The following article is from FOROYAA issue NO 55/2003 24-27 July, 2003.
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Bar Association secretary General Chides Daba Marenah & Chief Fafanding
Kinteh
By Emil Touray
Following newspaper reports that Fafanding Kinteh, Chief of Badibbou
Gunjur, and Daba Marenah, Commissioner
of URD, have detained a PE teacher and fined seventy youths respectively
for not heeding to a Presidential decree banning football during the rainy
season, the Secretary General of the Gambia Bar Association, Borry Touray,
described the action of the aforesaid authorities as unconstitutional and
unlawful.
Touray stated that people have a right to leisure and that there is no law
that deprive them of that natural right for them to be subjected to the
will and caprices of a man in a state.
"It is unlawful. The statement made by the head of state does not amount to
law in this country, because the legislative functions of the, state vests
or, lies in the National Assembly. I don't know any Act which the National
Assembly has made making it unlawful for people to get involve in sporting
activities. In fact it is arresting people and fining them or the
commissioner ordering for the detention of any person," Touray remarked.
Touray noted that sports have a viable place in our national life and he
believes it is for this reason that a ministry of sports is created. He
stated that it has been a very long standing culture and a long standing
tradition that approaching the rainy season, youths across the country
participate in football activities called "Nawettan". Touray stressed that
the actions of Daba Marenah and Fafanding Kinteh is high handed and
uncalled for.
"There has to be clear expressed legislation intended for this purpose,
making it an offence so that no one would get involve in
sporting activities before any chief could allocate himself such a power.
Even that legislation, I submit, would amount to a violation of people's
fundamental rights" he posited.
Touray pointed out that the Gambia as a nation within the international
community has international obligations. He said the Gambia is a party to
the African Charter on Human and People's Rights which has given every
individual in the African continent the right to leisure.
"People own themselves. They are not owned by the head of state. People
have freedom to decide what they want to do. Physical health is part of
emotional health. It is everybody's choice to train to acquire physical
health. A sound mind is a sound body.
I believe if parliament has not made it into law, which I believe they
cannot make. Quite honestly, it would be a gross abuse of public office for
any chief to try to prosecute or convict anybody, particularly over seventy
people. This' is quite outrageous," Touray remarked.
Touray averred that any decision that goes in excess of authority can be
squashed by the High Court. He pointed that the High Court under section
133 of the constitution has the mandate to exercise supervisory
jurisdiction over all tribunals and inferior courts, noting the decisions
of Daba Marenah and Fafanding Kinteh can be challenged at the High Court
where it will be squashed.
"With due respect to the head f state he said, whatever you call it, a
proclamation, an order, etc, the President hasn't got any such power, just
out of his mind alone to stand and say, I have made this an offence: This
is not possible in this country. He is not a legislator in this country. He
cannot swamoto all by himself," Touray remarked.
He stated that there is no custom in this country making "Nawettan" a
customary offence.
"Even if one tries to argue that such a custom exists, I would, submit
further that it is repugnant to natural justice. With equity and
conscience, people are free . as individuals," he submitted.
Asked what impact the decisions of Marenah and Kinteh will have on the
judiciary, Touray pointed out that even though chiefs have judicial
functions, they have not been squarely put under the judiciary. He noted
that chiefs are working under the local government ministry and not under
the Attorney General and SoS for Justice. "If we desire to continue with
district tribunals, the chiefs should be brought under the purview of the
judiciary, under the management of the Chief Justice. You cannot have
people carrying judicial functions answerable to the executive heads within
our government. It causes a mockery of our legal system. This has been the
concern raised by the Bar Association long before our time," Touray
stressed.
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