The Constitution of the Republic aims to protecting personal liberty by imposing strict conditions for the maximization of the protection of the sovereign person. Section 17 of the Constitution obliges the executive, the legislature and all persons to respect and uphold the fundamental rights and freedoms of all persons. The courts are given special recognition by the Constitution as the enforcer of fundamental rights.
Section 19 states very clearly that a person when arrested upon reasonable suspicion of his or her having committed, or being about to commit, a criminal offence under the law of The Gambia, and who is not released, shall be brought without undue delay before a court and, in any event, within seventy-two hours. Hence anybody who is detained for 72 hours should be taken before the courts and it is only the courts that have the power to remand the person in custody should it deem it fit to do so.
This practice is part and parcel of due process. All courts are required by section 24 of the Constitution to be independent and impartial in presiding over all criminal matters.
Courts are supposed to sit in public and sitting in camera must be reasonable and justifiable in the circumstances and in any matter the parties must be present and cannot be excluded, unless if by virtue of their own action they prove to be unruly in behaviour.
It is therefore important for the Attorney General as principal adviser of the government to guide the state to respect and uphold due process. It is also important for the Chief Justice to guide the Courts to protect fundamental rights as stipulated in the Constitution.
Section 19 of the Constitution aims to put an end to the culture of detention without trial. This is why the period of detention is limited to 72 hours. After 72 hours the person must either be released or taken to court to answer to charges preferred against him or her.
