The Gambia’s maturing democracy needs a culture of protest within a constitutional framework, as we can glean from France – an established democracy raucously contending with the hyperactive ‘Yellow Vests Movement and The Umbrella Movement Protest in Hong Kong’. The Gambia, with the weak interpretation of an ill-defined civil society, needs it more. 

The Gambia must stand firm on the principles of freedom of speech and rights to peaceful demonstration as part of our fundamental values. Indeed, it is important in any democratic society for people to be able to participate exercise their constitutionally protected right to protest. As long as people seek peaceful means to demonstrate and voice their political opinion, this is what we see as a natural part of a thriving democracy.

For the avoidance of any doubt, the right to assemble is constitutional, a right, provided for and guaranteed under 1997 the Constitution – the Supreme Law of the land – gives life and meaning to any other piece of legislation. The supremacy of the constitution is also an elementary principle of constitutional democracy.

Developing a culture of protests is now fundamental to the defence of the Gambia’s democracy and to act as a brake to the threat of disorderly national disintegration. The government is the archetypal unmoved mover? It is thunder and lightning with all the claps. It shouts and strikes; it withers and buries all on the way, leaving its critics to wonder why. Such powers don’t get overwhelmed by nit-witted conspiracies and protests. You do not have the throne and be cowardly.

Fortunately, there are video and photo evidences of the surefootedness of the Gambia’s Commander- In- Chief strongman and his government President Adama Barrow. People should come see Adama Barrow’s latest, cute, calm photograph – released recently. Does a cowardly, nervous leader sit at ease, barefooted, eating, reclining, belching, in the presidential office – discounting and ignoring all the howling outside? Does a nervous president calmly hold a golden toothpick, and comb his denture of delicious power with relish?

Democracy is both deliberative and participatory. Its meaning and development are inexorably tied to the deliberative and participatory limbs. To remove the deliberative and participatory content of democracy under the guise of public order is simply a rough amputation. The pains are deep, and the challenges are inherently tricky.

The Public Order Act is an ordinary legislation passed by the colonialist and amended several times previous by the regimes which cannot override the Constitution – the supreme law of the land. In my view, the Public Order Act in its present form is unconstitutional, invalid and void.

It has survived in the Gambia mostly because the judiciary has failed to come out unequivocally to uphold the right to freedom of Assembly embedded in our Constitution as evidenced by decisions in the following cases: Lawyer Ousainou Darboe  vs. The Attorney (2015) and Femi Peters v. The Attorney General (2003). The Public Order Act restriction of the right to Assembly is in direct conflict with the fundamental rights of citizens which are entrenched and guaranteed by the Constitution.

It offends the conception of a constitution in a democracy. The Gambia Police often abuse the Public Order Act and use it to prevent dissents from holding meetings to explain their platforms to the Gambian public. The unconstitutionality of the public Order Act, I would like to once again highlight the importance of the Freedom of Assembly in a democratic society. The Public Order Act is unconstitutional.

No healthy democracy, therefore, can afford the luxury of citizens who are quarantined in their homes —with no meaningful capacity to engage the state through free assembly and other forms of citizens’ participation.

Freedom of Assembly is fundamental to a healthy democracy. It enables citizens as social beings to form organizations with others, to express their political and other views, and to collaborate with like-minded people. It enriches political dialogue. The right to freedom of Assembly serves as a vehicle for the exercise of many other civil, cultural, economic, political and social rights.

The rights are essential components of democracy as they empower men and women to express their political opinions, engage in literary and artistic pursuits, and other cultural, economic and social activities, engage in religious observances and other beliefs, form and join trade unions and cooperatives, and elect leaders to represent their interests and hold them accountable.

Furthermore, the right to Freedom of Assembly is guaranteed in all the major international and regional human rights conventions. It is guaranteed in article 21 of the International Covenant on Civil and Political Rights. It is also reflected in article 8 of the International Covenant on Economic, Social and Cultural Rights; article 11 of the African Charter of Human and Peoples Rights to name a few. The Gambia subscribes to these international covenants and treaties.

When national states join International Human Rights Conventions as the Gambia has does, they assume both international and domestic obligations. They undertake to respect the rights and freedoms recognized in the conventions and to ensure to all person’s subject to their jurisdiction the free and full exercise of those rights and freedoms. Three significant obligations emerge from this undertaking: (a) to respect the rights and freedoms recognized in the conventions; (b) to ensure the free and full exercise of the rights recognized in the conventions to every person subject to its jurisdiction; and (c) to prevent, investigate and punish any violation of the rights recognized by the convention.

There is, therefore, a duty incumbent upon states – like the Gambia – to actively protect peaceful assemblies and a consequent right appertaining to citizens, to expect that their rights to freely assemble will be protected rather than be violated by the state.

In 2001 The African Commission on Human and Peoples Rights held that: “when a state allows private persons or groups to act freely and with impunity to the detriment of the rights recognized, it would be in clear violation of its obligations to protect the human rights of its citizens”.

Similarly, this obligation of the state was emphasized in the European Court of Human Rights in Netherlands in 1985. In that case the court pronounced that there was an obligation on authorities to take steps to make sure that the enjoyment of the rights is not interfered with by any other private person.

Such obligation includes the protection of participants of peaceful assemblies from individuals or groups of individuals, including agent provocateurs and counterdemonstrators who aim at disrupting or dispersing such assemblies.

The state cannot choose and pick which types of people are deserving of having their rights observed, respected, protected and fulfilled. To allow such is to create discrimination and potential foundations of social rupture and violence. To respect the rights and freedoms guaranteed by the Constitution requires that the state control its agents – nudging them unto the path of constitutionalism at all times.

This is so because the obligation to ensure the full and free exercise of the rights guaranteed by the Constitution, is broader than mere respect. It entails the active promotion, protection, preservation, and fulfilment of the enjoyment of these rights. This is even more imperative when private citizens violate the rights of other citizens to assemble and participate in democratic activities freely.

What it means is that even the state’s inaction in the face of private violations of citizen’s rights is attributable to the state. Else the state will escape liability and responsibility by merely claiming ignorance or looking elsewhere while “private citizens” violate the rights of others to assemble in a democratic society freely.

Any contrary interpretation is unconscionable and a sure path to servitude —which the compatriots of this great country fought against. The state must investigate and punish those that violate the rights of others. Private conduct becomes state responsibility if the state acquiesces to the conduct or has allowed it to take place.

Indeed, the most significant incentive for the violation of any citizen’s right is the feeling that nothing will happen. If the state or its organs look elsewhere while the rights of citizens are violated, what it means is that the state endorses the violation. In the cause of the struggle for Independence, our compatriots noted that “the Gambia must be free.” All the citizens of the Gambia share in that freedom and aspirations connected to it.

Yes, it is not the freedom of the graveyard where everything is stiff, silent and solemn —except for the intermittent voice of the undertakers. It is the freedom to engage and be alive to democratic ideals through fundamental rights and freedoms.

The public sphere belongs to citizens. Only slaves – not citizens – are forced into pens and kept away from the public sphere. It is the fundamental nature of democracy that the public space belongs to the public – hence the idea of a republic (res publica).

By the citizens’ collective ownership of the public, they pay taxes to maintain it and indeed pay those who are given limited functions within that space. In so doing, the citizens do not divest themselves of that inalienable right to assemble. They do not give powers to public office holders to put them in enclosures from wherein they as citizens will timorously be peeping out through crevices to imagine what their functionaries are doing.

To suggest otherwise is to turn the democratic sphere into a slave colony and not a constitutional democracy. Thus, no state functionary can in a democratic society validly appropriate that public sphere let alone expropriate it from the citizens through the purported implementation of any public order act.

For ages and generations, we have been conditioned to believe that there are only two responses to oppression or injustice – flight or fight. But there is a third, more excellent way. Resisting injustice in a nonviolent way that seeks to change the system while converting our opponent to see the error of their ways.

By Alagi Yorro Jallow