Monday, April 12, 2021

Supreme Court Rules against Dr Ousman Gajigo

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Declares Army’s Policing Role is Constitutional

By Yankuba Jallow

The Supreme Court on 18th March 2021held the army’s policing role as outlined in the Gambia Armed Forces Regulations is legitimate and democratic contrary to Dr Ousman Gajigo’s position that the aforesaid Rules are inconsistent with Gambia’s democratic values.

Dr Gajigo brought the case before the Supreme Court seeking an order from the court to declare the Gambia National Army (The Gambia National Guard Unit) Police Duties Regulations as unconstitutional supposedly for it is in contravention of section 187 (1) (a) and (b).

The court held that Gajigo did not show the inconsistency or conflict of the Regulations with “the letter and spirit of sections 187 and 188 of the Constitution” to warrant the said order or a declaration to that effect.

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 The case emanated from an alleged incident involving Dr Gajigo, who is the Plaintiff in this case, and a soldier on duty on the 1st May 2019 in Kalaji village, West Coast Region. Gajigo said on this day, he was driving his vehicle when he approached the Kalaji military checkpoint. He explained there was a mounting queue of several vehicles caused by the barriers erected by the military checkpoint. He said there was a soldier standing at the checkpoint in the middle of the road, adding he followed the vehicle directly in front of him and after the said vehicle was allowed to proceed, the soldier manning the checkpoint insisted that he (Gajigo) reverses his vehicle and go behind the barrier until he authorizes him to do so. He said he refused because he saw no justification or proper legal cause for the soldier to detain him.

Refusing to pull over to the side of the road, Gajigo said he started to gently proceed to depart to continue his journey as he did not see the point of further engaging the soldier. As he drove off, Gajigo said the soldier in the rear – view mirror drew his military rifle, proceeded to cocking it and aimed at his. He added at point, the threat or risk of the soldier firing at his vehicle was real and imminent. The other soldiers sitting on the side of the road at a distance shouted and that was when the soldier lowered his gun, he said.

Gajigo was with the belief that the actions of the soldier threatened him and amounted to “a serious violation of his constitutional rights expressed in Chapter IV of the Constitution.” He said he was not seeking for the enforcement of his right, but an interpretation of the Constitution regarding the army police role.

Section 3 of The Gambia National Army (The Gambia National Guard Unit) Duties Regulations provides: “In addition to their paramilitary responsibilities within The Gambia National Army, the National Guard shall, together with the

Police, be employed in the preservation of law and order, protection of property, prevention and detection of crimes, apprehension of offenders and the enforcement of all laws and regulations with which the Police are charged.”

Gajigo wanted the court to make a declaration that the said Regulations specifically in relation to regulation 3 is in direct contravention of section 187 (1) (a) (b) and (3) of the Constitution and therefore unconstitutional. Secondly, he wanted the court to make a declaration that the said Regulations are “in direct conflict with fundamental rights enshrined in Chapter IV of the Constitution, specifically sections 17, 18, 19 and 21 of the Constitution because of the inherent values attached to fundamental rights and freedoms pursuant to section 17 of the Constitution, this specific section inclusive of the above Regulations ought to be repealed. Thirdly, Gajigo wanted a declaration from the court that the said Regulations are at odds and inconsistent with the peace, stability and democratic values and ideals of The Gambia’s new democratic status and it is therefore, illegitimate and undemocratic, taking into account recent historical context and current peaceful state of affairs. Finally, he wanted for an Order directing the Defendant to advise the Government of The Gambia to cease the deployment of members of The Gambia armed forces at check points and exercising police duties and functions during peace times, on grounds that it is inconsistent and in direct conflict with the letter and spirit of sections 187 and 188 of the Constitution.

The Plaintiff’s main contention was that section 187 (1) (a) and (b) of the Constitution limits the Commander in-Chief’s power under section 188(2) of the Constitution to “give a Force Commander directions with respect to the operational use of the Commander’s force in The Gambia for the purpose of maintaining and securing public safety and public order.

The plaintiff, therefore, contended that whatever directions the Commander in-Chief may issue as to the operations of a force in The Gambia are restricted to and confined within the parameters of the principal functions of the Armed Forces stated under section 187 (1) (a) and (b).

The defendant (the Attorney General), on the other hand, argues that sections 188(2) of the Constitution “in effect provides for supplementary functions of the Armed Forces   It empowers the President to give directions to any force commander when it comes to operational issues for the purpose of maintaining and securing public safety and public order. The use of the terms ‘public safety and public order’ presupposes the possibility of regular army personnel operating within the civilian sphere and beyond the traditional sphere of armed combat.

 Section 12 of The Gambia Armed Forces Act provides that the power to order any of the said Forces to engage in operations for the defence of The Gambia, for the preservation of public order, for the relief in case of emergency, or for any other purpose appearing to the Commander in-Chief to be expedient.

 “Consequently, The Gambia National Army (The Gambia National Guard Unit) Police Duties Regulations, made under section 147 of The Gambia Armed Forces Act, are in consonance with the powers of the Commander in-Chief both under the Constitution and the Act to direct the operational use of the armed forces for any purpose including a purpose appearing to be expedient to the Commander in-Chief,” Justice Raymond Sock held.

He added: “Significantly, the Constitution does provide safeguards in the exercise of the functions of the armed forces, requiring under sub section (3) of section 187 that —

‘It shall be the duty of the members of The Gambia Armed Forces to respect the fundamental rights and freedoms of the persons.’

Additionally, the Commander — in — Chief is under subsection (3) of section 188 required to “whenever practicable, consult the National Security Council” in the exercise of his or her powers.”

Foroyaa will publish the full judgment of the Supreme Court in this case, verbatim.

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