CASE N° GMB/01 - LAMIN WAA JUWARA - GAMBIA

Resolution adopted without a vote by the Inter-Parliamentary Council
at its 168th session (Havana, 7 April 2001)

The Inter-Parliamentary Council,

Referring to the outline of the case of Mr. Lamin Waa Juwara, a member of the House of Representatives of the Gambia, as contained in the report of the Committee on the Human Rights of Parliamentarians (CL/168/13(c)-R.1), and to the relevant resolution adopted at its 167th session (October 2000),

Taking account of a communication from one of the sources dated 15 March 2001,

Recalling the following evidence on file:

• By reason of Section 13 of Schedule 2 of the 1997 Constitution, which grants impunity to all members of the former Armed Forces Provisional Ruling Council (AFPRC), Mr. Juwara was denied compensation for the many instances of unlawful detention he suffered under the AFPRC rule;
• To date, the authorities have taken no action to investigate the complaint of severe ill-treatment suffered by Mr. Juwara on 17 May 1998 while in State custody at the hands of members of the now banned "22 July movement" and its leader, Mr. Baba Jobe; the Attorney General argues that Mr. Juwara never filed a complaint, while the sources affirm that within two weeks of his release Mr. Juwara sent a medical certificate to the Attorney General, attesting to the severe injuries he had sustained as a result of such ill-treatment, and widely publicised the incident;
• Mr. Juwara was detained incommunicado from 17 May to 8 June 1998, when he was released on bail by order of the Supreme Court; the authorities ignored a court decision ordering medical treatment, as they did a court order to charge him or otherwise release him upon expiry of the 72-hour legal deadline;
• On 22 February 1999, the Brikama Magistrate's Court acquitted Mr. Juwara and others on the charge which had prompted his arrest, namely causing unlawful damage to construction works at the Brikama Mosque, and ruled that there was no case to answer; the State nevertheless lodged an appeal against that judgment,

Considering that, according to one of the sources, the Government has declared its intention to withdraw the appeal and this was expected to occur upon resumption of the hearings on 21 March 2001,

Bearing in mind that the Gambia is a signatory to the Convention against Torture and other Cruel, Inhuman or Degrading Punishment or Treatment, which prohibits torture and ill-treatment and requires States to ensure that its competent authorities conduct prompt and impartial investigations into serious allegations of torture; bearing also in mind that the Gambia is a party to the United Nations International Covenant on Civil and Political Rights (ICCPR) and the African Charter on Human and Peoples' Rights, both of which instruments guarantee freedom from arbitrary arrest and detention, in addition to freedom from torture and ill-treatment; that these rights are also embodied 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",

Noting that in its resolution 2000/43 adopted on 20 April 2000, the United Nations Commission on Human Rights called on governments to implement fully the prohibition of torture and other cruel, inhuman and degrading treatment and stressed in particular that all allegations of torture or inhuman treatment should "be promptly and impartially examined by the competent national authority, that those who encourage, order, tolerate or perpetrate acts of torture must be held responsible and severally punished … and that the victims of such acts obtain redress and are awarded fair and adequate compensation … ",

1. Deeply regrets that the authorities have not responded to the communications addressed to them;

2. Observes that the State intends to withdraw its appeal in the "Brikama Mosque case" and is confident that this matter will indeed soon be settled;

3. Remains nonetheless deeply concerned that the ill-treatment suffered by Mr. Juwara when arrested in connection with this case remains unpunished and that the authorities have taken no action to investigate Mr. Juwara's denunciation of such ill-treatment, supported by medical evidence, particularly since the name of one of the attackers was widely publicised in the media;

4. Recalls once again that under Articles 7 and 9 of the ICCPR, to which the Gambia is a party, the Gambian authorities have a duty to investigate Mr. Juwara's denunciation of his ill-treatment and bring to justice the culprits, and that Mr. Juwara is entitled to redress; consequently once again urges the authorities to fulfil their obligations under these provisions, and draws their attention to the United Nations document "Principles on the effective investigation and documentation of torture and other cruel, inhuman or degrading treatment or punishment";

5. Remains deeply concerned at Section 13 of Schedule 2 of the 1997 Constitution, which has the effect of granting impunity to members of the former Armed Forces Provisional Ruling Council and its officers and appointees in respect of any criminal acts they may have committed and bars Mr. Juwara from obtaining compensation for the arbitrary arrests and detentions he has suffered; insists that impunity granted to holders of public office violates the obligations which the Gambia pledged to respect when it signed and ratified the international human rights instruments referred to above;

6. Recalls that under Article 9 of the International Covenant on Civil and Political Rights "anyone who has been victim of unlawful arrest or detention shall have an enforceable right to compensation"; invites the Parliament once again to consider adopting a law whereby compensation could be paid to victims of arbitrary arrest and detention;

7. Urges once again the National Assembly of the Gambia, as guardian of the human rights of the people it represents, to ensure that the executive authorities fulfil their obligations under national and international human rights law;

8. Forcefully stresses in this respect that international law has precedence over national law, as has the national Constitution over any statutory law, including presidential decrees;

9. Requests the Secretary General to convey this resolution to the parliamentary and governmental authorities as well as to Mr. Juwara; requests the Secretary General also to submit this case to the competent United Nations Human Rights bodies and Commonwealth authorities;

10. Requests the Committee on the Human Rights of Parliamentarians to continue examining this case and report to it at its next session (September 2001).

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