By Momodou Jarju
The National Assembly Human Rights Committee and Constitutional Matters has called for the expungement of sentences with hard labour in The Gambia. The committee opined that people convicted should not be forced to do a job that they are not paid for because it is enslavement and as such, they called for its removal from the Gambian laws. The committee made the proposition during the consideration stage of the criminal offences bill last Monday at the august body’s plenary session.
Their proposition came about when the chair of the committee and member for Serrekunda West, Hon. Madi Ceesay, proposed that clause 34 under Imprisonment stands as part of the abovementioned bill with an amendment. The committee wanted the phrase “hard labour” in 34(1) in line three be expunged.
Sub-clause 1 reads: “All imprisonment for an offence against this Act or against any other law may be with or without hard labour, in the discretion of the court, unless the imposition of imprisonment only without hard labour is expressly prescribed by law
The chairperson of the plenary session and speaker of the National Assembly, Fabakary Tombong Jatta, said if the committee’s proposition is anything to go by, the sub-clause ought to be expunged because it gives an alternative to either be sentenced with hard labour or without hard labour.
“The position of the committee is that the sentences will be without hard labour. No sentence with hard labour,” Hon. Madi Ceesay told the Speaker.
Member for Banjul South, Hon. Fatoumata Njai, said the rationale behind the committee’s decision is that hard labour would be seen as double punishment and it is stated that you shouldn’t be punished twice for one crime. The vice chairperson of the committee and member for Wuli East, Hon. Suwaibou Touray, supported Hon. Njai’s remarks. “That is the best practice in the world now. Don’t jail people and ask them to go and do hard labour,” he said.
“A Radical Departure”
The Attorney General and Minister of Justice, Dawda A. Jallow, explained that section 34(1) gives the courts the discretion to sentence somebody after conviction with hard labour or without hard labour.
Minister Jallow informed the deputies that their role as lawmakers has not been removed, saying sentences they think should not attract hard labour, should specifically be indicated. According to him, it is a common law principle that the court can decide whether, as at the time somebody is convicted and sentenced, it should add hard labour or not.
“So, from what I’m hearing, you are proposing that there should not be any hard labour imposed in our jurisdiction after a sentence.Is that your sweeping position? That position is informed by what? I am curious. Why would you want to eliminate hard labour as a form of punishment in our penal code? Because that means you are radically saying that the court will no longer have authority to impose hard labour after sentence. If that is your position, I’m not too sure whether you have provided us what informed that, because that’s a radical departure,” Minister Jallow said.
Other Lawmakers Oppose the Proposition
The Majority Leader and Member for Kantora, Billay G Tunkara, argued that once somebody commits an offence, some of their rights are seized.
Foni Bintang Karanai lawmaker, Bakary Badjie said hard labour shouldn’t be removed from the penal code for various reasons.
“One, the individual has committed an offence. Two, the individual is fed by the state. The individual is accommodated by the state in the prison.So we have given him enough. So if the individual is actually subjected to hard labour because of the crime committed, I think that should be part and parcel of it,” he said.
“We are even thinking of in fact sending them to Janjanbureh for them to go and farm for us because we cannot continue to feed them as a nation. That is my stand.”
Compromise Reached
Speaker Jatta nonetheless said if the deputies feel that hard labour should be out of the country’s laws, they can engage the assembly’s legal department to work on that. He also cited section 20 of The Gambia Constitution under Protection from Slavery and Forced Labour to weigh in the debate.
“No person shall be held in slavery or servitude. No person shall be required to perform forced labour. For the purposes of this section, the expression forced labour does not include any labour required in consequence of a sentence or order of court,” he cited, adding that the constitution is saying sentences with hard labour can be done.
Vice chairperson Touray conceded that since the committee’s proposed amendment will be in contravention of the constitution, they would submit to maintain clause 34(1).
Speaker Jatta thus ended the debate: “In fact I am not against that it be removed. What I am saying is if it is to be removed, it has to be holistic…You [lawmakers] still have the right because whoever prepares it comes to you for approval,”
