24 July 2000
Secretary of State for the Interior,
Department of State for the Interior,
OAU Boulevard,
BANJUL.
ON THE ISSUING OF PERMITS TO POLITICAL PARTIES
It was our impression that the catastrophic developments which took place in
Basse and the threats of revenge which followed would be a teacher to all
political forces in the country of what could happen if the spinal cord of
sanity is broken leading to the paralysis of political tolerance.
One would have thought that the legal processes which have been put in place
would serve to put at bay any attempt for individuals to take the law into
their own hands. One would have also thought that the efforts taken by the
Independent Electoral Commission to bring political parties and the security
chiefs together would generate fresh thinking and approaches in handling the
delicate political situation in The Gambia.
The minutes of the meeting of the Independent Electoral Commission and the
four active political parties are quite instructive.
We consider it prudent to draw your attention to the following paragraph
which highlights the purpose of the meeting:
"The purpose of the meeting, was to share information on the activities of
the Independent Electoral Commission (IEC) and to focus attention on the
current political tension in the country with the hope that together, the
forum would identify the causes of the undesirable political tension and to
suggest ways and means by which the causes of the tension would be reduced
in order to build a sustained healthy political atmosphere for the
harmonious well being of the Gambian people. The Chairman implored the
participants to feel free as they take part in the discussions. He gave them
assurance that they were on neutral grounds and that they should open up and
frankly speak their minds in whatever they feel about the electoral process
and its attendant political issues."
Suffice it to say, the participants did open up to speak their minds with
unrestrained frankness. In fact the UDP and APRC delegates were given
greater latitude to express their opinions.
Since the meeting was taking place after the Basse incident, following which
rumours of preparation for revenge was the order of the day, the PDOIS
delegates found the exchanges between the UDP and APRC delegates to be
reassuring that the consultative body which had been summoned could serve as
a permanent mechanism for the resolution of differences between parties and
the amelioration of the deficiencies in the administration of the electoral
process.
One of the complaints which was given sharp focus by the UDP is the
non-approval of their applications for permits. It is clear from the minutes
of the meeting of 4 July 2000 that the PDOIS delegate did emphasise the need
for security forces to familiarise themselves with the Constitution to
appreciate the sovereignty of citizens; that they reiterated the importance
of the spirit of dialogue between individuals as well as political
organisations with the aim at building a political culture where one would
work to a polling station and cast a vote without fear; that political
parties should strive for ways and means of uniting the Gambian people and
not divide them; that this could only be done if the forum is strengthened,
its decisions transmitted to the party membership and level playing field
established.
Apparently, you, as Secretary of State, are covered by the minutes to have
offered your office "at all times for the resolution of problems and assured
the meeting that the security forces will comply".
It is in this spirit that this letter is being addressed to you.
You would agree with us that equality constitutes the proportional
allocation of advantages or opportunities. Where advantages or opportunities
are accorded disproportionately, there can be no fair play or justice. This
is precisely the reason why section 33 of the Constitution bars any law from
being discriminatory either of itself or in its effect. This is why it
obliges those acting in accordance with law in the performance of their
functions in any public office or as public authorities not to treat anyone
in a discriminatory manner by affording different treatment to different
persons attributable mainly to their political or other opinions and subject
them to restrictions or disabilities purely because of such opinions.
It is, therefore, important for your office to examine the problems of
issuing of permits associated with using instruments for the amplification
of sound during political rallies.
The Public Order Act came into being prior to the attainment of political
independence or Republican status. The Act was established in 1961. The
object of the Act was:
"to prohibit the wearing of uniforms in connection with Political Objects
and the maintenance by private persons of Associations of Military or
similar character: and to make provision for the preservation of Public
Order on the occasion of Public Processions: and to make provision for the
control of the use in Public of Apparatus for Amplifying Sound."
Section 6 of the Public Order Act reads:
"No person shall use any megaphone, loudhailer, loudspeaker or like
apparatus for the amplifying of sound (whether of an electrical nature or
not) in a public place, or in any other place in such a manner as to be
heard in a public place, without the prior written consent-
"(a) in the City of Banjul and Kombo Saint Mary, of the Inspector General of
Police or any police officer authorised by him to give such consent or,
"(b) in any Division of the Provinces, of the Commissioner of that Division
or other person authorised by the President;
"and if any person shall so use any such megaphone, loudhailer, loudspeaker
or like apparatus without such consent, he may be arrested and shall on
summary conviction before a Magistrate be liable to a fine not exceeding two
hundred and fifty dalasis or to imprisonment for a term not exceeding three
months or both such fine and imprisonment-"
Section 6 further creates a proviso to enable the Inspector General of
Police or any authorised person to establish terms for the utilisation of
the instruments. The proviso reads:
"Provided that-
"(i) the Inspector General of Police or any police officer authorised by the
Inspector General or a Commissioner or other person authorised by the
President to give consent under this section may, in granting such consent
impose such conditions and make such stipulations in regard to the use of
any megaphone, loudhailer, loudspeaker, or like apparatus as he may think
fit...."
It is evident that the Public Order Act has to be read with such adaptation
and modification so as to bring it into conformity with the Republican
Constitution. In short, any authorised person mandated with the
responsibility of issuing permits cannot possibly lay conditions of use that
are not reasonable and justifiable in a democratic society.
In short, section 60, subsection (10 of the Constitution states
categorically that:
"Subject to the provisions of this section, political parties may be
established to participate in the shaping of the political will of the
people, to disseminate information of political ideas and on political,
economic and social programmes of a national character, and to sponsor
candidates for public elections."
This simply means that political parties have the role to disseminate
information to shape the political will of the people. In fact, section 26
adds that
"Every citizen of The Gambia of full age and capacity shall have the right,
without unreasonable restrictions-
"(a) to take part in the conduct of public affairs, directly or through
freely chosen representatives;
"(b) to vote and stand for elections at genuine periodic elections for
public office, which elections shall be by universal and equal suffrage and
be held by secret ballot;
"(c) to have access, on general terms of equality, to public service in The
Gambia."
The Public Order Act empowers the Inspector General of Police to render a
public service by issuing permits. Section 26 requires access to that
service on general terms of equality by all political parties and others who
need to use the instruments mentioned in section 6.
In our view, it is a requirement of the Constitution, under section 33, for
all persons to be treated equally before the law. A reading of Section 33
would confirm that it is unconstitutional for any form of discrimination in
issuing permits. Section 33, subsection (4) defines discrimination as
follows:
"affording different treatment to different persons attributable wholly or
mainly to their respective descriptions by race, colour, gender, language,
religion, political or other opinion, national or social origin, property,
birth or other status whereby persons of one such description are subjected
to disabilities or restrictions to which persons of another such description
are not made subject, or are accorded privileges or advantages which are not
accorded to persons of another such description."
In our view, the consultative exercise did offer, in your presence, an
opportunity for the APRC and the UDP to express their concerns. The UDP
complained about intimidation and the APRC complained about insults and bad
faith. One would have thought that the assurances given that a new page
would be turned would have been predicated by new initiatives.
The minutes of the meeting captured Mr Sam Silla indicating that:
"it was the ideal forum where the spirit of dialogue would be instilled in
the representatives of parties, and not only at the top but within the
militants, which should be followed perhaps by exchanges of telephone calls,
visits ... etc. He felt convinced that that would make a lot of difference
and that and only then would the leadership of political parties and
Gambians in particular be proud to leave a legacy for our children and
future generations."
Taking the spirit of the consultative meeting between the IEC and the other
parties, with the security chiefs serving as observers, we find it difficult
to comprehend why permits are still being denied for the UDP to continue its
rallies.
It is, therefore, absolutely essential for you to utilise your office, as
promised, to resolve this particular problem. By a copy of this letter,
PDOIS wishes to call on the IEC to review developments and call an emergency
meeting when found to be essential in order to deal with this burning issue.
We have been sending reporters everywhere to sound the Gambian people and
the reaction we have gathered so far is that the people want a climate of
political tolerance and multi-culturalism. They do not want political
tension to build up in this country at their expense. All those who respect
their wish should, therefore, facilitate the creation of such a political
climate at this very juncture when tension is yet to be diffused.
..........................................
Halifa Sallah
For: The Central Committee.
Cc: Secretary General. Office of the President
Attorney General and Secretary of State for Justice
Chairman, Independent Electoral Commission
Armed Forces Chief of Staff
Inspector General of Police
Director of Immigrations
Secretary General, Alliance for Patriotic Re-orientation and Construction
Secretary General, National Reconciliation Party
Secretary General, United Democratic Party
Press
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