The Armed Forces Act was enacted in 1985 and has gone through some amendments. The detention of members of the Armed Forces under the Act is at variance with what is established under section 19 of the Constitution, which came into being in 1997.
When the provision of an Act is at variance with the provision of the Constitution that of the Act becomes null and void. That fact is incontrovertible. This is confirmed by section 4 of the Constitution which 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.”
Let us now compare what section 19 of the Constitution says and what the Armed Forces says about arrest and detention of members of the Armed Forces.
Section 19 of the Constitution states:
“Any person who is arrested or detained –
(a) for the purpose of bringing him or her before a court in execution of the order of a court; or
(b) upon reasonable suspicion of his or her having committed, or being about to commit, a criminal offence under the law 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 very clear from this that civilian or military no person without exception should be detained for more than 72 hours without appearing before a court or granted bail with or without sureties. However the Armed Forces Act contains the following provisions which are at variance with section 19 of the Constitution.
Section 88(2) of the Armed forces Act stipulates:
“Whenever a person subject to this Act and taken into service custody remains under arrest for longer than eight days without a court-martial for his or her trial being assembled, a special report for the necessity for further delay shall be made for his or her Commanding Officer to the prescribed authority in the prescribed manner and similar report shall be made to the like authority and in the like manner every eight days until a court-martial is assembled or the offence is dealt with summarily or he or she is released from arrest:
Provided that in the case of a person in active service, compliance with the subsection shall be excused in so far as it is not reasonably practicable having regard to the exigencies of the military operations.”
The Armed Forces Act in 1985 envisaged detention without trial for soldiers for more than 72 hours. However, this is at variance with section 19 of the Constitution which came into force in 1997. These provisions should have been amended to bring them into conformity with the Constitution or be rendered void. Subsection 19(6) provides for redress as follows:
“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.”