The ECOWAS Community Court in Abuja has held that the arrest of Ousainou N M Darboe and thirty others by the APRC regime was lawful and did not violate articles 5, 6 and 11 of the African Charter.
It added: “However the detention that followed was arbitrary as the period of detention went beyond the limit permitted by the law of The Gambia before the applicants were brought to Court.”
The judgment by the ECOWAS Court of Justice came on the heels of a civil suit instituted by Darboe and others against The Gambia.
According to the Justices of the Court, the thirty-two applicants had asked the judges to declare that section 5 of the Public Order Act of the Republic of The Gambia Chapter 22-01 is in violation of Article 11 of the African Charter on Human and People’s Rights. They have also asked the Court to make a declaration that the arrest, detention, charge and purported imprisonment of the applicants for offences under the Public Order Act were in violation of Article 4-7 and 11 of the ACHPR. The judges said the applicants had also asked the Court to make a declaration that their arrest and detention on the 14th April 2016 and 16th April 2016 were arbitrary , unlawful and in violation of Article 11 of the ACHPR.
According to the judgment, Darboe and his co-applicants have also asked the Court to make a declaration that their torture and/or cruel, inhuman and degrading treatment by the respondent (The Gambian state) and its agents violated Articles 4 and 5 of the ACHPR. The justices of the Court said the applicants have also asked them to make a declaration that their trial before the High Court of The Gambia without giving them the opportunity to be defended by counsel of their choice to choosa counsel violated Articles 6 and 7 of the ACHPR.
ECOWAS Court judges said Darboe and his co-applicants have also asked for an award of damages in the sum of D10 million to each of them (1st to 31st applicants) as a result of their torture and physical abuse by agents of the respondent (The Gambian state) and their arrest and unlawful detention. An award of compensation in the sum of 30 million Dalasi to the Estate of Ebrima Solo Sandeng (deceased) through the 32nd Applicant (UDP) for unlawful deprivation of life and associated loss of life to the relatives and family members.
They went on to say that the applicants have also asked the Court to make an order nullifying their purported charge, trial and imprisonment on the basis of the Public Order Act and their immediate release from prison.
After going through the case of the applicants (Darboe and others) and that of the respondent (The Gambian State), the judges held that: “In light of the action of the respondents in the instant case, the Court holds that provisions of section 5 of the Public Order Act of the Republic of The Gambia is in tandem with permissible restrictions in ensuring law and order.
However the requirement of having to obtain the approval of the Inspector General of the Gambia Police Force will undermine the exercise of such right and need review.”
The Court aligns itself to its precedents and held that it lacks the powers to declare the decision of the national court of the Respondent null and void.
ECOWAS Court judges further held that: “That the 32 Applicant (UDP) lacks the locus standi to represent the Estate of Solo Sandeng in this action, he having been denied Locus Standi. That section 5 of the Public Order Act does not violate Article 11 of the African Charter as claimed. That prayers 7, 14 and 15 of the applicants on grounds of locus standi are hereby dismissed. That the arrest and detention of 1st ( Ousainou Darboe ) 3rd (Femi Peters ) 4th (Lamin Dibba) 15th (Fanta Darboe Jawara) 17th (Juguna Suso) 26th (Nogoi Njie) 27th(Fatoumata Jawara) 28th (Fatou Camara) 30th (Ebrima Jadama) and 31st (Modou Ngum ) Applicants was lawful and did not violate Articles 5, 6 and 11 of the African Gambia. However, the detention that followed was arbitrary as the period of detention went beyond the limit permitted by the laws of The Gambia before the applicants were brought to Court. That the claim of violation of the right to fair hearing of the applicants fails and is hereby dismissed. That prayer 8 is denied.”
The Court, however declared that act of torture, inhuman and degrading treatment meted out on the 1st (Ousainou Darboe), 3rd (Femi Peters), 4th (Lamin Dibba), 5th (Lamin Jatta) 15th (Fanta Darboe Jawara), 26th ( Nogoi Njie), 27th (Fatoumata Jawara), 28th (Fatou Camara), 30th (Ebrima Jawara) and 31st (Modou Ngum) violates Article 5 of the African Charter.
The Court ordered the Gambia Government to pay the sum of one hundred thousand United States dollars equally to Ousainou Darboe, Femi Peters, Lamin Dibba, Lamin Jatta, Fanta Darboe Jawara, Juguna Suso, Nogoi Njie, Fatoumata Jawara and Fatou Camara for the hardships and violations of their human rights caused to them by agents of the respondents.
