Human Rights Committee
Concluding observations on the Gambia in the absence of its second periodic report *
1.In the absence of a report by the State party, the Committee considered the situation of civil and political rights under the Covenant in the Gambia at its 3496th and 3497th meetings (CCPR/C/SR.3496 and 3497), held in a public session on 5 and 6 July 2018. In accordance with rule 70, paragraph 1, of the Committee’s rules of procedure, the failure of a State party to submit its report under article 40 of the Covenant may lead to an examination in a public session of the measures taken by the State party to give effect to the rights recognized in the Covenant and to adopt concluding observations.
2.At its 3516th meeting, held on 19 July 2018, the Committee adopted the following concluding observations.
A.Introduction
3.The Covenant came into force for the Gambia on 22 June 1979. The State party was under an obligation to submit its second periodic report by April 1983, in accordance with article 40 (1) (a) of the Covenant. The Committee regrets that the State party has failed to honour its reporting obligations under article 40 of the Covenant and that, despite numerous reminders, the State party has not submitted its second periodic report.
4.The Committee nevertheless expresses appreciation for the opportunity to engage in a constructive dialogue with the State party’s delegation on the implementation of the Covenant. The Committee is grateful to the State party for its written replies (CCPR/C/GMB/Q/2/Add.1) to the list of issues (CCPR/C/GMB/Q/2), which were supplemented by oral responses by the delegation.
5.In the light of the detailed written replies to the Committee’s list of issues and the constructive dialogue that the Committee had with the State party’s delegation, the Committee considers the written replies as the second periodic report of the State party and requests that the State party update its common core document (HRI/CORE/GMB/2012) in order to facilitate future discussions.
B.Positive aspects
6.The Committee notes with appreciation the peaceful transition of power in the State party in January 2017 after 22 years under an authoritarian regime that began in July 1994. The Committee welcomes the measures taken by the State party to deal with the abuses of the past and to reinstate democratic institutions in the country. These include the release of political prisoners; the establishment of the Constitutional Review Commission as well as the progress made with regard to the establishment of the Truth, Reconciliation and Reparation Commission and the National Human Rights Commission; and various legislative and sectoral reform processes, including in the judicial, law enforcement and security sectors. The Committee welcomes the declaration of a moratorium on the death penalty, the progress made with the ratification of the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty and the decision not to withdraw from the International Criminal Court.
C.Principal matters of concern and recommendations
Role of the Covenant in the domestic legal order
7.The Committee is concerned that the rights enshrined in the Covenant have not been fully incorporated in the bill of rights in the current Constitution. While noting that the State party has a dualist legal system, the Committee is also concerned that the Covenant has never been invoked in domestic courts. It is also concerned that the State party has not made sufficient efforts to ensure that the customary and sharia laws are interpreted in line with the Covenant (art. 2).
8. The State party should ensure that the rights enshrined in the Covenant are fully incorporated into the bill of rights of the new Constitution and other relevant domestic legislation and take all measures necessary to ensure that all laws, including customary and sharia laws, are articulated, interpreted and applied in full compliance with the Covenant. It should also intensify its efforts to train all judicial and legal professionals, including judges, prosecutors and lawyers, public officials and the public on the rights enshrined in the Covenant and its Optional Protocols and their application.
National human rights institution
9.While welcoming the enactment of the National Human Rights Commission Act in 2017, the Committee regrets the delay in appointing its members and in establishing its secretariat (art. 2).
10. The State party should expeditiously appoint the members of the National Human Rights Commission and set up its secretariat. It should also take all measures necessary to ensure the independent and effective functioning of the Commission in full compliance with the principles relating to the status of national institutions for the promotion and protection of human rights (the Paris Principles), including by providing it with sufficient financial and human resources to carry out its mandates.
Non-discrimination
11.The Committee is concerned at the absence of comprehensive anti-discrimination legislation in the State party. It is also concerned that consensual same-sex relationships are criminalized in the State party and that lesbian, gay, bisexual, transgender and intersex persons reportedly continue to be subject to arbitrary arrest and violence (arts. 2, 9, 17 and 26).
12. The State party should adopt anti-discrimination legislation which (a) provides full and effective protection against discrimination in all spheres, including the private sphere, and prohibits direct, indirect and multiple discrimination; (b) contains a comprehensive list of grounds for discrimination in line with the Covenant, including sexual orientation and gender identity; and (c) provides for access to effective and appropriate remedies for victims of discrimination. It should also decriminalize same-sex relationships between consenting adults and take measures to change societal perception of lesbian, gay, bisexual, transgender and intersex persons and protect them from arbitrary arrests and violence.
Discrimination against women
13.The Committee is concerned at the entrenched patriarchal attitudes and gender role stereotypes in the State party and, in particular:
(a)Discriminatory legal provisions against women in the personal law with respect to marriage, divorce, inheritance, marital property, adoption, burial and devolution of property on death, some of which have been codified in the Women’s Act of 2010;
(b)The widespread practice of child marriage and female genital mutilation, despite the criminalization of these practices;
(c)The very low level of women’s representation in public life, particularly in the legislative and decision-making positions in the executive branch, and the lack of measures taken to address the situation;
(d)The disproportionately low literacy rate among women and girls, which adversely affects them in enjoying their rights under the Covenant (arts. 2, 3, 7, 23, 25 and 26).
14. The State party should intensify its efforts to combat the entrenched patriarchal attitudes and gender role stereotypes in the State party and, in particular:
(a) Review its laws, including the personal law and the Women ’ s Act, with a view to removing all provisions that are discriminatory towards women;
(b) Strengthen the enforcement of the Children ’ s (Amendment) Act of 2016 and the Women ’ s (Amendment) Act of 2015, which criminalize child marriage and female genital mutilation, respectively, and enhance public awareness, particularly among traditional and religious leaders, of the lifelong negative consequences of such practices;
(c) Take all measures, including temporary special measures, to ensure equal representation of women and men in all decision-making positions in both public and private sectors.
(d) Take targeted measures to raise literacy rates among women and girls.
Violence against women and domestic violence
15.While welcoming the adoption of the Domestic Violence Act and the Sexual Offences Act in 2013, the Committee is concerned at the ineffective enforcement of these acts and the prevalence of violence against women and of domestic violence. It is particularly concerned at the absence of effective reporting mechanisms; the low level of prosecution of perpetrators; the insufficient support for victims of violence, including legal assistance, shelters and rehabilitation services; and the absence of official disaggregated data relating to violence against women and girls (arts. 2, 3, 6, 7, 23 and 26).
16. The State party should intensify its efforts to:
(a) Effectively enforce the Domestic Violence Act and the Sexual Offences Act;
(b) Establish confidential and gender-sensitive complaint mechanisms and increase the number of female police officers and specialized units dealing with such cases;
(c) Ensure that cases of violence against women and domestic violence are promptly and thoroughly investigated and that perpetrators are prosecuted;
(d) Provide victims with legal, medical, financial and psychological support and access to effective remedies and means of protection;
(e) Provide judges, prosecutors and law enforcement officers with continuing training that equips them to deal with cases of violence against women and domestic violence effectively and in a gender-sensitive manner;
(f) Establish a reliable system for the collection of disaggregated statistical data on violence against women and domestic violence.
Voluntary termination of pregnancy
17.The Committee is concerned that the voluntary termination of pregnancy is an offence under the Criminal Code except when the life of the pregnant woman is at risk, which reportedly leads women to seek clandestine abortions and results in high maternal mortality. It is also concerned at the high maternal mortality rates owing to post-abortion complications and the reduced resources allocated to the sexual and reproductive health sector. The Committee is further concerned at the high rate of unintended pregnancy, particularly among adolescents, owing to limited access to sexual and reproductive health information and services, including contraceptives (arts. 2, 3, 6, 7, 17, 24 and 26).
18. The State party should:
(a) Revise its legislation to provide safe, legal and effective access to abortion where the health of the pregnant woman or girl is at risk and where carrying a pregnancy to term would cause the pregnant woman or girl substantial pain or suffering, most notably where the pregnancy is the result of rape or incest or is not viable, and ensure that criminal sanctions are not applied against women and girls undergoing abortion or against medical service providers assisting them in doing so, since taking such measures compels women and girls to resort to unsafe abortion;
(b) Ensure the availability of, and effective access to, quality prenatal and post-abortion health care for women and girls, in all circumstances and on a confidential basis;
(c) Ensure access for women and men and, especially, girls and boys to quality and evidence-based information and education about sexual and reproductive health and to a wide range of affordable contraceptive methods;
(d) Prevent the stigmatization of women and girls seeking abortion;
(e) Allocate a sufficient level of resources to the sexual and reproductive health sector.
Derogation of rights during a state of emergency
19.The Committee is concerned that article 35 (2) of the Constitution, which provides for derogation of certain rights during states of emergency, including the right to freedom of thought, conscience and religion and the right to equal recognition before the law, does not fully comply with article 4 (2) of the Covenant (arts. 4, 14 and 18).
20. The State party should review article 35 (2) of the Constitution with a view to bringing it into line with article 4 (2) of the Covenant, taking into account the Committee ’ s general comment No. 29 (2001) on derogations from provisions of the Covenant during a state of emergency.
Counter-terrorism legislation
21.The Committee is concerned at the broad definition of acts of terrorism provided for in article 2 of the Anti-Terrorism Act of 2002, which fails to differentiate between terrorist crimes and ordinary crimes, and the lack of information on the application of the Act (art. 4).
22. The State party should review the Anti-Terrorism Act with a view to aligning the definition of acts of terrorism with international standards and ensuring that the Act provides for adequate legal safeguards and does not undermine the exercise of the rights protected under the Covenant. It should also compile data on the application of the Act and monitor its effect on the enjoyment of the rights enshrined in the Covenant.
Transitional justice
23.The Committee notes with great concern the massive human rights violations that occurred between July 1994 and January 2017, including arbitrary arrests and detentions, enforced disappearance, extrajudicial killings, torture, and violations of the rights to freedom of expression, peaceful assembly and association. It welcomes the establishment of the Truth, Reconciliation and Reparation Commission following nationwide consultations, with a mandate to create an impartial historical record of violations and abuses of human rights during this period and to establish and make known the fate or whereabouts of disappeared victims. However, the Committee remains concerned at:
(a)The delay in appointing the members of the Commission and establishing its secretariat;
(b)The apparent lack of steps taken by the State party to fully secure the archives of the former National Intelligence Agency and other on-site evidence, which may impede the Commission in carrying out its mandate;
(c)Reports of immunity enjoyed by some high-level officials who have been accused of human rights violations, including the former Director of Mile Two Prison;
(d)Reports that officials in the army and the law enforcement and intelligence sectors who are accused of human rights violations during the authoritarian regime have remained in their positions owing to the absence of vetting procedures (arts. 2, 6, 7, 9, 10, 14 and 15).
24. The State party should:
(a) Expedite the appointment of the members of the Truth, Reconciliation and Reparation Commission and the setting up of its secretariat, and ensure that the Commission functions effectively and independently;
(b) Ensure that all allegations of human rights violations and abuses are promptly, independently and thoroughly investigated and that perpetrators are prosecuted and, if convicted, punished with penalties commensurate with the gravity of the offences;
(c) Repeal all provisions that allow blanket impunity, including those in the Indemnity Act of 2001, and ensure that all perpetrators are held accountable without exception, including the highest official;
(d) Ensure that amnesties are prohibited for serious violations of international human rights law and international humanitarian law;
(e) Ensure that all victims are provided with effective remedies, including appropriate compensation, restitution and rehabilitation, taking into account the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law;
(f) Secure all relevant documents and evidence of all relevant State organs, including the archives of the former National Intelligence Agency and other on-site evidence;
(g) Put in place vetting procedures in the army and the law enforcement and intelligence sectors and remove all those who have been involved in serious human rights violations from their positions.
Enforced disappearance and extrajudicial killings
25.The Committee is concerned at the high incidence of enforced disappearance and extrajudicial killings allegedly committed by the security forces, including the National Intelligence Agency and the National Drug Enforcement Agency, and by paramilitary squads known as “Junglers” during the authoritarian regime. Among the victims were some 50 foreign nationals, including 44 nationals of Ghana, who were killed by the security forces in 2009. It is also concerned that investigations of allegations of enforced disappearance and extrajudicial killings have been impeded due, among other reasons, to the lack of forensic capacity of the State party and that the whereabouts of most victims remain unknown. It is further concerned at the delay in implementing the judgments of the Court of Justice of the Economic Community of West African States (ECOWAS) in the cases of enforced disappearance and extrajudicial killings, including Ebrimah Manneh v. Republic of The Gambia in 2008; Musa Saidykhan v. Republic of The Gambia in 2010 and Deyda Hydara Jr. and Ismaila Hydara v. Republic of The Gambia in 2014 (arts. 2, 6, 7, 9, 14 and 16).
26. The State party should:
(a) Ensure that all allegations of enforced disappearance and extrajudicial killings are promptly, impartially and thoroughly investigated, that all perpetrators are prosecuted and that, if convicted, penalties commensurate with the gravity of the crimes are imposed;
(b) Initiate an investigation into the deaths of the 50 foreign nationals, including 44 Ghanaians, who were killed in 2009, through cooperation with the authorities of the countries concerned, where necessary;
(c) Establish the truth about the fate and whereabouts of victims and ensure that victims of enforced disappearance and their relatives are informed about the outcome of the investigations;
(d) Strengthen its forensic capacity, including, where possible through international cooperation;
(e) Implement the judgments of the ECOWAS Court of Justice without further delay;
(f) Conclude the ratification process for the International Convention for the Protection of All Persons from Enforced Disappearance.
Death penalty
27.The Committee notes that the death penalty was abolished in the State party in 1993 and reinstated in 1995, and welcomes the official announcement of a moratorium on the application of the death penalty in February 2018 and the commutation of death sentences to life imprisonment. The Committee welcomes the steps taken by the National Assembly to ratify the Second Optional Protocol to the Covenant in 2018, although the process of formal notification still needs to be completed. The Committee is concerned, however, that the death penalty is still provided for in the Constitution (art. 6).
28. The State party should abolish the death penalty in its laws and remove it from the Constitution. It is also urged to conclude the ratification process for the Second Optional Protocol to the Covenant.
Use of force
29.The Committee is concerned that article 18 of the Constitution and sections 15 (A) and 72 of the Criminal Code allow for a great deal of discretion in the use of force by law enforcement officials, and that section 2 (a) and (b) of the Indemnity Act (as amended in 2001) exonerates all public officials from civil or criminal liability for the exercise of their duties with respect to unlawful assemblies, riotous situations or public emergencies. It is also concerned at the high incidence of excessive use of force by law enforcement officials and members of security forces in the State party, including the incident on 18 June 2018 when security forces fired live ammunition during a protest in Faraba Banta which resulted in two deaths and eight injuries (arts. 6, 7, 9, 19 and 21).
30. The State party should revise article 18 of the Constitution, sections 15 (A) and 72 of the Criminal Code and section 2 (a) and (b) of the Indemnity Act (as amended in 2001) with a view to bringing them into line with international standards, in particular the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials. It should ensure that prompt, independent and thorough investigations are carried out into all allegations of the excessive use of force, particularly the Faraba Banta case, and bring perpetrators to justice. It should take measures to effectively prevent and eradicate all forms of excessive use of force by law enforcement and security officials, including by guaranteeing that systematic training on the use of force is provided for such officials as well as for judges, prosecutors and other relevant officials.
Arbitrary arrest and detention and pretrial detention
31.The Committee is concerned at the reports of widespread arbitrary arrest and detention by the police and security forces during the period of authoritarian rule and detention of persons in unofficial places of detention, including the “bambadinka” (crocodile hole) located in the headquarters of the National Intelligence Agency. It is also concerned about the prevalence of excessively lengthy pretrial detention periods owing to the inefficient justice system and the large number of inmates awaiting trial in detention, the refusal of bail requests and the exorbitant amounts set for bail (arts. 9, 10 and 14).
32. The State party should:
(a) Ensure that all allegations of arbitrary arrest and detention are investigated promptly, impartially and thoroughly, that the perpetrators are prosecuted and punished and that victims are provided with effective remedies;
(b) Explicitly forbid and criminalize the use of unofficial places of detention;
(c) Reduce the length of pretrial detention by speeding up trials and introducing alternatives to pretrial detention;
(d) Ensure that bail determinations are made promptly and that bail requirements are reasonable.
Torture, ill-treatment and prison conditions
33.The Committee is concerned about:
(a)Reports of widespread torture, beatings and ill-treatment by the police, security forces and correctional officers committed against individuals in custody under the authoritarian regime and the lack of prosecution of perpetrators;
(b)The absence of torture as a criminal offence in the Criminal Code, which inhibits the prosecution of perpetrators of torture under the transitional justice system;
(c)The continuing harsh and life-threatening conditions in prisons, including in the Mile Two Prison, in particular overcrowding; poor food, living conditions, sanitation and medical care; and numerous reports of deaths in custody (arts. 6, 7 and 10).
34. The State party should:
(a) Ensure that all allegations of torture and ill-treatment are investigated promptly, impartially and thoroughly, that the perpetrators are prosecuted and punished and that victims are provided with effective remedies;
(b) Review the Criminal Code to include torture as a criminal offence and conclude the ratification process for the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and its Optional Protocol;
(c) Prevent torture and ill-treatment by strengthening existing monitoring bodies or establishing an independent mechanism to monitor the prison conditions and providing mandatory training for relevant law enforcement officers as well as judges, prosecutors and other legal professionals regarding prevention of torture;
(d) Revise the Prisons Act so that it is in compliance with international standards and improve the facilities and conditions of prisons, including with regard to food, sanitation and medical care;
(e) Ensure prompt, independent and thorough investigations into the circumstances surrounding deaths in custody, bringing the responsible persons to justice, where appropriate, and providing victims ’ families with remedies, and take all measures necessary to prevent the recurrence of such deaths.
Trafficking in human beings, smuggling and forced labour
35.While noting the progress made by the State party in combating human trafficking, the Committee remains concerned at continuing reports of trafficking, particularly in women and children, for forced labour and sexual exploitation, including sex tourism; the huge number of boys and young men smuggled into Europe via the high seas and the number who perish or go missing in the Mediterranean; and the situation of children who are sent to Qur’anic schools in neighbouring countries and may be subject to forced begging by marabouts (arts. 3, 8, 24 and 26).
36. The State party should intensify its efforts to combat trafficking and smuggling, by, in particular:
(a) Strengthening the enforcement of relevant legislation, including the Trafficking in Persons Act (as amended in 2010), the Children ’ s Act and the Tourism Offenses Act;
(b) Intensifying its efforts to conduct training for judges, prosecutors and law enforcement officials, as well as prevention and sensitization campaigns to make the general public aware of the negative effects of trafficking and smuggling of persons;
(c) Enhancing the identification of victims, particularly those children sent to Qur ’ anic schools, and establishing a referral system for victims of trafficking;
(d) Provide victims with access to effective remedies, including rehabilitation.
Right to a fair trial
37.While the Committee recognizes that the independence of the judiciary has been seriously eroded, it welcomes the reconstitution of the Judicial Service Commission and the abolition of the contract judges system. It is also concerned at the large backlog of criminal cases, despite the measures taken by the State party to reduce it, the limited provision of free legal aid owing to insufficient resources allocated to the National Agency for Legal Aid and the limited access to justice in rural areas (arts. 14, 15 and 16).
38. The State party should intensify its efforts to strengthen the independence of the judiciary, including the enactment of the Judges Remuneration Allowance and Other Benefits Bill, and to prevent interference with the judiciary by the executive and the legislature; to reduce the backlog of court cases and ensure that trials take place within a reasonable time; to expand the provision of free legal aid in criminal cases by strengthening the financial and human capacity of the National Agency for Legal Aid; and to take measures, including, where appropriate, through mobile courts and legal clinics, necessary to facilitate access to justice by people in rural areas.
Freedom of opinion and expression
39.While welcoming the reinstatement of those media outlets which were banned during the previous regime and the establishment of the National Media Law Committee, the Committee is concerned at:
(a)The overly restrictive legislation of the State party relating to freedom of expression, particularly laws criminalizing libel, sedition and false news and providing for sentences of imprisonment, which have been used to intimidate journalists and restrict the freedom of expression;
(b)The delay in implementing the judgment of the Court of Justice of the ECOWAS in the case Federation of African Journalists and others v. The Republic of The Gambia (ECW/CCJ/JUD/04/18), in which the Court ordered legislative reform and compensation for the victims;
(c)The reports that intimidation, harassment, torture and murder of journalists and human rights defenders exercising their right to freedom of expression have taken place over many years and the lack of investigation and prosecution thereon;
(d)The delay in enacting the Informational Bill (arts. 19 and 22).
40. The State party should:
(a) Amend or repeal all laws, including provisions of the Criminal Code and the Information and Communication Acts (as amended in 2013), which unduly restrict the freedom of expression, and finalize the legislative reform process led by the National Media Law Committee;
(b)Expedite the implementation of the judgment of the ECOWAS Court of Justice in Federation of African Journalists and others v. The Republic of The Gambia (ECW/CCJ/JUD/04/18);
(c) Ensure that all the cases of intimidation of journalists and human rights defenders are promptly, impartially and thoroughly investigated, that the perpetrators are prosecuted and punished and that victims are provided with effective remedies;
(d) Expedite the enactment of the Access to Information Bill.
Right to peaceful assembly
41.The Committee is concerned at section 5 of the Public Order Act, which requires police permission for peaceful assembly, and the recent decision of the Supreme Court upholding the constitutionality of this provision (arts. 19 and 21).
42. The State party should review the Public Order Act to ensure that all persons enjoy the right to peaceful assembly and that limitations on that right are in strict compliance with article 21 of the Covenant.
Right to freedom of association
43.The Committee is concerned at decree No. 81 of 1996, which provides for cumbersome registration procedures for non-governmental organizations (NGOs) and the delay in enacting a bill on NGOs (art. 22).
44. The State party should repeal decree No. 81 and expeditiously enact a bill on NGOs that is in full compliance with the Covenant.
Refugees, asylum seekers and migrants
45.The Committee is concerned at the limited resources allocated for effective management and treatment of refugees and asylum seekers; reports indicating the failure to provide identification documents to refugee children born in the State party or arriving as minors, putting them at particular risk of statelessness; the lack of transit centres in both rural and urban areas; and the lack of data on their situation due to the inadequate refugee status determination process (arts. 2, 23, 24 and 26).
46. The State party should allocate a sufficient level of resources to the Gambia Commission for Refugees so as to ensure effective management and treatment of refugees and asylum seekers; increase the number of transit centres with adequate facilities and services; ensure that child refugees born in the State party or arriving as minors are provided with identification documents to avoid the risk of statelessness; and establish data on refugees and asylum seekers through the nationwide refugee status determination exercise.
Birth registration
47.The Committee is concerned at the large number of children who are not immediately registered at birth, particularly in rural areas, and the obstacles to birth registration of children born outside marriage owing to the stigmatization faced by single mothers (arts. 16, 23 and 24).
48. The State party should ensure that all children born in the State party, particularly in rural areas and including those born outside marriage, are immediately registered at birth, and take steps to put an end to the stigmatization of children born outside marriage and their mothers.
D.Dissemination and follow-up
49. The State party should widely disseminate the Covenant, its two Optional Protocols, the written replies to the Committee ’ s list of issues and the present concluding observations with a view to raising awareness of the rights enshrined in the Covenant among the judicial, legislative and administrative authorities, civil society and non-governmental organizations operating in the country and the general public.
50. In accordance with rule 71, paragraph 5, of the Committee ’ s rules of procedure, the State party is requested to provide, by 27 July 2020, information on the implementation of the recommendations made by the Committee in paragraphs 8 (role of the Covenant in the domestic legal order), 24 (transitional justice) and 34 (torture, ill-treatment and prison conditions) above.
51. The Committee requests the State party to submit its next periodic report by 27 July 2022 and to include in that report specific up-to-date information on the implementation of the recommendations made in the present concluding observations and of the Covenant as a whole. The Committee also requests the State party, in preparing the report, to broadly consult civil society and non-governmental organizations operating in the country. In accordance with General Assembly resolution 68/268, the word limit for the report is 21,200 words. Alternatively, the Committee invites the State party to agree, by 27 July 2019, to use its simplified reporting procedure, whereby the Committee transmits a list of issues to the State party prior to the submission of its report. The State party ’ s replies to that list of issues will constitute the next periodic report to be submitted under article 40 of the Covenant.