JAWARA V THE GAMBIA PDF

Their father Almammi, who had several wives, was a well-to-do trader from an aristocratic family who commuted from Barajally Tenda to his trading post in Wally Kunda. His family, the Jawaras, had once served as members of the Gbara of Old Mali. Dawda from an early age attended the local Arabic schools to memorize the Quran , a rite of passage for many Gambian children. There were no primary schools in Barajally Tenda: the nearest was in Georgetown, the provincial capital, but this boarding school was reserved for the sons of the chiefs.

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He alleges that after the Military coup of July , that overthrew his government, there has been "blatant abuse of power by The military government is alleged to have initiated a reign of terror, intimidation and arbitrary detention. The complainant further alleges the abolition of the Bill of Rights as contained in the Gambia Constitution by Military Decree No.

The communication alleges the banning of political parties and of Ministers of the former civilian government from taking part in any political activity.

The communication alleges restrictions on freedom of expression, movement and religion. These restrictions were manifested, according to the complainant, by the arrest and detention of people without charge, kidnappings, torture and the burning of a mosque. He also alleges that not less than fifty soldiers were killed in cold blood and buried in mass graves by the military government during what the complainant terms "a staged-managed attempted coup".

Several members of the armed forces are alleged to have been detained some for up to six months without trial following the introduction of Decree No. This Decree gives the Minister of Interior the power to detain and to extend the period of detention ad infinitum.

The Decree further prohibits the proceedings of Habeas Corpus on any detention issued under it. The complainant alleges further that Decree No.

The complainant alleges that not less than fifty soldiers have been summarily executed by the Gambian Military Government and buried in mass graves following an alleged attempted coup on 11th November The complainant attaches the names of thirteen of the fifty soldiers alleged to have been killed and further alleges that a former Finance Minister, Mr. Koro Ceesay was killed by the government. He went further to state that a former AFPRC member and former Interior Minister did not die from high blood pressure as claimed by the government but was tortured to death.

In its submission on the question of admissibility, the Government raised the following objections: The government asserts that the decrees complained of may on their face value be seen to be contrary to the provisions in the Charter, but claims that they must be "studied and placed in the context of the changed circumstances in The Gambia".

Commenting on the freedom of liberty, the government claimed it was acting in conformity with laws previously laid down by domestic legislation.

The government claims that the decrees do not prohibit the enjoyment of freedoms they are merely there to secure peace and stability and only those who want to disrupt the peace will be arrested and detained.

The submission further claims that since the take-over, not a single individual has been deliberately killed; and that during the counter - coup of 11th November , soldiers of both sides lost their lives due mainly to the fact that the rebels were fighting back with soldiers loyal to the government.

The Government also claims that Mr. Koro Ceesay and Mr. Sadibu Hydara alleged to have been killed by the government died from an accident and natural causes respectively. Post-mortem reports on the two deaths are attached. The Government further pointed out that the communication does not fulfil some of the conditions laid down in Article 56 of the Charter.

Specifically, that the communications fails to meet the conditions set down in grounds 4 and 5 which states that: 56 The complainant alleges violation of the following Articles of the Charter: Articles 1, 2, 4, 5, 6, 7 1 d and 2 , 9 1 and 2 , 10 1 , 11, 12 1 and 2 , 20 1 and 26 Procedure At the 19th session in March , the Commission decided to be seized of the communication and to notify the government accordingly and stated that decision on admissibility would be taken at the 20th session in October The Commission also requested further information from both sides and stated that a decision on the merits would be taken at its 22nd session.

The admissibility of communications by the Commission is governed by Article 56 of the African Charter. This article lays down seven conditions that, under normal circumstances must be fulfilled for a communication to be admissible. Of the seven, the Government claims that two conditions have not been fulfilled; namely; Article 56 4 and 56 5.

The Government claims that the communication should be declared inadmissible because it is based exclusively on news disseminated through the mass media, and specifically made reference to the attached letter of Captain Ebou Jallow.

While it would be dangerous to rely exclusively on news disseminated from the mass media, it would be equally damaging if the Commission were to reject a communication because some aspects of it are based on news disseminated through the mass media. This is borne out of the fact that the Charter makes use of the word "exclusively" There is no doubt that the media remains the most important and if not the only source of information.

It is common knowledge that information on human rights violations is always gotten from the media. The Genocide in Rwanda, the human rights abuses in Burundi, Zaire, Congo, to name but a few, were revealed by the media. The issue therefore should not be whether the information was gotten from the media, but whether the information is correct.

Did the complainant try to verify the truth about these allegations? Did he have the means or was it possible for him to do so, given the circumstances of his case? The complainant alleges extra-judicial execution and has attached the names of some of those he alleges have been killed. The government also claims that the author has not attempted to exhaust local remedies. This rule is one of the most important conditions for admissibility of communications, no doubt therefore, in almost all the cases, the first requirement looked at by both the Commission and the state concerned is the exhaustion of local remedies.

The rationale of the local remedies rule both in the Charter and other international instruments is to ensure that before proceedings are brought before an international body, the State concerned must have had the opportunity to remedy the matters through its own local system. This prevents the Commission from acting as a court of first instance rather than a body of last resort.

A remedy is considered available if the petitioner can pursue it without impediment, it is deemed effective if it offers a prospect of success, and it is found sufficient if it is capable of redressing the complaint. As aforementioned, a remedy is considered available only if the applicant can make use of it in the circumstance of his case. The applicants in cases Nos. The Commission has stressed that, remedies, the availability of which is not evident, cannot be invoked by the State to the detriment of the complainant.

Therefore, in a situation where the jurisdiction of the courts have been ousted by decrees whose validity cannot be challenged or questioned, as is the position with the case under consideration, local remedies are deemed not only to be unavailable but also nonexistent.

The existence of a remedy must be sufficiently certain, not only in theory but also in practice, failing which, it will lack the requisite accessibility and effectiveness.

Therefore, if the applicant cannot turn to the judiciary of his country because of generalised fear for his life or even those of his relatives , local remedies would be considered to be unavailable to him. The complainant in this case had been overthrown by the military, he was tried in absentia, former Ministers and Members of Parliament of his government have been detained and there was terror and fear for lives in the country.

It would be an affront to common sense and logic to require the complainant to return to his country to exhaust local remedies. There is no doubt that there was a generalised fear perpetrated by the regime as alleged by the complainant. This created an atmosphere not only in the mind of the author but also in the minds of right thinking people that returning to his country at that material moment, for whatever reason, would be risky to his life.

Under such circumstances, domestic remedies cannot be said to have been available to the complainant. According to the established case law of the Commission, a remedy that has no prospect of success does not constitute an effective remedy. The prospect of seizing the national courts, whose jurisdiction have been ousted by decrees, in order to seek redress is nil.

As to whether there were sufficient remedies, one can deduce from the above analysis that there were no remedies capable of redressing the complaints of the authors. Considering the fact that the regime at that material time controlled all the arms of government and had little regard for the judiciary, as was demonstrated by its disregard of a court order in the T. The position of the Commission has always been that a communication must establish a prima facie evidence of violation.

It must specify the provisions of the Charter alleged to have been violated. The State also claims that the Commission is allowed under the Charter to take action only on cases which reveal a series of serious or massive violations of human rights. This is an erroneous proposition. Apart from Articles 47 and 49 of the Charter, which empower the Commission to consider inter-state complaints, Article 55 of the Charter provides for the consideration of "communications other than those of States Parties".

In any event, the practice of the Commission has been to consider communications even if they do not reveal a series of serious or massive violations. It is out of such useful exercise that the Commission has, over the years, been able to build up its case law and jurisprudence.

The competent authorities should not override constitutional provisions or undermine fundamental rights guaranteed by the constitution and international human rights standards". It follows that any law which is pleaded for curtailing the enjoyment of any of the rights provided for in the Charter must meet this requirement.

For these reasons, the Commission declared the communications admissible. The complainant alleges that by suspending the Bill of Rights in the Gambian Constitution, the government violated Articles 1 and 2 of the African Charter.

Article 1 of the Charter provides that "The member States Article 1 gives the Charter the legally binding character always attributed to international treaties of this sort. Therefore a violation of any provision of the Charter, automatically means a violation of Article 1.

If a State party to the Charter ails to recognise the provisions of the same, there is no doubt that it is in violation of this Article. Its violation, therefore, goes to the root of the Charter. The Republic of the Gambia ratified the Charter on 6 June In its first periodic report to the Commission in , the Gambian government asserted that "Most of the rights set out in the Charter have been provided for in Chapter 3, Sections 13 to 30 of the Constitution The Constitution predicts the Gambian accession to the covenants, but in fact gave legal effect to some of the provisions of the Charter".

This therefore means that the Gambian government gave recognition to some of the provisions of the Charter i.

By suspending Chapter 3, the Bill of Rights , the government therefore restricted the enjoyment of the rights guaranteed therein, and, by implication, the rights enshrined in the Charter. It should however be stated that the suspension of the Bill of Rights does not ipso facto means the suspension of the domestic effect of the Charter.

The suspension of the Bill of Rights and consequently the application of the Charter was not only a violation of Article 1 but also a restriction on the enjoyment of the rights and freedoms enshrined in the Charter, thus violating Article 2 of the Charter as well.

Article 4 of the Charter states that "Every human being shall be entitled to respect for his life and the integrity of his person. While the complainant alleges that there have been extra-judicial killings, no concrete evidence was adduced to support this allegation. The Military government has provided official post-mortem reports on the causes of the deaths of Messrs.

Koro Ceesay and Sadibu Hydara. The government does not dispute the fact that soldiers died during the counter coup in November , but claims that "soldiers of both sides lost their lives due mainly to the fact that the rebels were fighting back with soldiers loyal to the government".

It also claims that since the take-over, not a single individual has been deliberately killed. The burden is on the complainant to furnish the Commission with evidence of his allegations.

In the absence of concrete proof, the Commission cannot hold the latter to be in violation of Article 4 of the Charter. Article 5 of the Charter reads: " All forms of The complainant alleges that the Military perpetrated a reign of terror, intimidation and torture when it seized power. While there is evidence of intimidation, arrests and detentions, there is no independent report of torture.

The complainant further alleges that detention of persons incommunicado and preventing them from seeing their relatives constitutes torture. The State has refuted this claim and has challenged the complainant to verify the truth from those who were detained.

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Jawara v Gambia (Communication No. 147/95, 149/96) [2000] ACHPR 17; (11 May 2000)

The year-old ex -President currently in exile in the United Kingdom alleged that the abolition of the Bill of Rights as contained in the Gambian constitution by military Decree No. It was his submission that The Gambia Government has since violated various articles of the human rights charter. It added that the decrees did not prohibit the enjoyment of freedoms. They were merely to secure peace and stability the state further argued. The Commission posited that the existence of a local remedy must be sufficiently certain not only in theory but also in practice, failing which it will lack the requisite accessibility and effectiveness. The Commission also observed that while the complainant had alleged that there had been extra-judicial killings, no concrete evidence was adduced to support this allegation.

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Email Content Attribution Policy Global Freedom of Expression is an academic initiative and therefore, we encourage you to share and republish excerpts of our content so long as they are not used for commercial purposes and you respect the following policy: Attribute Columbia Global Freedom of Expression as the source. Link to the original URL of the specific case analysis, publication, update, blog or landing page of the down loadable content you are referencing. Attribution, copyright, and license information for media used by Global Freedom of Expression is available on our Credits page. The former head of state of the Gambia applied to the ACmHPR alleging that the military government which unseated him violated, among other things, the right to receive information, freedom of expression, and freedom of assembly and association. The arrest and detention of journalists implicated Article 9 of the Charter, protecting the right to freedom of expression. This principle … applies … to all … rights and freedoms.

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Sir Dawda K Jawara v. The Gambia

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