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The impact of the African Charter and the Maputo Protocol in The Gambia

Authors:

Abstract

The chapter determines the extent to which two main regional human rights treaties in Africa (African Charter on Human and Peoples' Rights and the Maputo Protocol) have been effective and impactful in The Gambia. The chapter sets out to answer three overarching questions: what is the status of the implementation of the African Charter and the Maputo Protocol in a particular country; what indirect effects, if any, have the Charter and the Protocol had in that country; and what factors or mechanism enhance or impede the impact of the two instruments in that country?
75
* LLM HRDA (Pretoria) & lecturer, Faculty of
Law, University of The Gambia. Email:
satang.nabaneh@gmail.com.
1Introduction
The Gambia remains one of poorest
countries in the world. The 2014 UNDP
Human Development Report ranks the
country 172 out of 187 countries.1 The
Gambia ranks at 139 on the Gender
Inequalities Index (GII).2 According to
the Mo Ibrahim Index of African
Governance, The Gambia ranks 23 out
of 52 African states. Under the gender
index score, the country ranks at 19th
position with a 58.3 score out of 100.3
The Gambia is a common law
country,4 and is one of the smallest
countries in mainland Africa. According
to The Gambia’s 2013 population and
housing census preliminary results, the
population is estimated at 1.8 million.5
The preliminary results indicate that
women make up 50,5 per cent of the
population with males constituting 49,5
per cent.6
The promulgation of the 1997
Constitution of the Republic of The
Gambia heralded a new dispensation for
the recognition and upholding of the
dignity of the individual. The Preamble
recognises the following:
The fundamental rights and freedoms
enshrined in this Constitution will ensure
for all time respect for and observance of
human rights and fundamental freedoms
for all, without distinction as to ethnic
considerations, gender, language and
religion.
Section 17(1) of the Constitution
provides that the ‘fundamental human
rights and freedoms’ enshrined in the
Constitution ‘shall be respected and
upheld by all [government organs
including] the Legislature’. The Consti-
tution contains a comprehensive cata-
logue of rights and freedoms under
Chapter IV. Section 37 of the Constitu-
1 See UNDP Human Development Report
‘Sustaining human progress: Reducing
vulnerabilities and building resilience’
(2014).
2 UNDP Human Development Report (n 1
above) 158.
3 Mo Ibrahim Index of African Governance
(IIAG) 2014.
4 The Country attained her independence
from Britain on 18 February 1964.
5 The Gambia Bureau of Statistics (GBOS)
‘The Gambia 2013 Population and Housing
Census Preliminary Results’ (2014) 6 http://
dhsprogram.com/pubs/pdf/FR289.pdf
(accessed 20 August 2015).
6 GBOS (n 5 above) 8.
THE IMPACT OF THE
AFRICAN CHARTER AND THE
MAPUTO PROTOCOL IN
THE GAMBIA
Satang Nabaneh*
76
The Gambia
tion provides that any person who alleg-
es that any of the provisions of Chapter
IV have been, are being, or are likely to
be contravened in relation to himself or
herself by any person; he or she may
apply to the High Court for redress.
Section 28 of the Constitution
ensures that women are accorded full
and equal dignity of the person with
men; and have the right to equal treat-
ment with men, including equal oppor-
tunities in political, economic and social
activities. Despite their numerical
strength, women’s rights and gender
equality issues continue to be systemati-
cally marginalised even after all the rati-
fication and harmonisation of
international human rights instruments
and documents.
Women’s representation in elective
positions is significantly low. In the
National Assembly, only three out of
the 48 elected members are women with
the addition of one nominated member
being the current deputy speaker,
making a total of four out of 53
members. Thus, the percentage of elect-
ed women members of parliament is 6,2
percent while the total percentage of
women in parliament is 7,5 per cent. At
the local level, as of April 2013, there
were only 18 women councillors out of
137 councillors and only ten elected
from a total of 109 elected councillors
around the country, which is less than
one per cent. These figures are far below
The Gambia’s commitment to attaining
gender equality.7
2 Ratification of the African
Charter and Maputo Protocol
The Gambian Constitution vests in the
President the power to negotiate and
conclude treaties and other international
agreements. The President may exercise
the power personally or through his
Secretaries of State. Ratification of such
treaties and international agreements is
the prerogative of the National Assem-
bly of The Gambia.8 With regards to the
procedure for transmitting treaties, the
Ministry of Justice receives the resolu-
tion of ratification from the National
Assembly and prepares the instrument
of ratification for signature of the Presi-
dent. After signature, the instrument is
deposited through the Ministry of
Foreign Affairs.9
The Gambia is a state party to many
international human rights instruments.
It ratified the African Charter and the
Maputo Protocol on 8 June 1983 and
25 May 2005, respectively. There is no
available information on the reasons for
ratifying the two instruments. However,
it can be deduced that it might have
been as a result of the involvement of Sir
Dawda Jawara, The Gambia’s first
President, in the process leading to the
adoption of the final draft version of the
African Charter which was concluded in
Banjul, the Capital of the Gambia.
However, it is important to note
that The Gambia made a blanket reser-
vation on articles 5 (elimination of
harmful practices), 6 (marriage), 7 (sepa-
ration, divorce and annulment of
marriage) and 14 (health and reproduc-
tive rights) of the Maputo Protocol. In
2006, due to intense advocacy and The
7 See S Nabaneh ‘Open letter on women’s
political participation’ (April 2013).
8Sec 79(1)(c).
9 Email from Cherno Marenah, Solicitor
General and Legal Secretary on 30 October
2015.
Impact of the African Charter and the Maputo Protocol in selected African states
77
Gambia hosting the African Union (AU
Summit), the reservation was
removed.10 In its failure to provide an
explanation around the reservation, The
Gambia has shown that it made the
reservation without any tangible justifi-
cation.
3 Government focal point
The Ministry of Justice is the focal point
for all human rights issues under the
leadership of the Attorney General and
Minister of Justice including the imple-
mentation of the African Charter.11 The
Attorney General and Minister of
Justice are usually present and deliver a
statement during the opening of sessions
of the African Commission that are held
in The Gambia. The ministry is also
responsible for fulfilling state reporting
obligations such as reports for the
Universal Periodic Reviews. They do
this through the establishment of task
forces comprising different government
ministries and agencies. A final report is
usually presented at a validation work-
shop before government officials, para-
statals and various representatives of
civil society organisations. In addition,
they are also part of the delegation that
presents these reports to the relevant
human rights bodies. The ministry is
one of the most critical of all state agen-
cies with the mandate to ensure and
safeguard fundamental freedoms and
rights including popularising human
rights laws amongst law enforcers and
other professionals. However, it is also
beset with institutional, financial and
human resource capacity constraints.
The Ministry of Women’s Affairs,
headed by the Vice President, was creat-
ed in 1996. It is responsible for policy
formulation, coordination, resource
mobilisation, monitoring and evaluation
at the highest level, addressing the needs
and aspirations of women and girls
within the confines of Constitution and
national policies.12
The Women’s Act, 2010 under
sections 57 and 70 provide for the estab-
lishment of the National Women’s
Council and the National Women’s
Bureau as the main government gender
machinery for implementation of the
Maputo Protocol and other government
laws and policies for the advancement
of women. The Council and Bureau
also work closely with the Gender Focal
Points (GFPs) of the various ministries
as gender mainstreaming is seen as a
crosscutting issue. The GFPs support
their respective ministries to assess their
specific needs in the field of gender
responsive planning, programming,
implementation, monitoring and evalua-
tion and make appropriate recommen-
dations for capacity building. The
Council and Bureau, with the support of
and in collaboration with related institu-
tional structures and civil society organi-
sations (CSOs) strive to create an
enabling environment for the full reali-
sation of women’s rights.
4 Domestication
The Gambian legal system is based on
English common law. It thus follows the
dualistic approach. This is based upon
the perception of two quite distinct
systems of law, operating separately and
also maintains that, before any rule or
principle of international law can have
any effect within the domestic jurisdic-
tion, it must be expressly and specifical-
10 F Viljoen International human rights law in
Africa (2012) 256.
11 Email from Cherno Marenah (n 9 above).
12 Woman includes a ‘girl-child’ according to
sec 2 of the Women’s Act 12 of 2010.
78
The Gambia
ly 'transformed into municipal law by
the use of the appropriate constitutional
machinery, such as an Act of Parlia-
ment.’13
There is a strong presumption in
common law systems that statutes and
the common law will be read so as to be
compatible with international law,
except where the provisions of a statute
or common law clearly preclude such an
interpretation. This principle was specif-
ically recognised in Gambian law by
Moshood Adio J, on behalf of the pre-
1994 Supreme Court (now the High
Court), in the case of Abdulrasheed
Mohamed v The State.14 This approach is
also in keeping with the principle of the
Gambian constitutional interpretation
set out by the Privy Council in the case
of Attorney General v Jobe (No 2)15 that
the Constitution, ‘in particular that part of
it which protects and entrenches fundamen-
tal rights and freedoms to which persons in
the State are to be entitled, is to be given a
generous and purposive construction’.16
Section 216(3) of the Constitution
obligates the state to be guided by inter-
national human rights instruments in
making policies for the protection of
fundamental rights and freedoms.
Section 211(b) further empowers the
courts to have regard to these state poli-
cies in interpreting any laws based on
them. Section 219(c) and (d) of the
Constitution also provide that:
The State shall endeavour to ensure that in
international relations, it … fosters respect
for international law, treaty obligations …
and … is guided by the principles and
goals of international and regional
organizations of which The Gambia is a
signatory.
As directive principles of state policy,
these provisions do not confer legal
rights and are not enforceable, but, all
organs of government should be ‘guided
by and observe them.’
The first step to using the African
Charter and the Maputo Protocol as
tools for the enforcement of human
rights in The Gambia is to have provi-
sions of these instruments fully incorpo-
rated into national law, thereby creating
legally enforceable obligations to which
the government can be held accounta-
ble.17 Although no specific Act of
Parliament has directly domesticated
the African Charter, provisions of the
African Charter have been incorporated
into The Gambian legal systems.
The Constitution is the supreme law
of the land and any other law found to
be in conflict with it is void to the extent
of the inconsistency.18 In addition to the
Constitution, laws applicable in The
Gambia include: Acts of the National
Assembly, the common law and princi-
ples of equity, customary law, Shari’a
law and any orders, rules, regulations
and subsidiary legislation made by a
person or authority conferred by the
Constitution.19 The different bodies of
laws especially customary and Shari’a
law create contradictions and inconsist-
encies in terms of personal law. The
Gambian customary law is unwritten
and consists of orally transmitted
rules.20 There are many discriminatory
provisions in all these sources of law,
13 MN Shaw International law (1997) 100.
14 Unreported decision of the then Supreme
Court, 1993 as cited in OAS Jammeh The
Constitutionnel Law of the Gambia, 1965-2010
(2011).
15 [1960-1963] GLR 226.
16 Jobe ( No 2 ) (n 15 above) 241.
17 J Sallah & S Jahateh Desk review of the national
laws, international conventions, treaties and best
practices, relating to Gender Based Violence
(GBV) 2011.
18 Sec 4.
19 Sec 7.
20 EA Agim The Gambia legal system revised
edition (2010) 13.
Impact of the African Charter and the Maputo Protocol in selected African states
79
particularly in the areas of family and
property law. The application of both
customary law and Shari’a law is not
absolute.
The rights and freedoms provided in
the Constitution include the right to life
and personal liberty, freedom from slav-
ery and forced labour, torture and inhu-
man treatment, the rights to privacy,
property and fair trial, freedom of
speech, conscience, assembly, associa-
tion and movement, the right to political
participation, right to marry, rights to
education and culture as well as free-
dom from discrimination.21
Several of these rights are limited.
An assessment of several of these rights
has been seen to be violated and people
have been subjected to punitive and
arbitrary regulations without due
process.
For example, nine death row
inmates, eight men and one woman,
were removed from their prison cells
and executed on 27 August 2012.
According to the news report,
all persons on death row have been tried by
the Gambian courts of competent
jurisdiction and thereof convicted and
sentenced to death in accordance with the
law. They have exhausted all their legal
rights of appeal as provided by the law.22
The government’s justification for the
execution was that The Gambia was
witnessing a high crime rate and becom-
ing a safe haven for criminals. The
executions were the first in The Gambia
since 1985 although the military junta
reinstated the death penalty in 1995. In
September 2012, President Jammeh
announced a ‘conditional’ moratorium
on executions, which would be ‘auto-
matically lifted’ if crime rates increased.
The UN Special Rapporteur on extraju-
dicial executions stated in his 2015
report that ‘the only difference between
those who lived and those who died,
seems to be pure luck. The killings were,
in other words, arbitrary and thus
unlawful’.23
The African Commission, in
response to the executions, noted that:
[the killings were in] total disregard of the
obligations of The Gambia under the
African Charter on Human and Peoples’
Rights, other regional and international
human rights instruments to which The
Gambia is a party, as well as, the
Constitutive Act of the African Union in
which the ‘respect for the sanctity of
human life’ is a principle that should be
followed by each Member State.24
The Gambia has also witnessed major
shrinking of the political space over the
years. First, the Elections (Amendment)
Act,25 2015 was passed on 7 July 2015
and assented to by the President on
20 July 2015. Section 43 of the Act
increases the required deposits that
candidates for election must make;
candidates for President must pay
500 000 dalasis (approximately
US$12 500) up from 10 000 dalasis
(approximately US$250) previously
required; candidates for the National
Assembly must deposit 50 000 dalasis
(approximately $1000) which previously
was 5000 dalasis (approximately
21 Secs 17-33 of the Constitution.
22 This was officially announced on Gambia
Radio and Television Services (GRTS) News
https://www.youtube.com/watch?v=lHxZ
Z6eKj8o (accessed 10 October 2015).
23 UN Human Rights Council ‘Report of the
Special Rapporteur on extrajudicial,
summary or arbitrary executions: Mission to
The Gambia’ A/HRC/29/37/Add.2
(11 May 2015) para 25.
24 See ACHPR ‘Press Statement on the
Execution of Nine (9) Death Row Inmates in
The Gambia’ http://www.achpr.org/press/
2012/08/d127/ (accessed 30 November
2015).
25 Act 6 of 2015.
80
The Gambia
US$125) and candidates for local coun-
cil offices must pay about 10 000 dalasis
(which is about $200). Opposition politi-
cal parties do not only regard the
increases as unreasonably high but also
as a ploy by the government to drastical-
ly limit the participation of the opposi-
tion in elections.
The Constitution contains several
sections that guarantee women’s rights
although the framework thereunder is
not as strong as it could be. For
instance, the Constitution under
sections 17(2) and 33 provide that every
person is entitled to the enjoyment of
rights without discrimination and equal-
ity before the law, but allows exceptions
in terms of personal law. The CEDAW
Committee recommended the:
amendment of section 33(5) of the 1997
Constitution, which explicitly exempts
from prohibition of discrimination on
grounds of gender areas governing
personal status, particularly with regard to
adoption, marriage, divorce, burial and
devolution of property on death.26
The Constitution also does not protect
the rights to health, work, food, shelter,
development and satisfactory environ-
ment.
In its efforts to domesticate both
CEDAW and the Maputo Protocol, The
Gambia promulgated the Women’s Act
2010 which was signed into law by the
President on 28 May 2010. Generally,
the Act is a very innovative piece of
legislation which contains provisions on
promoting and protecting the rights of
women in The Gambia. However, some
of its provisions are incompatible or not
consistent with the provisions of the
Maputo Protocol.
For example, section 15 of the
Women’s Act deals with temporary
special measures to be adopted by every
organ, body, public institution, authori-
ty or private enterprise aimed at acceler-
ating de facto equality between men and
women. This section of the Women’s
Act failed to introduce quotas in meet-
ing the 30 percent target for women’s
political participation and representa-
tion in the National Assembly and
public positions respectively.27 This
becomes more relevant in the political
arena and decision-making at all levels,
where women are not legally barred
from participating effectively on an
equal footing with men, but may not be
able to do so due to cultural bias in
favour of men and stereotypical percep-
tions of the role of women.28
The Maputo Protocol is the first of
its kind to include a number of protec-
tions specific to women, including
reproductive choice and autonomy. This
is best articulated in article 14 of the
Maputo Protocol, which provides for
women’s health and reproductive rights.
In line with this obligation, section 30 of
the Women’s Act protects women
against discrimination in reproductive
health rights and services and provides
for the right to medical abortion where
the pregnancy endangers the life of the
mother or the foetus. This is limited in
scope contrary to article 14(2)(c) of the
Maputo Protocol which provides for
medical abortion in cases of assault,
rape and incest.
On 24 November 2015, President
Jammeh declared a ban on female geni-
tal mutilation (FGM) stating that it was
a cultural and not a religious practice.
26 CEDAW 33rd Session 22 July 2005
CEDAW/C/GMB/CO/1-3.
27 AU Solemn Declaration.
28 See S Nabaneh Women’s political participation
and representation in The Gambia: One step
forward or two back?(2013).
Impact of the African Charter and the Maputo Protocol in selected African states
81
This was swiftly followed by the passing
of the Women’s (Amendment) Bill 2015
by the National Assembly on 2 Decem-
ber 2015 to prohibit female circumci-
sion. The amendment addresses one of
the key deficiencies of the Women’s Act
2010 which was the absence of content
intended to reflect the protections
enshrined under article 5 of the Maputo
Protocol, dealing with the ‘elimination
of harmful practices’. The Amendment
Act added sections 32A and 32B to the
Women’s Act. With the enactment, The
Gambia joined a number of African
countries in adopting legislation as a
reform strategy for ending FGM.
Section 32A makes it an offence for
any person to engage in female circum-
cision and stipulates that whoever
contravenes the prohibition is liable on
conviction to imprisonment for a term
of three years or a fine of 50 000 Dalasis
(approximately $1250) or both. The Act
also stipulates a life sentence in prison if
the circumcision results in death.
The Act also addresses those who
commission the procedure in section
32B(1). The section states that
a person who requests, incites or promotes
female circumcision by providing tools or
by any other means commits an offence
and is liable on conviction to imprison-
ment for a term of three years or a fine of
fifty thousand Dalasis or both.
In addition, a fine of 10 000 Dalasis
(approximately $250) as provided in
section 32B(2) of the Act is levied
against anyone knowing about the prac-
tice and failing to report it.
However, there is a major lacuna in
the Act, in so far as it makes no provi-
sion for cross-border circumcision
addressing both circumcisers who
perform the procedure outside the coun-
try as well as girls forced to undergo the
procedure in countries with weaker
FGM laws. Nevertheless, the Act
constitutes a major step forward in
terms of promoting and protecting the
rights of women to bodily integrity and
dignity.
5 Legislative reform
No information could be obtained on
whether a compatibility study was
conducted before the African Charter
and the Maputo Protocol were ratified.
However, several legislative reforms
have been made through the enactment
of laws that implicitly or explicitly give
effect to the African Charter and Mapu-
to Protocol. These include the Women’s
Act of 2010, Domestic Violence Act of
2013 and the Sexual Offences Act of
2013. Although the Legal Aid Act of
2008 does not expressly stipulate which
treaty it incorporates, it was revealed
during interviews that the Institute for
Human Rights and Development in
Africa (IHRDA), an international NGO
based in The Gambia, fostered the
enactment of the law in furtherance of
the African Charter.29
The long title of the Women’s Act
states that it was enacted to incorporate
and give effect to the provisions of
CEDAW and the Maputo Protocol in
The Gambia.30 The Act however does
not limit or restrict the incorporation
and enforcement of any provisions of
these two instruments. These two trea-
ties will thus serve as an aid in the inter-
pretation of the Act where there is a gap
or where a particular provision is not
29 Interview with Edmund Foley and
Humphrey Sipalla, respectively legal officer
and communication officer of the Institute
for Human rights and Development in
Africa, 25 August 2011 conducted by Tem
Fuh.
30 See Long Title, Women’s Act of 2010.
82
The Gambia
provided for, in which instance recourse
may be had on the original texts of these
two instruments.
The Domestic Violence Act was
passed by the National Assembly on
17 December 2013 and assented to by
the President on 30 December 2013.
The Act is aimed at combating domestic
violence and thus provides protection
for the victims of domestic violence,
particularly women and children and for
other related matters. The Act contains
a number of progressive and rights-
enhancing provisions. Domestic
violence under section 3 is given a broad
definition to include physical abuse as
well as sexual and economic abuse,
emotional, verbal and psychological
abuse. Importantly, under section 4, the
Act covers not just marriage but a whole
range of intimate living conditions
collectively termed as ‘domestic rela-
tionships’. Section 6 stipulates that the
consent of the victim is not a defence to
a charge of domestic violence. Even
though the government has complied
with the provisions of the Domestic
Violence Act in Part II section 3 by
establishing the Victims of Violence
Advisory Committee, it has failed to
comply with sections 4, 5, 6 and 7 of the
same Act to ensure effective functioning
of the committee.
The Sexual Offences Act addresses
the most common sexual offenses, and
provides for punitive measures. This Act
provides protection against sexual
crimes against all persons especially
vulnerable groups, including women,
children and people who are mentally
and physically disabled. The Act is
applicable to the crime of rape and other
sexual offences. However, the law fails
to address marital rape. It further failed
to have a provision for the review of the
law as well as penalties for authorities
who do not act swiftly and effectively
while respecting the human rights of the
women affected within a required time
frame. The former UN Special Rappor-
teur on Violence against Women stated
that: ‘in the context of norms recently
established by the international commu-
nity, a state that does not act against
crimes of violence against women is as
guilty as the perpetrators.’31
6 Policy reform
32
Several policies have been formulated
relating to the attainment of rights and
freedoms in certain thematic areas such
as education, agriculture, trade and
employment, information and commu-
nication, population, reproductive
health and youth. These include the
National Gender and Empowerment
Policy (2010-2020), Programme of
Accelerated Growth and Employment
(2012-2015), The Gambia National
Action Plan on UNSCR 1325, the
National Health Policy (2011-2015),
National Strategic Plan for HIV and
AIDS (2015-2020), and the National
Education Policy (2004-2015), amongst
others.
There is no evidence to suggest that
government policies reflect the provi-
sions of the African Charter. However,
there are policies that explicitly mention
CEDAW and the Maputo Protocol such
as the National Gender and Empower-
ment Policy framework.
31 UN Human Rights Council ‘Report of the
Special Rapporteur on violence against
women, its causes and consequences on
intersections between culture and violence
against women’ UN Doc A/HRC/34 (2007).
32 For a more comprehensive analysis of
policies see S Nabaneh ‘Desk review of
adequacy of laws, policies and vision 2020
for gender sensitivity(2014) commissioned
by Office of the Vice President & Ministry
for Women’s Affairs.
32
Impact of the African Charter and the Maputo Protocol in selected African states
83
7 Court judgments
In The Gambia, there are no specialised
courts that deal with violations of
human rights. Different pieces of legisla-
tion have different courts exercising
jurisdiction.
There have been several decided
cases in which the Gambian courts have
invoked decisions of the African
Commission as well as the obligations
of The Gambia under the African Char-
ter examined.
In Ousman Sabally v IGP & 2 Others,
Jallow JSC referred to the decision of
the African Commission in Constitution-
al Rights Project, Civil Liberties Organiza-
tion and Media Rights Agenda v Nigeria, in
interpreting the right to freedom of
expression.33 In Mariam Denton v the
Director General of the NIA and & 5
Others,34 Justice Monageng made refer-
ence to the obligations of The Gambia
under the African Charter. So also was
the case in Garrision v the Attorney Gener-
al.35 Besides these, no other known case
exists where the two instruments under
study or a decision of the African
Commission have been invoked.
In relation to litigating women’s
rights, the Women’s Act is the legisla-
tion most often relied on and for the
most part gives effect to the Maputo
Protocol in The Gambia. In a landmark
High Court case, the Court declared that
distribution of joint property be in equi-
table shares accordance with section 43
of the Women’s Act, which is a replica
of article 7 of the Maputo Protocol on
equitable distribution of matrimonial
property.36
In the aforementioned case, the
woman was married to her husband for
26 years and had three children. At
some point during their marriage, the
couple occupied the matrimonial prop-
erty. At the time they moved into the
property, it was incomplete. The
husband had lost his job and was unem-
ployed. The woman personally expend-
ed a considerable amount of money into
developing and completing the property,
which was registered in her husband’s
name. She was able to produce some
receipts of the materials she bought and
other contributions she made towards
the construction, completion and main-
tenance of the property. All contribu-
tions made towards the matrimonial
home were on the clear understanding
that it was a joint matrimonial property
with the full consent of her husband.
She also took responsibility of the fami-
ly while her husband was sick and out
of work.
The lady approached the Female
Lawyers Association of The Gambia
(FLAG) for assistance in 2010 when her
husband summoned her to the Kanifing
Cadi Court seeking a divorce. She was
instructed by the Cadi to move out of the
matrimonial bedroom until after the
Idda’.37 FLAG intervened on her behalf
and she stayed in the matrimonial
bedroom as prescribed by Shari’a. In
August 2011, she was locked out of the
property on the instruction of her
husband, and the husband further filed
an eviction suit in the Magistrate’s
Court. FLAG represented her, sought
33 (2000) AHRLR 227 (ACHPR 1999).
34 HC/24/06 MF/087/F1.
35 Initial report of The Gambia to the UN
Committee on the rights of the child, 1992.
36 HC 427/11/MF/059/F1.
37 This is a waiting period in which a woman
must observe after the death of her spouse or
after a divorce during which she may not
marry another man.
84
The Gambia
for a stay of proceedings after a suit was
filed on her behalf in the High Court
seeking a declaration that she was enti-
tled to an equitable share of the matri-
monial property in accordance with the
Women’s Act 2010. This was granted.
This case clearly illustrates that the
Women’s Act 2010 can be instrumental
in ensuring that women enjoy their
rights in cases of separation, divorce or
annulment of marriage. However, it is
important to note that there is no official
data to indicate how often the provi-
sions of the Women’s Act 2010, the
Sexual Offences Act, 2013 and the
Domestic Violence Act, 2013 have been
invoked before the courts.
8 Awareness and use by civil
society organisations
The African Charter and the Maputo
Protocol are well known amongst
human rights NGOs that operate in The
Gambia. The two most prominent are
the African Centre for Democracy and
Human Rights Studies (ACDHRS) and
the Institute for Human Rights and
Development in Africa (IHRDA),
which both have observer status with
the African Commission. The work of
these two organisations is based princi-
pally on the instruments under study.
There are numerous women's associa-
tions and organisations such as the
Gambian Committee on Traditional
Practices (GAMCOTRAP), the Foun-
dation for Research on Women’s
Health, Productivity and the Environ-
ment (BAFROW), the Female Lawyers
Association Gambia (FLAG), the Asso-
ciation for Promotion of Girl’s and
Women’s Advancement in The
Gambia, the Forum for African Women
Educationalist (The Gambia) FAWE-
GAM, the Gender Action Team and a
host of others, which all base their work
on the Women’s Act and by extension,
the Maputo Protocol. The Think Young
Women, a young-women-led organisa-
tion, has for example, organised a Joint
Stakeholders Workshop on Sharing Best
Practices in the implementation of the
Women's Act for security officials, the
judiciary, ministries and university
students.
In separate activities and sometimes
collaboratively, TANGO,38 WANEP
and ACDHRS have all led initiatives
over the past few years to promote
women’s active participation and
increased representation in decision
making structures, using the Women’s
Act as well as the Maputo Protocol.
These organisations supported women’s
candidature in parliamentary and local
council elections, as well as, advocated
for gender quota in politics. In 2013,
TANGO convened a consultative meet-
ing between women leaders from the
major parties in the country to sensitise
them and garner their support for
gender quotas in representative institu-
tions such as the parliament and local
councils as well as within political
parties. Earlier ACDHRS had conduct-
ed a review of manifestos of political
parties to assess their gender sensitive-
ness.
The domestication of CEDAW and
the Maputo Protocol in the Women’s
Act of 2010 was largely as a result of
lobbying and advocacy undertaken by
these organisations, notably the
ACDHRS. On its part, the Legal Aid
Act of 2008 was the result of sustained
efforts of the Institute for Human Rights
and Development in Africa.
38 The Association of Non-Governmental
Organisations in The Gambia (TANGO).
Impact of the African Charter and the Maputo Protocol in selected African states
85
Furthermore only The Association
of Non-Governmental Organisations in
The Gambia (TANGO) and The
Gambia Press Union (GPU) have
observer status before the African
Commission but have not yet submitted
any shadow reports to the Commission.
The NGOs have not used any resolu-
tions or general comments adopted by
the African Commission in their work
in The Gambia.
However, CSOs are gradually
becoming more proactive in submitting
shadow reports. For instance, the Child
Protection Alliance (CPA) submitted
shadow reports for the UPR and the
CRC Committee on the situation of
Children’s rights in The Gambia respec-
tively. During the recent CEDAW
Committee review of The Gambia’s
periodic report, TANGO with a group
of women rights organisations, submit-
ted a joint shadow report on the list of
issues and questions in relation to the
combined fourth and fifth periodic
reports of The Gambia in July 2015. In
addition, the Committee on Traditional
Practices Affecting the Health of
Women and Children (GAMCOTRAP)
submitted an additional shadow report
in the area of sexual and reproductive
health of women and girls focusing on
FGM.
Except for FLAG, no other non-
governmental organisations (NGO's)
are as heavily concerned with litigating
women’s rights cases. Most Gambian
activists do not use the local courts and
will not seek or use international
avenues for redress. Most NGOs lack
the adequate knowledge of international
human rights law. Many are not aware
of these procedures and how to file
complaints, or think it is not worth the
trouble if recommendations cannot be
enforced. Additionally and more impor-
tantly, they are also afraid of reprisals.39
9 Awareness and use by lawyers
Although The Gambia hosts the secre-
tariat of the African Commission and
other international organisations, a
major barrier in litigating women’s
rights in The Gambia is the lack of
knowledge of international human
rights law by both judges and lawyers.
This means that most lawyers are
unable to cite international human
rights law while judges and magistrates
are unable to draw conclusions through
the application of relevant international
human rights law.
This has also led to an absence of
judicial activism within the legal
community. Generally, lawyers are
unable or unwilling to bring cases to
address on-going women's rights viola-
tions in The Gambia. Strategic and
impact litigation around women's rights,
if improved, could promote consistent
advocacy for women’s rights and may
encourage the government to comply
with national and international stand-
ards, calling for the protection of these
rights.
10 Incorporation in law school
education
Even though the Faculty of Law of the
University of The Gambia (UTG) was
only established in 2007, it has incorpo-
rated human rights law in the curricu-
lum. International human rights law is
taught with a focus on the African
human rights system. These students
39 Interview with Njundu Drammeh, National
Coordinator, Child Protection Alliance
(CPA), Madi Jobarteh, Programme Man-
ager, TANGO and Haddy Dandeh Jabbie,
Vice President, FLAG, 21 August 2015.
86
The Gambia
have gone on to become lawyers and
magistrates. There is great hope that
they will usher in a new dispensation in
terms of utilising international human
rights law. Currently, members of staff
with expertise in this area, and with
human rights degrees, lecture these
courses.
The Faculty has also, with the
support of the Centre for Human Rights
at the University of Pretoria, participat-
ed in the annual African human rights
moot court competition. Preliminary
rounds are organised in the university
with judges from the African Commis-
sion, raising awareness about the
system. Three of the participants of
these moot competitions have been
awarded scholarships to pursue the
LLM in Human Rights and Democrati-
sation in Africa (HRDA) at the Centre
in the University of Pretoria and have
come back to lecture at the Faculty.40
In 2011, upon the return of two
participants from the 21st African
Human Rights Moot Court competi-
tion, they set up The Faculty of Law
Student’s Human Rights Committee
that sought to promote human rights
and build the knowledge of future
human rights lawyers by fostering closer
relationships between the Faculty and
international, regional and national
institutions working in the area of
human rights. The Human Rights
Committee concept entails a Student
Human Rights Volunteer Corps
(SHRVC) that targets, recruits and
trains law students interested in human
rights. The volunteers are linked with
human rights institutions to develop
their skills and knowledge and encour-
age them to become human rights
defenders.41
The Committee was officially
launched in October 2011 by the Direc-
tor of the Centre for Human Rights,
University of Pretoria, Professor Frans
Viljoen who presented a lecture on the
‘African Charter at 30’ which was
graced by the then Vice Chancellor,
Dean, lecturers and students of the
faculty. The Committee was able to
provide a pool of interns and volunteers
for ACHDRS’ NGO forums. This
consequently led to internships at the
secretariat and IHRDA. In partnership
with IHRDA, they were able to organise
a symposium on the IHRDA case
analyser to help students become aware
of its existence and how best to utilise it.
11 National human rights
institutions
There is no national human rights insti-
tution in The Gambia. The Ombuds-
man does not have a human rights
promotion or protection mandate as
such and is established as a general
public complaints body against injustice
arising out of administrative misman-
agement, mal-administration or discrim-
ination.42 There is also the National
Council on Civic Education which has
no explicit human rights mandate but
does promote values contained in the
African Charter and the Maputo Proto-
col. These institutions have no liaison
with the African Commission.
In July 2015, the CEDAW Commit-
tee in its concluding observations on the
40 These students included Satang Nabaneh,
class of 2012 who represented UTG at the
2011 Moot and Musubakoto Sawo, class of
2013 who was at the 2012 Moot. Henrietta
M. Ekefre also a participant of the 2012
Moot graduated from the LLM (HRDA)
programme in 2015.
41 The former chair and co-founder of the
Student Human Rights Council is the author
of this report.
42 See art 163 of the Constitution.
Impact of the African Charter and the Maputo Protocol in selected African states
87
combined fourth and fifth periodic
reports of The Gambia, urged the state:
to establish, within a clear time frame, an
independent national human rights
institution, in accordance with the Paris
Principles, with a mandate on women’s
issues, strong linkages with the women’s
machinery and authority to consider and
issue opinions on complaints submitted by
women alleging violations of their rights.43
12 Academic writing
Academic writing on the African Char-
ter and the Maputo Protocol is very
sparse. However, Hassan B Jallow, a
Gambian academic and prosecutor of
the International Criminal Tribunal for
Rwanda, has published a book that
reviews the African Charter generally
and the jurisprudence of the African
Commission.44
This researcher during her study for
the Centre for Human Rights LLM
programme in 2012, was a member of
the Women’s Human Rights Clinical
Group which drafted and submitted the
pioneer work of a General Comment on
Article 14(2)(d) and (e) of the Maputo
Protocol on HIV to the African
Commission which was adopted as the
first ever general comment by the
Commission. She, with her former
colleagues in the group, authored ‘The
African Women’s Rights Protocol and
HIV: Delineating the African Commis-
sion’s General Comment on article
14(1)(d) and (e) of the Protocol’.45 She
also has a chapter, ‘Challenges in litigat-
ing the right to health in Mozambique:
A critical analysis’ in E Durojaye Liti-
gating the right to health in Africa: Challeng-
es and prospects (2015).
13 State reporting
The Gambia’s record of fulfilling its
state obligation of submitting reports is
extremely poor. The Ministry of Justice
is responsible for reporting to treaty
bodies. The country submitted its initial,
second and third reports to the
CEDAW Committee in 2005. It submit-
ted its fourth and fifth combined period-
ic reports on CEDAW in 2010.
The Gambia submitted its initial
report on the African Charter in 1992.
The first periodic report was submitted
in 1994 and no more have been submit-
ted since.46 Since its ratification of the
Maputo Protocol, The Gambia has
never submitted an initial report or any
periodic report.
It is important to note that the
government of The Gambia gives great-
er priority to reporting under the UN
than the African human rights system.
There is clear manifestation of this. For
instance, the country submitted its
combined initial, second and third peri-
odic reports to the CEDAW Committee
in 2003 which was examined in 2005
while the combined fourth and fifth
periodic report which was due in 2010
was submitted in 2012 and considered
in 2013. The government submitted its
initial report to the CRC committee in
1999. In 2011, it submitted its second
and third periodic report which issued
concluding observations on 4 January
2015.
43 CEDAW Committee ‘Concluding observa-
tions on the combined fourth and fifth peri-
odic reports of The Gambia’ (July 2015)
CEDAW/C/GMB/4-5 para 15.
44 See HB Jallow The law of the African (Banjul)
Charter on Human and People's Rights (2007).
45 (2014) 14 African Human Rights Law Journal
681 http://www.ahrlj.up.ac.za/images/ahrlj
/2014/ahrlj_vol14_no2_2014_chapter17.pdf
(accessed 24 August 2015).
46 www.achpr.org/states/gambia (accessed
24 August 2015).
88
The Gambia
In October 2014, the Human Rights
Council (HRC) reviewed The Gambia’s
2014 Universal Periodic Report (UPR)
in which it issued 171 recommenda-
tions. In March 2015, the government
submitted its written response to 78 of
the 171 recommendations including on
the maintenance of the moratorium on
executions and the abolition of the
death penalty, and on cooperation with
special procedures. The Gambia also
rejected recommendations concerning
the ratification of the Convention
against Torture and Other Cruel, Inhu-
man or Degrading Treatment or Punish-
ment, the non-criminalisation of sexual
orientation or gender identity, and the
removal of restrictions on freedom of
expression.
14 Communications involving this
state
A total of ten communications have
been submitted to the African Commis-
sion against The Gambia. Of these,
seven were dismissed for non-exhaus-
tion of local remedies, one was settled
amicably and two were decided on the
merits. In Sir Dawda Jawara v The
Gambia,47 the African Commission had
found The Gambia in violation of arti-
cles 1, 2, 6, 7(1)(d) and (2), 9(1) and (2),
10(1), 11, 12(1) and (2), 13(1), 20(1) and
26 of the African Charter and recom-
mended that The Gambia should bring
its laws in conformity with the provi-
sions of the Charter.
In Purohit and Another v The
Gambia,48 The Gambia was found to be
in violation of various articles of the
African Charter. The African Commis-
sion recommended that: The Gambia
should repeal the Lunatics Detention
Act and replace it with a new legislative
regime for mental health in The
Gambia, compatible with the African
Charter and international standards and
norms for the protection of mentally ill
or disabled person as soon as possible;
create a body to review the cases of all
persons detained under the Lunatics
Detention Act and make appropriate
recommendations for their treatment or
release pending the first recommenda-
tion. It was also recommended that the
state provide adequate medical and
material care for persons suffering from
mental health problems in the territory
of The Gambia. As a way to follow-up
on progress in implementing the deci-
sion, it was recommended that The
Gambia report back to the African
Commission when it submits its next
periodic report on the measures taken to
comply with the recommendations of
the African Commission.
These cases have not been given any
exposure by the government and are
only known within NGO circles. Begin-
ning with the last recommendation, The
Gambia has not submitted any report to
the African Commission since 1994.
The government in collaboration with
the World Health Organization is
currently drafting a Mental Health Bill.
The African Commission has not been
associated with this process and the Bill
is not in the least informed by the deci-
sion in the Purohit case.49 There have
been many legislative reforms since
these two cases were decided but there
is no evidence that the decision to
reform the laws was a result of the
recommendations of the African
Commission.
47 (2000) AHRLR 107 (ACHPR 2000).
48 (2003) AHRLR 96 (ACHPR 2003).
49 Interview with Dr Senghore who is also a
member of the Law Reform Commission of
The Gambia. This was also confirmed by
Gaye Sow.
Impact of the African Charter and the Maputo Protocol in selected African states
89
At the sub-regional level, there have
been several decided cases before the
ECOWAS Community Court of Justice
dealing with violations of provisions of
the African Charter against The
Gambia. However, it is important to
note the non-adherence to judgments of
the Court by The Gambian govern-
ment.50
In 2008, the ECOWAS Court of
Justice in the case of Chief Manneh v The
Gambia,51 ordered the government of
The Gambia to release ‘Chief’ Ebrima
Manneh, a journalist who has been
missing since July 2006, and pay his
family damages of US$100,000. Since
2006, the reasons for his arrest have not
been disclosed by the government of
The Gambia and efforts by his family,
friends and lawyers to know his wherea-
bouts or have access to him have proved
futile. The plaintiff has not been seen
since then.
A declaration was sought that his
arrest on 11 July 2006 and his continual
detention since then without trial, is
unlawful and a violation of his right as
guaranteed by articles 4, 5, 6 and 7 of
the African Charter. In the absence of
The Gambian’s government failure to
establish that the arrest and detention of
the plaintiff was in accordance with the
provisions of any previously laid down
law, the Court held that such an action
was clearly contrary to the provisions of
articles 2 and 6 of the African Charter
and that the plaintiff was entitled to the
restoration of his personal liberty and
the security of his person.52 July 2015
marks nine years since the arrest of
Chief Manneh whose whereabouts
remain unknown and the government
has not released him or pay the mandat-
ed compensation ordered by the Court
seven years ago.
In the case of Musa Saidykhan v The
Gambia,53 the plaintiff filed an applica-
tion against The Gambia at the ECOW-
AS Community Court of Justice in 2007
in which he complained of a violation of
his human right to personal liberty,
dignity of his person and fair hearing
guaranteed by articles 1, 5, 6 and 7of
the African Charter. According to the
plaintiff, the Editor of The Independent
newspaper based in The Gambia, they
published the names of alleged coup
plotters on 21March 2006. Six days
later, he was arrested at night by a
combined team of armed soldiers and
policemen, without a warrant of arrest.
They took him to a detention centre in
the headquarters of the National Intelli-
gence Agency (NIA) in Banjul. For the
next 22 days, the plaintiff claimed he
was held totally incommunicado.
In December 2010, having regard to
article 4(g) of the ECOWAS Revised
Treaty, which enables the court to apply
the African Charter, and having regard
to articles 5, 6, and 7 of the African
Charter; and having regard to the find-
ings of fact, the court decided that the
plaintiff had established his case that he
was arrested, detained and tortured by
the defendant’s agents for 22 days, with-
out any lawful excuse and without
trial.54 The Court awarded the plaintiff
damages in the sum of US$200 000.
There is no evidence to show that the
government of The Gambia has adhered
to the judgment of the court.
50 See HS Adjolohoun ‘Giving effect to the
human rights jurisprudence of the Court of
Justice of the Economic Community of West
African states: Compliance and influence’
unpublished LLD Thesis, University of
Pretoria, 2013.
51 (2008) AHRLR 171 (ECOWAS 2008).
52 Chief Manneh (n 51 above) paras 27 & 28.
53 ECW/CCJ/JUD/08/10.
54 Musa Saidykhan (n 53 above) paras 46 and
47.
90
The Gambia
In the case of Etim Moses Essien v The
Gambia,55 the ECOWAS court did not
find any violation with regard to the
plaintiff’s rights as enshrined in article 5
on inherent human dignity and article
15 on the right to work under equitable
and satisfactory conditions with equal
pay for equal work of the African Char-
ter respectively.
Recently, on 10 June 2014, in the
case of Deyda Hydara Jr & Others v The
Gambia,56 the ECOWAS Court deliv-
ered judgment finding that the govern-
ment had failed to conduct a proper
investigation into the death of Deyda
Hydara, the co-founder, publisher and
editor of the Point Newspaper who was
killed on 16 December 2004 in The
Gambia. The Court held that The
Gambia had allowed a culture of impu-
nity in The Gambia. The Court further
held that Deyda’s death violated the
right to life as guaranteed by articles 1
and 4 of the Charter, as well as the right
to freedom and the press as provided
under article 9 of the Charter and article
66 of the Revised Community Treaty.
The Court awarded damages of US
$50,000 for the failure to properly inves-
tigate the assassination, as requested by
the claimant.
There is no evidence to show that
the government of The Gambia has
adhered to the rulings of the court
which are binding on them as a state
party. This was reiterated by Christof
Heyns, who stated that the government
has failed to implement the three deci-
sions of the ECOWAS Court.57
15 Special mechanisms and
promotional visits by the
African Commission
There have been limited promotional or
fact finding missions to The Gambia by
special procedures mandate holders
both at the regional and international
levels due to the non-cooperation of the
government of The Gambia.
In terms of special mechanisms,
Commissioner Dankwa, in his capacity
as Special Rapporteur on Prisons and
Conditions of Detention in Africa,
undertook a special mechanism visit in
the country from 21-26 June 1999.58
There has been one promotional
mission of the African Commission to
The Gambia undertaken by Commis-
sioner Jainaba Johm from 22 December
2001-5 January 2002. The report of this
mission was not adopted by the African
Commission.
It is important to note that NGOs
have sent a letter to the African
Commission requesting for a fact find-
ing mission to The Gambia. This was
discussed during its 17thExtra-Ordinary
Session in February 2015 in The
Gambia.59 In the same session, through
the Resolution on the Human Rights
Situation in the Republic of The
Gambia, the Commission called on the
government to invite the African
Commission to undertake a fact-finding
mission to The Gambia.60 There are no
indications yet whether the government
55 ECW/CCJ/JUD/05/07.
56 ECW/CCJ/PP/30/11. Judgment available
at https://www.opensocietyfoundations.org
/sites/default/files/Hydara%20Judgment.
pdf (accessed 30 September 2015).
57 Report of the Special Rapporteur (n 23
above) para 15.
58 The report is available at: http://www.
achpr.org/states/gambia/missions/prisons-
1999/ (accessed 24 August 2015).
59 ACHPR ‘Final Communiqué of the 17th
Extra-Ordinary Session of the African
Commission on Human and Peoples’ Rights’
http://www.achpr.org/news/2015/03d167/
(accessed 24 August 2015).
60 ACHPR/Res.299 (EXT.OS/XVII) 20 http:/
/www.achpr.org/sessions/17th-eo/resolutio
ns/299/ (accessed 24 August 2015).
Impact of the African Charter and the Maputo Protocol in selected African states
91
of The Gambia will extend an invita-
tion.
At the UN level, in November 2014,
the UN Special Rapporteur on Torture
and the Special Rapporteur on Extra-
Judicial Executions respectively, visited
The Gambia. This was the first visit ever
to the country by any of the special
procedures of the Human Rights Coun-
cil. However, it was greatly compro-
mised by the unwillingness of the
government to grant the Special
Rapporteurs freedom of movement and
inquiry in all areas of detention facili-
ties. During their mission they were
refused access to the Security Wing of
Mile 2 Central Prison in the capital
Banjul, where death row prisoners are
held.61
16 Factors that may impede or
enhance the impact of the
African Charter, the Maputo
Protocol and the African
Commission
As evident in the foregoing information,
it is clear that the African Charter, the
Maputo Protocol and the African
Commission which is actually located in
Banjul have very minimal impact in The
Gambia.
In the first place, The Gambian
government has consistently demon-
strated its willingness to disregard
fundamental rights and freedoms of its
citizens, particularly the rights of girls
and women. There is limited political
will and leadership to directly ensure
that the rights of women are respected
and protected. By law and practice,
government has placed numerous
restrictions in the exercise of human
rights, while necessary budgetary alloca-
tions to sectors that fulfil the needs of
women remain low. Laws and policies
need financial resources to meet their
obligations and fulfil rights. The nation-
al budget is essentially the political
embodiment of government’s goals. The
inadequate budgetary allocation to the
Women’s Ministry and its satellite insti-
tutions especially the Women’s Bureau,
as well as the social sectors, impede the
implementation of programmes geared
towards the realisation of the rights of
women in The Gambia.
The Ministry of Women’s Affairs,
the National Women’s Council and
Women’s Bureau are the lead advocates
on women’s rights. However, they face
a plethora of administrative and institu-
tional challenges, including inadequate
gender expertise to ensure the full imple-
mentation of laws and policies on
gender. Although the Ministry and the
Women’s Bureau have put in place vari-
ous monitoring mechanisms such as
Focal Points, these are not always effec-
tive. There are additional problems of
relying on counterparts and implement-
ing partners in collecting and monitor-
ing data as well as the need to ensure
the accuracy of information collected.
There is, generally, inadequate judi-
cial activism and reliance on interna-
tional human rights instruments. Mere
existence of laws and policies cannot
guarantee respect, promotion and fulfil-
ment of women’s rights. This raises the
issue of the level of consciousness-rais-
ing that the gender machinery is
engaged in with all the laws and policies
in place. This requires the awareness
and understanding of the laws and poli-
cies and the capacity to do their part in
implementation. For example, lawyers,
61 UN Human Rights Council ‘Report of the
Special Rapporteur on torture and other
cruel, inhuman or degrading treatment or
punishment: Mission to The Gambia’ A/
HRC/28/68/Add.4 (16 March 2015) para 4.
92
The Gambia
judges, teachers, social workers, law
enforcers amongst others should be
continuously trained on women’s rights
and specific legislation. Women, men,
children and youth must also be aware
of these laws and policies to make sure
they are respected and adhered to and
so that duty bearers are held accounta-
ble.
Not only has The Gambia failed to
criminalise several socio-cultural prac-
tices that harm the rights and dignity of
women and girls, such as early and
forced marriage, and wife inheritance,
but has also failed to take deliberate
measures to increase women’s voices
and representation in decision making
processes and to put in place affirmative
action measures in many sectors. This
indicates the disinterest of the state in
women’s issues. Despite the fact that
there is a woman Vice President,
women’s political representation is
extremely low amidst an overall inabili-
ty to influence policy and decision
making processes. There are too few
women in elective positions at both the
National Assembly and local govern-
ment levels and the district tribunals
largely comprise of men.62
Regardless of the fact that the coun-
try hosts the African Commission, with
most of its extraordinary sessions taking
place in Banjul, The Gambia remains
insulated against the decisions and voic-
es that emerge in these processes.
Against the backdrop of repressive laws
and arbitrary arrest, a climate of fear
hovers over the heads of The Gambian
civil society and media practitioners
thus limiting their ability to utilise the
structures and processes of the African
Commission to put pressure on the
state. In fact, over the past few years,
many within the wider African and
global civil society movement have
called for the African Commission to be
relocated elsewhere from The Gambia
in response to its consistent abuse of
rights.63
It should be acknowledged that The
Gambia has made some progress that
should be consolidated as evidenced by
the enhancement of several legal and
policy frameworks. A gender audit of all
laws and policies has been conducted.
This was in line with section 14 of the
Women’s Act 2010 which obliged the
government, in line with its internation-
al obligations under CEDAW and the
Maputo Protocol, to undertake such an
audit. With the support of the UNDP,
the Ministry of Women’s Affairs
commissioned a gender audit of existing
laws and policies. The purpose of the
review was to identify the gaps in
national documents and make concrete
recommendations to address gender
inequalities and inequities. The audit
made recommendations for review and
harmonisation of laws in line with inter-
national obligations.64
There has also been a proliferation
of CSOs, NGOs, and professional
groups operating in the area of women’s
human rights and women’s empower-
ment – a growing women’s movement.
Women’s involvement in the promotion
and protection of women’s human
rights has been on the increase. There
have also been marked increases in
efforts to raise the voices of women and
to promote women’s leadership and
62 Nabaneh (n 28 above) 48-57.
63 See blog post by F Viljoen ‘A call to shift the
seat: The Gambia is not a suitable seat for
the African Commission on Human and
Peoples’Rights’ (27 May 2013) http://
africlaw.com/2013/05/27/a-call-to-shift-the-
seat-the-gambia-is-not-a-suitable-seat-for-the-
african-commission-on-human-and-peoples-
rights/ (accessed 30 August 2015).
64 Nabaneh (n 32 above).
Impact of the African Charter and the Maputo Protocol in selected African states
93
involvement in decision making, partici-
pation and representation.
... The implication under international law is that the Gambian government is obligated to comply with the provisions of these internments. 15 In addition, to the binding instruments, there are consensus statements and declarations relevant to this discussion. For instance, the international community during the 1995 Beijing Declaration and Platform for Action, affirmed that if women and girls were to be free from violence and coercion, cultural and patriarchal practices will need to be addressed. ...
... The Gambia's notoriety for non-reporting to human rights treaty bodies, especially at the African level, is well known. 21 At the African regional level The Gambia submitted its initial report (1986)(1987)(1988)(1989)(1990)(1991)(1992) on the African Charter on Human and Peoples' Rights (African Charter) in 1992. 22 In accordance with article 62 of the African Charter, state parties are required to submit periodic report every two years. ...
Article
Full-text available
The Gambian legislative and policy framework were reviewed to determine the extent to which the rights of persons with disabilities are protected. The article is in Section B of the peer-reviewed African Disability Rights Yearbook.
Book
Full-text available
This book explores recent developments, constraints and opportunities relating to the advancement of sexual and reproductive health and rights in Africa. Despite many positive developments in relation to sexual and reproductive health in recent years, many Africans still encounter challenges, for instance in poor maternity services, living with HIV, and discrimination on the basis of age, gender, sexual orientation or identity. Covering topics such as abortion, gender identity, adolescent sexuality and homosexuality, the chapters in this book discuss the impact of culture, morality and social beliefs on the enjoyment of sexual and reproductive health and rights across the continent, particularly in relation to vulnerable and marginalized groups. The book also explores the role of litigation, national human rights institutions and regional human rights bodies in advancing the realization of sexual and reproductive health and rights in the region. Throughout, the contributions highlight the relevance of a rights-based framework in addressing topical and contentious issues on sexual and reproductive health and rights within Sub-Saharan Africa. This book will be of interest to researchers of sexuality, civil rights and health in Africa.
A call to shift the seat: The Gambia is not a suitable seat for the African Commission on Human and Peoples' Rights
  • F Viljoen
See blog post by F Viljoen 'A call to shift the seat: The Gambia is not a suitable seat for the African Commission on Human and Peoples' Rights' (27 May 2013) http:// africlaw.com/2013/05/27/a-call-to-shift-theseat-the-gambia-is-not-a-suitable-seat-for-theafrican-commission-on-human-and-peoplesrights/ (accessed 30 August 2015).