Constitution

The Gambia 2020 Draft Constitution

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Table of Contents

CHAPTER VI. FUNDAMENTAL HUMAN RIGHTS AND FREEDOMS

PART I. GENERAL PROVISIONS ON FUNDAMENTAL HUMAN RIGHTS AND FREEDOMS

31. Fundamental human rights and freedoms

  1. Fundamental human rights and freedoms (“fundamental rights and freedoms”) are an integral part of The Gambia’s democratic state and form the foundation for the development and promotion of social, economic and cultural policies.
  2. The objective of recognising and protecting fundamental rights and freedoms is to preserve the dignity of individuals and communities and to promote social justice and the realisation of the potential of all human beings.
  3. The fundamental rights and freedoms enshrined in this Constitution–
    1. belong to each individual and are not granted by the State;
    2. do not exclude other rights and freedoms not in this Chapter, but recognised or conferred by law, except to the extent that they are inconsistent with this Chapter; and
    3. are subject only to the limitations provided in this Constitution.
  4. The National Assembly shall not have or exercise any power to enact legislation to indemnify any person of any abuse of another person’s fundamental rights and freedoms enshrined in this Constitution.

32. Application of fundamental human rights and freedoms

  1. The fundamental rights and freedoms enshrined in this Chapter shall be respected and upheld by the Executive and its agencies, the Legislature and, where applicable to them, by all natural and legal persons in The Gambia, and shall be enforceable by the courts in accordance with this Constitution.
  2. Every person in The Gambia, whatever his or her race, ethnicity, colour, creed, gender, language, religion, disability, political or other opinion, national or social origin, property, birth or other status, shall be entitled to the fundamental rights and freedoms of the individual contained in this Chapter to the greatest extent consistent with the nature of the fundamental right or freedom, but subject to respect for the rights and freedoms of others and for the public interest.
  3. In interpreting this Chapter, a court, tribunal or other authority shall–
    1. develop the law to the extent that it gives effect to a fundamental right or freedom;
    2. adopt the interpretation that most favours the fulfilment of a fundamental right or freedom;
    3. promote the values that underlie an open and democratic society based on human dignity, equality, equity and freedom; and
    4. promote the spirit, purport and objects of this Chapter.
  4. In applying any rights under sections 57 (2) (b), (c) and (d), 62 and 66, if the State claims that it does not have the resources to implement the rights, a court, tribunal or other authority shall be guided by the following principles–
    1. it is the responsibility of the State to show that the resources are not available and when they shall be available;
    2. in allocating resources, the State shall give priority to ensuring the widest possible enjoyment of the fundamental right or freedom having regard to prevailing circumstances, including the vulnerability of particular groups, individuals, or communities; and
    3. the court, tribunal or other authority may not interfere with a decision by a State organ concerning the allocation of available resources, solely on the basis that the court would have reached a different conclusion.

33. Implementation of fundamental human rights and freedoms

  1. The State and its organs shall observe, respect, protect, promote and fulfil the fundamental rights and freedoms enshrined in this Chapter.
  2. The State shall take legislative, policy and other measures, including the setting of standards, to achieve the progressive realisation of the rights guaranteed under sections 62 and 66.
  3. All State organs and all public officers have the duty to address the needs of vulnerable groups within society, including women, older members of society, persons with disabilities, children and youths.

34. Enforcement of fundamental human rights and freedoms

  1. Every person has the right to institute court proceedings claiming that a fundamental right or freedom in this Chapter has been denied, violated or infringed, or is threatened with contravention.
  2. In addition to a person acting in their own interest, court proceedings under subsection (1) may be instituted by–
    1. a person acting on behalf of another person who cannot act in their own name;
    2. a person acting as a member of, or in the interest of, a group or class of persons;
    3. a person acting in the public interest; or
    4. an association acting in the interest of one or more of its members.
  3. The Chief Justice shall make rules providing for the court proceedings referred to in this section, which shall satisfy the criteria that–
    1. the rights of standing provided for in subsection (2) are facilitated;
    2. formalities relating to the proceedings, including commencement of the proceedings, are kept to the minimum, and in particular that the court shall, if necessary, entertain proceedings on the basis of informal documentation;
    3. no fee may be charged for commencing the proceedings;
    4. the court, while observing the rules of natural justice, shall not be unreasonably restricted by procedural technicalities; and
    5. an organisation or individual with particular expertise may, with the leave of the court, appear as a friend of the court.
  4. The absence of rules to be prescribed in subsection (3) does not limit the right of any person to commence court proceedings under this section, and to have the matter heard and determined by a court.

35. Authority of courts to uphold and enforce this Chapter

  1. The High Court has jurisdiction, in accordance with section 185, to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a fundamental right or freedom in this Chapter.
  2. In any proceedings brought under section 34, a court may grant appropriate relief, including–
    1. a declaration of rights;
    2. an injunction;
    3. a conservatory order;
    4. a declaration of invalidity of any law that denies, violates, infringes, or threatens a right or fundamental freedom in this Chapter and is not justified under section 36;
    5. an order for compensation; and
    6. an order of judicial review.

36. Limitation of fundamental human rights and freedoms

  1. A fundamental right or freedom in this Chapter shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including–
    1. the nature of the fundamental right or freedom;
    2. the importance of the purpose of the limitation;
    3. the nature and extent of the limitation;
    4. the need to ensure that the enjoyment of fundamental rights and freedoms by any individual does not prejudice the fundamental rights and freedoms of others; and
    5. the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.
  2. Notwithstanding subsection (1), a provision in an Act of the National Assembly limiting a fundamental right or freedom–
    1. in the case of a provision enacted or amended on or after the coming into force of this Constitution, is not valid unless the legislation specifically expresses the intention to limit that fundamental right or freedom, and the nature and extent of the limitation;
    2. shall not be construed as limiting the fundamental right or freedom unless the provision is clear and specific about the right or freedom to be limited and the nature and extent of the limitation; and
    3. shall not limit the fundamental right or freedom so far as to derogate from its core or essential content.
  3. The State or a person seeking to justify a particular limitation shall demonstrate to the court, tribunal or other authority that the requirements of this section have been satisfied.
  4. Notwithstanding subsections (1) and (2), a provision in an Act of the National Assembly may limit the application of the fundamental rights or freedoms in the following provisions to persons serving in the disciplined forces–
    1. section 39 – protection of liberty;
    2. section 43 – privacy;
    3. section 50 – freedom of assembly;
    4. section 51 – freedom of association; and
    5. section 60 – right to fair labour practices.

37. Fundamental human rights and freedoms that shall not be limited

Notwithstanding any other provision in this Constitution, the following fundamental rights and freedoms shall not be limited–

  1. section 40 (1) – protection from slavery, servitude and human trafficking;
  2. section 41 – right to human dignity and protection against torture and inhuman treatment; and
  3. section 71 (3) (e) – right to an order of habeas corpus.

PART II. SPECIFIC RIGHTS AND FREEDOMS

38. Right to life

  1. A person shall not be deprived of life intentionally.
  2. Without prejudice to any liability for a contravention of any other law with respect to the use of force in such cases as are mentioned in this subsection, a person shall not be regarded as having been deprived of his or her life in contravention of this section if he or she dies as a result of the use of force to such extent as is reasonably justifiable in the circumstances of the case, that is to say–
    1. in compliance with an Act of the National Assembly;
    2. for the defence of any person from unlawful violence or for the defence of property;
    3. in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
    4. for the purpose of suppressing a riot, an insurrection or a mutiny;
    5. in order to prevent the commission by that person of a criminal offence; or
    6. if he or she dies as a result of a lawful act of war.

39. Protection of liberty

  1. Every person has the right to liberty and security of the person.
  2. No person shall be subjected to arbitrary arrest or detention.
  3. No person shall be deprived of his or her liberty except on such grounds and in accordance with such procedures as are established by law.
  4. An arrested person has the right–
    1. to be informed promptly, in a language that the person understands, of–
      1. the reason for the arrest;
      2. the right to remain silent; and
      3. the consequences of not remaining silent;
    2. to remain silent;
    3. to communicate with a legal practitioner of his or her own choice, and to consult his or her legal practitioner confidentially;
    4. not be compelled to make any confession or admission that could be used in evidence against the person;
    5. to be held separately from persons who are serving a sentence;
    6. to be brought before a court as soon as reasonably practicable, save as otherwise provided in an Act of the National Assembly, not later than–
      1. forty-eight hours after being arrested; or
      2. if the forty-eight hours ends outside ordinary court hours, or on a day that is not an ordinary court day, the end of the next court day;
    7. at the first court appearance, to be charged or informed of the reason for the detention continuing, or to be released; and
    8. to be released unconditionally or on reasonable conditions, pending a charge or trial, unless there are compelling reasons to not be released.
  5. Any person who is unlawfully arrested or detained by any other person shall be entitled to compensation from that other person or from any other person or authority on whose behalf that other person was acting.

40. Protection from slavery, servitude, human trafficking and forced labour

  1. No person shall be held in slavery or servitude or be subjected to human trafficking.
  2. No person shall be required to perform forced labour.
  3. For the purposes of this section, the expression “forced labour” does not include–
    1. any labour required in consequence of a sentence or order of a court;
    2. any labour required of a member of The Gambia Armed Forces in pursuance of his or her duties as such or, in the case of a person who has conscientious objections to service as a member of any naval, military or air force, any labour which that person is required by law to perform in place of such service;
    3. any labour required during a period of public emergency or in the event of any other emergency or calamity which threatens the life or well-being of the community, to the extent that the requiring of such labour is reasonably justifiable in the circumstances of any situation arising or existing during that period or as a result of that other emergency or calamity, for the purposes of dealing with that situation; and
    4. any labour reasonably required as part of reasonable and normal communal or other civic obligations.

41. Right to human dignity and protection against torture and inhuman treatment

  1. Every person has inherent dignity and the right to have that dignity respected and protected.
  2. Every person has the right to freedom and security of the person, which includes the right not to be–
    1. subjected to any form of violence from either public or private sources;
    2. subjected to torture in any manner, whether physical or psychological;
    3. subjected to corporal punishment; or
    4. treated or punished in a cruel, inhuman or degrading manner.

42. Protection of right to property

  1. Subject to the provisions of this Constitution, a person has the right to acquire and own property.
  2. No property of any description or interest in or right over any property shall be compulsorily taken possession of or acquired by the State, unless the following conditions are satisfied–
    1. the taking of possession or acquisition is necessary in the interest of defence, public safety, public order, public morality, public health, town and country planning, or the development or utilisation of any property in such manner as to promote the public benefit; and
    2. the necessity for the possession or acquisition is clearly stated and is such as to provide reasonable justification for causing any hardship that may result to any person who has an interest in or right over the property.
  3. Compulsory acquisition of property by the State shall only be made under a law which makes provision for–
    1. the prompt payment of fair and adequate compensation; and
    2. a right of access to the High Court by any person who has an interest in or right over the property, whether direct or on appeal from any other authority, for the determination of his or her interest or right and the amount of compensation to which he or she is entitled.
  4. Nothing in this section shall be construed as affecting the making of any law in so far as it provides for the taking or acquisition of property–
    1. in satisfaction of any tax, rate or due;
    2. by way of penalty for breach of law, whether under civil process or after conviction of a criminal offence;
    3. as an incident of a lease, tenancy, mortgage, charge, bill of sale, pledge or contract;
    4. by way of the vesting or administration of trust property, enemy property, bona vacantia or the property of persons adjudged or otherwise declared bankrupt or insolvent, or persons of unsound mind;
    5. in the execution of judgments or orders of courts;
    6. by reason of such property being in a dangerous state or liable to cause injury to the health of human beings, animals or plants;
    7. in consequence of any law with respect to the limitation of actions; or
    8. for so long as such taking of possession may be necessary for the purpose of any examination, investigation, trial or inquiry, or, in the cases of land, the carrying out on the land of–
      1. work of soil conservation or the conservation of other resources; or
      2. agricultural development or improvement which the owner or occupier of the land has been required and has without reasonable or lawful excuse refused or failed, to carry out, except so far as that provision or, as the case may be, the thing done under the authority thereof, is shown not to be reasonably justifiable in an open and democratic society.
  5. Nothing in this section shall be construed as affecting the making or operation of any law for the compulsory taking in the public interest of any property, or the compulsory acquisition in the public interest of any interest in or right over property, where that property or interest is held by a body corporate which is established directly by any law and in which no monies are provided by an Act of the National Assembly.
  6. Where a compulsory acquisition of land by or on behalf of the State in accordance with subsection (2) involves the displacement of any inhabitants, the State shall resettle the displaced inhabitants on suitable alternative land with due regard to their economic well-being and social and cultural values.
  7. Any property compulsorily taken possession of, and any interest in or right over property compulsorily acquired in the public interest, or for a public purpose, shall be used only in the public interest or for the public purpose for which it is taken or acquired.
  8. Where the property is not used in the public interest or for the public purpose for which it was taken or acquired, the owner of the property immediately before the compulsory taking or acquisition, shall be given the first option of acquiring the property–
    1. after refunding the whole or part of the compensation paid to him or her, as may be agreed between the parties; or
    2. in the absence of any agreement under paragraph (a), pay such amount, which shall not be more than the amount of the compensation, as may be determined by the High Court.
  9. The State shall support, promote and protect the intellectual property rights of the people of The Gambia.
  10. The rights under this section do not extend to any property that has been found to have been unlawfully acquired or settled on.

43. Right to privacy

  1. No person shall be subject to arbitrary or unlawful interference with the privacy of his or her person, home, family, correspondence or communications.
  2. The rights of a person under subsection (1) may be limited in accordance with law, and as necessary in an open and democratic society–
    1. in the interests of national security, public safety or the economic well-being of the country;
    2. for the protection of health or morals;
    3. for the prevention of disorder or crime; or
    4. for the protection of the rights and freedoms of others.
  3. Searches of the person or the home of an individual shall only be justified–
    1. where this is authorised by a competent judicial authority; and
    2. in a case where delay in obtaining such judicial authority carries with it the danger of prejudicing the objects of the search or the public interest and such procedures as are prescribed by an Act of the National Assembly to preclude abuse are properly satisfied.

44. Right to fair administrative action

  1. Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.
  2. If a fundamental right or freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.
  3. An Act of the National Assembly shall give effect to the rights mentioned in subsection (1) and shall include provision for–
    1. the review of administrative action by a court or, if appropriate, an independent and impartial tribunal; and
    2. the promotion of efficient administration.

45. Right to fair trial

  1. Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.
  2. Every accused person has the right to a fair trial, which includes the right–
    1. to be presumed innocent until the contrary is proven;
    2. to be informed of the charge, with sufficient detail to answer it;
    3. to have adequate time and facilities to prepare a defence;
    4. to a public trial before a court established under or pursuant to a provision of this Constitution;
    5. to have the trial begin and conclude without unreasonable delay;
    6. to be present when being tried, unless the conduct of the accused person makes it impossible for the trial to proceed;
    7. to choose, and be represented by, a legal practitioner of his or her own choice, and to be informed of this right promptly;
    8. to legal aid provided by the State if the accused person is a child, or the offence with which the accused person is charged carries a penalty of life imprisonment or higher;
    9. to remain silent, and not to testify during his or her trial;
    10. to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence;
    11. to adduce and challenge evidence;
    12. to refuse to give self-incriminating evidence;
    13. to have the assistance of an interpreter without payment if the accused person cannot understand the language used at the trial;
    14. not to be convicted for an act or omission that at the time it was committed or omitted was not an offence in The Gambia;
    15. not to be tried for an offence in respect of an act or omission for which the accused person has previously been either acquitted or convicted, or pardoned; and
    16. if convicted, to appeal to, or apply for review by, a higher court as prescribed by law.
  3. Nothing in subsection (2) (n) shall prejudice the trial and punishment of any person for an act or omission which, at the time it was committed, was criminal according to the general principles of customary international law.
  4. If this section requires information to be given to a person, the information shall be given in a language that the person understands.
  5. Evidence obtained in a manner that violates any fundamental right or freedom under this Chapter shall be excluded if the admission of that evidence would render the trial unfair, or would otherwise be detrimental to the administration of justice.
  6. An accused person–
    1. charged with an offence, is entitled during the trial to a copy of the record of the proceedings of the trial on request; and
    2. has the right to a copy of the record of the proceedings within a reasonable period after they are concluded.
  7. A person who is convicted of a criminal offence may petition the Supreme Court for a review of his or her case if–
    1. the person’s appeal had been dismissed by the Supreme Court; and
    2. new and important facts or evidence have become available, which at the time of dismissal of his or her case, was not within the petitioner’s knowledge or could not have been produced by him or her.
  8. Where the Supreme Court considers that a petition under subsection (7) has merit, it may make such order as it considers appropriate, including an order for retrial.
  9. In the interest of justice, a court may allow an intermediary to assist a complainant or an accused person to communicate with the court.
  10. This section does not prevent the exclusion of the press or other members of the public from any proceedings if the exclusion is necessary, in an open and democratic society, to protect witnesses or vulnerable persons, morality, public order or national security.
  11. An Act of the National Assembly shall provide for the protection, rights and welfare of victims of offences.

46. Freedom of expression

  1. Every person has the right to freedom of expression, which includes–
    1. freedom to seek, receive or impart information or ideas;
    2. freedom of artistic creativity; and
    3. academic freedom and freedom of scientific research.
  2. The right to freedom of expression does not extend to–
    1. propaganda for war;
    2. incitement to violence or to break law and order; or
    3. advocacy–
      1. for ethnic or religious hatred, hatred resulting in vilification of others or incitement to cause harm; or
      2. of hatred that is based on any ground of discrimination specified or contemplated in section 69 (6).
  3. In the exercise of the right to freedom of expression, every person shall respect the rights and reputation of other.

47. Freedom of the media

  1. There shall be a free and independent media.
  2. The freedom referred to in subsection (1) shall include–
    1. the right of natural or juristic persons to own and operate media;
    2. the freedom of the media to gather, process and transmit news and information without any interference, directly or indirectly;
    3. protection from control or censorship of news by any person or authority prior to publication; and
    4. protection from the disclosure of sources of information.
  3. The freedoms provided in subsection (2) do not extend to any expression specified in section 46 (2).
  4. All State-owned media shall–
    1. be free to determine independently the editorial content of their broadcasts or other communications;
    2. be impartial; and
    3. afford fair opportunity for the presentation of divergent views and dissenting opinions.
  5. The State shall not penalise any person for any opinion or view or the content of any broadcast, publication or dissemination.
  6. An Act of the National Assembly may establish an independent regulator with responsibility for–
    1. regulating the provision of broadcasting and communications services in the public interest;
    2. ensuring fairness and diversity of opinion;
    3. awarding licences in a fair and transparent manner;
    4. the equitable allocation of frequencies and regulation of related matters between private and public broadcasters; and
    5. setting media standards, and regulating and monitoring compliance with those standards.

48. Access to information

  1. Every citizen has a right of access to information held by–
    1. a public body;
    2. a relevant private body performing or having direct or indirect bearing in the execution of a public function; and
    3. another person and required for the exercise or protection of any fundamental right or freedom.
  2. Every person has the right to the correction or deletion of untrue or misleading information that affects the person.
  3. The State shall publish and publicise any important information affecting the nation.
  4. An Act of the National Assembly may make further provision to withhold information where the harm to the interest protected under a relevant provision demonstrably outweighs the public interest in the disclosure of the information.

49. Freedom of religion and conscience

  1. Every person has the right to freedom of conscience, religion, thought, belief and opinion.
  2. Every person has the right, either individually or in community with others, in public or in private, to manifest and practice any religion or belief without any interference by the State or any other person or authority.
  3. A person may not be denied access to any institution, employment or facility, or the enjoyment of any right, because of the person’s belief or religion.
  4. A person shall not be compelled to act, or engage in any act, that is contrary to the person’s belief or religion.

50. Freedom of assembly

Every person has the right, peaceably and unarmed, to assemble, to demonstrate, to picket, and to present petitions to public authorities or private institutions.

51. Freedom of association

  1. Every person has the right to freedom of association, which includes the right to form, join or participate in the activities of any lawful association.
  2. A person shall not be compelled to join any association.
  3. An Act of the National Assembly that requires registration of a lawful association shall provide that–
    1. registration may not be withheld or withdrawn unreasonably; and
    2. there shall be a right to have a fair hearing before a registration is cancelled.

52. Freedom of movement

  1. Every person lawfully within The Gambia has the right to move freely throughout The Gambia, to choose his or her own place of residence within The Gambia, and to leave The Gambia.
  2. Every citizen of The Gambia has the right to return to The Gambia.

53. Political rights

  1. Subject to section 269, every citizen is free to make political choices, which includes the right–
    1. to form, or participate in forming, a political party;
    2. to participate in the activities of, or recruit members for, a political party; or
    3. to campaign for a political party or cause.
  2. Every citizen of The Gambia of full age and capacity has the right, without unreasonable restrictions–
    1. to take part in the conduct of public affairs, directly or through freely chosen representatives;
    2. to, subject to section 269 (1), vote and stand for elections, at periodic elections for public office, including any office of a political party of which the citizen is a member, which elections shall be by universal and equal suffrage and be held by secret ballot; and
    3. to have access, on general terms of equality, to public service in The Gambia.

54. Right to marry and found a family

A man and a woman of full age and capacity have the right to marry and found a family, and such marriage shall be based on the free and full consent of the man and the woman.

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55. Rights of women

  1. Women are accorded full and equal dignity of the person with men.
  2. Women have the right to equal treatment with men, including equal opportunities in political, economic and social activities.
  3. The State shall take measures, including affirmative action programmes, to ensure that women–
    1. access relevant education and training;
    2. have opportunities to associate, be represented and participate, in political, social, economic and other spheres of life;
    3. are protected from abuse and all forms of violence and exploitation, including protection against hazardous or exploitative labour; and
    4. access employment.

56. Rights of children

  1. Every child has the right–
    1. to a name and nationality from birth;
    2. to adequate nutrition;
    3. to be protected from abuse, neglect, all forms of violence and exploitation, inhuman treatment and punishment, and hazardous or exploitative labour;
    4. to parental care and protection, which includes equal responsibility of the mother and father, to provide for the child;
    5. to special protection against exposure to any physical or moral hazard; and
    6. not to be detained, except as a measure of last resort, and then only for the shortest appropriate period.
  2. Every child is entitled to be protected from economic exploitation and shall not be employed in or required to perform work that is likely to be hazardous or to interfere with his or her education or be harmful to his or her health or physical, mental, spiritual, moral or social development.
  3. A child offender who is kept in lawful custody shall be kept separately from adult offenders.

57. Right to education

  1. Every person has a right to education.
  2. All persons have the right to equal educational opportunities and facilities, and with a view to achieving the full realisation of that right–
    1. basic and secondary education shall be free, compulsory and available to all;
    2. technical and vocational education shall be made generally available and accessible to all by every appropriate means and, in particular, by the progressive introduction of free technical and vocational education;
    3. tertiary and higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means and, in particular, by the progressive introduction of free tertiary and higher education;
    4. functional literacy shall be encouraged and intensified as far as possible; and
    5. the development of a system of schools with adequate facilities at all levels shall be actively pursued.

58. Rights of persons with disabilities

  1. A person with any disability is entitled to–
    1. be treated with dignity and respect and to be addressed and referred to in a manner that is not demeaning;
    2. access educational institutions and facilities for persons with disabilities that are integrated into society to the extent compatible with the interests of the person;
    3. reasonable access to all places, public transport and information;
    4. use Gambian sign language, Braille or other appropriate means of communication;
    5. access materials and devices to overcome constraints arising from the person’s disability; and
    6. protection against abuse, all forms of violence and exploitation, and discrimination, in particular as regards access to health and social services and employment.
  2. The State shall take measures, including affirmative action programmes, to ensure that persons with disabilities realise the rights outlined in subsection (1), including accessing employment and associating, being represented and participating, in political, social, economic and other spheres of life.

59. Cultural rights

Every person is entitled to enjoy, practice, profess, maintain and promote any culture, language or tradition subject to the terms of this Constitution and to the condition that the rights protected by this section do not impinge on the rights and freedoms of others or national unity and social harmony.

60. Right to fair labour practices

Every person has the right to fair labour practices, including the right to–

  1. fair remuneration;
  2. reasonable working conditions;
  3. form, join, participate, and organise a trade union; and
  4. engage in collective bargaining with others, or within a trade union, to advance his or her interest.

61. Right to clean environment

Every person has the right to a clean and healthy environment, which includes the right to have–

  1. the environment protected for the benefit of present and future generations through legislative and other measures, particularly those contemplated in Chapter XIV; and
  2. obligations relating to the environment fulfilled under Chapter XIV.

62. Economic and social right

  1. Every person has the right to–
    1. the highest attainable standard of health, which includes the right to health care services, including reproductive health care;
    2. accessible and adequate housing, and to reasonable standards of sanitation;
    3. be free from hunger, and to have adequate food of acceptable quality;
    4. clean and safe water in adequate quantities; and
    5. social security.
  2. A person shall not be denied emergency medical treatment.

63. Rights of the elderly

The State shall take measures to ensure the rights of older persons to–

  1. fully participate in the affairs of society;
  2. pursue their personal development;
  3. live in dignity and respect and be free from abuse; and
  4. receive reasonable care and assistance from their family and the State.

64. Rights of the youth

The State shall take measures, including affirmative action programmes, to ensure that the youth–

  1. access relevant education and training;
  2. have opportunities to associate, be represented and participate in political, social, economic and other spheres of life;
  3. are protected from abuse and all forms of violence and exploitation, including protection against hazardous or exploitative labour; and
  4. access employment.

65. Consumer protection rights

  1. Consumers have the right to–
    1. goods and services of reasonable quality;
    2. the information necessary for them to gain full benefit from goods and services;
    3. the protection of their health, safety and economic interests; and
    4. compensation for loss or injury arising from defects in goods or services.
  2. This section applies to goods and services offered by public entities and private persons.

66. Right to development

  1. All peoples have, and every person has, a right to development, and to the enjoyment of economic, social, cultural and political development.
  2. Women, children and persons with disabilities shall be given special consideration in the application of the rights referred to in subsection (1).
  3. The special consideration referred to in subsection (2) shall include equality of opportunity for all in their access to basic resources, including education, health services, food, shelter, employment and infrastructure.
  4. The State shall–
    1. take measures to introduce reforms aimed at eradicating social injustices and inequalities, and
    2. protect, respect, promote and fulfil the right to development and to justify its policies in accordance with this responsibility.

67. Right of the sick

A person who by reason of sickness or any other cause is unable to give his or her consent shall not be deprived by any other person of medical treatment, education or any other social or economic benefit by reason only of religious or other beliefs.

68. Gender balance and fair representation of marginalised groups

The State shall ensure gender balance and fair representation of women, youth and persons with disabilities–

  1. on bodies established under or pursuant to this Constitution and any Act of the National Assembly; and
  2. on all other public bodies, including Statutory Bodies and State Owned Enterprises.

69. Protection from discrimination

  1. All persons are equal before the law.
  2. Subject to the provisions of subsection (4)–
    1. no law shall make any provision which is discriminatory either of itself or in its effect; and
    2. no person shall be treated in a discriminatory manner by any other person acting by virtue of any law or in the performance of the functions of any public office or any public authority.
  3. Subsection (2) (a) shall not apply to any law in so far as that law makes provision–
    1. with respect to persons who are not citizens of The Gambia or to qualifications for citizenship;
    2. with respect to the qualifications prescribed by this Constitution for any office;
    3. with respect to adoption, marriage, divorce, burial, devolution of property on death or other matters of personal law;
    4. with respect to any matter that has as its object the amelioration of conditions of disadvantaged individuals or marginalised groups; or
    5. to the extent necessary for the application of customary law, with respect to any matter in the case of persons who, under that law, are subject to that law.
  4. Subsection (2) (b) shall not apply to anything which is expressly or by necessary implication authorised to be done by any such provision of law as is referred to in subsection (3).
  5. The exercise of any discretion relating to the institution, conduct or discontinuance of civil or criminal proceedings in any court that is vested in any person by the Constitution or any other law shall not be enquired into by any court on the grounds that it contravenes the provisions of subsection (2) (b).
  6. In this section, the expression “discrimination” means affording different treatment to different persons attributable wholly or mainly to their respective descriptions by race, ethnicity, creed, colour, gender, language, religion, political or other opinion, national or social origin, property, birth or other status whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject, or are accorded privileges or advantages which are not accorded to persons of another such description.

70. Declaration of state of public emergency

  1. The President may, at any time, by Proclamation published in the Gazette, declare a state of public emergency.
  2. A state of public emergency exists only when–
    1. the State is threatened by war, invasion, general insurrection, civil disorder, natural disaster, or other form of serious emergency;
    2. a situation exists which, if it is allowed to continue, may lead to an event identified in paragraph (a); and
    3. it is necessary to meet the circumstances identified in paragraphs (a) and (b).
  3. A declaration made under subsection (1) shall–
    1. if the National Assembly is in session, lapse at the expiration of a period of seven days from the date of the declaration of the public emergency; and
    2. if the National Assembly is not in session, lapse at the end of twenty-one days from the date of the declaration of the public emergency.
  4. The National Assembly may, before the expiration of a period of public emergency specified in subsection (3), extend the period for up to sixty days at a time.
  5. The first extension of the declaration of a state of public emergency under subsection (4) requires a resolution supported by the votes of not less than two-thirds of all the members of the National Assembly, and any subsequent extension requires a resolution supported by the votes of not less than three quarters of all the members of the National Assembly.
  6. A declaration made under subsection (1) may at any time be revoked by the President by Proclamation published in the Gazette.
  7. The Supreme Court may decide on the validity of–
    1. a declaration of a state of public emergency;
    2. any extension of a declaration of a state of public emergency; and
    3. any legislation enacted, or other action taken, in consequence of a declaration of a state of public emergency.

71. Derogations from fundamental human rights under emergency powers

  1. An Act of the National Assembly may authorise the taking, during any period of public emergency, of measures that are reasonably justifiable for dealing with the situation that exists in The Gambia.
  2. An Act of the National Assembly enacted in consequence of a declaration of a state of public emergency may limit a fundamental right or freedom in this Chapter only to the extent that the limitation is strictly required by the public emergency and shall not take effect until it is published in the Gazette.
  3. Nothing contained in or done under this section or under the authority of an Act of the National Assembly shall derogate from–
    1. the right to life;
    2. the right to human dignity and protection against torture and inhuman treatment,
    3. the protection from slavery, servitude, human trafficking and forced labour;
    4. the prohibition on retrospective criminalisation and imposition of greater penalties for criminal acts, save in relation to the application of customary international law; and
    5. the right to habeas corpus.

72. Persons detained under emergency powers

  1. Where a person is detained under a state of public emergency, the detention shall be subject to the following provisions–
    1. he or she shall, as soon as reasonably practicable, and in any case not later than twenty four hours after the commencement of the detention, be furnished with a statement in writing specifying in detail the grounds upon which he or she is detained, and the statement shall be read, and, if necessary, interpreted, to the person who is detained in a language which he or she understands;
    2. the spouse, parent, child or other available next-of-kin of the person detained shall be informed by the authority effecting the detention and shall be permitted access to the person concerned at the earliest practicable opportunity, and in any case not later than twenty-four hours after the commencement of the detention;
    3. where none of the persons mentioned in paragraph (b) can be traced or none of them is willing and able to see the person detained, the person who is detained shall be informed of this fact within twenty four hours of the commencement of the detention and he or she shall be informed of his or her right to name and give particulars of some other person who shall have the same right of access to the person who is detained as any of the persons mentioned in paragraph (b);
    4. not more than seven days after the commencement of his or her detention, the authority which effected the detention shall give notice in the Gazette and in the media stating that he or she has been detained and giving particulars of the provision of law under which the detention is authorised;
    5. not more than fourteen days after the commencement of his or her detention, and after that at intervals of not more than thirty days during the continuance of his or her detention, the case of the person concerned shall be reviewed by the High Court;
    6. the person detained shall be afforded every possible facility to consult a legal practitioner of his or her own choice who shall be permitted to make representation to the High Court; and
    7. at the hearing before the High Court, the person detained shall be entitled to appear in person or by a legal practitioner of his or her own choice and at his or her own expense.
  2. A person whose case has been reviewed under subsection (1) (e), is at liberty to apply for a further review after a period of five days following the first review.
  3. On a review by the High Court of the case of a person who has been detained, the Court may order the release of the person or it may uphold the detention, and the authority by which the detention was ordered shall act in accordance with the decision of the Court for the release of the person.
  4. No person may be detained under or by virtue of an Act of the National Assembly during any state of public emergency in excess of a total of six months, and on the expiry of that period, any person who has been so detained shall–
    1. if the state of public emergency has not come to an end, be dealt with in accordance with section 39; and
    2. if the state of public emergency has come to an end, be released immediately without any further order from the Court.
  5. In every month during the period in which a state of public emergency is in force and in which there is a sitting of the National Assembly, a Minister authorised by the President shall–
    1. make a report to the National Assembly of the number of persons detained by virtue of this section or under an Act of the National Assembly; and
    2. the number of cases reviewed by the High Court under subsection (1) (e) and the number of cases in which the authority which ordered the detention has acted in accordance with the decisions of the High Court as provided in subsection (3).

73. Interpretation of Chapter VI

  1. In this Chapter, save where the context otherwise requires–
    • “Armed Forces” means any naval, military or air force of The Gambia;
      “member”, in relation to The Gambia Armed Forces, includes persons who, under the law regulating the discipline of that Force, are subject to that discipline; and

      “owner” includes any person deprived of any right or interest pursuant to section 42.

  2. In relation to any person who is a member of an armed force raised otherwise than under the laws of The Gambia and lawfully present in The Gambia, nothing contained in or done under the authority of the disciplinary law of that force shall be held to be inconsistent with or in contravention of any of the provisions of this Chapter.
  3. The rights, duties, declarations and guarantees relating to the fundamental human rights and freedoms specifically mentioned in this Chapter shall not be treated as excluding others not specifically mentioned.

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