Posted - 24 Sep 2021 : 15:59:02
By Law, dictatorship still prevails in the Gambia!
By Madi Jobarteh
Yesterday, September 23, Amnesty International released its seminal research report into the state of human rights in the Gambia in regard to the necessary legal and institutional reforms that were supposed to be made since the new Government of Adama Barrow took over. It is indeed disheartening to find in this report, “Gambia: Nearly 5 years after Jammeh’s regime ended, oppressive laws remain untouched” that since the Tinpot Dictator was kicked out in 2017, the new rulers of the Gambia have refused to expedite the democratic transition of the country. Every political system is defined by its laws to set out the kind of institutions to be created and how human rights will be protected or not. From the Amnesty report, it is obvious that the Gambia has so far remained a dictatorship simply because by law the system of authoritarian rule persists.
Amnesty International did very well to highlight the number of draconian laws in place and how various institutions of the state have relied on these laws to trample upon human rights. They have shown the slow process of legal reforms hence posing a clear and present danger to human rights in the country. It is not enough for the Gambia Government to claim that they do not use these laws or clampdown on people as the APRC Regime was doing. What is important to note is that so long as the laws remain the same and in place, then there is a threat in place. In fact, this threat has been put into practice as the report has highlighted how journalists, media houses and human rights activists have faced harassment over the period.
Thus, the Minister of Information Ebrima Sillah, who was on West Coast Radio’s Coffee Time with Peter Gomez show yesterday to respond to the report cannot therefore spin this report into the dustbin because the hard evidence is staring at him in his face. He cannot condone malpractices and bad laws under Adama Barrow today that he was fighting against yesterday when Tinpot Dictator Yaya Jammeh was in power. Hence it is utterly dishonest and infantile on his part to attempt to downplay, mislead, distort and deny the hard facts.
Furthermore, Mr. Sillah must be exposed when he attempts to play diversionary tactics by casting blame on the National Assembly for not quickly acting on the reform bills his Government has submitted to them. This is because this Government has no political will to push this country to democracy with urgency hence when they act in that line it is only because there is a push and an outcry from journalists, human rights defenders, citizens, international partners and other stakeholders like Amnesty International. Thus, it is dishonest to attempt to exonerate Pres. Barrow on the flimsy argument that he was an independent candidate and has no powers in the parliament.
The fact of the matter is Adama Barrow was a candidate for the 2016 presidential elections. In both the MoU that set up his coalition and his own campaign manifesto, he had stated that within six months of taking office he will repeal all provisions in the laws that criminalize speech including libel, sedition, false news and false publication. Look into the Criminal Code and you will find these provisions are still there even though the Supreme Court had ruled in 2018 that some of the provisions are unconstitutional. Further, the ECOWAS Court in the same year also said that these provisions infringe media freedom and asked the Gambia Government to repeal them. Yet two years down the line, nothing is done.
Instead what did we see? In 2019, this Government reviewed the Criminal Code but only to make it even more ridiculous and worse by creating a special provision to prohibit ‘parental insult’ for only the President, Ministers, NAMs and senior Government officials. Are they saying that the mothers of the rest of the citizens are not worthy of respect and protection like their own mothers? After a public outcry they withdrew it and since then we are yet to have a proper Criminal Code that is required in a democratic society. Minister Sillah cannot blame the National Assembly for that, rather his Government must take responsibility for failing to do their job properly from the first instance since the first day they took office.
Yes, the Barrow Administration has created the National Human Rights Commission and as well as created the Access to Information Act which they also promised in their manifesto. They also created the TRRC and the Janneh Commission. One must also refer to the Disability Act as well as the National Assembly Service Act, which are all commendable progress. But these achievements should not be isolated when all around them there are laws that would erode all the gains that would come out of these newly created laws and institutions.
For example, Barrow said in his manifesto that he will also review the Official Secrets Act in order to promote accountability and transparency in public office. This was not done, and with this law alone, not only does it make it difficult for citizens to hold public officials accountable, but it also gives these officials a lot of power to deny citizens necessary information on the basis of ‘official secrets. Is this not inimical to the Access to Information Act? By this law, citizens and journalists face a threat if they should publish or share any information that is deemed ‘national security’ hence undermining human rights and making the work of the National Human Rights Commission extremely difficult.
Furthermore, Barrow said in his manifesto that he will remove Section 114 of the Criminal Code which relates to giving false information to a public servant. Yet this provision is still in place. Is this not another instance where citizens are limited in holding the Government accountable, not to mention the fact that this provision conflicts with the Access to Information Act? Why is this provision not removed?
Going further, Barrow said he will reform the Public Order Act in order to further promote democracy, popular participation and accountability. Until today, the Public Order Act has not even been touched much less placed before the parliament. Rather, we have seen the IGP using this obnoxious and undemocratic law to deny citizens the right to freedom of assembly. To add salt to injury, Barrow now says he will use that law by ordering the IGP to deny any request for a permit. Not only is it undemocratic to ask sovereign citizens to seek a permit from any person or authority in order to protest, but it is also a rude affront to the National Human Rights Commission which is mandated to promote and protect freedom of assembly.
Still going further, there is the Newspaper Act which Barrow also said he will repeal. This Act has put in place exorbitant fees for setting up a newspaper. This is undemocratic and happens only in the Gambia where one is forced to pay hundreds of thousands of dalasi and in addition, mortgage your landed property as collateral just to open a newspaper. Is this not a direct and unjust limitation of human rights contrary to the spirit that established the National Human Rights Commission, not to mention the creation of an Access to Information Act.
Worse still is the fact that there is the Information and Communications Act in which unchecked power is given to the security agencies to intercept and monitor people’s telephone, email and other electronic communications without their knowledge or consent. How can you have an Access to Information Act and a National Human Rights Commission yet at the same time, have a law that gives power to Government agents to tap your telephone or force Gamcel, Africell, Comium and Qcell to supply them your phone records! Scandalous.
Candidate Barrow had also said in his manifesto that they will make a lot of reforms in the Constitution and the Elections Act in order to strengthen democracy and enfranchise the diaspora and remove all practices such as attestations that undermine free and fair elections. For example, they intended to invoke Section 18 of the Constitution “to facilitate a referendum on the abolition of the death penalty within a year to make life imprisonment the maximum penalty”. This did not happen. They intended to introduce term limits (s.63.1) as well as create the procedure for a referendum when there is a vote of no confidence in the president (s.63.5). None of that has happened.
Even more woefully, they failed to reform the Elections Act to make it more democratic and allow the diaspora to register and vote. On December 4, some Gambians will go to the polls while others are not going to vote simply because they do not reside in the country at this time. They have been denied their right as sovereign citizens of this republic to register and vote. This was promised and abandoned.
Rather, what Barrow promised and fulfilled was to change Section 91(1)(d) “so that any member of parliament who is dismissed by a party would automatically become an Independent candidate”. They also changed Section 62(1)(d) to reduce the upper age limit for president. These changes were made deliberately to serve the interest of these new rulers, thus demonstrating that this Government knew exactly what they wanted or did not want to do.
While they have set up the TRRC and other commissions, they had also promised to set up another commission to “look into the places and conditions of detention before and after conviction with the objective of putting an end to torture, rape, inhuman and degrading punishment or treatment and poor conditions of imprisonment”. They intended to use the findings for prison reform and upgrading of police cells, among other measures. None of this was done. Visit the Mile 2 or Jeshwang or Janjanbureh prisons to see the squalor and inhuman conditions in which human beings are kept. Things are no better either in police cells where dozens of suspects are kept in small rooms without proper ventilation, lighting sanitation, toilet and bedding facilities while the floor is always damp and rough.
The failure of these reforms underpins the despicably slow process in institutional reforms especially security sector reforms. Consequently, five years down the line, no security agency’s law has been reformed in order to transform them in line with human rights standards. These include the Gambia Armed Forces Act, the Police Act, the NIA Act, the Prisons Act, the Drug Control Act, and the Immigration Act. If these laws are not reviewed and changed accordingly, how do we hope to transform security agencies to become transparent, efficient and accountable and ensure that their operations are in line with human rights principles and standards?
Above all, how do we end the culture of torture and malpractices? The evidence of the lack of security sector reforms and its danger can be found in the Anti-Crime Unit and its commander Gorgui Mboob. In 2020, after a human rights investigation panel, under the auspices of the National Human Rights Commission, found him culpable for torture and recommended for his removal from the unit, one year later, in July 2021 he was brought back by the IGP to head that same unit in rude contempt of the decision of the panel. What this shows is that the creation of the National Human Right Commission is meaningless so long as its decision can be flouted with impunity and torturers can be allowed to stay in security agencies!
Then, we have the issue of corruption. Why has this Government failed to create an Anti-Corruption Commission since 2017? How can Minister Sillah justify four years to make or reform laws in any normal society? Surely this is not because the National Assembly does not want to, but rather Pres. Barrow is not committed to fighting corruption at all. Corruption is the greatest threat to human rights and we have seen that fully evidenced before the TRRC as perpetrators and witnesses narrate how violations took place. Therefore, the most urgent business for any president succeeding the most corrupt and abusive regime is to set up an anti-corruption agency as a means to protect human rights. But this has not been done until today.
The worst setback and demonstration of bad faith on the part of this President and his Government is their clear and deliberate effort to ensure that the country has no new constitution. After setting up the CRC and spending tens of millions of dalasi, Pres. Barrow and his Cabinet and political allies in the National Assembly and NPP surrogates became the leading opponents of the final draft constitution. It is no wonder that when that bill was placed before lawmakers, it had arrived dead already.
All of the above put together, is it not absolutely clear that indeed the Gambia continues to reel under authoritarian rule by law! The sooner citizens, CSOs and activists realize this the quicker and stronger will they rise up to proactively put maximum pressure on this Government to speed up the democratic process in this country. It is not justifiable nor reasonable in any way that a nation that underwent 22 years of brutality under a terror regime will waste even one day in transforming itself into a better society. So far it has taken the Gambia five good years and still unable to make itself better democratically thanks to the lackadaisical and unwilling attitude of President Adama Barrow and his entire Government.
For The Gambia Our Homeland
Download report here:
A clear conscience fears no accusation - proverb from Sierra Leone