147/95 and 149/96 - Sir Dawda K Jawara / The Gambia

____________________________________________________

Rapporteur: 19th Session: Commissioner Kisanga

20th Session: Commissioner Umozurike
21st Session: Commissioner Umozurike
22nd Session: Commissioner Dankwa
23rd Session: Commissioner Dankwa
24th Session: Commissioner Dankwa
25th Session: Commissioner Dankwa
26th Session: Commissioner Dankwa
27th Session: Commissioner Dankwa

Summary of Facts:

Communication 147/95:

1. The complainant is the former Head of State of the Republic of The Gambia. He alleges
that after the Military coup of July 1994, that overthrew his government, there has been
“blatant abuse of power by … the military junta”. The military government is alleged to
have initiated a reign of terror, intimidation and arbitrary detention.

2. The complainant further alleges the abolition of the Bill of Rights as contained in the
1970 Gambia Constitution by Military Decree No. 30/31, ousting the competence of the
courts to examine or question the validity of any such Decree.

3. The communication alleges the banning of political parties and of Ministers of the
former civilian government from taking part in any political activity. The
communication alleges restrictions on freedom of expression, movement and religion.
These restrictions were manifested, according to the complainant, by the arrest and
detention of people without charge, kidnappings, torture and the burning of a mosque.

4. He further alleges that two former Ministers of the Armed Forces Provisional Ruling
Council (AFPRC) were killed by the regime, asserting that the restoration of the death
penalty through Decree No. 52 means, "the arsenal of the AFPRC is now complete".

5. He also alleges that not less than fifty soldiers were killed in cold blood and buried in
mass graves by the military government during what the complainant terms “a staged-
managed attempted coup”. Several members of the armed forces are alleged to have
been detained some for up to six months without trial following the introduction of
Decree No. 3 of July 1994. This Decree gives the Minister of Interior the power to

1
 detain and to extend the period of detention ad infinitum. The Decree further prohibits
the proceedings of Habeas Corpus on any detention issued under it.

6. The complainant alleges further that Decree No. 45 of June 1995, the National
Intelligence Agency (NIA) Decree empowers the Minister of Interior or his designate to
issue search warrants, authorise interference with correspondence, be it wireless or
electronic.

7. Finally, the communication alleges disregard for the judiciary and contempt of court
following the regime’s disregard of a court order; the imposition of retroactive
legislation following the Economic Crimes (Specified Offences) Decree of 25th
November 1994, thus infringing on the rule and the due process of law.

Communication 149/96

8. Communication 149/96 alleges violation of the right to life, freedom from torture and
the right to a fair trial. The complainant alleges that not less than fifty soldiers have
been summarily executed by the Gambian Military Government and buried in mass
graves following an alleged attempted coup on 11th November 1994.

9. The complainant attaches the names of thirteen of the fifty soldiers alleged to have been
killed and further alleges that a former Finance Minister, Mr. Koro Ceesay was killed
by the government. He attaches a document from a former member of the AFPRC,
Captain Sadibu Hydara, to support this allegation.

10. He went further to state that a former AFPRC member and former Interior Minister did
not die from high blood pressure as claimed by the government but was tortured to
death.

Government’s Response:

11. In its submission on the question of admissibility, the Government raised the following
objections:

12. The first point raised is what the government called lack of ‘proofs in support’,
claiming that a communication should only be received by the Commission if the
individual alleges, ‘with proofs in support’ a serious or massive cases of violations of
human and peoples’ rights.

13. The government asserts that the decrees complained of may on their face value be seen
to be contrary to the provisions in the Charter, but claims that they must be “studied and
placed in the context of the changed circumstances in The Gambia”. Commenting on
the freedom of liberty, the government claimed it was acting in conformity with laws
previously laid down by domestic legislation. The government claims that the decrees
do not prohibit the enjoyment of freedoms they are merely there to secure peace and
stability and only those who want to disrupt the peace will be arrested and detained.

2
14. The submission further claims that since the take-over, not a single individual has been
deliberately killed; and that during the counter - coup of 11th November 1994, soldiers
of both sides lost their lives due mainly to the fact that the rebels were fighting back
with soldiers loyal to the government.

15. The Government also claims that Mr. Koro Ceesay and Mr. Sadibu Hydara alleged to
have been killed by the government died from an accident and natural causes
respectively. Post-mortem reports on the two deaths are attached.

16. The Government further pointed out that the communication does not fulfil some of the
conditions laid down in Article 56 of the Charter. Specifically, that the communications
fails to meet the conditions set down in grounds 4 and 5 which states that: 56(4) ❝are
not based exclusively on news disseminated through the mass media❞; and 56(5) ❝are
sent after exhausting local remedies, if any unless it is obvious that this procedure is
unduly prolonged❞.

Complaint:

17. The complainant alleges violation of the following Articles of the Charter:

Articles 1, 2, 4, 5, 6, 7 (1)(d) and (2), 9(1) and (2), 10(1), 11, 12 (1) and (2), 20(1) and 26

Procedure

18. Communication 147/95 is dated 6 September 1995 and was received on 30 November
1995 at the Secretariat of the Commission.

19. Communication 149/96 was received on 12 January 1996 at the Secretariat of the
Commission.

20. At the 19th session in March 1996, the Commission decided to be seized of the
communication and to notify the government accordingly and stated that decision on
admissibility would be taken at the 20th session in October 1996.

21. At its 21st session in April 1997, the Commission decided to renumber the
communication as 147/95 to reflect the length of time it has been with the Commission,
it also decided to join the communication with 149/96 and declare both of them
admissible. The Commission also requested further information from both sides and
stated that a decision on the merits would be taken at its 22nd session.

LAW
Admissibility:

22. The admissibility of communications by the Commission is governed by Article 56 of

the African Charter.

3
 This article lays down seven conditions that, under normal circumstances must be
fulfilled for a communication to be admissible. Of the seven, the Government claims
that two conditions have not been fulfilled; namely; Article 56(4) and 56(5).

23. Article 56(4) of the Charter provides that ‘… are not based exclusively on news
disseminated through the mass media’.

24. The Government claims that the communication should be declared inadmissible
because it is based exclusively on news disseminated through the mass media, and
specifically made reference to the attached letter of Captain Ebou Jallow. While it
would be dangerous to rely exclusively on news disseminated from the mass media, it
would be equally damaging if the Commission were to reject a communication because
some aspects of it are based on news disseminated through the mass media. This is
borne out of the fact that the Charter makes use of the word "exclusively"

25. There is no doubt that the media remains the most important and if not the only source
of information. It is common knowledge that information on human rights violations is
always gotten from the media. The Genocide in Rwanda, the human rights abuses in
Burundi, Zaire, Congo, to name but a few, were revealed by the media.

26. The issue therefore should not be whether the information was gotten from the media,
but whether the information is correct. Did the complainant try to verify the truth about
these allegations? Did he have the means or was it possible for him to do so, given the
circumstances of his case?

27. The communication under consideration cannot be said to be based exclusively on news
disseminated through the mass media because the communication is not exclusively
based on Captain Jallow’s letter. The complainant alleges extra-judicial execution and
has attached the names of some of those he alleges have been killed. Captain Jallow’s
letter made no mention of this fact.

28. Article 56(5) of the Charter states that ‘… are sent after exhausting local remedies, if
any, unless it is obvious that this procedure is unduly prolonged’.

29. The government also claims that the author has not attempted to exhaust local remedies.
The government claims that the author should have sent his complaint to the police who
would in turn have investigated the allegations and prosecuted the offenders ‘in a court
of law’.

30. This rule is one of the most important conditions for admissibility of communications,
no doubt therefore, in almost all the cases, the first requirement looked at by both the
Commission and the state concerned is the exhaustion of local remedies.

31. The rationale of the local remedies rule both in the Charter and other international
instruments is to ensure that before proceedings are brought before an international

4
 body, the State concerned must have had the opportunity to remedy the matters through
its own local system. This prevents the Commission from acting as a court of first
instance rather than a body of last resort.1 Three major criteria could be deduced from
the practice of the Commission in determining this rule, namely: the remedy must be
available, effective and sufficient.

32. A remedy is considered available if the petitioner can pursue it without impediment, it
is deemed effective if it offers a prospect of success, and it is found sufficient if it is
capable of redressing the complaint.

33. The Government’s assertion of non-exhaustion of local remedies will therefore be

looked at in this light. As aforementioned, a remedy is considered available only if the
applicant can make use of it in the circumstance of his case. The applicants in cases
Nos. ACHPR/60/91, ACHPR/87/93, ACHPR/101/93 and ACHPR/129/94 had their
communications declared admissible by the Commission because the competence of the
ordinary courts had been ousted either by decrees or the establishment of special
tribunals.

34. The Commission has stressed that, remedies, the availability of which is not evident,
cannot be invoked by the State to the detriment of the complainant. Therefore, in a
situation where the jurisdiction of the courts have been ousted by decrees whose
validity cannot be challenged or questioned, as is the position with the case under
consideration, local remedies are deemed not only to be unavailable but also non-
existent.

35. The existence of a remedy must be sufficiently certain, not only in theory but also in
practice, failing which, it will lack the requisite accessibility and effectiveness.
Therefore, if the applicant cannot turn to the judiciary of his country because of
generalised fear for his life (or even those of his relatives), local remedies would be
considered to be unavailable to him.

36. The complainant in this case had been overthrown by the military, he was tried in
absentia, former Ministers and Members of Parliament of his government have been
detained and there was terror and fear for lives in the country. It would be an affront to
common sense and logic to require the complainant to return to his country to exhaust
local remedies.

37. There is no doubt that there was a generalised fear perpetrated by the regime as alleged
by the complainant. This created an atmosphere not only in the mind of the author but
also in the minds of right thinking people that returning to his country at that material
moment, for whatever reason, would be risky to his life. Under such circumstances,
domestic remedies cannot be said to have been available to the complainant.

38. According to the established case law of the Commission, a remedy that has no
prospect of success does not constitute an effective remedy. The prospect of seizing the
1
See Communications 25/89, 74/92 and 83/92 all joint

5
 national courts, whose jurisdiction have been ousted by decrees, in order to seek redress
is nil. This fact is reinforced by the Government’s response of 8th March 1996, Note
Verbale No. PA 203/232/01/(97-ADJ) in which it stated that ‘ The Gambian
Government…does not intend to spend valuable time responding to baseless and
frivolous allegations by a deposed despot…'

39. As to whether there were sufficient remedies, one can deduce from the above analysis
that there were no remedies capable of redressing the complaints of the authors.

40. Considering the fact that the regime at that material time controlled all the arms of
government and had little regard for the judiciary, as was demonstrated by its disregard
of a court order in the T. K Motors’ case, and considering further that the Court of
Appeal of The Gambia in the case of Pa Salla Jagne v The State, ruled that ‘Now there
is no human rights laws or goals and objective laws in the country’, it would be
reversing the clock of justice to request the complainant to attempt local remedies.

41. It should also be noted that the government also claims that the communication lacks
‘proofs in support’. The position of the Commission has always been that a
communication must establish a prima facie evidence of violation. It must specify the
provisions of the Charter alleged to have been violated. The State also claims that the
Commission is allowed under the Charter to take action only on cases which reveal a
series of serious or massive violations of human rights.

42. This is an erroneous proposition. Apart from Articles 47 and 49 of the Charter, which
empower the Commission to consider inter-state complaints, Article 55 of the Charter
provides for the consideration of "communications other than those of States Parties".
Further to this, Article 56 of the Charter stipulates the conditions for consideration of
such communications (see also Chapter XVII of the Rules of Procedure entitled
"Procedure for the Consideration of The Communications Received in Conformity with
Article 55 of the Charter"). In any event, the practice of the Commission has been to
consider communications even if they do not reveal a series of serious or massive
violations. It is out of such useful exercise that the Commission has, over the years,
been able to build up its case law and jurisprudence.

43. The argument that the action of the Government is in conformity with regulations
previously laid down by law is unfounded: the Commission decided in its decision on
communication 101/93, with respect to freedom of association, that, “competent
authorities should not enact provisions which limit the exercise of this freedom. The
competent authorities should not override constitutional provisions or undermine
fundamental rights guaranteed by the constitution and international human rights
standards”. And more importantly, the Commission in its Resolution on the Right to
Freedom of Association had also reiterated that: "The regulation of the exercise of the
right to freedom of association should be consistent with States' obligations under the
African Charter on Human and Peoples' Rights". It follows that any law which is
pleaded for curtailing the enjoyment of any of the rights provided for in the Charter
must meet this requirement.

6
 For these reasons, the Commission declared the communications admissible.

Merits

44. The complainant alleges that by suspending the Bill of Rights in the 1970 Gambian
Constitution, the government violated Articles 1 and 2 of the African Charter.

45. Article 1 of the Charter provides that “The member States … parties to the present
Charter shall recognise the rights, duties and freedoms enshrined in this Charter…”,
while Article 2 reads: “Every individual shall be entitled to the enjoyment of the rights
and freedoms recognised and guaranteed in the present Charter…”

46. Article 1 gives the Charter the legally binding character always attributed to
international treaties of this sort. Therefore a violation of any provision of the Charter,
automatically means a violation of Article 1. If a State party to the Charter ails to
recognise the provisions of the same, there is no doubt that it is in violation of this
Article. Its violation, therefore, goes to the root of the Charter.

47. The Republic of the Gambia ratified the Charter on 6 June 1983. In its first periodic
report to the Commission in 1992, the Gambian government asserted that “Most of the
rights set out in the Charter have been provided for in Chapter 3, Sections 13 to 30 of
the 1970 Constitution…The Constitution predicts the Gambian accession to the
covenants, but in fact gave legal effect to some of the provisions of the Charter”. This
therefore means that the Gambian government gave recognition to some of the
provisions of the Charter (i.e. those contained in chapter 3 of its Constitution), and
incorporated them into its domestic law.

48. By suspending Chapter 3,( the Bill of Rights), the government therefore restricted the
enjoyment of the rights guaranteed therein, and, by implication, the rights enshrined in
the Charter.
49. It should however be stated that the suspension of the Bill of Rights does not ipso facto
means the suspension of the domestic effect of the Charter. In Communication 129/94,
the Commission held that “the obligation of … a government remains unaffected by
the purported revocation of the domestic effect of the Charter”

50. The suspension of the Bill of Rights and consequently the application of the Charter
was not only a violation of Article 1 but also a restriction on the enjoyment of the rights
and freedoms enshrined in the Charter, thus violating Article 2 of the Charter as well.

51. Article 4 of the Charter states that “Every human being shall be entitled to respect for
his life and the integrity of his person. No one may be arbitrarily deprived of this right’’.

52. While the complainant alleges that there have been extra-judicial killings, no concrete
evidence was adduced to support this allegation. The Military government has
provided official post-mortem reports on the causes of the deaths of Messrs. Koro
Ceesay and Sadibu Hydara. The government does not dispute the fact that soldiers
died during the counter coup in November 1994, but claims that “soldiers of both sides
lost their lives due mainly to the fact that the rebels were fighting back with soldiers

7
 loyal to the government”. It also claims that since the take-over, not a single individual
has been deliberately killed.

53. It is not for the Commission to verify the authenticity of the post-mortem reports or the
truth of the government’s defence. The burden is on the complainant to furnish the
Commission with evidence of his allegations. In the absence of concrete proof, the
Commission cannot hold the latter to be in violation of Article 4 of the Charter.

54. Article 5 of the Charter reads: “… All forms of … torture, cruel, inhuman or degrading
punishment and treatment shall be prohibited”.

55. The complainant alleges that the Military perpetrated a reign of terror, intimidation and
torture when it seized power. While there is evidence of intimidation, arrests and
detentions, there is no independent report of torture.

56. The complainant further alleges that detention of persons incommunicado and
preventing them from seeing their relatives constitutes torture. The State has refuted
this claim and has challenged the complainant to verify the truth from those who were
detained. To date, the Commission has received no evidence from the complainant. In
the absence of proof therefore, the Commission cannot hold the government to be in
violation of Article 5. In this regard, the Commission is relying on its decision in
communication ACHPR/60/91: 27 where it held that “ without specific information as to
the nature of the acts themselves, the Commission is thus unable to find a violation of
Article 5”.

57. Article 6 of the Charter reads: “Every individual shall have the right to liberty and
to the security of his person. No one may be deprived of this freedom except for
reasons and conditions previously laid down by law. In particular, no one may
be arbitrarily arrested”.

58. The Military government has not refuted the allegations of arbitrary arrests and
detentions, but has defended its position by stating that, its action must be “studied and
placed in the context of the changed circumstances in The Gambia”. It also claims that
it is acting within the confines of legislation ‘previously laid down by law’, as required by
the wordings of Article 6 of the Charter.

59. The Commission in its decision on communication 101/93 laid down a general principle
with respect to freedom of association that “competent authorities should not enact
provisions which limit the exercise of this freedom. The competent authorities should
not override constitutional provisions or undermine fundamental rights guaranteed by
the constitution or international human rights standards”. This principle therefore
applies not only to freedom of association but also to all other rights and freedoms.
For a State to avail itself of this plea, it must show that such a law is consistent with
its obligations under the Charter. The Commission finds the arrests and
incommunicado detention of the aforementioned persons inconsistent with Gambia' s
obligations under the Charter. They constitute arbitrary deprivation of their liberty and
thus a violation of Article 6 of the Charter. Decree No. 3 is, therefore, contrary to the
spirit of Article 6.

60. Article 7(1) (d) of the Charter reads:

8
 Every individual shall have the right to have his cause heard. This comprises:
… the right to be tried within a reasonable period of time by an impartial
court or tribunal.

61. Given that the Minister of Interior could detain anyone without trial for up to six months,
and could extend the period ad infinitum, his powers in this case, is analogous to that
of a court, and with all intents and purposes, he is more likely to use his discretion at
the detriment of the detainees, who are already in a disadvantaged position. The
victims will be at the mercy of the Minister who, in this case, will render favour rather
than vindicating a right. This power granted to the Minister renders valueless the
provision enshrined in Article 7(1) (d) of the Charter.

62. Article 7(2) of the Charter reads:

No one may be condemned for an act or omission which did not constitute a
legally punishable offence at the time it was committed. No penalty may be
inflicted for an offence for which no provision was made at the time it was
committed.

63. This provision is a general prohibition on retroactivity. It is to ensure that, citizens at all
times are fully aware of the state of the law under which they are living. The Economic
Crimes (Specified Offences) Decree of 25th November 1994 which was deemed to
have come into force in July 1994, is therefore, a serious violation of this right.

64. Article 9 of the Charter reads:

(1). Every individual shall have the right to receive information”.
(2). Every individual shall have the right to express and disseminate his
opinion within the law.

65. The government did not provide any defence to the allegations of arrests, detentions,
expulsions and intimidation of journalists, made by the complainant. The intimidation
and arrest or detention of journalists for articles published and questions asked
deprives not only the journalists of their rights to freely express and disseminate their
opinions, but also the public, of the right to information. This action is clearly a breach
of the provisions of Article 9 of the Charter.

66. The complainant alleges that political parties have been banned, and that an
Independent Member of Parliament and his supporters were arrested for planning a
peaceful demonstration. In addition, Ministers and Members of Parliament in the
former regime have been banned from taking part in any political activity and some of
them restricted from travelling out of the country; with a maximum sentence of three
years for any default.

67. The imposition of the ban on former Ministers and Members of Parliament is in
contravention of their rights to participate freely in the government of their country
provided for under Article 13(1) of the Charter. Article 13(1) reads:

Every citizen shall have the right to participate freely in the government
of his country, either directly or through freely chosen representatives in
accordance with the provisions of the law.

9
68. Also, the banning of political parties is a violation of the complainants'rights to freedom
of association guaranteed under Article 10(1) of the Charter. In its decision on
communication 101/93, the Commission stated a general principle on this right, to the
effect that “competent authorities should not enact provisions which limit the
exercise of this freedom. The competent authorities should not override
constitutional provisions or undermine fundamental rights guaranteed by the
constitution and international human rights standards”. And more importantly, the
Commission in its Resolution on the Right to Freedom of Association had also
reiterated that: "The regulation of the exercise of the right to freedom of
association should be consistent with States' obligations under the African
Charter on Human and Peoples' Rights". This principle does not apply to freedom
of association alone but to all other rights and freedoms enshrined in the Charter,
including, the right to freedom of assembly. Article 10(1) provides:

Every individual shall have the right to free association provided

that he abides by the law.

69. The Commission also finds the ban an encroachment on the right to freedom of
assembly guaranteed by Article 11 of the Charter. Article 11 reads:

Every individual shall have the right to assemble freely with others

70. The restrictions to travel placed on the former Ministers and Members of Parliament is
also a violation of their right to freedom of movement and the right of ingress and
egress provided for under Article 12 of the Charter. Article 12 provides:

(1) Every individual shall have the right to freedom of movement and
residence within the borders of a state provided he abides by the law.
(2) Every individual shall have the right to leave any country, including his
own, and to return to his country. This right may only be subject to
restrictions, provided for by law for the protection of national security, law
and order, public health or morality.

71. Section 62 of the Gambian Constitution of 1970 provides for elections based on
universal suffrage, and Section 85(4) made it mandatory for elections to be held within
at most five years. Since independence in 1965, The Gambia has always had a
plurality of parties participating in elections. This was temporarily halted in 1994 when
the Military seized power.

72. The complainant alleges that the Gambian peoples’ right to self-determination have
been violated. He claims that the policy that the people freely choose to determine their
political status, since independence has been “hijacked” by the military. That the
military has imposed itself on the people.

73. It is true that the military regime came to power by force, albeit, peacefully. This was
not through the will of the people who have known only the ballot box since
independence, as a means of choosing their political leaders.

10
 The military coup was therefore a grave violation of the right of Gambian people to
freely choose their government as entrenched in Article 20(1) of the Charter. Article
20(1) provides:

All peoples shall … freely determine their political status… according to the
policy they have freely chosen.2

74. The rights and freedoms of individuals enshrined in the Charter can only be fully
realised if governments provide structures which enable them to seek redress if they
are violated. By ousting the competence of the ordinary courts to handle human rights
cases, and ignoring court judgements, the Gambian military government demonstrated
clearly that the courts were not independent. This is a violation of Article 26 of the
Charter. Article 26 of the Charter reads:

States Parties to the Charter shall have the duty to guarantee the
independence of the Courts…and shall allow the establishment and
improvement of appropriate national institutions entrusted with the
promotion and protection of the rights and freedoms guaranteed by the
present Charter.

For the above reasons, the Commission:

finds the government of the Gambia in violation of the following provisions of the
Charter: Articles: 1, 2, 6, 7(1)(d) and 7(2), 9(1) and (2), 10(1), 11, 12(1) and (2), 13(1),
20(1) and 26 of the Charter, for the period within which the violations occurred

urges the government of the Gambia to bring its laws in conformity with the provisions of
the Charter

Done in Algiers, Algeria on 11 May 2000.

2
See also Resolution ACHPR/RPT/8TH : Annex VII, Rev. 1994

11
12