By Waceke Njoroge
Stalled legal reforms have left in the statute books oppressive laws that could be used to trample on the rights and freedoms of Gambians, especially as the presidential elections approach, human rights defenders have warned.
Amnesty International is particularly concerned that although Gambian President Adama Barrow had promised to carry out essential reforms, especially on laws that facilitated his predecessor’s 22-year dictatorship, when he took office almost five years ago, some of them are intact and still being used to curtail human rights and shield oppressors.
“Article 69 of the Constitution not only provides immunity to the president from civil and criminal proceedings while holding office, but also full civil immunity and limited jurisdiction over criminal proceedings after the president has vacated office,” the human rights organisation said in its report released on September 22, 2021.
It expressed concern about laws that entrench impunity, which are still in operation and risk being used to deny justice to victims of human rights violations. Among these is the law that gives blanket immunity to members of the Armed Forces Provisional Ruling Council and individuals appointed by them, as well as members of the government or individuals involved in the coup d’état of 1994.
Another law that is deemed to be vulnerable to abuse is the Indemnity Act of 2001, which gives the president the power to shield from prosecution any person for any act committed or any failure to act during an unlawful assembly or other emergency situation. It allows security officers accused of excessive use of force during demonstrations to be indemnified. Amnesty International said the law violates the right to an effective remedy for victims of human rights violations as provided under Article 2.3 of the International Covenant on Civil and Political Rights, of which The Gambia is a signatory.
Of particular concern is the report of the Truth, Reconciliation and Reparations Commission (TRRC), whose recommendations are awaited. There is already concern in The Gambia that the recommendations will be ignored as President Barrow’s National People’s Party has forged an alliance with his predecessor Yahya Jammeh’s Alliance for Patriotic Reorientation and Construction, to help him retain his seat in the December 4 elections. There is widespread suspicion of an agreement to downplay or ignore the report as election campaigns gather pace, and under the guise of reconciliation, allow the former president and his cohorts to escape accountability for the violations he has been accused of presiding over.
Amnesty International said reconciliation should not stop anyone being held accountable for the crimes they have committed, and so all the alleged perpetrators of violations must be prosecuted for their crimes.
Other worrying laws that have been left intact are punitive and restrictive legal provisions on human rights, particularly the right to freedom of expression and peaceful assembly. Some of the laws could have been cured during the promised constitutional review, but the Gambian parliament rejected a draft document in September 2020.
Members of parliament have yet to pass the Prevention and Prohibition of Torture Bill, which has been pending in the National Assembly since last year. The new law was meant to curtail some of the abuses that were rampart during Jammeh’s reign.
The death penalty, which was abolished in the draft constitution, remains in place, and courts continue to hand down death sentences.
Although the Court of Justice of the Economic Community of West African States on February 14, 2018, ruled that most Gambian media laws violated freedom of expression, Barrow’s administration seems reluctant to change them, and has even used them to try to curb opposition party supporters. The court asked the government to repeal or amend all criminal laws on libel, sedition, and false news in line with The Gambia’s obligations under international human rights law.
Amnesty International listed some of the oppressive laws as including Section 138 of the Information and Communications Act, which gives national security agencies, investigating authorities, and the Public Utilities Regulatory Authority the powers to monitor, intercept, and store communications for surveillance purposes without effective judicial oversight.
In addition, the Criminal Code retains several clauses that restrict the right to freedom of expression and criminalise sedition as related to the president. They prescribe stiff penalties, including imprisonment, for critics of the authorities and allow for the confiscation of publications and printing machines.
The Gambian Press Union (GPU) told Amnesty International that the laws continue to create a hostile environment for journalists. While attacks on journalists have fallen under President Barrow, several high-profile arrests have shown the danger the repressive laws pose.
There are fears that there could be more attacks on journalists as the country moves towards the elections. “The country is increasingly polarised, especially because attacks are not investigated. In the last four years, we recorded more than 15 cases of assaults from police and supporters of political parties. Not a single one of those cases was prosecuted,” a member of the GPU said.
In one of the cases that Amnesty International lists, human rights defender Madi Jobarteh was charged with spreading false information under Section 181A of the Criminal Code after he stated during a Black Lives Matter protest that the government had failed to investigate the killing of three Gambian citizens by police officers. The charges were dropped after a month.
In another instance, police closed radio stations King FM and Home Digital FM for covering a protest that was violently suppressed by the police. Their owners were charged with broadcasting incendiary messages and inciting violence. Although the charges were eventually dismissed, their broadcasting licenses were suspended for a month.
Section 5 of the Public Order Act, which requires police permission to hold a protest, has been used to restrict public gatherings. In June 2021, the Inspector General of Police refused to allow the pro-Barrow “Gambia for 5 Years and Peace Building” to protest against a decision of the electoral commission to allow the mayor of the capital Banjul to issue attestations to voters.
The human rights group acknowledged that the regime had overseen some positive progress, including the passing of the access to information law, which is designed to ease access to information for the public and the media.
Another encouraging development is the setting up of the National Human Rights Commission, which became operational in 2019. Amnesty international said it is important that the commission retain its independence and is given adequate resources to carry out its duties effectively and impartially.
“The establishment of the National Human Rights Commission shows what is possible Gambians, who have waited so long for a recourse when their rights are violated, must not wait any longer,” said Michèle Eken, Amnesty International’s West Africa researcher.
