A CASE FOR THE FEMALE LAWYERS ASSOCIATION OF THE GAMBIAThey were put under the camera for the whole world to see. Women of diverse ages were bundled up and taken to the police station to give account of themselves or face criminal charges. It is claimed that they were found loitering in the Tourism Development Area.
A threat was issued that any body found loitering in the tourism development area after midnight will be arrested and required to give account of oneself or be charged. The threat raises two fundamental issues; Is it a crime to move about in any part of the Gambia after midnight? Has a curfew been declared for the Tourism Development Area?Section 19 subsection of the Constitution states that “Every person shall have the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his or her liberty except on such grounds and in accordance with such procedures as are established by law.”Section 25 subsection (2) of the Constitution adds that “every person lawfully within the Gambia shall have the right to move freely throughout the Gambia to choose his or her own place of residence within the Gambia and to leave the Gambia”Hence every person who is lawfully resident in the Gambia has freedom of movement. It has been a subject of debate that freedom and liberty is not absolute. Some have even argued that the freedoms given have been taken away by other provisions of the Constitution. Some even claim that the draconian provisions of decrees which allowed for arrests and detentions are still applicable under the Constitution. The unfortunate thing about the debate is that it hardly goes with quotations of what the Constitution says to restrict the exercise of freedom. Section 4 of the Constitution has made it abundantly clear that the Constitution is the supreme law of the land. It states categorically that “any other law found to be inconsistent with any provision of the Constitution shall, to the extent of the inconsistency be void.” In short, it is a constitutional provision that one must not be detained for more than 72 hours without appearing before a court. Hence no law should be passed and no decree could be maintained which justifies the detention of a person without trial for more than 72 hours. Suffice it say, section 25 subsection (4) which seeks to establish boundaries for the exercise of freedom of speech, conscience, assembly, association and movement does not authorise the use of any draconian legislation to restrict the exercise of freedom. It states: “The freedom referred to in subsections (1) and (2) shall be exercised subject to the law of the Gambia in so far as that law imposes reasonable restrictions on the exercise of the rights and freedoms thereby conferred which are necessary in a democratic society and which are necessary in the interest of the sovereignty and integrity of the Gambia, national security, public order, decency or morality or in relation to contempt of court” Hence the boundaries to be established for the exercise of freedoms must be reasonable and must be necessary in a democratic society. This provision gives the court the final say in determining whether laws designed to set boundaries for the exercise of freedom are reasonable and justifiable in a democratic society. Laws can therefore be declared unconstitutional.The point should therefore be clear as far as freedom of movement is concerned, in the absence of a curfew any person with an ID card should be able to move about in any public place at any time without any restrictions. A security officer is only given legal authority to request a person to produce an ID card. Once that is done, such a person should not be subject to any investigation unless he is suspected of committing or about to commit a crime. Hence the Female Lawyers Association of the Gambia and Foundation for Legal Aid, Research and Empowerment should come together to interview those who had been shown on TV to find out whether they had their ID Cards and whether there had been any violation of their freedom of movement and other personal liberties. They should be ready to provide them with free legal services to pursue redress. The Public Order Act is quite clear. What is to be done to restrict movement in disturbed area? Section 10 states that “the president may, by notice published in such manner as he may direct, declare in respect of any area in The Gambia that such an area is a disturbed area in which an abnormal state of affairs exists.”Upon publication of such a notice the inspector general of police in respect of the City of Banjul and Kombo Saint Mary or the Governor or any other public officer authorised by the President; ‘impose a curfew in the disturbed area or in any part thereof, and may by such order or by permit exempt any person or class of persons from any or all of the provisions of such order:”“Prohibit, restrict, regulate or control the movement of any person or persons within the disturbed area, or into or out of such area.”The restrictions they are trying to impose in the TDA are only lawful under a curfew. The Government should therefore declare the TDA a disturbed area and impose a curfew or leave the people to go about their normal lives without hindrance.
source: foroyaa news
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