POF Civic Awareness Classes
PROTECTION FROM DEPRIVATION OF PROPERTY
As the name implies, this is an International Human Right that protects or guarantees natural persons (individuals) or legal persons (corporations) their right to possession of their own property. However, an individual may be deprived of his/her possession or property as a result of public interest and subject to conditions provided for by law and by the general principles of International Law. The provision also shall not, however, in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.
The Right to Property is enshrined in section (22) of the 1997 Constitution of The Republic of The Gambia. This section guarantees your right to property and further went on to state the instances or circumstances which will not amount to deprivation of your right to property. Section 22(1) states thus;
1. No property of any description shall be taken possession of compulsorily, and no right over or interest in any such property shall be acquired compulsorily in any part of The Gambia, except where the following conditions are satisfied:
- The taking of possession or acquisition is necessary in the interest of defense, public safety, public order, public morality, public health, town and country planning, or the development or utilization of any property in such manner as to promote the public benefit; and
- The necessity therefore is such as to afford reasonable justification of the causing of any hardship that may result to any person having any interest in or right over the property, and
- Provision is made by law applicable to that taking of possession or acquisition-
- For the prompt payment of adequate compensation; and
- Securing to any person having an interest in or right over the property, a right of access to a court or other impartial and independent authority for the determination of his or her interest or right, the legality of the taking of possession or acquisition of the property, interest or right, and the amount of any to which he or she is entitled, and for the purpose of obtaining prompt payment of that compensation.
Under subsection (2) an individual is not deprived of your property or your right to property is not infringed under the circumstances or conditions stated below;
- In satisfaction of any tax, rate or due
- By way of penalty for breach of law, whether under civil process or after conviction for a criminal offence;
- As an incident of a lease, tenancy mortgage, charge, bill of sale, pledge or contract;
- By way of the vesting or administration of trust property, enemy property, bona vacantia, or the property of person adjudged or otherwise declared bankrupt or insolvent person of unsound mind,
- In the execution of judgment or order of courts;
- By reason of such property being in a dangerous state or liable to cause injuries to the health of human beings, animals or plants;
- In consequence of any law with respect to limitation of actions; or
- For so long as such taking of possession may be necessary for the purpose of any examination, investigation, trial or inquiry, or, in the cases of land, the carrying out thereon.
- Of work of soil conservation or the conservation of other resources; or
- Of agricultural development or improvement which the owner occupier of the land has been required and without reasonable or lawful excuse refused or failed, to carryout, except so far as that provision, or as the case may be the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society.
Subsection (3) states that; nothing in this section shall be construed as affecting the making or operation of any law for the compulsory taking in the public interest of any property, or the compulsory acquisition in the public interest of any interest in or right over property, where that property interest is held by a body corporative which is established directly by any law and in which no monies are provided by an Act of the National Assembly.
Subsection ( 4) states; where a compulsory acquisition of land by or on behalf of the Government involves the displacement of any inhabitant who occupy the land under customary law, the Government shall resettle the displaced inhabitants on suitable alternative land with due regard to their economic well being and social and cultural values.
Subsection ( 5) states; any such property of whatever description compulsorily taken possession of, and any interest in or right over property of any description compulsorily acquired in the public interest for a public purpose for which it is taken or acquired.
Subsection(6) states, where any such property as referred to in subsection (5) is not used in the public interest or for the public purpose for which it was taken or acquired, the person who was the owner immediately before the compulsory taking or acquisition, as the case may be , shall be given the first option of acquiring that property, in which event he or she shall required to refund the whole or such part of the compensation as may be agreed upon between the parties thereto; and in the absence of any such agreement such amount as shall be determined by the High Court.
Our next civic awareness class will be section (23) which deals with the Right to Privacy.
Welcome to Power of Freedom Civic Awareness Class. In this episode, we will be discussing citizenship under the 1997 Gambian constitution. Our discussion will be centered on (I) the term citizenship (II) the types of citizenship provided for in the 1997 Gambian Constitution (III) dual citizenship (IV) deprivation of citizenship and (V) restoration of citizenship.
Citizenship is membership in a political community (originally a city or town but now usually a country) and carries with it rights to political participation, among others. A person having such membership is a “citizen”. Citizenship is largely coterminous with nationality, although it is possible to have a nationality of a particular country without being a citizen (i.e., be legally subject to a state and entitled to its protection without having rights of political participation in it).
TYPES OF CITIZENSHIP UNDER THE 1997 CONSTITUTION
Chapter (III) of the 1997 constitution of The Gambia deals with citizenship. Under this chapter, there are four types of citizenship under the Gambian constitution. They are (1) citizenship by birth (2) citizenship by descent (3) citizenship by marriage and (4) citizenship by naturalization.
- CITIZENSHIP BY BIRTH
Citizenship by birth is the type of citizenship which a person acquires by reason of his or her birth. Section (9) of the 1997 constitution deals with citizenship by birth. It provides thus:
Every person born in The Gambia after the coming into force of this constitution shall be presumed to be a citizen of The Gambia by birth if at the time of his or her birth; one of his or her parents is a citizen of The Gambia
Thus, by virtue of this constitutional provision, being born in The Gambia alone does not automatically make one a Gambian citizen by birth. To be a Gambian citizen by birth, one must be born in The Gambia to at least one Gambian parent.
- CITIZENSHIP BY DESCENT
Persons born outside The Gambia are Gambian citizens by descent if either of their parents is a Gambian citizen. This is death with under section (10) of the constitution which provides:
A person born outside The Gambia after the coming into force of this constitution shall be citizen of The Gambia by descent if at the time of his or her birth either of his or her parents is a citizen of The Gambia otherwise than by virtue of this section or any comparable provision of any earlier constitution.
The phrase ‘…otherwise than by virtue of this section…’ may be said to mean that citizenship by descent is only available to persons born outside of The Gambia to Gambians by birth. That is to say the child of a Gambian by descent cannot acquire Gambian citizenship unless the child is born within The Gambia or where the child is born outside of The Gambia; the other parent must be a Gambian by birth. For the avoidance of doubt, a child born outside of The Gambia to two Gambian citizens by descent is not a Gambian.
That’s it for today’s edition of the Power of Freedom Civic Awareness class.
Our next episode will be a continuation of the topic, Citizenship in which we will be dealing with the other two types of citizenship under the 1997 Gambian constitution.
- The 1997 Constitution of The Gambia
- Constitutional Law Lecture notes by Mr. Dawda Jallow Esq