Military Personnel Cannot Be Detained For More Than 72 Hours Without Trial

Radio France International on Monday 9th October 2017, published an article were the Minister of Information and Communication Infrastructure has been quoted as saying “it is true that in the Constitution we have this period of 72 hours without being brought before a judge. But there is also a specific Law for the Gambia Armed Forces Act and this 72-hours limit does not apply.”

The statement is a grave error. Section 4 of the 1997 Constitution of The Gambia states “This Constitution is the Supreme Law of The Gambia and any other Law found to be inconsistent with any provision of this Constitution shall, to the extent of the inconsistency, be void.’’

This simply means that any provision under the Gambia Armed Forces Act that permits the detention of a soldier for more than 72 hours without presenting him or her before a court of competent jurisdiction, is inconsistent with section 4 of the 1997 Constitution and is therefore, null and void.

In short, no Law in the Gambia Armed Forces Act can permit the detention of a soldier for more than 72 hours without presenting him or her before a court. Such a detention is unlawful as it contravenes Section 19 of the Constitution which applies to all persons irrespective of Nationality or description.

Section 19 (3) of the 1997 Constitution states that “Any person who is arrested or detained –

  1. For the purpose of bringing him or her before a court in execution of the order of a court; or
  2. Upon reasonable suspicion of his or her having committed, or being about to commit, a criminal offence under the Laws of The Gambia, and who is not released, shall be brought without undue delay before a court and, in any event, within seventy-two hours.

It is advisable that the advice of the Attorney General is sought before such pronouncements are made.

At the moment soldiers are in detention for more than 72 hours without being arraigned in court for trial. This practice is unlawful and should seize. Under the former regime, detention without trial and disappearance without trace were rampant and President Barrow vowed that if elected, detention without trial will be a thing of the past.