Part I
Alagi Yorro Jallow
Fatoumatta: Property rights are constitutionally safeguarded in The Gambia. The Constitution of the Republic of The Gambia, 1997, in Chapter IV concerning the protection of fundamental rights and freedoms, explicitly provides for the Protection from Deprivation of Property in Section 22. This section guarantees that every individual has the right to own property either individually or collectively, and this right cannot be arbitrarily infringed upon.
The Land Acquisition and Compensation Act, No. 5 of 1991, part of The Land Act of The Gambia, establishes the legal framework for the acquisition of land for public purposes and the provision of compensation for such land. The Act authorizes the Minister to acquire lands for public use, including for government or community purposes, sanitary improvements, the development of new government stations or extensions, and the construction of ports, airports, and other public works.
Furthermore, the Act mandates that lands acquired under its authority are to be classified as State lands. It also ensures that fair consideration or compensation is provided when land is taken for public use. The acquisition process involves preliminary investigations, a notice of intention to acquire, and the resolution of any disputes regarding compensation or ownership through arbitration or by the High Court.
Land governance in The Gambia is shaped by a complex system of statutory and customary laws. Over recent decades, land reforms have transformed customary tenure into leasehold tenure, centralized land administration, and led to the creation of a Land Commission. Despite these changes, challenges persist, including the absence of a national land policy, insufficient implementation of legal frameworks, and issues surrounding women’s land access and peri-urban land disputes. The 1997 Constitution, the Land Act, and other relevant urban planning laws must be considered collectively to grasp the full extent of statutory requirements expected from state authorities and landholders.
According to Section 2 of the Gambian Constitution, property rights are constitutionally safeguarded. This constitutional protection means that courts are averse to arbitrary property seizures and mandate that fair hearing and due process are prerequisites for property takings and evictions. The question then arises: what does due process involve, and what are its legal components?
In the Gambia, the Land Act serves as the national legal framework governing land acquisitions and related transactions. As an expropriation statute that affects citizens’ property rights, the Land Act is interpreted with a bias against the acquiring authority and in favor of the individual whose property rights are at stake. While the Act entrusts all land within the state to the governor as a trustee, it also outlines the procedures for revoking landowners’ titles and the ensuing consequences. Adherence to both the letter and spirit of the law is essential. The Gambian government claims that the demolished properties were constructed unlawfully on public lands. Under the Land Act, the government has the authority to remove any unauthorized building, wall, fence, obstruction, structure, or similar entity that may have been placed on public land.
The Constitution’s protections are extensive, encompassing all property types, not limited to land but also including immovable assets like housing and movable possessions such as household items. As such, forced evictions and demolitions prima facie infringe upon the constitutional right to property, irrespective of land title ownership, as they at least result in the destruction of housing materials and personal belongings.
A court order is imperative: The government’s reliance on significantly flawed, unilateral, and expedited processes to adjudicate the culpability of alleged offending landholders is evident. Securing a court order prior to conducting mass evictions or demolitions is a critical measure to ensure adherence to human rights and due process. In deviation from the Land Act and constitutional provisions, no independent governmental body verified the alleged titling discrepancies, making it challenging to independently authenticate these official claims. The judiciary did not participate in determining the guilt of the impacted landholders. The entire operation was not only unnecessarily rushed but also indicative of an inflexibly executed policy, leading to widespread forced evictions, displacement of countless families, loss of livelihoods, sudden interruption of children’s schooling, fatalities, property loss, and severe breaches of various interrelated human rights. Moreover, the burden of evictions disproportionately affects youth and women, as they are more likely to drop out of school and forfeit economic opportunities typically situated near their homes.
The nature of the demolitions highlights the degree to which the government fulfills its human rights commitments as outlined in various national, regional, and international human rights frameworks. Similarly, the forced evictions and demolitions have exacerbated distress, poverty, and disparity, while widespread human rights infringements have impeded significant progress in the achievement of human rights, particularly economic and social rights.
Government agencies in The Gambia play a significant role in the illegal acquisition of property, often colluding with officials to transfer public lands to private entities. Such actions necessitate a restructuring of the system to prevent these failures. A thorough investigation is required to identify and prosecute the culprits. Resorting to mass demolition of properties should never be the initial reaction to these issues. Holding state officials accountable for improper land sales and transfers is essential; otherwise, the systemic corruption will persist. Instead of addressing the root causes, government officials have directed their frustration towards citizens and potentially innocent land purchasers through random demolitions and land seizures. It is imperative for The Gambia Government to create a participatory engagement mechanism that involves all stakeholders in the development strategy for the city, including the improvement and rehabilitation of informal settlements in the Greater Banjul Area metropolis.
