The International Human Rights Framework on the Right of Peaceful Assembly

The Republic of The Gambia (Gambia) is a state party to the 1966 International Covenant on Civil and Political Rights (ICCPR). Article 21 governs the right of peaceful assembly, providing that:

The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.

Gambia is also a state party to the First Optional Protocol to the ICCPR, which allows individuals to petition the Human Rights Committee if they believe the state has violated their human rights as protected under the Covenant.

At regional level, Gambia is a state party to the 1981 African Charter on Human and Peoples' Rights. Article 11 provides as follows:

Every individual shall have the right to assemble freely with others. The exercise of this right shall be subject only to necessary restrictions provided for by law in particular those enacted in the interest of national security, the safety, health, ethics and rights and freedoms of others. 

Gambia is also a state party to the 1998 Protocol on the African Court on Human and Peoples' Rights, and has accepted the right of petition to the Court by individuals and non-governmental organisations.

The Domestic Legal Framework on the Right of Peaceful Assembly

Constitutional Provisions

The 1997 Constitution of The Gambia stipulates in Section 25 that every person shall have the right to "freedom to assemble and demonstrate peaceably and without arms".

It clarifies, however, that the exercise of this freedom is

subject to the law of The Gambia in so far as that law imposes reasonable restriction on the exercise of the rights and freedoms thereby conferred, which are necessary in a democratic society and are required in the interests of the sovereignty and integrity of The Gambia, national security, public order, decency or morality, or in relation to contempt of court.

National Legislation

The primary legislation governing assemblies in Gambia is the 1961 Public Order Act (as amended). Section 5 of the Act requires police permission for a peaceful assembly, and in 2017 the Supreme Court of The Gambia upheld the constitutionality of this provision. In its 2018 Concluding Observations on The Gambia, the Human Rights Committee called on the state party to the ICCPR to

review the Public Order Act to ensure that all persons enjoy the right to peaceful assembly and that limitations on that right are in strict compliance with article 21 of the Covenant.

The Legal Framework on Use of Force During Assemblies

The Use of Force

International Legal Rules

Under international law, the duty on the state and its law enforcement agencies is to facilitate the enjoyment of the right of peaceful assembly. According to the 1990 United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials:

In the dispersal of assemblies that are unlawful but non-violent, law enforcement officials shall avoid the use of force or, where that is not practicable, shall restrict such force to the minimum extent necessary.

All force used by police and other law enforcement agencies must be necessary for a legitimate law enforcement purpose and proportionate to that purpose.

National Legislation

With respect to assemblies, the 1933 Criminal Code allows law enforcement officials to use force to disperse rioters after making a proclamation demanding dispersal. Law enforcement officials may use all force necessary to apprehend or disperse the rioters.S. 72, 1933 Criminal Code.

The Use of Firearms

International Legal Rules

According to the 1990 United Nations Basic Principles, in the dispersal of violent assemblies, a law enforcement official may only use a firearm against a specific individual where this is necessary to confront an imminent threat of death or serious injury or a grave and proximate threat to life. 

National Legislation

Gambian law does not appear to restrict specifically police use of firearms.

State Compliance with its Legal Obligations

Views and Concluding Observations of United Nations Treaty Bodies

In its 2018 Concluding Observations on The Gambia, the Human Rights Committee expressed its concern that

Article 18 of the Constitution and Sections 15 (A) and 72 of the Criminal Code allow for a great deal of discretion in the use of force by law enforcement officials, and that section 2 (a) and (b) of the Indemnity Act (as amended in 2001) exonerates all public officials from civil or criminal liability for the exercise of their duties with respect to unlawful assemblies, riotous situations or public emergencies.

The Committee was "also concerned at the high incidence of excessive use of force by law enforcement officials and members of security forces in the State party, including the incident on 18 June 2018 when security forces fired live ammunition during a protest in Faraba Banta which resulted in two deaths and eight injuries...." It called on The Gambia to revise Article 18 of the Constitution, Sections 15 (A) and 72 of the Criminal Code, and Section 2(a) and (b) of the Indemnity Act  

with a view to bringing them into line with international standards, in particular the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials. It should ensure that prompt, independent and thorough investigations are carried out into all allegations of the excessive use of force, particularly the Faraba Banta case, and bring perpetrators to justice. It should take measures to effectively prevent and eradicate all forms of excessive use of force by law enforcement and security officials, including by guaranteeing that systematic training on the use of force is provided for such officials as well as for judges, prosecutors and other relevant officials.

Regional Jurisprudence

In its remarkably open report of 2018 to the African Commission on Human and Peoples' Rights, The Gambia stated that:

The constitution guarantees freedom of assembly, and while limitations to this right remain under the Barrow administration, the environment improved further in 2018, with a number of demonstrations and political rallies in the run-up to the elections held without incident.

Despite these improvements, security forces violently dispersed some protests during the year. In June 2018, for example, three civilians in Faraba Banta were killed when police fired live ammunition into an environmental protest. The Barrow administration quickly launched an inquiry into the violence and accepted the resignation of the police inspector general, who drew heavy criticism for the police’s conduct, days after the incident. Five police officers were charged with murder for their role in the deaths at the end of June. In November, the inquiry commission’s report was published, which ordered the prosecution of the five officers. Some analysts asserted that Barrow’s response signaled a commitment to accountability for police violence against demonstrators.

The Public Order Act, which was used by Jammeh to restrict protests, was upheld by the Supreme Court in late 2017. Under the act, permits from the police inspector general are required for public assemblies. Opposition leader Mama Kandeh was denied a permit in 2017, which led to a public outcry.

Views of Civil Society

 According to Freedom House's 2019 report on The Gambia:

The constitution guarantees freedom of assembly, and while limitations to this right remain under the Barrow administration, the environment improved further in 2018, with a number of demonstrations and political rallies in the run-up to the elections held without incident.

Despite these improvements, security forces violently dispersed some protests during the year. In June 2018, for example, three civilians in Faraba Banta were killed when police fired live ammunition into an environmental protest. The Barrow administration quickly launched an inquiry into the violence and accepted the resignation of the police inspector general, who drew heavy criticism for the police’s conduct, days after the incident. Five police officers were charged with murder for their role in the deaths at the end of June. In November, the inquiry commission’s report was published, which ordered the prosecution of the five officers. Some analysts asserted that Barrow’s response signaled a commitment to accountability for police violence against demonstrators.

The Public Order Act, which was used by Jammeh to restrict protests, was upheld by the Supreme Court in late 2017. Under the act, permits from the police inspector general are required for public assemblies. Opposition leader Mama Kandeh was denied a permit in 2017, which led to a public outcry.

Downloads

1997 Constitution of The Gambia - Download (1 MB)
1961 Public Order Act of The Gambia (as amended) - Download (2 MB)
1933 Criminal Code of The Gambia - Download (6 MB)
Human Rights Committee Concluding Observations on The Gambia (2018) - Download (309 KB)
Report of Gambia to the ACHPR (2018) - Download (2 MB)