Wakilii

Jawara v Gambia (Communication 147 of 1995; Communication 149 of 1996)

African Commission on Human and Peoples' Rights · [2000] ACHPR 17 · 2000 Petition Granted — Violations Found AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Communications alleging human rights violations following military coup, submitted to African Commission on Human and Peoples' Rights under Article 55 of the African Charter
Decision
Communications upheld; violations established; respondent state directed to bring laws into conformity with the African Charter

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The African Commission held that The Gambia violated multiple provisions of the African Charter following the 1994 military coup. The suspension of the Bill of Rights, arbitrary detentions under military decrees, retroactive criminal legislation, restrictions on freedom of expression and association, banning of political parties, travel restrictions on former government officials, and ousting of court jurisdiction all constituted violations. The military seizure of power violated the Gambian people's right to self-determination. The Commission found violations of Articles 1, 2, 6, 7(1)(d), 7(2), 9, 10(1), 11, 12, 13(1), 20(1), and 26, but found insufficient evidence to establish violations of Articles 4 and 5 regarding extra-judicial killings and torture.

Outcome

Communications upheld; violations established; respondent state directed to bring laws into conformity with the African Charter

Facts

Sir Dawda K. Jawara, former Head of State of The Gambia, was overthrown by a military coup in July 1994. The military government suspended the Bill of Rights contained in the 1970 Constitution through Military Decree No. 30/31 and ousted the jurisdiction of courts to examine the validity of such decrees. The regime banned political parties and prohibited former Ministers and Members of Parliament from political activity. Decree No. 3 of July 1994 empowered the Minister of Interior to detain persons without trial for up to six months with power to extend detention indefinitely, and prohibited habeas corpus proceedings. Journalists were arrested, detained, and intimidated. The regime imposed retroactive criminal legislation through the Economic Crimes Decree of November 1994. The complainant alleged extra-judicial executions of approximately fifty soldiers following an alleged attempted coup in November 1994, and the deaths of two former government officials. The government provided post-mortem reports attributing these deaths to accident and natural causes.

Issues

  1. Whether the communications were admissible under Article 56 of the African Charter, particularly regarding exhaustion of local remedies and reliance on media reports.
  2. Whether the suspension of the Bill of Rights in the 1970 Gambian Constitution violated Articles 1 and 2 of the African Charter.
  3. Whether extra-judicial killings occurred in violation of Article 4 of the Charter.
  4. Whether torture and cruel, inhuman or degrading treatment occurred in violation of Article 5 of the Charter.
  5. Whether arbitrary arrests and detentions violated Article 6 of the Charter.
  6. Whether detention without trial for extended periods violated the right to be tried within a reasonable time under Article 7(1)(d).
  7. Whether retroactive criminal legislation violated Article 7(2) of the Charter.
  8. Whether restrictions on journalists violated freedom of expression and the right to information under Article 9.
  9. Whether the banning of political parties violated freedom of association under Article 10(1).
  10. Whether restrictions on assembly violated Article 11 of the Charter.
  11. Whether travel restrictions on former Ministers and Members of Parliament violated freedom of movement under Article 12.
  12. Whether the ban on former Ministers and Members of Parliament from political activity violated the right to participate in government under Article 13(1).
  13. Whether the military coup violated the right of the Gambian people to self-determination under Article 20(1).
  14. Whether ousting the jurisdiction of courts violated the duty to guarantee judicial independence under Article 26.

Orders

  • Communications declared admissible.
  • Violations found of Articles 1, 2, 6, 7(1)(d), 7(2), 9(1), 9(2), 10(1), 11, 12(1), 12(2), 20(1) and 26 of the Charter for the period within which the violations occurred.
  • Government of The Gambia requested to bring its laws in conformity with the provisions of the Charter.

Rules and key headnotes

Admissibility — Exhaustion of Local Remedies — Unavailability Where Courts' Jurisdiction Ousted
Where a military regime has ousted the jurisdiction of ordinary courts by decree and the validity of such decrees cannot be challenged, local remedies are deemed not only unavailable but non-existent, and the requirement to exhaust local remedies under Article 56(5) of the African Charter does not apply.
Admissibility — Communications Based on Media Reports
A communication is not inadmissible under Article 56(4) of the African Charter merely because some aspects are based on news disseminated through the mass media; the provision prohibits communications based exclusively on such news, and the issue is whether the information is correct and whether the complainant attempted to verify it.
Suspension of Bill of Rights — Violation of Charter Obligations
The suspension of a domestic Bill of Rights by a state party to the African Charter does not suspend the domestic effect of the Charter itself; the state's obligations under the Charter remain unaffected by purported revocation of the Charter's domestic effect, and suspension of constitutional rights violates Articles 1 and 2 of the Charter.
Arbitrary Detention — Legislation Must Conform to Charter Standards
For a state to justify restrictions on liberty under Article 6 of the African Charter on the basis that its actions are in conformity with domestic law, it must show that such law is consistent with its obligations under the Charter; competent authorities should not enact provisions which limit or undermine fundamental rights guaranteed by the Charter.
Right to Fair Trial — Detention Without Trial by Executive
Where a Minister is empowered to detain persons without trial for extended periods and to extend detention indefinitely, such power is analogous to that of a court but exercised at the detriment of detainees who have no recourse, rendering valueless the right to be tried within a reasonable time under Article 7(1)(d) of the African Charter.
Retroactive Criminal Legislation — Prohibition Under Article 7(2)
Retroactive criminal legislation violates Article 7(2) of the African Charter, which prohibits condemnation for acts that did not constitute legally punishable offences at the time they were committed; such legislation undermines the principle that citizens must at all times be fully aware of the state of the law under which they are living.
Self-Determination — Military Coup as Violation of Article 20(1)
A military coup that seizes power by force, even if peacefully, violates the right of a people to freely determine their political status under Article 20(1) of the African Charter where the people have consistently chosen their political leaders through democratic elections since independence.

Legislation cited (30)

  • African Charter on Human and Peoples' Rights Article 1
  • African Charter on Human and Peoples' Rights Article 2
  • African Charter on Human and Peoples' Rights Article 4
  • African Charter on Human and Peoples' Rights Article 5
  • African Charter on Human and Peoples' Rights Article 6
  • African Charter on Human and Peoples' Rights Article 7(1)(d)
  • African Charter on Human and Peoples' Rights Article 7(2)
  • African Charter on Human and Peoples' Rights Article 9(1)
  • African Charter on Human and Peoples' Rights Article 9(2)
  • African Charter on Human and Peoples' Rights Article 10(1)
  • African Charter on Human and Peoples' Rights Article 11
  • African Charter on Human and Peoples' Rights Article 12(1)
  • African Charter on Human and Peoples' Rights Article 12(2)
  • African Charter on Human and Peoples' Rights Article 13(1)
  • African Charter on Human and Peoples' Rights Article 20(1)
  • African Charter on Human and Peoples' Rights Article 26
  • African Charter on Human and Peoples' Rights Article 47
  • African Charter on Human and Peoples' Rights Article 49
  • African Charter on Human and Peoples' Rights Article 55
  • African Charter on Human and Peoples' Rights Article 56
  • African Charter on Human and Peoples' Rights Article 56(4)
  • African Charter on Human and Peoples' Rights Article 56(5)
  • Gambian Constitution 1970 Chapter 3
  • Gambian Constitution 1970 Section 62
  • Gambian Constitution 1970 Section 85(4)
  • Military Decree No. 30/31
  • Military Decree No. 3 of July 1994
  • Military Decree No. 45 of June 1995
  • Military Decree No. 52
  • Economic Crimes (Specified Offences) Decree of 25 November 1994

Cases cited (7)

  • ACHPR/60/91
  • ACHPR/87/93
  • ACHPR/101/93
  • ACHPR/129/94
  • Pa Salla Jagne v The State
  • T. K Motors' case
  • Communications 25/89, 74/92 and 83/92 all joint

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Jawara v Gambia (Communication 147 of 1995; Communication 149 of 1996) [2000] ACHPR 17 (11 May 2000)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.