Mr. Kah thank you for the forwarding. Is it that We Gambians are Still
Not Clear that jammeh Does Not Care about The Constitution of The
Republic of The Gambia? I would suggest to Halifa to address his letter
to jammeh if he may change his mind; since the AG is just playing
second fiddle. Thanks,
Farang.
-----Original Message-----
From: malik kah <[log in to unmask]>
To: gambiapost <[log in to unmask]>
Sent: Tue, Apr 23, 2013 4:36 am
Subject: [>-<] HALIFA CAUTIONS AG CHAMBERS
Burning Issues
HALIFA WRITES TO THE ATTORNEY GENERALPublished on Tuesday, 23 April
2013 08:19 | Written by Halifa Sallah
Attorney General and Minister of Justice
AG Chambers
Ministry of Justice Marina Parade AMENDMENT CRIMINALISING DRESS AND
OTHERS NEGATES THE DIVIDING LINE BETWEEN MINOR CRIME (MISDEMEANOR) AND
MAJOR CRIME (FELONY) AND VIOLATES SECTION 33 OF THE CONSTITUTION Having
been a parliamentarian you may understand why I have taken interest in
the debate of the members of parliament on the motion you submitted to
the National Assembly relating to the amendment of the Criminal Code.
The Constitution holds that every Bill has policy implication and must
be introduced for a purpose. Section 101 has made it abundantly clear
that a Bill to be introduced into the National Assembly must be
accompanied by an explanatory memorandum setting out in detail the
policy and principles of the bill, the defects which it is intended to
remedy and the necessity for its introduction. I must say that I am
still scratching my brain to find out how criminalising begging,
homelessness, quarrelsomeness, prostitution and other status of the
wretched of the earth could put an end to their way life . In fact
once society implements such a law without reservation and put all
beggars, quarrelsome persons and prostitutes in prison it would dawn
upon all policy makers that it is more expensive to society to maintain
them in prison than to use rehabilitative and restorative measures to
address any social menace that is a derivative of poverty and low level
of social awareness thus disempowering the person to be able to engage
in constructive social discourse. However, I do understand that my
intervention is becoming rather late since the Bill is already passed
and is waiting for Presidential assent and publication in the Gazette
to become law. My concern is twofold. I would want your office to
particularly review, on one hand, the penalties associated with crimes
classified as misdemeanor which to me are excessive and on the other
hand, the provision that criminalizes males wearing what is referred to
as female attire because of its failure to be constitution compliant.
In actual fact I would recommend that whole amendment be shelved for
further discussion by the National Assembly through refraining from
according it presidential assent. The first observation is that,
sentencing a person above two years for a minor crime or Misdemeanor is
to eradicate the thin line between minor crimes and the major crimes
classified as Felony. According to Section 3 of the Criminal code
“felony” means an offence which is declared by law to be a felony or,
if not declared to be a misdemeanour, is punishable, without proof of
previous conviction, with death, or with imprisonment with hard labour
for three years or more;” Misdemeanor according to the same section
“means any offence which is not a felony” Notwithstanding the issue of
hard labour, it is my view that any imprisonment for more than three
years would certainly be excessive for a misdemeanor. This is further
corroborated by Section 34 of the Criminal code which stipulates: “When
in this Code no punishment is specifically provided for any
misdemeanor, it shall be punishable with a fine or with imprisonment
for a term not exceeding two years or with both such fine and
imprisonment.” However the amendments in the penalties for the
misdemeanors are as follows: 1. For the offence of personating a
public officer contrary to section 93, the penalty has been increased
from 3 years in prison to a fine of D50, 000 or 5 years in prison or
both; 2. For the offence of giving false information to a public
servant contrary to section 114, the penalty has been increased from 6
months in prison or a fine of D500 to 5 years in prison or a fine of
D50,000; 4. For the offence of being “idle and disorderly” contrary
to section 167, the penalty has been increased from three months to
five years or a fine of D25, 000 or both. A male attired in the
fashion of a female could serve imprisonment under section 167 for a
term which may extend to five years or with a fine of D20,000 or with
both. Five years imprisonment exceeds what I would classify as a
misdemeanor. You would agree with me that the law could only be an
instrument of justice if it is bereft of vengeance in its effect.
Transgression and retribution must be balanced and proportionate if the
law is to speak the language of justice. This is the first point.
Secondly, Section 33 of the Constitution states that “all persons shall
be equal before the law.” Subsection (2) of this section adds that
“Subject to the provisions of Subsection (5), no law shall make any
provision which is discriminatory either of itself or in its effect.”
A review of the amendment dealing with male attired in the fashion
of a woman reveals that if it becomes law it would be discriminatory of
itself and in its effect and would therefore be unconstitutional. The
provision to be added to section 167 reads: “….Any male person who
dresses or is attired in the fashion of a woman in a public place or
who practices sodomy as a means of livelihood or as a profession shall
be punished with imprisonment for a term which may extend to five years
or with a fine of D20, 000 or with both.” It is very clear that the
law is directed at males and what is meant by a male attired in the
fashion of a female is rather vague. These are my humble observations
and I hope you will take them into consideration. By a copy of this
letter I am requesting the President to open up a dialogue with you as
his principal legal adviser on these two issues in particular and
further look into the general thrust of the Bill to determine whether
it merits his assent. I strongly propose that assent be withheld and
the Bill be returned to the National Assembly for further review after
National debate is opened on its merit. While anticipating a high grade
consideration of the views expressed I remain Yours in the service
of the people Halifa Sallah “USE OF SKYPE, VIBER IS LEGAL IF NOT
COMMERCIALIZED” >
Category: Burning Issues
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