Published in FOROYAA of 31 - 3 June, 1999.
ON THE MODE OF ARREST OF SHYNGLE NYASSI
An open letter to President Jammeh
The dictates of justice, conscience and the national interest have compelled
us to address this letter to you, in particular, and copied all civic
leaders in the country, in general.
Mr President, two conditions are recipes for plunging a nation into the
abyss of catastrophe, that is, an apathetic population and a leadership
which is oblivious to criticism. It goes without saying that those who
fiddle with their thumbs and allow a nation to be delivered steadily into
the arms of uncertainty and insecurity cannot be absolved by history.
Mr President, it is over two years since the constitution of the Second
Republic came into force. One would have thought that by now any government
which is sensitive to the dictates of the Constitution and responsive to the
needs and aspirations of the Gambian people would have established a basis
for managing the affairs of the country according to the principles
established by the Constitution.
In that case, the arrest and detention of a person for over twenty four
hours without access to legal counsel would be inconceivable. The fact that
this is taking place at this very moment gives cause for concern. It is
elementary knowledge that the fundamental requirement of the Constitution is
for government to utilise its authority to promote the general welfare and
prosperity of the people.
Needless to say, without the people there can be no country. Hence the most
elementary of the functions of a government is to safeguard the liberty and
security of the people. This is precisely the reason why Section 19 of the
1997 Constitution states categorically that:
+ACI-(1) Every person shall have the right to liberty and security of person.
No one shall be subjected to arbitrary arrest or detention. No one shall be
deprived of his or her liberty except on such grounds and in accordance with
such procedures as are established by law.
+ACI-(2) Any person who is arrested or detained shall be informed as soon as is
reasonably practicable and in any case within three hours, in a language
that he or she understands, of the reasons for his or her arrest or
detention and of his or her right to consult a legal practitioner.
+ACI-(3) Any person who is arrested or detained-
+ACI-(a) for the purpose of bringing him or her before a court in execution of
the order of a court+ADs- or
+ACI-(b) upon reasonable suspicion of his or her having committed, or being
about to commit, a criminal offence under the law of The Gambia,
+ACI-and who is not released, shall be brought without undue delay before a
court and, in any event, within seventy-two hours.
+ACI-(4) Where any person is brought before a court in execution of the order of
a court in any proceedings or upon suspicion of his or her having committed
or being about to commit an offence, he or she shall not thereafter be
further held in custody in connection with those proceedings or that offence
save upon the order of a court.
+ACI-(5) If any person arrested or detained as mentioned in subsection (3) (b)
is not tried within a reasonable time, then without prejudice to any further
proceedings which may be brought against him or her, he or she shall be
released either unconditionally or upon reasonable conditions, including, in
particular, such conditions as are reasonably necessary to ensure that he or
she appears at a later date for trial or proceedings preliminary to trial.
+ACI-(6) Any person who is unlawfully arrested or detained by any other person
shall be entitled to compensation from that other person or from any other
person or authority on whose behalf that other person was acting.+ACI-
Mr President, it has been brought to our notice that at about midnight on 26
May, 1999, a number of personalities arrived at Shyngle Nyassi's compound
with a transport bearing registration number BJL 5424A. They were reported
to have broken into his home and abducted him. Since then, he has not been
seen by his family.
We have contacted the Police Headquarters and have been reliably informed
that he is not under police custody. At least this was the case up to
Friday, 28 May, 1999.
Mr President, the security of the human person is regarded to be so
significant that Section 36 of the Constitution has asserted in no uncertain
terms that even if the person is detained under emergency powers:
+ACI-(a) he or she shall, as soon as reasonably practicable, and in any case not
later than twenty four hours after the commencement of the detention, be
furnished with a statement in writing specifying in detail the grounds upon
which he or she is detained+ADs- and the statement shall be read, and if
necessary, interpreted, to the person who is detained in a language which he
or she understands+ADs-
+ACI-(b) the spouse, parent, child or other available next-of-kin of the person
detained shall be informed by the authority effecting the detention and
shall be permitted access to the person concerned at the earliest
practicable opportunity, and in any case not later than twenty-four hours
after the commencement of the detention+ADs-....+ACI-
If this standard is established for detainees during a state of emergency,
one would expect that in a state of normalcy a behaviour that is less
stringent should be expected from any government which adheres to the spirit
and fundamental principles of the Constitution.
It is important for your government to bear in mind that people can have
medical problems and certain exposure to difficulties can become fatal.
Nothing is more destructive to the image of a government than to be left
with a dead body during a state of detention. There is, therefore, little to
be gained in condoning arbitrary arrest and detention.
In our view, the maturity of the Gambian people has been growing steadily
and sectionalist politics and the politics of intimidation cannot simply
take root. The Gambian people are scrutinising the politics of the party in
government, as well as that of the opposition. It is best to leave them to
be the judge.
We are fully convinced that it is becoming increasingly impossible for the
Gambian people to be subjected to any form of manipulation by any political
party in this country. What we need in this country is a debate+ADs- a battle of
programmes and ideas regarding how best to promote the liberty and general
welfare of the people, not strong arm measures.
You should bear in mind that your government's attitude towards the
constitutional provision can lead to the enhancement or deterioration of the
political climate in this country. No one who is faintly familiar with the
uncertainties that arbitrary arrest and detention engender can afford to be
relaxed when such actions occur.
The days when your government could be seen by the average Gambian as a new
one which is trying to cope with the exigencies of statecraft is over. Your
failure to cope with acceptable norms of governance could only erode the
stability of the country. Your first main challenge is to ensure that a
climate exists which can foster the peaceful co-existence of political
parties.
It is hoped that your government will see the need to nip this practice in
the bud and cultivate a system of government which will not honour the
provisions of the constitution, which are designed to safeguard the liberty
and security of the individual, with total disregard.
We also call on all opinion leaders in the realm of religion and culture, to
take the initiative to call upon you to exert persuasive influence to foster
the release of Shyngle Nyassi, as well as motivate them to call upon all
political parties to abide by the dictates of decent and mature political
conduct.
While anticipating that you will honour this memorandum by intervening to
ensure the final settlement of the case in question, we remain,
Halifa Sallah
For: The Central Committee,
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