Human Rights Committee examines the State of civil and political rights in the Gambia in absence of report
The Human Rights Committee this morning concluded the review of the implementation of the International Covenant on Civil and Political Rights in the Gambia, in the absence of a report, and with the delegation present.
In his address to the Committee, Cherno Marenah, Solicitor General and Legal Secretary, Ministry of Justice of the Gambia, explained that the country was in transition following a prolonged period of autocratic rule. The Gambia had long been the heart of human rights in Africa, and it was here that the African Commission on Human and People’s Rights was based. Since taking office 18 months ago, the new Government had adopted a series of reforms to protect and promote human rights. It had set up the Constitutional Reform Commission was given two years to submit a draft of a new constitution to the Gambian people; its members had been sworn in on 5 July 2018. A Truth, Reconciliation and Reparation Commission had been created to shed light on the serious human rights violations committed during the troubled two past decades, and for the first time in history, an independent national human rights institution was set up. The Gambia also embarked on a major reform of the judiciary to restore its strength and independence, and would soon embark on the security sector reform to ensure the respect for human rights in the country.
The Committee Experts commended the Gambia for its openness and honesty about the governmental transition and commended the State’s many efforts to place human rights at the core of the country. They urged the Government to ensure that the language of the Covenant was considered in the new Constitution and the Bill of Rights. Experts inquired about accountability for past human rights violations, including the prosecution of the former president, as well as members of the security and intelligence communities. Continued practice of torture and ill-treatment by the police and security officers, arbitrary arrests and detention, extrajudicial executions and enforced disappearances, together with the continued use of the death penalty and harsh and life-threatening prison conditions, were among the Experts’ greatest concerns. They also cited the prohibition of abortion, discrimination against women under the Sharia law, and the continued practice of female genital mutilation and child marriage, despite the laws that prohibited them.
The delegation of the Gambia consisted of representatives from the Ministry of Justice, Office of the President, Ministry of Health and Social Welfare, Ministry of Interior, Ministry of Basic and Secondary Education, and the Women’s Bureau.
All the documents relating to the Committee’s work, including reports submitted by States parties, can be found on the session’s webpage. The webcast of the Committee’s public meetings is available via the following link: http://webtv.un.org/meetings-events/.
The Committee will resume at 3 p.m. today, 6 July, to continue its discussion of the draft General Comment No. 36 on article 6 of the International Covenant on Civil and Political Rights on the right to life.
CHERNO MARENAH, Solicitor General and Legal Secretary, Ministry of Justice of the Gambia, explained that the country was in transition following a prolonged period of autocratic rule. Human rights, said the head of the delegation, were at the heart of the new Government and the Gambia had long been the heart of human rights in Africa. It was in the Gambia that, since December 2016, the African Commission on Human and People’s Rights was based. Since taking office 18 months ago, the new Government had adopted a series of reforms to protect and promote human rights and had set up the Constitutional Reform Commission whose members had been sworn in on 5 July 2018. The Commission was given two years to submit a draft of a new constitution to the Gambian people, which will serve as a blueprint for the promotion and protection of human rights and the rule of law in the Gambia.
The Gambia, continued Mr. Marenah, went through an extensive era of human rights violations and abuses in the previous two decades. A Truth, Reconciliation and Reparation Commission had therefore been created to shed light on the serious human rights violations committed during that troubled period, and should begin its work concretely in the coming months. In addition, for the first time in the history of the Gambia, an autonomous national human rights institution, the Human Rights Commission, was being set up, with the mandate to promote and protect human rights of the country’s citizens and residents. The Commission would be operational before the end of this year, said the head of the delegation, reiterating the commitment to obtaining A status in compliance with the Paris Principles.
The Government also embarked on a major reform of the judiciary in order to restore its strength and independence, and hoped to complete those reforms quickly. The security sector reform would soon follow, to ensure the respect for human rights in the course of their duty. Already, standard operational procedures of security services were being realigned with international standard, with the support of the United Nations and the African Union. Finally, there was a renewed commitment in the Gambia to human rights obligations: the National Assembly had approved the accession to various international treaties whose instruments of ratification should be deposited quickly, and there was a permanent inter-ministerial task force for treaty body reporting obligations, the head of the delegation concluded.
Questions by Committee Experts
Opening the interactive dialogue with the delegation of the Gambia, a Committee Expert took note of the transitional period in the country and recognized a number of human rights measures of the new Government, which included the release of political prisoners.
Incorporating the Covenant rights in the domestic legal system and the Constitution was critical, the Experts said, asking whether the language of the Covenant would be considered in the Bill of Rights, and what would be the status of the Covenant in the Gambia, under the new Constitution.
The delegation was asked about the prosecution for past human rights violations of the former president and intelligence officers, and whether there would be criminal proceedings against former security services. What course of action would the Government take to address the issues of mass burial sites linked to executions and enforced disappearances, including referring the cases to the Truth and Reconciliation Commission? What steps were being taken to address the poor conditions in prisons?
Same-sex relationships were still criminalized, and the State had declared that it would not prosecute those in same-sex relationships. Was this still the case?
The Committee commended and welcomed the establishment of the national human rights institution and asked about its relationship with the judiciary, and its funding, and requested an explanation of how the permanent inter-ministerial task force for treaty body reporting obligations functioned.
The Experts took positive note of the efforts to improve the legal and institutional framework to protect women against discrimination, noting for example the establishment of the National Women’s Council and the National Women’s Bureau in 1980 to advise the Government on all matters affecting development and welfare of women. How did such measures and in particular the activity of the National Women’s Council had a positive impact on the participation and representation of women in political, social and economic life? In the National Assembly, there were only five women and only one speaker was a woman, Experts remarked, and asked about other measures taken to improve the lives of the women in the Gambia; the percentage of women employed in decision-making positions in both the private and public sector; and specific steps to eliminate patriarchal attitudes and stereotypes regarding the role and responsibilities of women and men.
An Expert asked the delegation to explain its provisions on access to justice, protection against violence, equal protection before law, the right to healthcare and rights of women in rural communities.
Concerning girls’ school enrolment, the delegation was asked about the School Improvement Grant aimed at making basic education free in all Government and grant-aided school, and about the bursary scheme for girls to cover the costs of basic expenses for girls attending schools in rural areas.
The Committee was concerned about discrimination against women by the Sharia law, particularly in their access to land. The Sharia law regulated marriage, divorce and inheritance for Muslims who made up more than 90 percent of the population. It allowed women access to land only through marriage, and defined that widows only borrowed - not inherited - land from their husbands. These and other discriminatory rules were codified in the Women’s Act of 2010, Experts noted and asked about other provisions in the Act which had a substantial impact on the condition women vis-à-vis men in the Gambia. Had any initiatives been taken to repeal discriminatory provisions of the Women’s Act and ensure that the principle of equality between men and women set out in the Constitution was applied and strictly enforced?
A great concern was voiced for impunity of security forces for human rights violations, enforced disappearances and extrajudicial executions in particular. Major reforms must take place immediately, Experts stressed, and asked about reparations for victims of enforced disappearances and their families, and about concrete steps to tackle enforced disappearances and extrajudicial executions and bring their perpetrators to justice.
The Committee took positive note of the two laws from 2013 which protected women from domestic violence, and raised the issue of lack of data on violence against women including sexual violence, and the lack of complaints for violence against women despite the existence of the phenomenon. Girls were still exposed to the harmful practice of female genital mutilation, Experts noted, and asked whether it was performed on infants and what steps were being taken to combat this practice.
The deteriorating health system in the country, particularly primary health care, had a particularly detrimental impact on infant and maternal mortality, and Expert noted with concern. What were the factors that explained the rapid rise in maternal mortality rates since 2010 and what steps were being taken to reverse the trend?
The Gambian law was one of the most restrictive in Africa. It was based on an 1861 colonial law and criminalized all types of abortions except if the mother’s life was in danger. Could a women have an abortion of pregnancy arising from rape or incest?
The fact that early and child marriage remained in widespread practice in the Gambia worried the Experts, despite the various campaigns and legislative initiatives to eliminate it. The Committee recognized in particular the initiative by the Ministry of Health and Social Welfare called End Child Marriage Campaign and the 2016 Children’s Act which defined child as any person under the age of 18 and criminalized child marriage. How many early marriages had been celebrated over the past five years, and what other measures had been taken to combat this practice, and polygamy? How many prosecutions had been initiated for the violations of the Children’s Act and what were their outcomes?
Responses by the Delegation
In response to Experts’ questions and comments, the delegation stressed that the issue of the death penalty was a constitutional matter, noting that the President’s political committed to the abolition would most likely find its way in the new Constitution, probably as an entrenched clause that could only be changed by a referendum. The ratification of the Second Optional Protocol to the Covenant was being prepared for the President’s signature, and this too tied in well with the current constitutional review.
The international law was not recognized as domestic law, the delegation went on, and explained that the matter of direct application of the International Covenant on Civil and Political Rights would be discussed in the process of drafting the new Constitution.
The former president was in exile and his prosecution at this stage was not a priority for the Government which was undergoing a fragile transition process. Also, it would not be wise to bring him back to the country where he still enjoyed pockets of independent support.
The issue of burial sites was a sensitive one, particularly for the families of potential victims, the delegation said. The Gambia was cooperating with international partners who provided forensic capacity and support and which had allowed the Government to identify the remains exhumed last year. The absolute importance was the identification of victims prior to handing over the remains to families, and this explained why the process had been slow to date.
Turning to questions raised about the national human rights institution, the delegation said that vacancies for the roles had been publicized and a number of applications had been received from citizens who deserved to sit as Commissioners. The vetting and interviewing process was scheduled to take place in the next couple of months and the Gambia was confident that by the third quarter of 2018, the Commissioners would be appointed. In line with the Paris Principles, and as prescribed by the law, the Human Rights Commission enjoyed full financial independence, with budgets coming from the National Assembly appropriation and not through a ministry. The delegation explained that the inter-ministerial task force was not a standing autonomous force; it was made up of Government officials and human rights non-governmental organizations’ representatives.
Several laws had been enacted in 2016 to protect women and girls such as the Sexual Offences Act and Women’s Act, as well as the Children’s Act which prohibited child marriage.
The issue of child marriage was a challenge in the Gambia because under the Sharia law, a person was deemed ready for marriage after puberty, which could happen before the age of 18. The enforcement of the Children’s Act therefore was a challenge, and required considerable awareness and education. Most children who were attending school would not be subjected to child marriage, a delegate said, thus increasing the school enrolment rates of girls would decrease the prevalence of child marriage. There were no reported cases of child marriage at the moment in Gambia, claimed a delegate.
In a similar vein, female genital mutilation was criminalized, but there was a significant reluctance to report perpetrators of this deep-rooted cultural practice who were usually close family members. The practice among the educated, the delegation noted, was almost non-existent, supporting the idea that as the population became more educated, including on the practice itself, the prevalence of female genital mutilation would decrease. The State was using the theory of change in combatting this practice, and was working with law enforcement, women’s groups, civil society organizations, lawyers, health workers and magistrates in an advocacy effort.
The last quinquennial survey on infant, child and maternal mortality had taken place in 2013. The data for the next one were being currently collected, and the report would be released later this year. Acknowledging the increasing rates of maternal mortality since 2010, the delegation said that it might be due to the limited public budget for maternal and reproductive health, and a heavy dependence on donors, particularly the United Nations Population Fund. Lack of resources affected the purchasing of medical equipment as well, including those needed in obstetric emergencies.
The State law criminalized abortion, said the delegation, and noting the clandestine nature of abortion that women and girls resorted to, said that data were hard to gather. Abortion rates were high among adolescents because of the high fertility rate. If a clandestine abortion resulted in a woman’s death, the authorities would be notified; otherwise, it was up to the family to notify the authorities.
The delegation reiterated the State’s commitment to providing quality education for sustainable development and ensuing that no one was left behind, and explained that the School Improvement Grant removed fees for public education, and as such, had a significant positive impact on school enrolment rates. A delegate explained that the figures related to this programme were not being used to determine literacy levels but as a proxy educational indicator.
Girls represented half of the student body, noted the delegate, adding that textbooks were being revised to ensure they were gender sensitive, and teachers were being trained. Even though there had been a significant increase in girls’ school enrolment of girls, cultural and religious beliefs which prevented girls from going to school still remained.
The discussion continued with the delegation answering Experts’ questions on the condition of prisons. The prison population had decreased by fifty percent and political prisoners had been released, the delegation stated. The Prison Council reviewed the situation of detention in prisons and was also charged with revising the outdated Prisons Act. A modern prison was being built in line with international standards.
As far as discrimination against women under the Sharia law was concerned, the delegation explained that the only instance in which it happened was in the matters of inheritance, whereby men and women were not treated equally, and women often received half of the men’s part. It was hard to change the conceptions among Muslims who wanted to be governed solely by the Sharia. Muslims who wished to opt out of the Sharia, could do so, and their personal affairs would be then governed by the civil law.
Questions by Committee Experts
In the next round of questions, Committee Experts recalled the Gambia’s commitment to criminalize torture as part of the criminal justice reform, and asked about the status of this process, and the situation concerning the ratification to the Convention against Torture. Experts were concerned that even if the Constitution and the law prohibited such practices, there were reports of widespread torture, beatings and ill-treatment, especially by security forces against individuals in custody. The 2014 findings by the United Nations Special Rapporteur on torture had shown that the National Intelligence Agency and the Gambian police consistently practiced torture on detainees, using methods such as severe beatings, electric shocks, asphyxiation and burning, rape, water boarding, and simulated burial.
Could the delegation provide information on specific measures taken to prevent and punish those persistent acts of torture in places of detention, establish legal responsibility and accountability for past conducts and the alleged acts of torture by the police, and also provide data on the number of prosecutions for acts of torture and ill-treatment had been carried out in the past five years? Committee Experts remarked that, according to information the Committee had received, such prosecutions seemed rare; the President had the authority to exclude members of security forces from the prosecution for acts committed during a state of emergency or an unlawful assembly.
The inefficiency in the justice system often resulted in excessively lengthy pre-trial detention; there were cases in which individuals spent several years in detention awaiting trial, and approximately 30 per cent of the inmates in the prison system were in pre-trial detention. What measures and initiatives had been taken to reduce the length of pre-trial detention and speed up trials, the delegation was asked, and was also requested to inform on training programmes to prevent acts of torture in places of detention. Was such training mandatory for police and prison officers before they started exercising their functions?
A Committee Expert welcomed the declaration by the State Party that all political prisoners had been released in the Gambia since January 2017, and asked for data and statistics on those individuals.
The Constitution and the legislation prohibited arbitrary arrest and detention, the Experts acknowledged, limiting the detention to a maximum 72 hours before formal charges had to be brought. However, in many instances, police and other security forces arbitrarily arrested and detained persons for longer than 72 hours without formally charging them, or informing them of the charges until much later. Could the delegation comment and describe measures taken to ensure that any arrestee was promptly informed of the charges against them?
Other Committee concerns related to the gaps and shortcomings of the bail system. Prosecutors often opposed bail even for detainees charged with small crimes or misdemeanours, while judges and magistrates frequently set bail at unreasonably high amounts. Had any measures been taken to regulate the bail system and make it more effective and respectful of the rights of the individual in matters of arrest and detention?
Experts expressed continued concern about harsh and life-threatening prison conditions such as food shortages, gross overcrowding, physical abuse, lack of adequate medical care and inadequate sanitary conditions. There were reports of prisoners dying simply due to neglect or lack of access to healthcare, and the prisoners’ mortality rate was very high. Were there institutions charged with the monitoring of prison conditions, which could receive and investigate credible allegations of inhuman conditions, the Experts asked, and also inquired about the functions of the Prison Visiting Committee and whether the Office of the Ombudsman had a role in this regard. Experts commended the Gambia for allowing access to prisons for international monitoring institutions and asked what were the future intentions in this context.
Turning to the situation of refugees and asylum seekers, the Committee commended the State party for the support provided to refugees who had fled the conflict in the province of Casamance in Senegal, particularly in view of the financial and logistical constraints cited by the State Party. An Expert asked how and where refugees were received and processed before their resettling in communities, the proportion of the public budget spent on the refugees, and what steps were being taken to support host communities.
The Committee welcomed information regarding the overhauling of the judiciary system, particularly the abolition of the system of contract judges and the reconstitution of the Judicial Service Commission. An Expert asked the delegation to clarify its stance on guaranteeing judicial independence, the checks and balances in the judicial appointment process to ensure that only capable and properly vetted candidates were selected, and how the judiciary was financed. The Committee welcomed the request for technical assistance in the judicial sector that the Gambia had submitted to the Commonwealth Secretariat, and asked the delegation to explain the initiative in detail.
How was the Judicial Ethics Committee constituted and what systems were in place to guarantee its independence and effectiveness? The Judges Remuneration Allowances and Other Benefits Bill was a very critical piece of the law in the process of reconstituting a sound judicial system, Experts remarked and inquired about the timetable for its enactment into law.
Concerning measures for the protection of minors, a Committee Expert expressed concern about children in rural areas and those born out of wedlock. The Expert noted that while the registration was free of charge, there was a penalty for late registration. What were the obstacles in birth registration of children born out of wedlock and the birth of children in remote areas?
Experts urged the Gambia decriminalize homosexuality and adopt a comprehensive equality and non-discrimination law to include sexual orientation and gender identity as prohibited grounds. How many people were prosecuted and convicted for different sexual orientation and gender identity?
Replies by the Delegation
The delegation said that the Government of the Gambia took torture very seriously, as demonstrated by the recent ratification of the Convention of Torture. At the same time, the inclusion of the crime of torture in the legislation was a priority the ongoing criminal justice reform process. The lack of adequate laws to prohibit torture was sorely felt during the Gambia’s previous government, the delegation said, and it also inhibited the prosecution of perpetrators in the present. The State was committed to training security personnel; training for law enforcement officers on the Convention against Torture was scheduled in October 2018. There were plans to repeal the Indemnity Act, which provided immunity for law enforcement officers who committed acts of torture.
An inter-ministerial task force had been established to provide details on pre-trial detainees, whose results would inform recommendations to the Chief Justice and help support the decision on whether those cases should be expedited. The police was aware of the 72-hours rule as far as arrest and detention were concerned, said the delegation, and added that arbitrary arrest had become a practice of the past. There were still rogue law enforcement officers, he said, but civil and citizen education and awareness of their rights would help change the behaviour of police officers.
The National Agency against Trafficking in Persons was very active and was rated as a tier two agency, which was positive considering the problems in the country. The Agency had conducted raids and made arrests for human trafficking, and had also been very active in combatting sex trafficking within the tourism industry. There was a fine line between people trafficking and smuggling, a delegate stressed, and in the Gambian context, the cases were mostly related to the smuggling of migrants.
The judiciary prepared its own budget which was then charged to the National Assembly. Efforts were being made to decentralize the justice system and there were magistrates who travelled to hard to reach districts at scheduled times. A Freedom of Information Bill was being drafted which would allow media freedom, information, and access to information for the public.
There had not been any prosecutions or convictions of lesbian, gay, bisexual, transgender and intersex persons, the delegation confirmed, and explained that this community was not at risk in the Gambia. The law against homosexuality was still in place, but the Government had committed to not using it to prosecute. People had to have a say in the repeal of this law, the delegate said; it was a delicate process that had to be carefully managed as the State wished to avoid any harm to the lesbian, gay, bisexual, transgender and intersex community. There were religious and cultural aspects in the Gambia that made decriminalization of homosexuality a difficult issue.
All children, from birth up to the age of five, had the right to free birth registration, irrespective of where they are located; late registrations were charged a 25 USD cents fine. Children born out of wedlock had the right to their birth certificate too, which would only carry the mother’s name; a person could register as a father of the child at a later date.
There was a zero tolerance policy when it came to corporal punishment. The Government ensured that knowledge on the issue was disseminated in schools and other sectors and that teachers and parents were aware of the State’s position.
The Gambia was a haven for refugees from bordering countries, the delegation said. Most came from the southern border with Senegal. There were refugee centres but refugees were free to choose to settle in communities, or with the family in the country. The delegation praised the support provided to the State on this issue by the United Nations Refugee Agency.
CHERNO MARENAH, Solicitor General and Legal Secretary, Ministry of Justice of the Gambia, in his concluding remarks assured the Committee that the Gambia took its human rights obligations very seriously. The Gambia remained committed to the ideals of the Covenant and its implementation in the State’s new Constitution and criminal justice system.
YUVAL SHANY, Committee Chairperson, concluded by commending the Gambia for the commitment to ratifying the Second Optional Protocol and integrating international human rights standards into its new Constitution.
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