Contradictions between the Constitution and the Public Disorder Act
By Yusef Taylor, @FlexDan_YT
Short version. The Constitution states every person shall have the right to freely assemble and demonstrate peaceably without arms. In other words, citizens have the right to protest within the limits of the law peaceably. On the other hand, the Public Disorder Act contradicts the Constitution and demands that a citizen must first obtain a license before any public procession.
Here is the long version.
The laws governing protest are detailed in the Constitution (1997, 2006 revised version) and the Public Disorder Act (2009). Since the Kanilai protest incident, one question has gone unanswered leaving many people clueless as to what to do when organising a public procession. “Is protesting without a permit a criminal offence?” Currently, there isn’t a straightforward answer to this simple question because there are contradictions between the Constitution and the Public Disorder Act. Hopefully, this short piece will shed some light on some of the legal contradictions around holding a public procession.
The Constitution is the supreme law of The Gambia which guarantees every citizen’s rights of freedom of speech, assembly and movement. In practising your rights you cannot infringe on another individual’s rights. Your rights as enshrined in Article 25 of the Constitution can be read below followed by some restrictions to these Constitutional rights as detailed in the Public Disorder Act.
“Section 25 of the Constitution: Freedom of speech, conscience, assembly, association and movement
1. Every person shall have the right to –
a. Freedom of speech and expression, which shall include freedom of the press and other media;
b. Freedom of thought, conscience and belief, which shall include academic freedom;
c. Freedom to practice any religion and to manifest such practice;
d. Freedom to assemble and demonstrate peaceably without arms;
e. Freedom of associations, which shall include freedom to form and join associations and unions, including political parties and trade unions;
f. Freedom to petition the Executive for redress of grievances and to resort to the courts for the protection of his or her rights.”
The constitutional provision above means that anybody can assemble anywhere and demonstrate peaceably without arms. Another recent development is regarding the arrest of the NIA/SIS whistleblower who petitioned the Executive that 60% of the NIA/SIS are illiterate. His right to petition the Executive is guaranteed in subsection f above. Therefore he was exercising his rights as a sovereign citizen and hasn’t violated any law. He should be released immediately.
The limitations in exercising Article 25 are included in the Public Disorder Act which begins with the statement below. “Public Order Act: An Act to prohibit the maintenance by private persons of associations of military or similar character, and to make provision for the preservation of public order on the occasion of public processions, and to make provisions for the control of the use of public apparatus for amplifying sound, and for connected matters.”
The second sentence indicates that public proceedings are allowed as long as public order is preserved. The main purpose of the Public Disorder Act is to avoid public disorder and especially that caused by military personnel. There are serious and legitimate restrictions on any private individual operating a private military. However, there are some very restrictive provisions in the Act which contradict the constitution such as the Control of Processions.
Control of Processions (Section 5, Part 2) dictates that any citizen who wants to form a public procession must first seek permission in the form of a license. The individuals that may issue license are the Inspector General of Police, the Governor of the Region, or any other person authorised by the President. This law is in direct contradiction with the rights to freedom of assembly and peaceable demonstrations guaranteed in the Constitution (Section 25, Part 1 d). If the Constitution is still the supreme law of the land, then this provisions in the Public Disorder Act should be repealed. Certainly, some provisions prohibiting offensive weapons, rioting, looting, interfering with private and public vehicles are beneficial to maintain public order, however, some are simply in direct contradiction with the Constitution.
To underscore this point I make reference to two recent occurrences involving Ousainou Darboe which has put this act under the microscope. When Ousainou Darboe and his UDP entourage were held at Fass Njaga Choi, this was a violation of their right to peaceful assembly because they were not demonstrating and the procession did not disrupt public order. Eventually, after being held by security they were released to progress on their tour. The second incident involved the series of Protests held in April which was all illegal (no license) according to the Public Disorder Act but perfectly legal according to the Constitution (no requirement for a license).
The purpose of the Public Disorder Act is clear and should be considered when repealing some of these archaic draconian laws. Does the particular provision in the Act help to guarantee public order? Or is it only restricting the fundamental rights of Citizens and subverting the people’s will? Is this not a precursor to inciting a revolution?
To conclude there are many provisions in the Public Disorder Act which need to be repealed as they are draconian and only limit fundamental constitutional rights guaranteed by the Constitution. On one hand, some reasonable restrictions help to uphold public order such as the prohibition of; quasi-military organisations, to bear arms and interference with vehicles. On the other hand, some restrictions have nothing to do with public order and are unnecessary restrictions demanding that citizens apply for a permit to exercise fundamental rights already guaranteed in the Constitution.
Guidelines for a Peaceful Protest
• Seek for a Permit and Plan your protest march
• Designate street/protest wardens to control the crowd
• Assemble and Protest Peacefully, Avoid going on the Highway
• Avoid Rioting and Interfering with public Vehicles