3rd February 2020
Hon. Abubacarr M Tambadou
Attorney-General and Minister of Justice
Ministry of Justice
Banjul, The Gambia
My Dear Colleague and Brother,
Let me once again congratulate you for filing a case against Myanmar at the International Court of Justice (ICJ) for that country’s violation of the United Nations’ Genocide Convention 1948. Even if the ICJ had ruled against The Gambia on the issue of locus standi, the mere fact of filing the case is sufficient to prick the conscience of all decent human beings. With the unanimous ruling of the ICJ, the issue of the Rohingya Muslims can no longer remain unaddressed by Myanmar and the International community. Thanks for this historic service to humanity.
But a few days after the ICJ agreed with you that the actions of the Myanmar Government where in violation of the 1948 Genocide Convention, our own government, on 26th January 2020 at about 3pm, by proclamation/declaration banned the 3 Year Jotna Movement (Movement) which in my view is not in accordance with the provisions of the Societies Act 1970, Cap 50:01 Laws of The Gambia (the Act).
In an interview with Mr. Gomez, host of “Coffee Time with Peter Gomez”, the Honourable Minister for Information and the Government Spokesperson advanced reasons why the Movement was banned. Amongst these are the fact that the Movement was engaged in subversive actives and that it was un-registered. Despite its non-registration the government in good faith and guided by our democratic credentials accommodated and dealt with the Movement.
I do not wish to comment on the validity/veracity of the allegation that the Movement was engaged in subversive activities. I however take liberty to state that the non-registration of the Movement does not vest authority in the executive branch of the Government to issue a banning Order on the Movement and make consequential orders for the implementation of the banning Order.
Section 2 of The Act defines “society” to include “any club, company or partnership whether registered under any law or not, or any group or association of two or more persons”. I am of the firm view that the Movement is a group/association of two or more persons. Its non-registration cannot be a valid and justified reason for banning it.
But a more serious and fundamental flaw is that the conditions precedent for a legitimate banning (proscription) order have not been satisfied. Section 3 (1) of the Act informs us that one or more of the activities mentioned in the subsection most occur before a society can in law be considered as an unlawful one.
It does appear to me that it is not the pronouncement or declaration by the executive that renders a society unlawful. There must be a trial under the Act for a contravention of the provisions of section 3 (1) to justify the proscription or banning of any society.
Section 3 (2) of the Act provides “A Court trying an offence under this Act may, during the pendency of the prosecution, order the suspension of the society and prohibit its office-bearers and members from engaging in any of its activities”.
Further Section 3 (3) states “The court may, after finding that a society is formed for any of the purposes specified in subsection (1) of this section, or after its formation has indulged or engaged in any activities mentioned therein, make an order declaring the society to be unlawful and any order so made shall without delay be transmitted to the Minister”. It is clear from the language of Section 3 (2) and (3) that the legislature has reserved to the courts the power and authority to suspend a society or declare same unlawful because of its contravention of any of the prohibited acts specified and enumerated in section 3 (1) of the Act. Unless the conditions stipulated in section 3 (3) of the Act are satisfied the executive does not in my view have the power or authority to declare any society including the Movement unlawful and proceed to ban same.
Of course the legislature recognizes that the responsibility for the administration of the Act is entrusted to the Minister (executive). And for this reasons Section 3 (4) provides “The Minister shall on the making of the order referred to in subsection (2) of this section, by Order published in the Gazette proscribe such society and thereafter that society shall cease to exist”. I believe the reference to subsection 2 must be the printer’s error. It cannot be doubted that the subsection intended to be referred to is subsection 3 of section 3.
My dear Colleague and Brother knowing your passion for strict adherence to, and compliance with procedural rules that affect the liberty of individuals and their constitutional right to freedom association, I am convinced that this serious and fundamental disregard of the provisions of the Act by the executive would not have occurred had you been consulted. I also entertain no doubt that since your attention has been drawn to the relevant provisions of the Act, you will take, or cause to be taken, appropriate measures to remedy the situation-a task that will involve a choice between doing what is morally right and what is legally correct.
Whilst assuring you of my highest consideration and personal esteem, I remain always your Colleague and Brother in the service of the law and justice.
A.N.M. OUSAINU Darboe