CASE N° GMB/03 - OMAR JALLOW - GAMBIA

Resolution adopted without a vote by the Inter-Parliamentary Council
at its 167th session (Jakarta, 21 October 2000)

The Inter-Parliamentary Council,

Referring to the outline of the case of Mr. Omar Jallow, of the Gambia, as contained in the report of the Committee on the Human Rights of Parliamentarians (CL/167/12(c)­R.1), and to the relevant resolution adopted at its 166th session (May 2000),

Referring also to the report of the Secretary General on his on-site mission to the Gambia carried out from 15 to 17 June 2000 in pursuance of the decision it took at its 166th session (April/May 2000),

Considering the following information on file:

1. Mr. Jallow was detained without charge several times in 1994 and 1995. A Commission of Inquiry, set up to investigate charges of corruption among public office holders prior to the July 1994 military takeover, found Mr. Jallow guilty of some financial improprieties and recommended, in addition to two minor financial sanctions, that he be debarred from holding public office for five years. The findings of the commission were never made public. Instead the Government issued a White Paper in which it increased the sanctions against Mr. Jallow. It confirmed that he should be debarred from holding public office for five years;
2. Mr. Jallow is at present banned under Decree 89 (Political Activities Resumption Decree, 1996) from “(…) participating in any political activity or in sponsoring any (a) person contesting any election for a political office, (b) political party, or (c) political organisation”; the Decree bans for an indefinite period from any such activity, among others, “all persons who held the offices of President, Vice-President and Ministers in the Government of the Republic of the Gambia during the thirty years preceding 22 July 1994”; under its Article 4, paragraph 1, “any person who contravenes this Decree commits an offence and shall on conviction be liable to imprisonment for life”;
3. In August 1998, the parliamentary opposition tabled an amendment in Parliament to abolish the Decree by means of an Act amending the “Political Activities Resumption Decree” with the express aim of bringing the law into conformity with the Constitution's fundamental human rights guarantees; it failed, however, to obtain the requisite majority in Parliament;
4. On 8 July 1999, Mr. Jallow filed a lawsuit in the High Court of the Gambia seeking a judicial interpretation of Decree 89 and a declaration that he was entitled to exercise the fundamental human rights guaranteed under the Constitution of the Gambia,

Considering the information provided by the Attorney General, on the occasion of the Secretary General's mission, that the White Paper decisions were final and not open to review because (a) Schedule 2 of the 1997 Constitution barred any court from hearing a case contesting the legality or content of this decision; (b) Decree 76 had the effect of making the White Paper final and thus no longer subject to review; (c) there was no provision in the 1997 Constitution that empowered the President of the Republic of the Gambia to review decisions of that nature; he was therefore firmly of the view that there was no redress available to Mr. Jallow,

Considering, on the other hand, that other sources interviewed during the mission gave several examples of the initial decision reflected in the White Paper subsequently being ignored, including the case of the Attorney General in the pre-1994 government who, like Mr. Jallow, had been barred from holding public office for five years but who before the expiry of those five years had been appointed to the Supreme Court, where he is now the most senior judge after the Chief Justice,

Noting that, on 11 May 2000, the judge hearing the case in which Mr. Jallow is seeking a judicial interpretation of Decree 89 issued a ruling in which he dismissed the suit on the grounds that the court was not competent to hear the case by virtue of the provisions of Schedule 2 of the 1997 Constitution; in his ruling the judge relied in particular on paragraph 13(3) of that Schedule, which reads: “For the avoidance of doubt, it is declared that no action taken or purported to have been taken in the exercise of the Executive, legislative or judicial power by the Armed Forces Provisional Ruling Council or a member thereof or any person appointed by the Armed Forces Provisional Ruling Council except judges of the Supreme Court or the Court of Appeal, shall be questioned in any proceedings whatsoever and, accordingly, it shall not be lawful for any court or tribunal to make any order or grant any remedy or relief of such act.”,

Further noting that an appeal against the High Court's decision was lodged with the Court of Appeal on 16 May and that proceedings are now before the High Court regarding settlement of records before the documents can be prepared and submitted to the Court of Appeal; the case may be heard in October 2000,

Considering the opinion expressed by the Attorney General that the Supreme Court was competent to hear a case concerning an alleged inconsistency between any law in the country, including Decree 89, and a particular provision of the Constitution; in his view Decree 89 was not unconstitutional since, notwithstanding the guarantees for political rights in the Constitution, any country was entitled to exclude certain individuals from political activities because of abhorrent acts committed or views defended by them,

Bearing in mind that the Gambia is a party to the International Covenant on Civil and Political Rights and the African Charter on Human and Peoples' Rights, both of which guarantee freedom from arbitrary arrest and detention, in addition to freedom of expression, assembly and association; that these rights are also enshrined in the Constitution of the Gambia, Section 4 of which stipulates that “... any other law found to be inconsistent with any provision of this Constitution shall, to the extent of its inconsistency, be void”; considering that, according to Decree 31 (National Goals and Objectives Decree, 1995), adherence to the principles and objectives of, inter alia, the United Nations “shall remain the cornerstone of the Foreign Policy of the Gambia”,

1. Thanks the authorities of the Gambia for having received the Secretary General and agreed to share their views with him;
2. Is dismayed to learn that there seems to be no recourse available to Mr. Jallow for review of the sanctions imposed on him in the White Paper, particularly since exceptions seem to have been made in the past in other cases, and urges the competent authorities to undertake a similar review in this case;
3. Remains deeply concerned at Decree 89, which deprives parties and specific persons, including Mr. Jallow, of their civil and political rights with the effect of annulling their human rights and fundamental freedoms guaranteed to them under the Constitution of the Gambia and the international human rights instruments to which it has subscribed;
4. Is concerned at the reasoning contained in the decision of the High Court of the Gambia on the case brought by Mr. Jallow seeking an interpretation of Decree 89 and a declaration that he is entitled to exercise the fundamental human rights guaranteed under the 1997 Constitution; if upheld, that reasoning would imply that Article 4, Chapter II, of the Constitution of the Gambia stipulating that “the Constitution is the supreme law of the Gambia and any other law found to be inconsistent with any provision of this Constitution shall, to the extent of the inconsistency, be void” could not be enforced with regard to Decree 89, nor could the right contained in Article 5 to bring an action in court to this effect be upheld;
5. Notes therefore with interest the statement by the Attorney General to the effect that the Supreme Court is indeed competent to hear cases relating to the unconstitutionality of laws, Decree 89 included;
6. Notes further that an appeal has been lodged against the High Court's decision, and expresses the hope that the case can be heard as soon as possible;
7. Trusts that the Gambian judiciary will rule on the question in conformity with constitutional law and the international human rights norms to which the Gambia has subscribed;
8. Requests the Secretary General to convey this decision to the parliamentary and government authorities as well as to Mr. Jallow;
9. Requests the Committee on the Human Rights of Parliamentarians to continue examining this case and report to it at its next session (April 2001).

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