The status of the findings of the African Commission on Purohit and Moore V The Gambia : Seventeen Years of Nothingness

It took two mental health advocates to raise the sorry situation of mentally-ill persons in The Gambia at the continental and global stages. In 2001, Ms. H. Purohit and Mr. P. Moore filed a Communication at the African Commission on Human and People’s Rights (the Commission) against the Republic of The Gambia on behalf of “patients detained at Campama, a Psychiatric Unit of the Royal Victoria Hospital, and existing and ‘future’ mental health patients detained under the Mental Health Acts of the Republic of The Gambia”[1].  The complainants made the following allegations against The Gambia:

a.     The governing mental health law in the Gambia was obsolete

b.     There is no definition of “lunatic” in the Lunatics Detention Act and no provisions and requirements establishing safeguards during the diagnosis, certification and detention of the patient

c.      Overcrowding in Campana

d.     No consent to treatment or subsequent review of continued treatment.

e.      no independent examination of administration, management and living conditions within the Unit itself

f.      patients detained in the psychiatric unit are not even allowed to vote.

g.     no provision for legal aid.

h.     provision for a patient to seek compensation if his/her rights have been violated.

On admissibility of the Communication, meaning whether the complainants had exhausted local remedies as condition for presentation of a complaint, The Gambia concedes that;

the Lunatics Detention Act does not contain any provisions for the review or appeal against an order of detention or any remedy for detention made in error or wrong diagnosis or treatment. Neither do the patients have the legal right to challenge the two separate Medical Certificates, which constitute the legal basis of their detention[2]

The Gambia submitted that the vulnerable groups have recourse to constitutional protection pursuant to section 7(d) of the 1997 Constitution of The Gambia. Also, it contended that the complainants could have sought tortious remedies for wrongful diagnosis. The Gambia promised amendment of the Lunatics Detention Act as it was imperfect.

in 2003,tThe Commission found The Gambia to be in violation of Articles 2 (non-discrimination) , 3 (equality before the law and equal protection), 5 (respect of the dignity and no cruel or inhuman treatment), 7 (1)(a) (right to appeal) and (c) (right to defense and representation), 16 (enjoyment of best state of physical and mental health) and 18(4) (special measure of protection for the aged and disabled) of the African Charter. The findings against The Gambia were as laudable as the recommendations of the Commission. The Gambia was strongly urged to:

a.     as soon as possible, repeal the Lunatics Detention Act and replace with a new legislation for mental health in The Gambia.

b.     create expert body to review cases of persons detained under Lunatics Detention Act.

c.     Provide adequate medical and material care for persons suffering from mental health problems in the Gambia.

Enforcement of the Decision and Outcomes:

There is no report from The Gambia about the implementation of the recommendations as requested by the Commission. The government of The Gambia was requested to “report back to the African Commission when it submits its next periodic report in terms of Article 62 of the African Charter on measures taken to comply with the recommendations and directions of the African Commission in this decision”.

The Next Periodic Report, and in fact the only Periodic Report after the Purohit decision, was the Combined Report on the African Charter on Human on Peoples’ Rights for the Period 1994 and 2018 and Initial Report under the Protocol to the African Charter on the Rights of Women in Africa (1994-2018). Surprisingly, there was no specific information on the implementation of the foregoing three recommendations of the Commission. The Lunatics Detention Act is still the extant law in The Gambia on mental health and no report or data is available on the creation of the review body and on its proceedings and recommendations on the cases of persons detained under the Lunatics Detention Act. Although the Campama Unit was closed and a better and more spacious detention facility was opened at Salagi Called Tanka Tanka, more mentally-ill persons are seen on the street more frequently now than before.

Seventeen years and counting, The Gambia has failed to implement the key recommendation of the African Commission. The Lunatics Detention Act which was enacted in 1917 and last amended in 1964 is not repealed or amended to capture the concerns of the Commission and the changed circumstances in the country. Equally, the draft Mental Health Bill as recommended by the Commission is on hiatus at the National Assembly.

The procedure in case of the lunacy or other incapacity of an accused person is still regulated by the Criminal Procedure Code and the Lunatics Detention Act. The appearance, bail and detention of an Accused Person who is of unsound mind and incapable of making his or her defense rest with the trial court and the minister responsible for health.

In 2012, the Summary Report of the WHO Country Office on Mental Health in The Gambia attributed the poor situation of mental health in The Gambia to;

mental health services are very limited in the Gambia; there are significant gaps in capacity, human resources, materials, medication and outreach services, most of which stem from very limited budget allocation (about 0.5% of the national health budget is spent on mental health services).[3]

Is the 2012 situation of mental health in The Gambia different from the current situation?

Would Purohit and Moore be glad with the no-progress report about the reform of mental health law and situation in The Gambia?

An anatomy of the National Health Policy 2012 – 2020 provides a measure of lack of progress for mental health in The Gambia. The Policy ends this year and its objective of improving access to quality mental health care for all Gambians is far from achieved. The formulated policy measures such as implementing the Mental Health Policy and Strategy; strengthening the capacity for the diagnosis, Management, prevention and control of mental and neurogical disorder; providing quality, equitable and affordable mental health services; revise the Lunatics Detention Act; and develop Mental Health Bill, have not happened as planned. These measures which were basically uplifted from the moribund Gambia Mental Health Strategic Plan 2007 – 2012 are either not fully implemented or not implemented at all. For example, Strategy 7 was to “strengthen community involvement and participation in mental health care delivery” through, among other activities, the creation of “local associations of psychological rehabilitations involving formal health care providers, community leaders and traditional healers within each health division”. Until today, this strategic activity did not happen. There are no in-patient mental health units to “accommodate twelve patients” in all the hospitals and major health centers in the country. Families arrange for transport and bear the cost of ferrying their mentally-ill persons to Polyclinic in Banjul or to Tanka Tanka Psychiatric Unit.

Consequently, what the Purohit Decision exposed about mental health in The Gambia and what research showed is the existing moribund and obsolete legislations and policies. The Lunatics Detention Act of 1917 and the Criminal Procedure Code 1935 have outlived their efficacy and usefulness to the management and trial of mentally ill persons. The Draft Mental Health Bill is comatose at the National Assembly without any chance of being revived soonest. The National Mental Health Policy of 2007 is outdated and the Mental Health Strategic Plan 2007 – 2012 has phased out with nothing much to ride home about.

Until seriousness, more budgetary allocation and specialized trainings are provided to the Mental health sector of the health system of the Gambia, over 118, 000[4] persons with mental health problems will continue to suffer and be discriminated.

---

 About the Author:

Simon Sabally is a Gambian living and studying outside of The Gambia. He writes on law and constitutional matters, especially on the Constitution of The Gambia, 1997.

---

[1] Purohit and Moore v. The Gambia, African Commission on Human and Peoples' Rights, Comm. No. 241/2001 (2003)

[2] Ibid. para.27

[3] Point Newspaper, “Mental Health in The Gambia, Sep. 25, 2012

[4] Sanneh, Amie, “Over A Hundred Thousand Gambians Suffer From Mental Health Problems” Foroyaa Newspaper, Aug. 28, 2018.

THE JUDICIARY: BEACON OF HOPE FOR THE PROTECTION OF HUMAN RIGHTS AND DEMOCRACY IN THE GAMBIA

Introduction

Since the ousting of former President Yahya Jammeh on 1 December 2016, the protection of human rights has taken a center stage in The Gambia. The preamble to the Universal Declaration of Human Rights (1948) states that, the recognition of the inherent dignity and of the equal inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world. The preamble to the African Charter on Human and People’s Rights (1986) expresses the conviction of African States to promote and protect human and people’s rights and freedoms taking into account the important African values. The 1997 Constitution of The Gambia does not only resolve for good governance and a just, secure, and prosperous society, it also makes provisions for a plethora of rights with mechanisms for their enforcement. The organ of government that bears a primary responsibility in the protection and enforcement of these rights is the Judiciary.

In this article, an attempt is made to examine how effective the Gambian Judiciary has been in the protection of human rights and sustenance of democracy in The Gambia. The paper also examines how well the Judiciary has impacted on the country’s nascent democracy in the performance of its role as well as its traditional duty of checking the excesses of the other two organs of government. This is because ‘’rights are among the essential building blocks of a democratic process of government’’.[1]

The organ of government that bears a primary responsibility in the protection and enforcement of human rights is the Judiciary.

While there is widespread acceptance of the importance of human rights in a democratic society, there is considerable confusion as to their precise nature and role in law. The question of what is meant by right is itself controversial and the subject of intense jurisprudential debate. The problem of enforcement and sanctions with regards to human rights is another issue which can affect the characterisation of the phenomenon. According to the United Nations, human rights are ‘’those rights which are inherent in our nature and without which we cannot function as human beings.’’[2] Thus, human rights underpin the aspiration of a world in which every man, woman, and child lives free from hunger and protected from oppression, violence, and discrimination.

Understanding the nature of the ‘’right’’ involved can help clarify one’s consideration of the degree of protection available, the nature of limitation or exceptions, the priorities to be afforded to various rights and delicate balancing of competing interests. The answers to these questions will evolve overtime through rulings, interpretations, judgments and in some cases pragmatic compromises. But how those answers emerge will be largely influenced, if not driven by the legal and moral justifications of the human rights in issue.

Entrenchment of Human Rights

The question of entrenchment of human rights in the constitution is as controversial as the subject matter itself. Some scholars believe that formal entrenchment of human rights in the constitution would enhance their enjoyment and enforcement, others think otherwise. For instance, Professor Stanley de Smith and Rodney Brazier[3], opined that entrenchment of human rights obstruct governments from doing what they want to do. They are therefore said to be undemocratic because they obstruct fulfilment of the will of the people as expressed by their elected representatives. They lead to ‘’government by judges’’ if the constitution is rigid. The duo further argues that, justifiable guarantees and prohibitions induce delay and uncertainty because the executive will not be sure of what they are entitled to until the judges have told them. This, they claim, would engender a litigious spirit.[4]

On the other hand, Professor JAG Griffith doubts whether judges are qualified to protect human rights. According to him, judges are traditionally selected from a cohesive and limited socio-economic class. They are predominantly male middle or upper class and middle aged. Judges by virtue of their training, it is argued from this perspective, are not suited to the task of protecting the rights of the poor, socially and economically disadvantaged, or members of groups and association in society whose outlook and background is so different from that of the judges.[5]

While admitting the soundness and validity of some of the views expressed above, I respectfully submit that, it still seems better to entrench human rights including economic and social rights in the constitution as these justiciable guarantees and prohibitions will not only ensure certainty and predictability but would also enhance the promotion and protection of human rights by creating a constitutional benchmark upon which rights can be assessed.

The fundamental rights guaranteed in Chapter IV of the 1997 Constitution include, the right to life, rights to personal liberty, right to fair hearing, protection from slavery and forced labour, protection from inhuman treatment, right to freedom of thought, conscience and religion, right to freedom of expression and the press, right to peaceful assembly and association, right to freedom from discrimination just to name but a few. In addition to the copious provisions for fundamental human rights in the 1997 Constitution, it has also provided the machinery for their enforcement with the Judiciary being given a pride of place. However, it is important to highlight that the above chapter guarantees limited socio-economic rights.

The Judiciary and Enforcement of Fundamental Rights

Section 37 (1) of the 1997 Constitution specifically vests the Judiciary with the authority to enforce fundamental human rights. The section provides that any person who alleges that any of the provisions of section 18 to 33 or section 36 (5) of this Chapter (Chapter IV Protection of Fundamental Rights and Freedoms) has been, is being or is likely to be contravened in relation to himself or herself by any person he or she may apply to the High Court for redress. Aside from an application brought pursuant to section 37 (2), only a person having locus standi can institute an action for the enforcement of any of the provisions contained in Chapter IV.

The doctrine of locus standi under the 1997 Constitution and the hitherto stringent interpretation by the courts have greatly hindered the accessibility of the Gambian courts to the citizens and persons living in The Gambia by precluding them from bringing action to enforce the provisions mentioned above unless the alleged contravention is in relation to them. A person who is not interested in the subject matter has no locus standi to invoke the jurisdiction of the court.

Section 34 of the 2020 Draft Constitution has now liberalized the above rule of locus standi. The said section now permits the ‘’public spirited’ person (s) to institute court proceedings claiming that a fundamental right or freedom in Chapter VI has been denied, violated or infringed, or threatened with contravention. Similarly, by subsection (3) thereof, the Chief Justice is empowered to make rules with respect to the practice and procedure of the court. Thus, the widening of the traditional rule of locus standi and the introduction of public interest litigation by section 34 of the 2020 Draft Constitution is a significant phase in the enforcement of human rights.

Restriction of Human Rights

Like what obtains under the provisions of other human rights instruments to which The Gambia is a party to, the fundamental rights and freedoms guaranteed under the 1997 Constitution are not absolute. Under certain circumstances, some of these rights could be restricted or limited for the general interest of the society and hence the need for restriction clauses. Under the 1997 Constitution, these clauses are of two types. While some restriction clauses are attached to specific rights, section 35 (2) of the 1997 Constitution contains omnibus restriction clause. It provides that nothing contained in or done under the authority of an Act of parliament shall be held to be inconsistent with or in contravention of sections 19 (protection of right to personal liberty), section 23 (privacy), section 24 (provision to secure protection of the law and fair play other than (5) to (8) thereof) or section 25 (freedom of speech, conscience, assembly, association and movement) of this Constitution to the extent that it is reasonably justifiable in the circumstances arising or existing during a period of public emergency for the purpose of dealing with the situation.

Sections 18 allows restriction on the right to life. Similarly section 25 (4) placed restrictions on the right to freedom of speech, conscience, assembly and association so far as the law imposes reasonable restrictions on the exercise of these rights and freedoms thereby conferred, which are necessary in a democratic society and are required in the interests of the sovereignty and integrity of The Gambia, national security, public order, decency or morality, or in relation to contempt of court. However, the constitution does not define what is meant by the expressions ‘’ public order, decency, or morality and what is reasonably justifiable in a democratic society.’’

The Supreme Court of The Gambia had occasion to deal with these phrases in the case of Ousainou Darboe & 19 Ors v. Inspector General of Police & 2 Ors [6] where the applicants invoked the original jurisdiction of the Supreme Court seeking inter alia, a declaration that section 5 of the Public Order Act which requires a permit from the IGP before anyone can exercise the right to freedom of assembly and demonstrate peaceably without arms as unconstitutional and a violation of section 25 of the Constitution which guarantees the above rights.

In its judgment, the Supreme Court unanimously held that the restrictions imposed on the grounds set out in section 25 (4) of the Constitution read in conjunction with section 5 of the Public Order Act were reasonably justifiable in a democratic society. The Court per his lordship Chief Justice Hassan B. Jallow, went further to state as follows;

‘’The right to assembly, as with other individual or collective rights, is usually exercise within the public space. As a result, its exercise by anyone may conflict with the exercise of the same right by others or with the exercise or enjoyment of other rights by other persons or with the needs for the maintenance of public order and security. Hence the need for some regulation or restrictions on the exercise of the right… The requirement of a licence from the Inspector General of Police for the holding of a public procession... to prevent a breach of the peace are reasonable limitations on the right to assembly and to free expression’’.[7]

Be that as it may, the apex Court in my considered view did not satisfactorily set out the standards for a lawful restriction that is in accordance with international human rights law, as the decision failed to provide any evidentiary or factual foundation for the assessment that prior approval for the enjoyment of the right to assemble and demonstrate peaceably is not unconstitutional. Moreover, the grounds permitting restrictions under section 25 (4) of the Constitution cited by the Court does not support its conclusion, because the Constitution did not envisage outright denial of the exercise of these rights.

While I agree with the Supreme Court that restrictions are necessary in the interest of public order, and the competing interest to secure the rights of others, the restrictions imposed by the Constitution are broadly crafted and therefore any part of the constitution which protects and entrenches fundamental rights and freedoms should be given a generous and purposive construction, rather than vague interpretation as this may cause unreasonable restriction of rights. Thus, the purpose of the restrictions in section 25 (4) of the constitution are necessary, but the measures adopted to achieve the purpose through section 5 of the Public Order Act is arbitrary and unreasonable.

Equally, in the case of Gambia Press Union & 2 Ors v. Attorney General [8], the plaintiffs filed an action before the Supreme Court on 2nd September 2014 challenging the constitutionality of  sections 51, 52 A, 53, 54, 59 and 181 A of the Criminal Code all dealing with sedition and false publication and broadcasting. They argued that these sections of the Criminal Code are inconsistent with sections 4, 5, 17, 25 (1) (a) & (b) and 25 (4) of the 1997 Constitution. The court unanimously held that, sections 51 (b), (c), (d), (e), 52, 52A, 53, 54, 59 and 181 A of the Criminal Code are not unconstitutional. However, the court declared section 51 (a) of the Criminal Code invalid and unconstitutional.

Following the judgment of the court, the lawyer representing the GPU Hawa Sisay Sabally had this to say; ‘’law on defamation has been taken out and the laws relating to the internet such as false news and caricature of public officials has also been struck out’’[9]. The President of the GPU Emil Touray expressed mixed feelings in that, he was elated that the Supreme Court had declared ‘’criminal defamation and false publication unconstitutional’’, but was also sad that sedition against the president and false publication and broadcasting remained valid under the law.[10]

In the case of Ya Kumba Jaiteh v. Clerk of the National Assembly & 3 Ors [11] the plaintiff filed a suit against the defendants pursuant to the original jurisdiction of the Supreme Court seeking inter alia a declaration by the court that; ‘’the purported termination of the plaintiff’s membership of the National Assembly through an Executive decision was null and void’’. At the end of the hearing, the Supreme Court finds, holds and declares that the purported termination of the plaintiff’s membership of the National Assembly through an Executive decision from the office of the President was unconstitutional, invalid, null and void and of no effect.[12] Even though, I am not in agreement with the reasoning of the Supreme Court, their decision on this  matter, in my view, further strengthen the confidence reposed on the judiciary.

Similarly, the Court of Appeal in the case of M.A. Kharafi & Sons Limited v. The Attorney General [13], the court dismissed an application for stay of execution of the adverse findings of the ‘’Janneh Commission’’ made against M.A. Kharafi & Sons Limited. The court further held that, findings or recommendations of the Janneh Commission is not self-executory since it is not a judgment or order of a court.[14] However, in the case of T.K Motors v. The Attorney General, a different panel of the Court of Appeal granted an application for a stay of execution of adverse findings of the Janneh Commission made against T.K Motors.[15] In light of these different rulings from the same court, a further decision on this point from the Supreme Court will be crucial to the prospect of commissions of inquiries in The Gambia.

Conclusion

Despite the widespread acceptance of the importance of human rights in the ‘’New Gambia’’, there is still controversy about their nature and scope. The enforcement of human rights is not less controversial. The Judiciary is the organ of Government tasked with the enforcement of fundamental rights and freedoms. The Gambian Judiciary has seen many encouraging developments since the restoration of democracy and rule of law following the December 2016 Presidential election. The Chief Justice should ultimately take advantage of the provision of section 34 (3)  of the 2020 Draft Constitution to relaxed the procedural rules and make more liberal and highly simplified to commence an action for the enforcement of fundamental rights and freedoms. Besides that, cases involving alleged violations of fundamental rights should be expeditiously heard and unwarranted adjournments discouraged. Legal practitioners should also imbibe the culture of providing pro bono legal services to victims of human rights violations while legal aids scheme should be strengthened and widened beyond its present scope. The media, civil society organisations and other independent human rights institutions should continue to enlighten the public about their rights in order to discourage violations. Finally, members of the Judiciary should always bear in mind their role as the last hope of the common man.  

---

About the Author 

This article is written by Mansour Jobe Esq. (LLB (Hons), BL, LLM). Mansour his Master of Laws (LLM) degree in Human Rights Law from the University of Nottingham in the UK and holds a Bachelor of Laws (LLB) from Igbinedion University in the Federal Republic of Nigeria. He completed his Bar Finals (BL) from the Gambia Law School in 2014 and eventually enrolled as a Barrister and Solicitor of the Supreme Court of The Gambia.

---

[1] Dahl, Robert 1988. On Democracy Yale University Press. P48

[2] United Nations, available at https://www.un.org/en/sections/issues-depth/human-rights/ accessed on 10th August 2020

[3] De Smith, Stanley and Brazier, Rodney, 1994. Constitutional and Administrative Law. England. Pengiun 7th edn p 458.

[4] Ibid.

[5] Griffith, JAG 1997. The Politics of the Judiciary London. Fontana cited in Barnet, Hilaire 2000. Constitutional and Administrative Law. London Cavendish.

[6] Civil Suit No: SC 003/2016 (Unreported)

[7] Ibid pages 7-8

[8] Supreme Court Civil Suit No: 1/2014

[9] Standard Newspaper May 10, 2018 publication available at https://standard.gm/supreme-court-declares-sedition-constitutional-struck-out-defamation/ accessed on 11th August 2020.

[10] Ibid

[11] S.C No: 001/2019

[12] Ibid pages 35-36

[13] Civil Appeal No: GCA 046/2019

[14] Ibid page 21

[15] See the Standard Newspaper publication of 10th June 2020

The Gambia and the African human rights system

Synopsis of the Statement by the Gambian Delegate, Aji Adam Ceesay, Ministry of Justice at the 62nd Ordinary Session of the African Commission on Human and Peoples’ Rights. 25 April-9 May 2018, Nouakchott, Mauritania

The Gambia’s state report focused on measures taken to integrate the country into the human rights family. Major strides include the following:

• Promulgation of the National Human Rights Commission (NHRC). Appointment of commissioners and institutional arrangements are underway.
• In their determination to rebuild the nation and lay the foundation for good governance and human rights, Truth, Reparations and Reconciliation Act (TRRC) was enacted.
• The Constitutional Review Commission (CRC) Act was also enacted for the establishment of  a Commission for the drafting and guiding of the process of  promulgating a new Constitution
• Media laws: Ministry has established national committee to review laws. Enhancement of speech and media including issuance of TV licenses.
• In terms of political and civil rights, elections that were considered free and fair took place including, National Assembly and local government.
• Concrete measures are also undertaken to address prison conditions.

Plans by Government

• Formalization of the national procedures for accession to the Convention Against Torture (CAT) and subsequent domestication.
• Commencement of the process of ratifying the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Older Persons.
• Finalization of the Draft Disability Bill as domesticated legislation of the Convention on the Rights of Persons with Disabilities (CRPD).

 Feedback of Chairperson of the African Commission, Hon Commissioner, Soyata Maiga
She expressed delight with the progress that has been made in the normative planes and the establishment of governance institutions. She recalled how for long time, they were reporting excessive human rights violations happening in The Gambia and thus, seen as people that were manipulated by the NGOs. She reiterated that The Gambia can count on the support of Commission, and international community.

Law Hub Gambia’s Take: The Gambia SHOULD fulful its state reporting obligations

One of the most effective means by which the African Commission can ensure the promotion and protection of human and peoples’ rights is through the state reporting procedure.

However, The Gambia’s record of fulfilling its state obligation of submitting reports is extremely poor. At the African regional level, The Gambia submitted its initial report (1986-1992) on the African Charter on Human and Peoples’ Rights (African Charter) in 1992. In accordance with article 62 of the African Charter, states parties are required to submit periodic report every two years. The Gambia’s first periodic report was submitted in 1994 for duration (1992-1994) and no more have been submitted.

Since its ratification of the African Charter on the Rights and Welfare of the Charter (African Children’s Charter) on 14 December 2000 and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol) on 25 May 2005, The Gambia has never submitted any initial or periodic reports to both instruments.

During its statement, The Gambia committed to submitting its state reports after two decades in the next session, we look forward to the inclusion of civil society in the preparation of the report and subsequent submission. 

Resources

S Nabaneh ‘The impact of the African Charter and the Maputo Protocol in The Gambia’ in VO Ayeni (ed) The impact of the African Charter and the Maputo Protocol in selected African states (2016) 75-93. Available at : http://www.pulp.up.ac.za/component/edocman/the-impact-of-the-african-charter-and-the-maputo-protocol-in-selected-african-states

Report of The Gambia in accordance with Article 62 of the African Charter on Human and Peoples’ Rights, http://www.achpr.org/files/sessions/12th/state-reports/1st-1986-1992/staterep1_gambia_1992_eng.pdf

Periodic of report, ACHPR/PR/GAM/XVI http://www.achpr.org/files/sessions/16th/state-reports/1st-1992-1994/staterep1_gambia_1994_eng.pdf (accessed 15 February 2018).

How can young people shape The Gambia's democratic future?

The author gave a similar speech on the theme during the lecture on ‘The Gambia’s constitutional reform process’ organised by the International IDEA:  Institute for Democracy and Electoral Assistance and Faculty of Law, University of The Gambia, 16 March 2018.

---

The role of young people in shaping democracy in The Gambia requires a deep historical reflection stretching from the struggles of our forefathers against colonialism and the struggle of young people in the defeat of a 22-year-old dictatorship in 2016. Therefore, the role of young people in shaping democracy today should not be seen as isolated efforts to ensure accountability and resistance to abuse of power, rather it should be seen as a continuity of struggles long conceived even well before the birth of our independence. However, that history will be worthwhile exploration elsewhere. Today I want to address the theme by first looking at the efforts at the regional level that were designed to enhance youth participation in democracy.

At the African regional level, the transformation of the Organisation of African Union (OAU) to the African Union (AU) in 2002 marked a renewed commitment to the promotion of democratic institutions and good governance in Africa. This commitment is premised on the recognition that inclusive participation, good governance and democracy are fundamental pillars of continental development. In 2013 the AU adopted the Solemn Declaration which called on African states to unite and articulate common development aspirations reflective of the continent’s contextual realities. That commitment gave birth to the adoption of Agenda 2063 which articulates Africa’s long-term development vision. Aspiration 6 of Agenda 2063 provides that the continent aspires for an ‘Africa, whose development is people-driven, relying on the potential of African people, especially its women and youth,’ As such, youth are critical to the realisation of Agenda 2063 as over 60% of the continent’s population is estimated to be under the age of 30.

Moreover, in recognition of the role of youth in ensuring democracy, the AU adopted other normative and institutional frameworks that require member states to enhance the participation of young people in democracy, governance and decision-making. These normative frameworks include the Youth Charter adopted in 2006, the African Charter on the Rights and Welfare of the Child (1990), the African Charter on Democracy, Elections and Governance (ACDEG) (2007), the African Charter on Human and Peoples’ Rights (1981), and the Constitutive Act of the AU (2002). All these instruments engender rights, duties and freedoms that enhance the meaningful participation of young people in issues that concern their well-being, aspirations, democracy and governance.

Based on these frameworks, the AU also devoted 2017 as the year of ‘Harnessing the Demographic Dividend through Investments in Youth’. In pursuance of this agenda the African Union Commission designed a roadmap that focuses on four pillars on youth investment. These pillars are Employment and Entrepreneurship, Education and Skills Development, Health and Wellbeing, and Rights, Governance, and Youth Empowerment. The fourth pillar which involves Rights, Governance and Youth Empowerment deals with a commitment to ensure youth participation, representation and inclusion in decision-making processes is guaranteed. The pillar also calls for an inter-generational dialogue that will foster learning for emerging young leaders in the continent.

Drawing from these standards, the AU shows a commitment to enable youth participation in democratic governance. However, the extent to which youth will effectively participate in democratic governance will depend on the level at which these frameworks are translated into realistic commitments and policies at the domestic level. Lack of political will and dictatorial tendencies can create a disjoint between regional standards and national efforts.

The Gambia is a party to many regional instruments and in fulfilment of her obligations have adopted policies and laws to enhance youth participation in democratic processes. Article 89 (1)(b) of the Constitution of the Gambia 1997, sets the minimum age limit to participate in parliamentary elections at 21 years. For presidency, Article 62(1)(b) sets the minimum age at 30 years. Moreover, Article 196 makes it mandatory on every Gambian to undertake national youth services after attaining the age of 18. In addition to the Constitution of the Gambia 1997, the government also adopted the National Youth Policy subsequent to the establishment of the Gambia National Youth council in 2000. The purpose of the NYC council is aimed at enhancing the participation of youth in national development.

The role of youth in shaping democracy in the Gambia was crystallised in the 2016 Presidential Elections when they rallied to elect a new leader that would pave the way for what would be the first democratic change of government in the history of the country since 1965. This change did not only allow the new government of The Gambia to close a dark chapter of bad governance since 1994, but also presents an opportunity for renewed commitment to the respect of human rights and democracy. In light of that change, the new government of President Adama Barrow pledges to embark on a comprehensive constitutional reform to further consolidate democracy and human rights protection in the Gambia.

The engagement and participation of youth in this election was unprecedented and critical. Due to their frustration over the autocratic regime of President Yaya Jammeh, they rallied behind the banners of opposition coalition to usher in democratic and constitutional change of government.

Beyond the 2016 elections, from civil society forums, government platforms and on the streets, young people in the Gambia manifest a strong commitment and ethos to ensure that the new government in Banjul lives up to its commitment to democracy, good governance and respect for human rights.

The change of government ensured by young people has also led to the widening of the democratic space in the Gambia where they are unhindered to hold government accountable through social accountability mechanisms. This has led to the formation of youth organisations that are contributing in the policy processes to proactively advance good governance, human rights and democracy. A-Plus Gambia is an example of a youth organisation that is making efforts to hold the government accountable through public expenditure reviews and monitoring of budget. Thus, through budget monitoring youth groups are able to assess the gaps that exist between policies and government actions to ensure the progressive realisation of socio-economic rights particularly local government service delivery. The significance of such activities by youth groups is not only important in shaping democracy but also engender discussions around alternative policy choices for the realisation of human rights.

Furthermore, youth are also involved in peace building efforts in the Gambia. On 9 and 11 May 2017, Gambian youth in partnership with young leaders from 22 African countries organised and hosted a conference under the theme ‘Youth, Peace building and Regional Solidarity: Lessons from Africa’. The conference was jointly funded by the government of The Gambia, UNESCO, and the African Council for the Development of Social Science Research. This conference provided an opportunity for stakeholders to reflect on the challenges and opportunities for youth in transitional systems. More importantly the young participants highlighted the need for intergenerational interaction and dialogue in sustaining peace and ensuring the durability of democracy. The conference also provoked discussions on gender equality, peace consolidation and youth participation in governance.

Nonetheless, as writers accurately put it that the youth bulge in Africa is a double-edged sword. While it can be a catalyst for economic growth and transformation when well-managed, but it can also spur violent conflict across the continent.

Going forward, our fears and aspirations as young people should dictate the pace of our constitutional making process. According to His Lordship the CJ Honourable Hassan B Jallow, ‘’the 1970 Constitution was a well-crafted constitution indispensable to the proper functioning of government’’ However, written constitutions are not a guarantee for democratic government based on constitutional conventions. He went further to say that ‘’the ultimate guarantee for good governance reposes not in the letter of the law, but in the will, commitment and determination of the people and their leadership to tread the path of justice and fair play.’’ It this commitment and will, we the young people of this country demand from our government. We are not negotiating our future in these trying moments of our times.

It is important to emphasise that democracy in this context is understood as popular governance that has its roots in the enlargement of the public sphere for people to constructively participate in the choice of governance they desire. As such, in this context democracy is not synonymous to western liberal democracy which does not give primacy to group rights as a basis for rights, freedoms and duties. The AU has over the years recognised African values as central to human rights, governance and democracy. Thus, Article 3(b) of the Charter for African Cultural Renaissance endears African states ‘to promote cultural democracy which is in separable from social and political democracy. The charter also calls on African states to strengthen the role of African values in promoting peace, good governance, social cohesion and human development. 

As young people, we look forward to an inclusive constitutional making process that will recognise our concerns and fears.