The case discusses the Public Order and Security Act in The Gambia, and its consequences for the right to protest against the government.
The Public Order Act is a statute that requires citizens to apply for a license prior to undertaking any public demonstration, which is granted by the Inspector General of Police (IGP) or the Governor of the region, under absolute discretion. If a protest is carried out without a license, then it constitutes an offense punishable by imprisonment. It should be noted that there is no mechanism available to contest the rejection of an application for a license. The Public Order Act enables any magistrate or police officer above the rank of Sub-Inspector to stop a demonstration without a license, in which case all individuals participating can be charged and convicted with imprisonment and/or a fine.
On April 14, 2016, members of the political party United Democratic Party (UDP) were arrested during a peaceful protest calling for electoral reforms. UDP members were arrested because they had no license to carry out the protest within the terms of the Public Order and Security Act. They were convicted and jailed – and while detained, one of them was tortured and died in custody. A few days later, UDP led another peaceful protest. Most of the participants were arrested and charged under the Public Order Act. These individuals were convicted and imprisoned, until the new President Adama Barrow pardoned them in 2017.
On May 18, 2018, the UDP challenged the constitutionality of the Public Order Act before the Supreme Court. However, the case was dismissed because the Supreme Court found that the law did not violate the right to assembly and other rights guaranteed in the Gambian Constitution.
On May 9, 2019, a group of citizens (among them Emil Touray, Saikou Jammeh, Haji Suwareh, Isatou Susso, and Lamin F. Sonko), submitted an application for a license to carry out a demonstration to protest against Gambia’s coalition government intention to prolong the transitional government’s term. One day later, the group had not received a reply, so they decided to assemble and carry out their protest. However, before they could start marching, they were arrested. Shortly after, they were charged with “unlawful assembly,” “conduct likely to cause breach of peace,” and “conspiracy to commit offenses.” Two months later, the group was informed that the charges had been dropped.
In January 2020, the ECOWAS Court of Justice delivered a ruling on the Ousainou Darboe Case, in which 32 applicants, UDP among them, claimed inter alia the violation of their right to freedom of assembly, as the result of their arrest during peaceful protests on April 14, 2016. Furthermore, they contended that Section 5 of the Public Order Act violates article 11 (right to freedom of assembly) of the African Charter on Human and Peoples’ Rights.
The Court found that, even though the protest was peaceful, it was carried out without license and therefore illegal. The Court concluded that there hadn’t been a violation of the right to freedom of assembly. Regarding Section 5 of the Public Order Act, the Court found that even though its provisions limit the right to freedom of assembly by calling for a license to be issued before demonstrations can be held, it is with the aim of ensuring law and order, one of the accepted restrictions for the exercise of the right to freedom of assembly, according to Article 11 of the African Charter. Nonetheless, the Court pointed out that “the requirement of having to obtain the approval of the Inspector General of Police of the Gambian Police Force will undermine the exercise of such right and therefore needs a review”. Thus, the Court held that Section 5 of the Public Order Act does not violate Article 11 of the African Charter.
Journalists Emil Touray and Saikou Jammeh, together with business persons Haji Suwareh, Isatou Susso, and Lamin F. Sonko, filed a case before the African Court on Human and Peoples’ Rights on September 16, 2020. The applicants requested the Court to declare that Section 5 of the Public Order Act violates the right to freedom of assembly and the right to freedom of expression, and to order its immediate repeal or amendment. They also requested the Court to declare that the disbandment of the May 10, 2019 protest and the subsequent arrests violated the same rights. The Gambia was served on September 23, 2020, but failed to file a response. As a result, the applicants filed a request for a judgment on April 15, 2021, which was sent to the Gambian authorities on April 23, 2021.
The African Court delivered a ruling on this case on March 24, 2022, where it found the case inadmissible based on Rule 50(2)(g) of the Rules of Procedure and Article 56(7) of the African Charter, because the matter had already been subject of the Ousainou Darboe Case before the ECOWAS Court of Justice. Even though the applicants were different in that case, the African Court found that the parties in both cases filed their application on the basis of the interest of the public, so the identity of the parties was taken to be similar. Additionally, the African Court found that the claims were also similar in both cases, as the applicants were challenging the validity of Section 5 of the Public Order Act against the provisions of the African Charter.
Gambia did not participate in any of the Court proceedings. Within the admissibility ruling there were two dissenting opinions. The first was by Justices Kioko and Jude Anukam, who agreed with the majority opinion, but argued that the Court’s reasoning on admissibility could be strengthened by discouraging forum shopping, and thought the Court could have reviewed the ECOWAS Court’s findings on freedom of assembly. The second dissenting opinion, by Justices Tchikaya and Ben Achour, found that this case should have been declared admissible as the identity of the parties before the ECOWAS Court and African Court was not established, and the issue was not settled by the ECOWAS Court.
During the regime of former President Yahya Jammeh, who led The Gambia between 1994 and 2017, there was persecution of opposition political opponents, arrest, and torture of suspects in custody. The Law was used as an instrument of law fare.
The Gambia’s current president, Adama Barrow, promised to carry out critical reforms and to leave behind the repression which characterized the previous government. However, Amnesty International has reported that this hasn’t happened. In fact, the laws which create a hostile environment for human rights defenders, journalists and activists are still in force.