Sunday, July 5, 2020

Detention without Trial Still Exists

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By Mustapha Jallow

Five soldiers and one civilian have been detained by Gambian authorities without their appearance before any Court of Law for trial. This is contrary to the requirement of Section 19 of the Constitution which says a detainee should either be released within 72 hours or be taken before a court of competent jurisdiction.

The present Government of Adama Barrow promised to usher in a new era to end the prolonged detention of citizens without trial and detaining people without taking them to Court. More work needs to be done to fulfill this promise.

If Gambians can recall, President Barrow ordered the release of all persons detained without trial under the repressive regime of former president Jammeh, in February 2017 and pledged to all Gambian that his Government will end human rights violations in the country.

However some soldiers are still detained beyond seventy two hours without any Court appearance while others continue to languish behind bars.

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A person in detention is Lance Corporal Sarr. He has been under custody for twenty five days and is yet to be brought before a Court of Law or  released.

Two other Lance Corporals have also been detained at a military camp for forty days now without any Court appearance. The two Lance Corporals are Saidy Faye and Sarjo Conteh. The two are accused of involvement in an alleged break-in and disappearance of fuel coupons worth over D300,000.00. The two soldiers are also detained for more than seventy two hours.

Warrant Officers Class 1 Ismaila Jammeh and Alieu Jeng who are both members of the Gambia Armed Forces (GAF) are still in detention without any Court appearance. The two were allegedly accused of committing a crime under the past regime of ex-President Jammeh.

A family source of one of the Warrant Officers recently raised concern over the long detention of their loved one and asked how long the authorities will continue to hold their loved ones in custody without preferring any charges against them; that since the time they appeared before the Truth Commission, they are yet to know their fate.

Bully Jammeh, brother of Ismaila said his brother’s detention for over three years now has devastated them.

He said the authorities have violated the rights of his brother and asks the kind of justice we have in the country; that those who were accused of the same allegations with his brother have been released since whilst his brother is still kept in detention.

This reporter sought the opinion of Malick H.B. Jallow, a practising Lawyer who said that under Section 19 (3) of the 1997 Constitution, any individual under detention shall be either released or brought before a competent Court of law as soon as practicable and in any event, not beyond 72 hours; that the exercise of emergency powers pursuant to an Act of Parliament passed to deal with an existing situation warranting a state of public emergency, can give rise to an exception to the 72 hours rule; that Section 35 (2) of the Constitution permits subject to some judicial safeguards, the detention of an individual beyond 72 hours during a state of public emergency 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.

“If there is an apparent conflict between the Constitution and the Armed Forces or any other Act of Parliament, the Constitution prevails. The Constitution is the Supreme Law of the land. The onus is on an aggrieved party to seek redress at the High Court for an infringement of the fundamental right not to be detained beyond 72 hours,’’ he concludes.

When asked about the fate of two former “Jungulers”, Cherno Marenah, the Solicitor General at the Ministry of Justice told this paper that their position has not changed yet and they still maintain what the Minister of Justice stated at a press conference last year.

Efforts were made to hear from the Army and Police PROs for them to shed light on the issue to no avail.

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