By Sarjo Barrow, Esq
Disclaimer: Closed circuit. The article is written for lawyers, Jurists, law students, or legal enthusiasts. The article is purposefully long because it addresses a significant constitutional case for legal scholars to debate.
The Supreme Court correctly stated the constitutional test in 2017. Six months later, the same bench announced a stricter standard, one that the assembly judgment, on its face, did not apply. The case for revisitation rests on the court’s own jurisprudence.
Analysis grounded in SC 003/2016 · SC 1/2014 · SC 001/2017 · ECW/CCJ/JUD/01/20 · U.S. First Amendment Doctrine
To the average person, courts serve as referees between a citizen and the state, or even among citizens. However, they are much more than most people understand. Courts are also the custodians of the document that gives those disputes their meaning. And because constitutional law is a living discipline, one that develops, refines, and, where the architecture of a decision warrants it, revisits, examining a past judgment is not an act of disrespect. It is an act of fidelity to the very idea of constitutional governance.
A hallmark of the common law tradition is the doctrine of stare decisis, the principle that courts stand by what has been decided and do not unsettle a settled law without a compelling reason. It is a doctrine of deep practical value. It gives citizens the ability to order their affairs in reliance on judicial pronouncements, and it protects the courts’ own institutional authority by insulating them from the appearance of deciding cases on whim or politics rather than principle. No serious constitutional commentator disputes its importance.
But stare decisis has never been, in the words of Justice Samuel Alito writing for the majority of the United States Supreme Court in Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022), “an inexorable command.” The common law has always recognized that adherence to precedent must yield where the prior decision was egregiously wrong, where its reasoning has been eroded by subsequent authority, or where a more rigorous standard has since superseded the analytical framework, it applied. Justice Alito’s observation was made in the context of the reversal of Roe v. Wade, one of the most consequential decisions in American constitutional history. It drew on a long tradition of courts across common law jurisdictions acknowledging that the legitimacy of the judicial enterprise depends not on the permanence of any single judgment, but on the integrity of the reasoning that supports it. What distinguishes a principled revisitation from mere inconsistency is transparency: the court explaining, with precision, why the prior reasoning cannot stand against the standard the law now requires.
History’s most instructive example of that transparent fidelity came from the United States Supreme Court across two decisions separated by a single year. In Plessy v. Ferguson, 163 U.S. 537 (1896), the court had upheld racial segregation under the doctrine of “separate but equal,” reasoning that physically separating citizens by race did not, on its face, deny them equal treatment under the law. The doctrine stood for nearly sixty years. What ultimately undid it was not a change in the constitutional text, but a change in what the court was willing to examine. In Brown v. Board of Education, 347 U.S. 483 (1954), the court looked past the formal equality of the separate facilities and asked what segregation actually did to those subjected to it. It found that separating Black children from white children in education “generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.” The formal rule, equal facilities, could not survive scrutiny once the court measured it against the real-world experience of those whose rights were at stake. Plessy was not overruled because the Constitution changed. It was overruled because the court finally applied the Constitution’s guarantee of equal protection to the law’s actual consequences rather than its surface appearance.
A year later, in Brown II, 349 U.S. 294 (1955), the same court returned to address implementation, issuing guidance for how desegregation was to proceed with “all deliberate speed.” The court did not treat its prior work as complete. It acknowledged that a ruling of constitutional importance required ongoing attention to ensure it was realized in practice. That willingness to return, refine, and complete its own work transparently is precisely what gave Brown its enduring authority. Constitutional courts earn legitimacy not by treating every prior judgment as beyond scrutiny, but by subjecting their own reasoning to the same rigorous standards they demand of Parliament.
It is in that spirit that the following observations are offered about Ousainou Darboe & 19 Others v. Inspector General of Police & 2 Others, SC Civil Suit No. 003/2016, delivered on November 23, 2017. The question in that case was whether Section 5 of the Public Order Act, which requires citizens to obtain a police license before any public procession, was consistent with the right of peaceful assembly guaranteed by Section 25(1)(d) of the 1997 Constitution. A full bench of five justices, presided over by the Chief Justice, held that it was. That judgment has shaped the legal landscape of public assembly in The Gambia ever since. It merits, this commentary respectfully suggests, a careful second look, and the grounds for that second look lie not in external criticism, but in what the same court said six months later and has continued to say since.
- Two Kinds of Limitation
No constitutional scholar, no court of record, argues that the right to peaceful assembly is unlimited. Thus, the question is never whether the state may regulate it. Instead, the question is how, to what degree, and by what mechanism the state may regulate the right to peaceful assembly.
Constitutional practice across democratic systems has developed a useful distinction between two types of limitation, horizontal and vertical. The first covers what scholars call time, place, and manner restrictions, rules that shape how a right is exercised without conditioning whether it may be exercised at all. Requirements about route, timing, or proximity to certain premises fall here. They are widely recognized as permissible, provided they are content-neutral, serve a genuine public interest, and leave adequate alternative means of expression open.
The second covers prior restraint mechanisms, which make the legal existence of an assembly conditional on advance authorization from the state. A license or permit regime belongs here. It is structurally different from the first category because it places the burden on the citizen to obtain permission before exercising a constitutional right, rather than on the state to justify interference after the right has been exercised.
Section 5 of the Public Order Act belongs to the second category. It does not govern how a procession proceeds. It makes the procession’s very existence contingent on the Inspector General of Police being satisfied that it is “not likely to cause a breach of the peace,” a determination made without binding criteria, without any obligation to give reasons, and without a prescribed mechanism for challenging a refusal. Understanding which categorical position Section 5 occupies is the foundation for everything that follows.
- The Right Test, the Wrong Application, and the Assumption That Did the Work
Section 25(4) of the 1997 Constitution establishes that any lawful limitation on the rights in Section 25 must be reasonable, necessary in a democratic society, and required in the interests of one of the specified purposes, including public order. These are conjunctive requirements. Satisfying the third, that a legitimate purpose exists, does not, on its own, satisfy the first or the second.
The Supreme Court in Darboe correctly identified the applicable framework:
“Under the Constitution any restrictions must satisfy three conditions for them to be lawful. They must be: (a) reasonable; (b) necessary in a democratic society; and (c) imposed for one or more of the purposes set out in Section 25(4) of the Constitution.”
The court then turned to Section 5 itself and described, in terms that are also accurate, what the provision actually does:
“Section 5 of the Act, by requiring a license issued by the Inspector General of Police (IGP) for a procession, places restrictions or limitations on the exercise of the right to assembly guaranteed by Section 25(1)(d) of the Constitution. It is worth emphasizing that the Act in particular places restrictions on the right; it does not purport to abolish or absolutely deny the exercise of the right; it imposes conditions or procedures for the exercise of the right, i.e., the issue of a license by the Inspector General of Police.”
Again, this is an accurate description of Section 5’s design. A licensing requirement is a restriction, not an abolition. The critical analytical step, however, was what the court then said about the IGP’s discretion under that licensing requirement:
“Whilst the Inspector General of Police has the discretion to refuse to grant a license, he can only do so on grounds of a potential breach of the peace, i.e., on public order or public security grounds.”
This sentence is the fulcrum on which the entire analysis turns, and it is where the judgment’s reasoning diverges from the constitutional framework the court had correctly stated. The court acknowledges that the IGP holds a discretion to refuse. It then constrains that discretion, in its own description, to a single ground: potential breach of the peace. But Section 5 itself imposes no such constraint in terms that are narrow, objective, or defined. The breach-of-peace criterion is the condition for issuing a license, not a defined standard with objective criteria, procedural requirements, or a burden of proof. The court read Section 5 as though it contained safeguards it does not contain, and then, having attributed those safeguards to the provision, concluded that the restriction was constitutionally sound.
The consequence of that reading is visible in the very next paragraph of the judgment:
“The right to assembly, as with other individual or collective rights, is usually exercised within the public space. As a result, its exercise by one may conflict with the exercise of the same right by others or with the exercise or enjoyment of other rights by other persons or with the needs for the maintenance of public order and security. Hence the need for some regulation or restrictions on the exercise of the right. Such restrictions on the grounds set out in Section 25(4) of the Constitution and Section 5 of the Act are thus reasonably justifiable in any democratic society. So long as they remain restrictions or limitations only and not purported abolitions of the right or are not such as would render illusory the enjoyment of the protected right.”
The word “thus” is doing the work that the three-part constitutional test was supposed to do. The court moved from the observation that assembly rights can conflict with public order directly to the conclusion that Section 5’s licensing regime is therefore reasonably justifiable, without ever applying the conditions it had stated at the outset. The three conditions, reasonable and necessary in a democratic society, imposed for a permissible purpose, were stated and then bypassed. The analysis resolved itself on one limb, the existence of a public order purpose, without independent examination of the other two.
What makes this more than a formal gap is the court’s direct treatment of the IGP’s discretion. The plaintiffs had argued that vesting the licensing power in the IGP, without binding criteria, rendered the right to assembly “unpredictable and subject to abuse.” The court’s response was to borrow, by analogy, the language of the Privy Council in Attorney General v. Jobe:
“For the purpose of determining the constitutionality of the Act itself it must be presumed that judicial officers will do what the Act requires them to do; if in a particular case they fail to do so the person aggrieved has a remedy.”
Adapted to the present case, the court held:
“An actual or potential abuse of the discretion granted to the Inspector General of Police in relation to the issue of a license cannot have any effect on the constitutional validity of Section 5 of the Act itself. The Inspector General of Police (IGP) must, however, exercise his discretion properly and for the purposes set out by Section 5 of the Act and of Section 25(4) of the Constitution. The court will presume that the IGP will do what the Act requires him to do; if in a particular case he fails to do so, the person aggrieved has a remedy now provided for under Section 37 of the Constitution.”
This passage reveals the assumption that carried the analysis: the court presumed that the IGP would exercise his discretion properly and treated that presumption of good conduct as a substitute for constitutional scrutiny of whether the law itself provides adequate constraints. But the constitutional standard the court had correctly stated does not ask whether the official is likely to behave well. It asks whether the restriction is reasonable and necessary in a democratic society. A law that depends for its constitutional validity on the presumed good conduct of the official it empowers is a law whose validity has not been tested at all. The Jobe analogy, drawn from a case about judicial officers operating within an established procedural framework, does not translate to an executive licensing official operating under a single, undefined discretionary standard with no procedural framework at all.
The absence of that constraint is not merely a procedural gap. American courts confronting comparable licensing regimes have treated it as a facial constitutional defect. In Shuttlesworth v. City of Birmingham, 394 U.S. 147 (1969), the city ordinance at issue conditioned public assembly on a permit granted at the discretion of the city commission, which was authorized to refuse where it judged the assembly contrary to the public welfare. The Supreme Court held that a law placing the exercise of expressive freedoms at the mercy of a licensing official without “narrow, objective, and definite standards” was unconstitutional on its face. The defect was not in the way the power had been used in any particular case, and still less in whether the commission was presumed to act in good faith. The defect was the absence of any meaningful constraint on its use in any case. An official who may refuse a permit whenever personally satisfied that a breach of peace is likely, without having to justify that satisfaction by reference to defined criteria and without any procedural accountability, holds a power that is constitutionally indistinguishable from a power to suppress assemblies at will.
The analogy to Plessy holds here, too. The Plessy court also identified a facially legitimate purpose, social order, and concluded that a formal restriction stopping short of outright denial was constitutionally tolerable. What it never asked was what the restriction actually did to those subject to it, and how it measured up to what the Constitution guaranteed them. In Darboe, Section 5 was found not to abolish the right of assembly. But the question of what Section 5 actually does to the practical enjoyment of that right, who bears its burden, whether its operation is the minimum necessary, and whether the discretion it confers is adequately constrained, was not asked. The presumption of official good conduct took the place of the answer.
III. The Same Bench, Six Months Later: A Stricter Standard Takes Shape
In May 2018, the same five-judge bench delivered judgment in Gambia Press Union v. The Attorney General, SC Civil Suit No. 1/2014. The case concerned a constitutional challenge to Criminal Code provisions criminalizing sedition and false news, arising under the same Section 25 and the same limitation clause at issue in Darboe. The court’s analytical approach was markedly more developed, and what it announced across several critical paragraphs is best understood as a heightened standard of review for restrictions on entrenched constitutional rights.
At paragraph 25, the court held:
“The exceptions or restrictions created to the exercise of those rights and freedoms must be given careful and stricter construction.”
At paragraph 41, proportionality was embedded as an express requirement:
“Embedded within these fundamental criteria in meeting the test of constitutionality are that Parliament must be clear and unambiguous as to what right or freedom it is restricting, such restriction must be lawful, the legislative measure comprising the restriction must have a legitimate aim, and the restriction must be proportionate to the mischief being prevented or guarded against.”
And at paragraph 42, the court held that satisfaction of one criterion is not satisfaction of all:
“The legislation measure concerned must satisfy all these criteria as a whole, not just some of them, in order to stand the test of constitutionality. The fundamental rights and freedoms Chapter of the Constitution is entrenched for a reason: the framers of the Constitution consider respect for rights and freedoms enshrined therein to be sacrosanct and may only be interfered with in specific circumstances of each right and freedom as prescribed in the Constitution.”
Taken together, stricter construction means the court will not read exceptions generously in the state’s favor. Proportionality as an express requirement means the measure must be the minimum necessary interference, not merely a plausible response to a legitimate aim. “All criteria as a whole” means that identifying a legitimate purpose is the beginning of the analysis, not the end.
Returning to the Darboe analysis, the GPU standard asks the question the earlier judgment never did: not whether the IGP is presumed to act properly, but whether Section 5, as written, is proportionate to the public order aim it pursues. A provision whose constitutional validity rests on a presumption of executive good conduct rather than on defined legal constraints cannot satisfy that standard. Presumed good conduct is not a narrow, objective, and definite criterion. It is the absence of one.
Both judgments arose under Section 25 of the same Constitution, before the same bench, six months apart. GPU did not overrule Darboe, but it established a standard to which Darboe’s reasoning, on its face, cannot be reconciled.
- Emil Touray: The Methodology Settles Into Doctrine
Bai Emil Touray & 2 Others v. The Attorney General, SC Civil Suit No. 001/2017, decided the same day as GPU by the same bench, concerned a constitutional challenge to provisions criminalizing libel and the online spread of false news.
If any doubt remains that GPU represented the court’s settled methodology rather than a one-off departure, that judgment should put it to rest.
Emil Touray concerned a constitutional challenge to Criminal Code provisions criminalizing libel and to section 173A of the Information and Communications (Amendment) Act, 2013, which criminalized the spread of false news over the internet. The court applied the GPU approach directly. At paragraph 29, reaffirming the three-part test from Darboe, the court stated:
“This Court outlines and relies on the three fundamental principles or criteria enunciated by this Court in Ousainou Darboe & 19 Ors v. The Attorney General & Ors [2017] and confirmed in Gambia Press Union & 2 Ors v. The Attorney General [2018] that must be collectively satisfied to establish constitutionality.”
At paragraph 30, the court added the proportionality requirement in express terms:
“As part of the process of satisfying these stated principles or criteria, it is important that any parliamentary enactment restricting a citizen’s exercise of a right or freedom must be clear, unambiguous, free from vagueness and proportionate to the mischief it is trying to prevent or guard against.”
And in its analysis of section 173A, the court did what the Darboe court had not: it examined the severity of the restriction independently, asking not merely whether a legitimate aim existed, but whether the penalty bore any reasonable relationship to the wrong the law was meant to address. Finding that it did not, the court held at paragraph 53:
“The prescribed penalty is disproportionate to the mischief it is trying to guard against… The prescribed penalty, when particularly compared to the penalties prescribed for similar offenses… goes beyond the reasonable boundaries of necessity and legitimacy and cannot therefore be upheld as necessary in a democratic society.”
On that basis, the court struck it down.
Emil Touray matters for another reason. It demonstrates that the court’s heightened methodology is not confined to press freedom cases. The court treated proportionality, conjunctive satisfaction of all criteria, and independent examination of each challenged provision as the standard approach for any constitutional challenge under Section 25. This is the standard to which assembly cases are equally subject.
Three decisions, same bench, same constitutional provision. The methodology is consistent. The gap is the assembly judgment in Darboe’s case.
- What Lower Courts Must Do Now
The practical consequences of GPU and Emil Touray extend beyond the Supreme Court itself. The High Court and the Court of Appeal regularly encounter criminal assembly charges brought under the Public Order Act. Darboe binds those courts as the only Supreme Court authority directly on Section 5. But they are equally bound by GPU and Emil Touray as the court’s settled articulation of how Section 25(4) challenges must be analyzed. The tension between those authorities is not abstract. It lands in courtrooms where accused persons face prosecution for assembling without a police license, and where their counsel must decide how to frame the constitutional argument.
Before addressing that choice, it is worth being precise about what the High Court can and cannot do in this context, because the distinction matters practically.
Section 127(1)(b) of the Constitution vests exclusive jurisdiction in the Supreme Court to determine whether any law is inconsistent with the Constitution. The High Court cannot declare Section 5 of the Public Order Act unconstitutional. That power belongs to the Supreme Court alone. But the High Court’s constitutional role does not end there, and it would be a significant error to treat that jurisdictional boundary as a reason for lower courts to stay silent on constitutional questions altogether.
Section 37 of the Constitution, read together with the broader Chapter IV framework, guarantees every person the right to apply to the High Court for redress where any of the fundamental rights and freedoms recognized in the Constitution have been, are being, or are likely to be contravened. The High Court, by constitutional design, is a court of first instance for the enforcement of fundamental rights. Its jurisdiction in this domain is original, not derivative. It does not need to wait for the Supreme Court to act before it can give effect to the rights the Constitution protects.
What this means in practice is that the High Court can and must apply the GPU and Emil Touray standard when assessing whether a criminal prosecution for unlicensed assembly constitutes a violation of the accused’s right to peaceful assembly under Section 25(1)(d). It cannot strike down the law. But it can examine whether the law, as applied to the facts before it, operates in a reasonable manner, necessary in a democratic society, and proportionate to any legitimate public order aim. It can be found, on the evidence, that a prosecution arising from a peaceful assembly that presented no credible threat of disorder cannot be maintained consistently with Section 25(4), as that provision has been authoritatively construed in GPU and Emil Touray. That is an as-applied constitutional finding, not a declaration of invalidity. It is squarely within the High Court’s jurisdiction, and it is available to a properly advised defendant today.
In practical terms, the defense in an assembly case before the High Court does not require the court to pronounce Section 5 unconstitutional on its face. The argument runs differently and more modestly. It is this: even accepting that the Supreme Court in Darboe has upheld Section 5, the constitutional standard governing restrictions on fundamental rights, as authoritatively stated by the same Supreme Court in GPU and Emil Touray, requires that any restriction be reasonable, necessary in a democratic society, and proportionate to the mischief it is trying to prevent. Where the prosecution cannot demonstrate, on the evidence, that the particular assembly posed any genuine threat to public order, the application of Section 5 to criminalize that assembly fails the proportionality test that the Supreme Court has itself made binding. The High Court, enforcing the fundamental rights of the accused under Section 37, is entitled to give effect to that standard. It does not need to resolve the question of Section 5’s facial validity to do so. The constitutional infirmity, on these facts, lies not in the existence of the law but in its disproportionate application.
This is not a theoretical refinement. It is the practical lesson of Emil Touray itself, where the court examined not just whether a law existed for a legitimate purpose, but also whether it operated in a manner proportionate to the specific facts of its application. A High Court that applies that method to an assembly prosecution is not overstepping its authority. It is doing exactly what the Constitution requires of it.
That said, the as-applied defense at the High Court level, while available and worth making, does not fully resolve the constitutional question. It addresses the facts of a particular case. It leaves Section 5 in the statute book. It leaves the facial structural defects, the absence of binding criteria, the unconditional directing power in Section 5(1), and the lack of a prescribed remedy for refusal untouched as a matter of law. And it leaves every future defendant in the same position, arguing the point again from the beginning, without the benefit of a binding ruling on whether Section 5 can survive the constitutional standard the Supreme Court has now announced.
That is why the second path—the referral to the Supreme Court—matters, and why it is ultimately the stronger course for cases where the constitutional question is genuinely central.
Where the constitutional question is central to the case, and a defendant’s instructions permit it, the appropriate course is to preserve the argument in its fullest form and apply to the High Court to refer the matter to the Supreme Court under section 127(1)(b) of the Constitution. The mechanism is straightforward: where a question arises in any proceedings before a court as to the interpretation or application of the Constitution, that court may, and where the question is central to the resolution of the matter, should refer the question to the Supreme Court for determination.
The reference application should be framed precisely. It is not a request for the High Court to pronounce on the validity of Section 5. It is a request for the High Court to recognize that a genuine constitutional question has arisen in the proceedings, one that is squarely within the exclusive jurisdiction of the Supreme Court and is not capable of resolution at the lower court level without that court exceeding its jurisdiction. The question to be referred is this: whether Section 5 of the Public Order Act, in light of the proportionality standard, the requirement of stricter construction of limitation clauses, and the requirement of conjunctive satisfaction of all constitutional criteria as authoritatively stated by the Supreme Court in GPU v. Attorney General and confirmed in Emil Touray v. Attorney General, remains constitutionally valid, either in whole or in part.
Framed in those terms, the reference does two things simultaneously. It places the methodological tension between Darboe on one side and GPU and Emil Touray on the other directly before the only court with authority to resolve it. And it does so on a full factual record, arising from a real prosecution, with contested argument on both sides, precisely the conditions that produced the richer analytical approach of GPU and Emil Touray compared to the uncontested hearing in Darboe.
- The Footnote That Seeded a Revolution, and Why Deference Has Limits
The GPU and Emil Touray standard, as outlined above, requires courts to perform genuine proportionality analysis rather than defer to the legislature’s purpose or the executive’s presumed good conduct. What that requirement demands in practice—and the cost of abandoning it—is most vividly illustrated by the American experience with prior restraints on assembly.
The American constitutional experience with heightened scrutiny for expressive freedoms offers a useful point of comparison, not because it is binding in The Gambia, but because it provides the most developed illustration of what principled constitutional review of prior restraints looks like in practice, and because it offers an instructive lesson about what courts do when they finally take seriously the question of how much deference the Constitution actually permits.
That lesson begins with the limits of deference itself. In Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), Chief Justice John Roberts, writing for the majority of the United States Supreme Court, overruled the longstanding Chevron doctrine, which had required courts to defer to executive agencies’ interpretations of ambiguous statutory provisions. The court’s reasoning was pointed: deference to the executive on questions of legal interpretation was neither required by the Constitution nor consistent with the judicial function. As Chief Justice Roberts wrote, quoting Justice Marshall, it is “the province and duty of the judicial department to say what the law is.” Where courts have ceded that function to the executive, the result is not stability but a gradual erosion of the constitutional separation between the branches. Deference, the court held, is a posture, not a principle. When it conflicts with the Constitution’s allocation of interpretive authority to the courts, it must yield to that authority.
That reasoning is directly relevant to the assembly context. A court that upholds Section 5 primarily because the legislature chose to enact it, or because the IGP is presumed to exercise his discretion responsibly, is extending a form of deference to the executive that the proportionality standard does not permit. The question under GPU and Emil Touray is not whether the IGP is likely to act reasonably. It is whether the law, as written, constrains him to do so. And a court that declines to examine that question on grounds of institutional modesty has, in effect, surrendered its constitutional function to say what the law is.
There is further consideration that arises when the state argues that maintaining a permit requirement is administratively necessary and that replacing it with a notification regime would impose unworkable burdens on police planning and public order management. That argument has been specifically addressed and rejected in American constitutional jurisprudence. In Pereira v. Sessions, 585 U.S. 198 (2018), the Supreme Court held that the government could not rely on administrative inconvenience to justify a legal position that conflicted with the applicable standard. Put simply, the state may not condition the exercise of a constitutional right on obtaining government permission, simply because processing that permission is operationally convenient.
Administrative convenience is not a constitutional value. Where a less restrictive mechanism, such as a notification regime, would serve the same public order aim without conditioning the right’s existence on official approval, the state cannot maintain the more restrictive mechanism on the ground that it is easier to administer. If the law fails the proportionality standard, the cost of replacing it falls on the legislature, not on the citizen whose right is being restricted.
Returning to the doctrine that shaped the prior restraint analysis: in United States v. Carolene Products Co., 304 U.S. 144 (1938), Justice Harlan Fiske Stone suggested in a celebrated footnote that the ordinary presumption of legislative validity might not apply where legislation restricts the very rights through which democratic self-correction operates, the rights of speech, assembly, and petition. His reasoning is simple: a legislature cannot be trusted as the guardian of the rights that enable citizens to hold legislatures to account. An independent judicial check, applying a more demanding standard, is constitutionally necessary. It is the same insight that underlies Chief Justice Roberts’ rejection of Chevron deference: that there are some questions the Constitution assigns to courts, and that courts betray their function when they hand those questions back to the executive.
The doctrine that emerged from that footnote distinguishes between two categories of restriction. Content-based restrictions, laws that target the subject matter or viewpoint of expression, must serve a compelling government interest and be narrowly tailored to that interest. They bear a near-absolute presumption of unconstitutionality. Content-neutral time, place, and manner restrictions can survive scrutiny, but only on genuine evidence of necessity, not merely the assertion of a plausible purpose.
Prior restraints on assembly occupy the most exacting position on this spectrum. In Shuttlesworth, the Supreme Court held that a permit regime is unconstitutional unless it provides “narrow, objective, and definite standards to guide the licensing authority.” American doctrine identifies two independent constitutional grounds on which a permit regime fails: first, the absence of binding criteria for the licensing official; second, the absence of a prompt judicial remedy for a denial. Both grounds condemn the architecture of the scheme, not merely its application in any individual case.
Section 5 of the Public Order Act fails both grounds. The IGP’s power to condition a procession on a breach-of-peace assessment operates without binding criteria and without a prescribed remedy for refusal. The Gambian Supreme Court’s own GPU and Emil Touray standard—stricter construction, proportionality, conjunctive satisfaction of all criteria—arrives at the same substantive concern by a different doctrinal path.
VII. The Regional Court Sees the Problem, but Lacks the Tools to Fix It
In January 2020, the ECOWAS Community Court of Justice decided Darboe & Others v. Republic of The Gambia, ECW/CCJ/JUD/01/20, arising from the April 2016 protests. The court formally held that Section 5 did not violate Article 11 of the African Charter, a finding constrained in part by its established position that it lacks jurisdiction to annul the domestic legislation of Member States. Within the same paragraph, however, the court added a considered observation:
“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.”
A court that holds a provision formally compatible with international human rights law while simultaneously finding that its operative effect undermines the very right it regulates is identifying a systemic proportionality concern it lacked the jurisdictional tools to resolve. That concern maps precisely onto the proportionality requirement the Gambian Supreme Court announced in GPU and confirmed in Emil Touray. A domestic constitutional court, equipped with the full toolkit of proportionality analysis and severability, is best placed to address it.
The ECOWAS Court also found that the April 2016 protest was peaceful, that the state produced no credible evidence of threatened disorder, and that violations of Article 5 of the African Charter had occurred in respect of the treatment of those detained. Those findings are offered not as independent grounds for revisiting Darboe, but as context: a peaceful, unarmed assembly, constitutionally protected in terms, rendered criminal solely for want of a police license, with all that followed, is the practical consequence of the constitutional validity attributed to Section 5 by the 2017 judgment.
VIII. A Case Decided Without a Contest
One further feature of the Darboe proceedings deserves brief acknowledgment. On May 26, 2017, the then Attorney General indicated that the defendants were no longer contesting the plaintiffs’ claims, and that the prayers sought were “in accordance with the relevant provisions of the Constitution.” The plaintiffs sought judgment on that basis. The court declined to hear submissions from plaintiffs’ counsel and proceeded to deliver judgment entirely in favor of the defendants on the merits.
The executive’s concessions do not bind a court in a constitutional matter, and the decision to proceed to a full merits determination was entirely appropriate. The observation is simply this: the constitutional question was ultimately resolved without the benefit of a fully contested hearing, without respondent counsel prepared to argue proportionality, engage in comparative analysis, or press the question of whether less restrictive alternatives existed. GPU and Emil Touray, both robustly contested on both sides, produced richer, more developed analytical approaches as a result. A fully contested assembly hearing, applying those same standards, might do the same.
- Three Questions Darboe Never Asked, and Three Answers a Revisitation Could Give
Apply the methodology consistently applied in GPU and Emil Touray to the facts of Darboe, and three questions become unavoidable, questions that the 2017 judgment did not ask.
On proportionality: Was a discretionary police license the minimum necessary interference with the right of peaceful assembly? A notification regime, requiring advance notice to police without conditioning the assembly on police approval, would serve the same public order aim while leaving the decision to assemble with the citizen rather than the official. The Darboe court never asked whether such an alternative existed, or why the more restrictive mechanism was necessary rather than merely convenient. Under the proportionality requirement confirmed in GPU and Emil Touray, that question cannot be avoided. And under the principle that administrative convenience cannot sustain a constitutionally deficient restriction, the state cannot answer it simply by pointing to the operational costs of changing the system.
On stricter construction: The Darboe court found a public order purpose and treated that finding as sufficient for the whole analysis. GPU held explicitly, and Emil Touray confirmed that identifying a purpose satisfies only one criterion, not all of them. A restriction serving a public order aim is not, on that ground alone, constitutional. And a restriction whose validity rests on a presumption of good official conduct rather than on defined legal constraints satisfies none of the criteria the constitutional standard requires.
On severability: Section 5(1) of the Public Order Act vests the IGP with the power to “direct the conduct of all public processions and prescribe the route by which and the times at which any procession may pass,” without any limiting condition. The GPU court applied severability, examining each provision independently and excising those that failed proportionality while preserving those that survived. That tool was not deployed in Darboe. Sections 5(1) and 5(2) were treated as an undifferentiated whole, and the provision bearing no standard at all received no independent scrutiny.
It is worth being precise about what a revisitation would actually decide, because the outcome is not foregone. Three distinct findings are available to the court, and each would reshape the law of assembly in a meaningfully different way.
The first and most far-reaching outcome is that Section 5 falls entirely. On this view, a discretionary prior restraint on assembly, vesting unbounded authority in an executive official without narrow standards, a prompt remedy, or any requirement to justify a refusal, cannot survive the proportionality standard that GPU and Emil Touray require. The court would find that Section 5 fails not merely in its application to any particular protest, but on its face, because its architecture is constitutionally incompatible with the right it purports only to regulate. The result would be that Gambians may assemble without seeking prior permission, subject to the state’s power to intervene where disorder actually materializes.
The second outcome, and perhaps the most analytically elegant, is a partial strike-down along severability lines. Section 5(2)’s breach-of-peace criterion, narrowly construed, might survive as a basis for the state to respond to assemblies that present a genuine and imminent threat to public order. But Section 5(1), which vests the IGP with unconditional power to direct the conduct of all processions without any standard at all, would fall. The court would sever what can stand from what cannot, as it did in GPU, preserving a role for police regulation of assembly while removing the provision that places citizens at the mercy of official discretion without constraint.
The third outcome is that both provisions survive, but only after the court has applied genuine proportionality analysis and found, on the evidence, that the public order conditions of The Gambia justify a licensing requirement as the minimum necessary mechanism. This, too, would be a meaningful result, because it provides the constitutional justification that Darboe did not. A right that has been genuinely tested against proportionality and found to yield to a compelling public interest is in a different legal and moral position from one that was assumed to yield without the analysis being performed. The court’s credibility and the law’s legitimacy are served by the examination itself, regardless of where it ends.
What the court should not do, consistently with its own announced standard, is return to the Darboe approach of identifying a public order purpose and treating that identification as the end of the inquiry. The GPU and Emil Touray line of authorities foreclose that path. The question now is not whether to analyze Section 5 under the full constitutional standard, but when and in what case the Supreme Court will finally perform the analysis.
