give prior notice or obtain an authorization or permit for an assembly, do
not constitute an interference with the right to freedom of peaceful
assembly. However it must be noted that the manner of exercising a Right
under any given statute may lead to such action being negative and will
therefore undermine the objective intended to be served. The action of the
agents of the Respondent could assessed against this background in line
with the provisions of Article 11 (2) of the ACHPR. From the provisions of
Section 5 of the Public Order Act above, it can be inferred that the whole
essence of imposing the need for a license is to ensure law and order, as
well as a violent free processions in the overall interest of the populace.
In the case of ÉVA MOLNÁR V. HUNGARY (2009) APP. NO. 10346/05
FINAL, EUR. CT. H.R. the European Court of Human Rights’ position was
that prior notification served not only the aim of reconciling, on the one
hand, the right to peaceful assembly and, on the other hand, the rights and
lawful interests (including the freedom of movement) of others, but also the
prevention of disorder or crime. In order to balance these conflicting
interests, the institution of preliminary administrative procedures is common
practice in Member States when a public demonstration is to be organized,
and that such requirements do not, as such, run counter to the principles
embodied in Article 11 of the Convention, as long as they do not represent
a hidden obstacle to the freedom of peaceful assembly protected by the
Convention. Further, in case of LINDA GOMEZ & 5 ORS V. REPUBLIC OF
THE GAMBIA (2012) ECW/CCJ/APP/18/12 at pg. 27, the CCJ stated that it
lacks the jurisdiction to annul domestic legislations of ECOWAS Member
States.
In light of the action of the agents of the Respondents in the instant case,
the Court holds that the provisions of section 5 of the Public Order Acts of
the Republic of the Gambia did not violate the provisions Article 11 of the
African Charter and further holds that the Public Order Act section 5 of the
Laws of The Gambia and is in tandem with permissible restrictions in
ensuring law and order. However, the requirement of having to obtain the
approval of the Inspector General of Police of the Gambian Police Force
will undermine the exercise of such right and therefore needs a review.
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