutional! We must not allow the seizure of rights to take place ever again in this country!
What the Public Order Act did was to counter the Constitution by giving power to the Government to deny citizens right to demonstrate under sections 5 and 6. These provisions state that citizens must first request and obtain a permit in order to demonstrate from the IGP or any authorized person of the President. The Act went further to state that the IGP or the authorized person can grant or deny the permit if he deems fit. But the Constitution did not state anywhere that the right to demonstrate can be denied. How can any law or individual therefore deny a right when the Constitution guaranteed that right to be enjoyed, even if it has to be limited?
Even if we confine ourselves only to the Public Order Act it will show that the statement by the IGP that citizens should seek a permit before embarking on a demonstration is false. This is because the Act only requires citizens to seek a permit only if one wishes to embark on a procession or use a public address system. Other than that, the Public Order Act does not require any citizen to seek any permit to demonstrate. The Public Order Act provides that citizens can assemble in one location to express themselves as much as they can without going on a procession and use of a loudspeaker. Therefore, on what basis does the IGP insist that citizens need a permit to demonstrate?
Secondly it is a false claim by the IGP that everywhere in the world citizens request a permit first before they demonstrate. In many countries in Africa such as Ghana, there is no law requiring a permit to demonstrate. Public order laws in many countries that are democratic only require citizens to notify the police days before their planned protest so that the police can be better prepared to provide security to demonstrators, counter demonstrators and ordinary citizens going about their normal business. In fact, in those laws the failure to notify the police is not a crime!
The Gambia Government, in particular the Minister of Interior, the Minister of Justice and the IGP must speak and act in the language and culture of democracy. They must realise that dictatorship was killed in the Gambia on 1st December 2016 and never to emerge again. Hence what we expect the IGP to say was to encourage Gambians to notify the police in good time if they wish to demonstrate. But the IGP has no powers or authority to threaten or deny citizens who wish to demonstrate.
Furthermore, one would have thought that the Public Order Act would have been one of the first pieces of legislation that the Barrow Government would have taken before the National Assembly to repeal and replace with a truly democratic and human rights-friendly Public Order Act. In his Manifesto and in their MoU both Adama Barrow and the Coalition Leaders respectively did state that within six months of coming to office they will repeal all laws that infringe human rights, democracy and popular participation. They specifically mentioned the Public Order Act! Yet for more than two years they have woefully failed to fulfil this promise but could easily and quickly change other constitutional provisions and laws that suit their selfish political interests! Shame.
What is even more insulting is that it was because of this unconstitutional Public Order Act that several Gambians were killed, jailed, raped, exiled and their properties destroyed. In fact, the victims of the Public Order Act can be found right inside the Cabinet of Chief Servant Adama Barrow. It is therefore the height of hypocrisy and unpatriotism that the people who obtained the mandate of the people in the fight against the Public Order Act would now take office only to stamp this bad, unconstitutional and colonial law on the heads of Gambians. The Late Femi Peters, who was jailed for one year for violating the Public Order Act in 2010, must indeed be very disappointed in this IGP for celebrating the bad law!
I demand that the IGP withdraw his unfounded and false claim that the law requires citizens to obtain a permit before they demonstrate and that is what obtains everywhere in the world. That is a claim that is shamefully untrue and only intended to suppress Gambians once more. All citizens must rise up against this IGP and demand his resignation or dismissal for having the temerity to impose a colonial and an authoritarian law on the heads of Gambians contrary to our Constitution and making mockery of our hard-earned democracy! If the IGP cannot protect and expand citizens fundamental rights and freedoms, then he is not fit to be the IGP. Shame!
For the Gambia Our Homeland!