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The Beginners’ Guide to Company Registration in the Gambia

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The Writer

Inspired by my law office attachment at the Companies registry of the Ministry of Justice in the Gambia and the burning desire to empower budding entrepreneurs, this article on the different types of company registration emerges as a beacon of guidance. It aims to provide clarity and understanding, ensuring that these passionate individuals have the necessary knowledge to navigate the intricacies of registering their businesses. By shedding light on the various registration options available, this article seeks to equip entrepreneurs with the tools to make informed decisions, set strong foundations, and embrace their entrepreneurial journeys with confidence.

So, dear reader, if you find yourself amidst the crowd of dreamers, yearning to embark on the exhilarating path of entrepreneurship, this article is crafted especially for you. Let’s delve into the world of company registration and unlock the secrets that will set you on the path to success.

In the dynamic world of business, the path to success begins with proper company registration. Whether you’re a budding entrepreneur or a seasoned business owner, understanding the different types of company registration is crucial. In this article, we delve into the diverse landscape of company registration and empower you with the knowledge you need to make informed decisions.

At the heart of company registration in The Gambia lies the Companies Act 2013—a regulatory framework that governs businesses. Under the vigilant eye of the Companies Department, a branch of the Ministry of Justice, various categories of businesses and charitable bodies come to life. The process is streamlined, thanks to the Single Window Business Registration Act 2013. Swift and efficient, the Companies Department issues business and incorporation certificates in a mere day at our offices in Banjul or Kanifing Municipality.

Let’s embark on this enlightening journey by exploring the different types of company registration available:

 Unleash Your Entrepreneurial Spirit: Sole Proprietorships

Are you a one-person powerhouse ready to take charge? A sole proprietorship might be your perfect match. With minimal formalities, forming a sole proprietorship is a breeze. You retain full control of the business profits but bear in mind that you are also personally liable for any losses or liabilities incurred. It’s a venture where you are the star of the show.

 Registration Requirements:

Complete form SWR 3 (Application form).

Provide a photocopy of your National Identity Card, Passport, or Driver’s License.

Submit a copy of the TIN Card associated with your proprietorship.

Forging Partnerships

A Journey of Collaboration Partnerships offers strength through unity. Whether you’re forming a limited partnership, a general partnership, or a firm, the essence of the partnership lies in shared goals and responsibilities. Registering a partnership requires a few extra steps.

 

Registration Requirements

Obtain name reservation.

Complete form SWR7.

Provide a copy of the registered Partnership Deed or Agreement.

Include TIN Cards and photocopies of National Identity Cards, Passports, or Driver’s Licenses for all partners.

Pay the necessary business registration and incorporation fees.

The Pinnacle of Success: Company incorporation

Company Incorporation Dreaming of building an empire? Company incorporation is the key to unlocking boundless possibilities. Whether you opt for a Private Limited Liability Company, a Company Limited by Shares, a Company Limited by Guarantee, a Public Limited Liability Company, or a Branch of a Foreign Company, each structure carries unique benefits and considerations.

 

Registration Requirements:

Secure name reservation.

Fill out form SWR 7.

Include the Articles and Memorandum of Association.

Provide TIN Cards and photocopies of National Identity Cards, Passports, or Driver’s Licenses for shareholders, directors, and the secretary.

Attach particulars of the agent in The Gambia for any non-resident shareholders or directors.

 A Heart for Good: Charitable Bodies

Charitable organizations, associations, and foundations play a vital role in shaping communities and fostering positive change. Registering as a charitable body entails additional considerations, but the impact you make is immeasurable.

Registration Requirements:

Complete the application form SWR7 and statutory forms CO32 & CO33.

Include the original copy of the constitution, identifying executive members.

Provide photocopies of passports, national identity cards, or driver’s licenses for the president, chairperson, and secretary.

Submit a copy of the TIN card for the association.

Parting words

Understanding the different types of company registration is a fundamental step in your entrepreneurial journey. The Companies Act 2013 and the Single Window Business Registration Act 2013 provide a solid framework for registering businesses and charitable Organizations in The Gambia. From the simplicity and autonomy of sole proprietorships to the collaborative nature of partnerships, and the vast potential of company incorporation, each registration type offers unique advantages and considerations.

By taking the time to navigate the registration process and fulfil the requirements, you set a strong foundation for your business or charitable endeavour. Remember to consult legal professionals and explore additional resources for detailed guidance and support.

Embrace the path that aligns with your goals, aspirations, and values. Whether you’re driven by profit, collaboration, or making a positive social impact, the world of company registration opens doors to unlimited possibilities. Now armed with knowledge, you can confidently embark on your journey towards success. So, dare to dream, aspire to achieve; the future of your business or charitable body awaits, and with the right registration, you can make your mark in The Gambia and beyond.

 

 

The writer is a BL candidate at the Gambia Law School. She is driven by her affinity to the legal profession and relies on Precedents and Acts of the National Assembly to educate the public on bits and pieces of the application of the Laws of the Gambia and Ethics of the legal profession. These write-ups are for educational purposes only and not to serve as a substitute for Legal Advice. Email: [email protected]

 

The Hypocrisy of Gambian Parliamentarians

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OPINION

By: Pa Alhagie Musa Kassama (The New Pen)

The issue of hypocrisy among parliamentarians is not unique to The Gambia but is prevalent in political systems around the world. Hypocrisy refers to the act of saying one thing and doing another or holding double standards. Unfortunately, it is an all-too-common phenomenon that undermines the integrity and credibility of elected officials. Following the purchase of vehicles at an estimated exorbitant cost of US$ 60,000 equivalent to a whopping D3.9million in the midst of economic hardship and human-induced poverty, I found it necessary to express my total dismay and utter disappointment at the dishonest behaviours of our so-called constituency self-representatives.

Below is an independent view and/or opinion of how hypocritical and myopic our sixth National Assembly Members have turned into.

In the context of Gambian parliamentarians, there have been instances where their actions have been contradictory to their stated principles or promises. One area where hypocrisy has been observed is in the realm of corruption. Many parliamentarians have pledged to fight corruption and promote transparency, yet some have been implicated in corrupt practices themselves. Such actions not only betray the trust of the people who elected them but also perpetuate the cycle of graft and unethical behaviour within the political system.

Another aspect where hypocrisy is evident is in the behaviour of parliamentarians towards the rule of law. They often champion the importance of upholding the law and ensuring justice for all citizens. However, there have been cases where parliamentarians themselves have been accused of violating the law or interfering with judicial processes. This kind of behaviour undermines the credibility of the entire legislative institution and erodes public confidence in the justice system.

Furthermore, there have been instances of parliamentarians engaging in divisive rhetoric and political manoeuvring for personal gain. They may publicly advocate for unity and national development, but their actions behind closed doors often reveal a different agenda. This kind of hypocrisy not only hampers the progress of the nation but also deepens societal divisions and fosters a climate of mistrust.

It is important to note that not all Gambian parliamentarians engage in hypocritical behaviour. There are undoubtedly dedicated and principled individuals who genuinely strive to serve the best interests of their constituents. However, the actions of a few can tarnish the reputation of the entire institution and breed public disillusionment.

Addressing the issue of hypocrisy among Gambian parliamentarians requires a multifaceted approach. First and foremost, there should be mechanisms in place to hold elected officials accountable for their actions. This includes robust oversight, transparency in financial matters, and an independent judiciary that can investigate and prosecute cases of corruption or misconduct.

Additionally, there needs to be a culture of ethics and integrity within the political system. This can be fostered through education, training, and the establishment of codes of conduct for parliamentarians. Political parties also play a crucial role in ensuring that their members adhere to ethical standards and are held accountable for any hypocritical behaviour.

Lastly, the public has a vital role to play in combating hypocrisy. Citizens must remain vigilant, informed, and engaged in the political process. By demanding transparency, questioning inconsistencies, and holding their elected representatives accountable, the people of The Gambia can contribute to a more honest and accountable political culture.

In conclusion, the issue of hypocrisy among Gambian parliamentarians is a significant challenge that needs to be addressed. By promoting accountability, fostering a culture of ethics, and encouraging active citizenship, it is possible to mitigate the impact of hypocrisy and ensure that elected officials act in the best interests of the nation and its people.

Waiting For The Train

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By Cherno Baba Jallow 

TRAVEL/COMMUTE

Several weekends past, our New York-based writer got stranded on his way home in the city. He encountered his longest train delay – yet. The experience left him pondering. His reflections:

I am a long way from home.

And I do not know when I will arrive. I am stranded here at the train station on 149 Street/Grand Concourse in The Bronx, New York City. I am not alone. This station is chock-a-block with people —- they keep coming. It is a multitude of us on either side of the train tracks. But for some of us headed uptown, to the other side of the city, the wait is taking a tad longer.

There is no train on the way. At least, not anytime soon.

So, what do you do when you find out your train has a long delay —- a wait of 45 minutes? Well, you sit or stand or amble along the embankment. You wait, and while at it, do something to kill the time. You try some reading (a book or a newspaper). Or you do some eye-surfing, selfie-taking. Or you talk on the phone. Or you play some games (scrabble?) on your phone. Or you give your mind a free rein to dissect the realities of quotidian life or to travel back in time, to the idyllic years of a distant childhood. You try to preoccupy your mind with something, anything.

This has been my longest train delay, so far. As a resident of New York City, I am no stranger to disruptions in public commuting. During the weekends, train traffic can be unpredictable. Trains run infrequently. They skip some stations. And they are re-routed because of ongoing track repairs. So regular commuters, like me, are at the mercy of service disruptions and changeable schedules. It comes with it, this life-easing dependency on mass transit in mega cities like mine.

Living in Michigan, where driving a car is a necessity and where the public transportation system is not reliable, I never knew what a train or a bus delay was. I drove my own car to work, to soccer training, to see friends, to run my errands. I conquered distances with ease and certitude —- well, if you factor out the unexpected flat tires or the hurdles of snowy roads or the encumbrances of the long-turning, 18-wheeler trucks towering over city traffic or trundling beyond the city limits.

I left Michigan in 2014 to attend grad school in New York City. And I left all my driving skills behind. I do not drive anymore. It is a matter of necessity and convenience: owning a car in New York City can be a burden. The insurance costs are high. And parking is a headache.

But my pedestrian lifestyle in the city is also due to my own personal insecurities: Can I handle this city traffic? Am I going to bump into another car? This sea of cars and these traffic-clogged streets continue to affright me. I keep doubting myself. But then when I see the elderly honk their ways out of traffic jams and gleefully give the middle finger, too, I am reminded of the wimp that I am — that if others can drive in the city, I can do it, too.

Until then, it will be a life of ceaseless train delays. But I will always try to get some good out of it all. As I wait along the embankment, I will read a book or finish up my day’s newspaper. I will take beautiful selfies, steal quick glances of my fellow stranded travelers, and imagine what they are possibly going through: Running late for work? Missing out on those sweet weekend deals at the shopping mall? Staring at the possibility of a delayed or cancelled first date?

Waiting for a train, and a delayed one at that, can be frustrating and lead to a heightened state of hopelessness. But it also can be exciting, a motivation for contemplation. Physical immobility along these tracks shouldn’t impede mental motility.

Excavating the history of Eid al-Adha, the spirit overweighs the feast: Purifying the inner self

By: Alieu Fatty

Alieu Fatty is a student at the International Ahmadiyya University of Theology and Scholastic Sciences in Ghana

Eid-u-Adha is an Islamic festival celebrated yearly by Muslims around the world. It is a festival of joy and happiness. We celebrate Eid at home by praying, making sacrifices and distributing sweets to everyone.

Eid is an Arabic word for ‘feast’ or ‘holiday’ but when we say Eid-ul-Adha, it specifically refers to the Islamic feast or holiday commemorated globally by Muslims each year. Undoubtedly, the experience of celebrating Eid-ul-Adha in the Gambia comes with special and unforgettable moments. The atmosphere on this day is totally different from all other days. Friends invite friends and families invite families for meals.

It was the practice of the Holy Prophet Muhammad (saw) to give preference to this day, he took three days as Eid holidays from all daily works of life just to give thanks to Allah the Almighty. The Holy Prophet (saw) has given so much importance to this day that it is narrated in the Hadith that he(saw) has forbidden Muslims from keeping fast on this very blessed day.

It states:

“Allah’s Messenger (saw) has forbidden people to observe Saum(fast) on the day on which you breakfasting (the Saum of Ramadan) and the day on which you eat the meat of your sacrifice. i.e., the first of Eid-ul-Fitr and Eid-ul-Adha. (Bukhari Kitab Saum, Hadith No.1990)

In the Holy Quran Allah, the divine scripture of Muslims all around the world, it is believed to have been divinely revealed to the Prophet Muhammad (saw) through revelation; it is the first source of all Islamic sources of guidance, in it Allah the Almighty has commanded the Muslims who can afford animal sacrifices on this day to also take part in the sacrifice.

The Holy Prophet (saw) also ordered the Muslims on this day before going for Eid to take a bath, wear new clothes or the best clothes one has, and put on adorable perfume when going to the mosque for the observation of the Eid prayers.

Nobody can reject the great importance of making animal sacrifice or wearing nice clothes that one has possessed on the day of Eid. But do you also know that Eid is not all about making the biggest and healthiest animal sacrifices in your region, country or even the world or wearing the nicest fashionable clothes in the world or even putting beef on the dining table enjoying with family members, friends and loved ones and then later disperse like any other ordinary gathering?

Nevertheless, when we retrospect on the background of this great institution in Islam, we cannot help but agree to the truth that, indeed, Eid has an ulterior purpose, bigger and more profound than all the Eid meat that is enjoyed on this special day.

Rich Historical Background of Eid Adha

Eid has a very humble beginning, hailing from the time of Prophet Ibrahim(as) who is also known as the father of all prophets and the founder of all the three Abrahamic religions in the world: Judaism, Christianity and Islam. Hazrat Ibraham(as) at an old age earnestly prayed to God Almighty to be granted a son. His prayers were graciously accepted by Allah the Almighty in the form of a son Hazrat Ismail (as).

Furthermore, interestingly Hazrat Ibrahim was tried by God to sacrifice his only son Hazrat Ismail (as). He (as) never doubted this divine commandment he received from Allah the Almighty. He (as) immediately consulted his son Hazrat Ismail (as), who also conceded for the divine will to be carried out literally since it was an order from God.

As Hazrat Ibrahim (as) took Hazrat Ismail (as) to a far-off land and was ready to literally contrive the divine commandment, it was through divine revelation that God Almighty again revealed to him (as) that, his intentions were accepted and instead of Hazrat Ismail (as), an animal sacrifice is made in his place. One breathtaking lesson from this incident is that it was also meant to eradicate the existing human sacrifices that persisted among the people at that time for so long. This one incident shaped the history of human sacrifice in the world forever.

Intrinsically, it could be close to never or very difficult that based on a mere revelation, someone is willing to sacrifice his only son, whom he had at an old age of life after continuous prayer in desirous of an offspring and also giving to the fact of the strong love and affection that exist between father and son. Yet Hazrat Ibrahim (as) was completely ready to sacrifice his only son in the way of God just to earn the pleasure of Allah the Almighty.

The True Purpose of Eid Adha, Burning the Inner Desires

Eid Adah indeed has a great significance in the lives of every Muslim, since the purpose of the celebration is to reminiscence and emulate the great sacrifice made by Prophet Ibrahim (as), Hajar (as) and Prophet Ismail (as) during the difficult moments of their lives.

The founder of the Ahmadiyya Muslims beautifully expounded the real importance of the institution of Eid-Adha in Islam, he states: ‘Abraham, peace be upon him, was even ready to slaughter his son to fulfil the commandment of God Almighty. This was a hidden indication of the fact that man ought to become wholly devoted to God, and one’s own life, and the blood of one’s children, and one’s kith and kin, ought to appear insignificant in the face of God’s command.’

Little did we know that there are a lot of families out there who on this day do not have even the smallest animal to make of sacrifice or even buy the cheapest clothes in the market for themselves, their families and their loved ones.

However, these people who, unfortunately, do not have the means to buy animals or nice clothes, does it mean that despite having very strong and good intentions to also partake in the animal sacrifice and buy new clothes for the Eid celebration but due to depravity, their Eid is not accepted in the sight of Allah? Or due to the so-called constitutional restriction on minority Muslims for professing belief in the Oneness of Allah Almighty, believing in the Holy Prophet (saw) as the seal of prophets, believing in the Holy Quran exactly as having been brought by the Holy Prophet Muhammad (saw), and believe in the six articles of faith and practice all the five pillars of Islam.

In fact, in the Holy Quran concerning animal sacrifices God Almighty has very vividly and categorically mentioned that neither the meat of the sacrificial animal reaches Allah Almighty nor does its blood reach him but instead. He stated that it is your righteousness which reaches him.

He stated:

لَن يَنَالَ اللَّهَ لُحُومُهَا وَلَا دِمَاؤُهَا وَلَكِن يَنَالُهُ التَّقْوَى مِنكُمْ كَذَلِكَ سَخَّرَهَا لَكُمْ لِتُكَبِّرُوا اللَّهَ عَلَى مَا هَدَاكُمْ وَبَشِّرِ الْمُحْسِنِينَ

“Their flesh reaches not Allah, nor does their blood, but it is your righteousness that reaches him. Thus, has He subjected them to you, that you may glorify Allah for His guiding you. And give gliding to those who do good.” (Holy Quran chapter 22 verse 38)

His Holiness, Hazrat Mirza Masroor Ahmad (aba) the worldwide head of the Ahmadiyya Muslim Community stated regarding the injustices being committed against Muslim minorities in Pakistan and elsewhere:

“In the verse, he recited in the beginning, God has stated that the physical sacrifices do not reach him, rather it is the spirit of righteousness that reaches him. Hence, we should not be bothered by being stopped from carrying out the sacrifice. If we had intended to do so and our intention was made with righteousness, then we need not worry for this will be accepted in the sight of God…”

“…..We should not become sad if we have been hindered from carrying out the sacrifice, for if our intention was pure then it will be accepted. We find from the time of the Holy Prophet (sa) that a person who had not been able to physically go for Hajj, but had made the intention and acted with righteousness, his Hajj was still accepted.”

His Holiness added:

“Therefore, when we make a pledge to offer every kind of sacrifice, we need to instil these same sentiments and thinking, that our sacrifice has no value, rather this is purely the favour of God Almighty for giving us the opportunity to make a sacrifice, which results in drawing us near to God the Almighty. The reality is that our sacrifices are completely insignificant compared to the sacrifices made by Hazrat Abraham (as) and Hazrat Ishmael (as), or the sacrifice they were ready to make. Whenever we give even the slightest precedence to our faith over worldly matters, we are immeasurably rewarded by Allah the Almighty.”

Darboe, Bensouda And The UDP: A Final Exit, And A New Beginning?

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OPINION

By Cherno Baba Jallow

“Governors are appointed, councils are elected,’’ Talib Bensouda, who recently won re-election as mayor of the Kanifing Municipal Council, once said in a speech. “Councils should not report to governors; councils report to the people,’’ he added.

Perfectly stated. Democracy is the will of the people. The people, that is, gets to decide who decides for them. In The Gambia, people have a say in who their local government councillors and chairpersons are, but not who becomes their governor.

Mayor Bensouda’s position on this matter comes from the heart. He is both puzzled by and anguished over a local government system deliberately catering to a minister and governors at the expense of local councils, the legitimate custodians of power and authority.

Predicting the future in politics is an ill-conceived leap into uncertain territory, but it’s probable that if he became president, Bensouda would champion significant changes to the way governorships are attained or run in The Gambia. He would ask for demarcation lines between what governors could do and not do as agents of central government. He would come up with ways to revamp local councils, protecting them from the intrusive and dictatorial abuse of governors and local government ministers. And he would call for the hiring and firing of governors be done by the people, not the president. Making governors elected officials, and hence accountable to the people, would remove one of the last anomalies of Gambian democracy.

A reform in local government is key. But this issue deserves a sustained presence in the public imagination, and up until public opinion assents to, and legislative reforms downstream from, it.

So Bensouda’s re-election means he gets to stay for five more years, and with it, a chance to build on his political capital and flesh out his ideas on the management of government affairs. He won re-election not because he had an “impressive” first term —- he didn’t; it was a mix-bag —— but rather because of his political charm and his lofty ambitions to bring ameliorative changes to the conditions of his constituents.

Bensouda’s essence isn’t really anchored in his past, his last five years in office. It is in his future, in the strong belief that he has the potential to be a great leader, a trailblazer in Gambian politics. His United Democratic Party should take a closer look at him for a potential leader and a challenger for the presidency in 2026.

At the moment, Bensouda is riding a crest of urban popularity. He gets wide berth among those displeased with President Adama Barrow’s juvenile incompetency, turned off by Ousainou Darboe’s political hubris and incensed at Halifa Sallah’s stubborn inflexibility. He is young, eloquent and compelling. He exudes a tranquil bearing, far removed from the disorderliness of Gambian politics and the clangor of its discourse.

Going into his sixth year in office, Bensouda is accumulating executive experience, a good start for a sojourn into the presidency. He is the kind of a leader the UDP needs to broaden its reach, to smoothen its rough edges and to help make a compelling case against Barrow in 2026.

In the 2022 presidential election, three thunderclaps sank Darboe’s candidacy: he flaunted an aura of invincibility aligned with smug superiority, he had a (huge) likability problem and he had (zero) elective-office experience. The last two matter because they fundamentally matter to voters in deciding for and against those seeking to run the affairs of state. They won’t vote for politicians they don’t like. And they are leery of voting for those without the faintest of experience in running things. Darboe was and still is well-liked by his supporters. But he struggles to find love from the rest of the electorate. He has been running for the presidency since 1996, but the electorate, excluding the UDP members, sees his lack of elective-office experience as an embarrassing, unsettling even, omission in his suitability for representative leadership.

The UDP is still unwilling to acknowledge or admit it publicly, that it has a leadership problem. So, it indulges itself in the self-perpetuating canard of a “stolen’’ election. The party would save itself a lot of precious time if it, among other things, concentrated on finding a replacement for its perennially-losing candidate. That would help it abandon its long-running, if constraining, culture of supine idolization and inflamed resentment. It would also, for once, bring to the fore of the party, an “ordinary’’ candidate —— a candidate in the mold of those seeking elective office by dints of ideas and persuasive abilities, and not by the cults of their personalities.

Those candidates shouldn’t be hard to find within the UDP. Consider Bensouda, Mayor Rohey Malick Lowe, Chairman Yankuba Darboe and Chairman Landing Sanneh. These young leaders are organically growing, and from the bottom-up. They are grinding it out, tackling the knots and bolts of constituent matters, something Darboe has never done throughout his political career.

Forged out of the embers of a quasi-military dictatorship in 1996, the UDP arrived on the scene at a highly unpropitious time: constitutionalism was dead and buried, democracy was in full retreat and a young military leader (then-Captain Yahya Jammeh), having already enjoyed the saccharine taste of power, was beginning to force himself onto the political scene, plotting an overwhelming control of the country’s future. With the ruling party, the PPP, banned and with an opposition scene dotted with fledgling parties, Jammeh was poised for a comprehensive dominance of the soon-to-be-revived phase of multiparty politics. But the UDP’s emergence helped prevent that, and to the country’s benefit.

The UDP’s strongest asset in its 27-year lifespan, a common denominator in the longevity of political parties, has been its fortitude, the staying power inherent in mass movements. The party’s character is moored in the firmness of resolve of its members. But it lacks a leader with a Jawarasque charm and eloquence, his first-rate political skills, his ability to inspire even those on the other side and his capacious understanding of the fine details of electoral politics. Darboe has been in politics for 27 years, but it has never been his true vocation in life.

A few years hence, and all political things held equal, the UDP will be presented with another opportunity to show if it really wants to govern the country with young and fresh hands (read: Bensouda, et al). Or if it is still determined to gift Darboe the presidency as compensation for “his years of suffering for The Gambia.’’

BREAKING: Alieu Fadera joins KRC Genk in D320M deal

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By: Muhammed Lamin Drammeh

Dazzling Gambian winger Alieu Fadera has joined 4-times Belgian league champions, KRC Genk, on a four-year contract from Zulte Waregem, in a deal worth €5 million (D320.9 million).

The Gambian international was an integral member of Zulte Waregem last season, where he scored six goals and assisted six, a performance that caught the eye of Genk for his services.

Alieu Fadera is a highly sought-after winger in Belgium with vast potential for the future.

He was represented in the deal by his agent, Saikou Saidy, who is now a popular football agent exporting Gambian players to the European Leagues.

Speaking to The Fatu Network after his player put pen to paper, agent Saikou Saidy said he wants the best for Fadera and believes that this move will have a massive impact on the player’s future.

Much attention will be paid to the fast-rising Gambian winger in KRC Genk who hopes for a better career.

KRC Genk is a Belgian professional club based in the city of Genk in Belgian Limburg. The team plays in the Belgian Pro League and has won four championship titles, the recent one being in the 2018-19 season.

Memo to President Macky SALL

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By Katim S Touray, PhD

His Excellency, President Macky SALL of the Republic of Senegal

Avenue Léopold Sédar Senghor,

Dakar, SENEGAL

Your Excellency, President Sall,

First, allow me to express my sincere condolences to you and our relatives, the good people of the Republic of Senegal on the sad loss of lives, and my sympathies to those injured and/or who have lost property in recent disturbances in your country. May Allah, Subhanahu wa ta’ala (SWT) grant the deceased eternal Jannah, quickly heal the injured, replace the lost properties, and bring back peace to your country.

Your Excellency, I am Gambian, but I am also writing as your brother and fellow Saloum Saloum. I come from Ballanghar in Saloum, The Gambia, but I have uncles in Dinguiraye in the Département de Nioro du Rip. In addition, one of my sisters is married in Ngayène Sabakh (Département de Nioro du Rip), and another is married in Nganda (Département de Kaffrine). As such, I have a moral duty to speak up on the recent disturbances and ongoing crisis in Senegal. As we say in Wolof, Your Excellency, Mbokka ma chi boole. I am concerned because we (Gambia and Senegal) are blood relatives.

The recent tragic disturbances in Senegal came after the leader of the opposition Party PASTEF, Ousmane Sonko (who is also the Mayor of Ziguinchor) was acquitted of rape charges but convicted and sentenced to 2 years in prison for corrupting young people. As a result, Senegal exploded! Never, in the wildest imaginations of many of us would we have expected Senegal, a beacon of hope, an island of peace and Teranga (hospitality), in a sea of conflict and strife in Africa, especially the Sahel region, would come to this.

The recent protests, Your Excellency, follow similarly motivated pro-Sonko protests in 2021 in which an estimated 13 lives were lost.

It should not have come to this, Your Excellency. You have achieved a lot for Senegal — and Africa — during your political career. Early in your first term as President, you articulated your vision for Senegal in your Plan Sénégal Emergent (PSE — Plan for an Emerging Senegal [PES]). You achieved a lot in implementing the PSE, including the new Aéroport international Blaise Diagne (AIBD), and the transformation of the formerly sleepy Diamniadio into a hub city to ease the pressure on Dakar, the Capital of Senegal.

You achieved all of these during over two decades of public service. Between April 2000 and May 2003, you served as Special Advisor for Energy and Mines to President Abdoulaye Wade. In addition, you held two ministerial positions, you served as a Member of the National Assembly of Senegal, you were elected President of the National Assembly, and you were Mayor of Fatick, your hometown.

Your Excellency, you continued your rise to power in July 2004, when you were appointed as Prime Minister, a position you served in until June 2007. You have served as President of Senegal for the past 11 years, starting in April 2012. During this time, you also served as Chairperson (2015–2016) of ECOWAS, the regional economic grouping of 15 West African States, and as Chairperson (2022–2023) of the African Union, with 55 member States from Africa.

It is clear, Your Excellency, that you have been incredibly blessed, coming as you do from humble beginnings. On the other hand, the recent tragic riots in Senegal show that you risk tarnishing your — so far — great legacy. Senegal has since Independence in 1960 been a bastion of democracy and peaceful coexistence, a country of dialog. However, events in the last few weeks have caused many to wonder whether Senegal, the country of Teranga (hospitality) has, under your leadership, lost its way.

Your Excellency, after over two decades of your service to Senegal and Africa, it is time for you to move on. You should have confidence that your legacy will last for a long time, if not forever. You should also be thankful for, and content with what Allah, SWT has blessed you with, and accept that there is nothing you can do for Senegal that you have not yet done. Besides, Senegal does not need a President who thinks he or she is indispensable because that would be an affront to the capacity of Senegalese to manage their affairs.

Your Excellency, I urge you to reconsider your attitude to the opposition protests. For this reason, I am glad to learn that you plan to address the nation of Senegal on June 25. I urge you in that address to adopt a reconciliatory attitude toward the recent tragic events in the country, and as many have called for, inform Senegalese that you will not run for a third term in office.

I hope, Your Excellency, that Mayor Sonko and other opposition groups can be encouraged to join the national dialog you recently launched. Furthermore, I suggest that the national dialog in the end proposes and that you accept, a way forward for Senegal including withdrawing the cases and nullifying the convictions against Mayor Sonko.

I also hope that the national dialog proposes that protestors arrested in the recent tragic events, and security personnel involved in controlling the protestors should be granted amnesty. I also suggest that you, as well as members of your party and administration, should be granted immunity from prosecution for any and all acts committed up to, but not after, the declaration of that amnesty. I believe that Senegalese have the heart to forgive, and that what Senegal has in the future is much more than whatever damage has been done in the recent disturbances.

Finally, Your Excellency, I would like to mention an Open Letter I wrote to former President Yahya Jammeh of the Gambia in 1999. I suggested to him that he should listen to those who criticize him constructively or suffer the fate of the former Shah of Iran and former Emperor Bokassa of the Central African Republic. President Jammeh did not heed my warning and was, with your firm support of The Gambian people, forced out of office 17 years after I wrote my letter to him.

I sincerely hope Your Excellency, that you will listen to the pleas of the many people who are calling on you to declare that you will not run for a third term in office, and that you will engage the Opposition in a dialog to bring the Senegalese family together again. May Allah SWT guide and bless your efforts in that regard.

Dewenati, and Eid Mubarak!

I thank you!

Lesson for the National Assembly of the Gambia on the allocation and implementation of constituency development fund

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Alhagie M. Dumbuya

Director of Research and Library Services

National Assembly of The Gambia

Email: [email protected]

Overview

Constituency Development Fund (CDF) is a political development tool that is increasingly gaining popularity among parliaments and parliamentarians worldwide, more so in developing countries. The Gambia could be considered among the latest countries to adopt a CDF approach to development when the budget for it was approved by the National Assembly in 2021.

CDF is considered an arrangement that allows a Member of Parliament (MP) to facilitate the spending of funds dedicated and directly earmarked for development project(s) in his or her constituency. In other words, CDF is a mechanism that gives MPs a degree of authority to identify and implement projects in their constituencies. The ‘good’ intent is to provide, through parliament, initiatives that would address inequalities in terms of developments around the country. For some countries, the MP plays the lead role of presiding over constituency opinions on what, where and how the fund is spent or will be spent.

Over the years, arguments have emerged from among the public both for and against the execution of CDF by MPs. The proponents for CDF pointed out some of the benefits of the initiative, noting that it brings about direct visibility of the MP through the projects implemented in the constituency. Those against the approach argued that the implementation of projects is exclusively reserved for the Executive. They posited that parliament is the supreme audit institution which alone has the mandate to approve the spending of national resources and ensure that such resources are effectively accounted for by implementing institutions. For this reason, parliament cannot be a referee and a player at the same time. In other words, parliament cannot be an audit institution of how national resources are spent, at the same allowing Parliamentarians themselves to become spending officers of that resource. The question that might arise would be, who shall hold Parliament accountable?

To the proponents of this latter argument, Parliament would be deviating from its traditional mandate of legislation, oversight/scrutiny and representation as in the case of an auditor becoming an accountant. As such, this will dilute Parliament’s position to effectively monitor and scrutinize projects that it has itself implemented.

 CDF in The Gambia

It may be argued that the ultimate objective of CDF is to eliminate poverty at grassroots the level and bridge the gap of development imbalances across the various regions of the country through the projects and programmes implemented under the initiative. It is against this understanding and craving desire that, in 2021, The Gambia joined the list of countries that adopted CDF as the National Assembly appropriated sixteen million two hundred thousand dalasis (D16,200,000) for use by parliamentarians on development projects in their constituencies. Each of the fifty-three (53) elected National Assembly Members (NAMs) was allocated the sum of three hundred thousand dalasis (D300,000) for that purpose. In 2023, CDF allocation was increased to twenty-nine million dalasis (29,000,000) cumulatively to include both elected and nominated NAMs, thereby allocating each five hundred thousand dalasis (D500,000).

By virtue of his role as Chief Executive Officer, the Clerk of the National Assembly is the accounting officer and vote controller of CDF. There is no law yet on CDF in the country. However, the National Assembly Authority, through the Office of the Clerk, developed a CDF Policy to guide the disbursement and implementation process of the fund. The onus lies with the Authority, through the Office of the Clerk, to ensure that before funds are disbursed, the requests and proposals submitted by NAMs fulfil procurement rules and requirements. All procurements of goods and services are made by the Office of the Clerk. No NAM handles the CDF in cash. They only implement what has been procured, and this procurement is strictly done in line with their submitted proposals and The Gambia Public Procurement Act.

The CDF policy constitutes a CDF Committee and CDF Contracts Committee. The National Assembly Authority serves as the CDF Committee while the Contracts Committee of the National Assembly also serves as the CDF Contracts Committee. The CDF Committee considers and approves project proposals submitted by NAMs as well as addresses complaints of disbursement and management or other matters relating to the fund. The Contracts Committee considers all procurements relating to CDF and ensures that contracts are awarded to the most responsive bidders/suppliers.

Furthermore, the policy establishes a Monitoring and Evaluation Team with the mandate of conducting field visits at least quarterly to verify the implementation of projects at the Constituency level by NAMs and report back to the CDF Committee. To ensure accountability, the policy further tasks the Office of the Clerk to submit to the CDF Committee a quarterly summary report of project proposals received and approved or otherwise, status of disbursements of funds, and implementation status of projects for which monies have been disbursed.

 CDF in Other Jurisdictions

In most jurisdictions where CDF is being implemented there is a law usually an Act of Parliament to guide the process. In Zambia for instance, CDF was originally introduced in 1995. The Constituency Development Fund Act, 2018 established under the Zambian Constitution provides for the management, disbursement, utilisation and accountability of the CDF. The Act establishes CDF Committees in constituencies and their composition reflects a cross-section of the MP, councilors and civil society.

Kenya first introduced CDF in 2003. The recent law that the country has on CDF is the Constituencies Development Fund Act, 2013 which makes it mandatory for the provision of at least 2.5% of all the national government ordinary revenue collected in every financial year to the Fund. The Act equally establishes a CDF Board with a Chief Executive Officer as well as a CDF Committee for every constituency.

Also, Zambian CDF is managed by local councils through special constituency accounts opened for this purpose, contrary to what obtains in The Gambia. Under Zambian law, the CDF does not only comprise monies appropriated by Parliament but also grants, fees, council contributions or donations received for purposes of the Fund whereas in The Gambia, monies earmarked for CDF are only those appropriated by the National Assembly from the national budget.

Moreover, in Kenya, 75% (three quarters) of the money allocated as CDF in a single year is divided equally among the constituencies, and the other 25% (one quarter) is allocated based on the poverty ranking of constituencies using a formula which ensures that poorer constituencies get more money. Similarly, in Tanzania, the Constituencies Development Catalyst Fund Act, 2015, makes it mandatory to allocate 25% equally to each constituency, and 75% to be allocated in such manner as 45% in relation to the population of people living in a constituency; 20% in relation to the poverty margin; and 10% in relation to the size of the geographical area of a constituency. In Nigeria, CDF has been initiated through a government policy since 1999. The fund is divided on a 60:40 ratio between the House of Representatives and the Senate respectively (Busari, 2018).

Without a doubt, these practices in both Tanzania and Kenya go against the common feature that characterises CDF in most countries, including The Gambia where the same-size-fits-all measurement is used. In The Gambia, every constituency is allocated an equal amount of funds from the CDF regardless of their size, development needs or other considerations and needs. A lump sum amount is appropriated in the budget, and it becomes the responsibility of the CDF committee to ensure that every constituency is allocated their equal share, pro rata.

In Nigeria, although the fund is divided equally among legislators of both chambers, except for their leadership which is alleged to have the greater share, implementing the zonal intervention projects (as it is referred) does not involve cash payments or any other form of payment to a legislator. The duty of the legislator is simply to identify the location and the type of project to be sited. Once this is done, it is included in the budget of the relevant MDA by the National Assembly (Busari, 2018). Senator Ayogu Eze (cited in Nnamani, Ekoh & Joe-Akunne, 2021) corroborated that the role of the National Assembly in Nigeria is to identify projects for their constituency while the executive arm of government will identify a contractor to execute the project.

Meanwhile, an important provision in the Kenyan CDF Act worth mentioning is an “Emergency Reserve” which is not less than 5% of the total amount due to the constituency, made available only during emergencies or urgent unforeseen needs for expenditure within the Constituency. There is no such thing in The Gambia’s CDF policy. In practice, what is often deducted is a 10% withholding fee which is the directive of the Income and Value Added Tax Act, 2012 regarding government contracts.

The Debate

In almost all countries where CDF is introduced, views have been expressed on both for and against the use of the fund. Understandably, there are those that lauded the introduction of the initiative as it brought about the desired developments that were envisaged. Tsubura (2013) submits that CDFs have potentially positive effects on electoral democracy in developing countries. Given that many MPs in developing countries raise funds to directly support the daily lives of their constituents, he notes that CDFs, if designed and implemented in transparent and accountable ways, have the potential to mitigate the influence of political finance on electoral competition as well as level the electoral playing field.

Baskin (2011) indicates that the policy tool can redress the imbalance between executives and legislatures, mitigate the “winner take all” quality of elections, give legislators a way to deliver essential goods and services to constituents, provide an opportunity for popular participation in development projects, and strengthen ties of constituents to representatives and legislatures. Aman & Murti (2022) agree that despite its flaws, CDF ensures fast delivery of assistance on social and cultural needs, directly benefiting constituents and business communities, easily accessible, and less bureaucratic processes involved, stressing that it is one of the few funds that go directly to rural people.  Gikonyo (2008) observes that since CDF was introduced in Kenya, it has made a great impact with numerous projects coming up throughout the country.

Highlighting some of the opinions in favour of CDF, Zyl (2010) indicates that the initiative empowers the legislature by allowing them to allocate and spend money independently of the executive, and allow MPs to respond directly to concrete demands from their constituents, something that they may not be powerful enough to make the executive do. Robertson, Awuor & Okotto (2020) indicate that of the many projects that were being funded by CDF in Kenya, education, health and water/sanitation are the key projects that greatly impact community welfare.

Despite its numerous benefits and merits, there are concerns that CDF monies are not managed in a transparent manner; that many CDF projects are not useful to local communities; and that local communities are not sufficiently involved in its management (Gikonyo, 2008). Tsubura submits that CDFs are controversial as they directly involve MPs in the utilisation of public resources. He agrees with concerns generally raised by scholars, civil society organisations and Western donors that CDFs erode the separation of powers between the legislative and executive branches of the government, an arrangement that secures checks and balances in democracies. Tsubura emphasizes that in democratic systems, the legislature is mandated to make policies through the formulation of legislation and to oversee the executive while the executive implements such policies for the provision of public services, arguing that the CDF approach blurs the boundaries of these distinct functions of the government branches.

Zyl disagrees in totality that CDF barely makes any positive impact, and thus the concept or the initiative should be discouraged by all means. He argues that CDFs have a more negative impact on accountability and service delivery that most poor countries can ill afford. He stresses that the risks associated with CDFs should be taken more seriously by governments, donors, CSOs, and other actors involved in the development process. Apparently, Zyl’s concern is that CDFs may breach the key democratic principle of the separation of power by conferring the executive function of budget execution on the legislature. As a result, CDFs may compromise the ability of legislators to represent the electorates and to oversee the work of the executive. In a public statement in May 2022, the Rt. Hon. Halifa Sallah of The Gambia claimed that CDF promotes the self-perpetuating rule of NAMs, and as such, he called for the fund to be scrapped from the National Assembly budget. The Rt. Hon. Sallah argued that the CDF is utilised through a top-down approach instead of a bottom-up. He, therefore, suggested that the fund should rather be diverted into the development budgets of the local and municipal councils to allow them to manage and utilise from the grassroots (Voice Newspaper, 2022).

Busari (2018) alleges that even though the lawmakers in Nigeria are not allowed direct access to the fund, they have devised several means of getting a cut from the zonal intervention project fund every year, noting that one of such dubious means is by inflating the budgets of government agencies. This position is shared by Nnamani et. al. who insinuates that a preponderance of the Nigerian masses views the concept of constituency project as a conduit pipe through which the nation’s treasury is being drained. The authors cited a Daily Trust report of 2010 which alleges that former President Obasanjo accused Senators and members of the House of Representatives of corruption through budget padding and collection of unjustifiable allowances amounting to billions of naira by inserting items in the budget which are not actually required by ministries, and connive with contractors in executing constituency projects to take kick-backs.

 Lessons to Learn

In The Gambia, very little has been written about CDF from the public. This may be attributed to the infancy of the implementation of the initiative in the country.

By way of good practice, countries that have newly adopted CDF could learn a lot from those that have long initiated it. Countries such as Zambia and Kenya, have utilized their past experiences to make a series of adjustments and improvements on the allotment, implementation and supervision of projects sponsored by the fund.

On this account, the first lesson to learn may include introducing a quarter system in the distribution of CDF to ensure equity. It is obvious that constituencies, whether in The Gambia or elsewhere, are different in size and population. Therefore, introducing a percentage or quarter system will help address inequalities among constituencies and bridge the gap among the populace.

Also, there should be CDF committees in the constituencies, recognized by the law. The law will make it mandatory for the public to initiate projects which will be implemented by the committee and scrutinized by the National Assembly through its oversight function. In that, the law may allow the MPs to suggest to the committee but may not have the unilateral authority to decide on the types of projects implemented in their constituencies.

However, couching this into law will avoid a scenario advanced by Benson (2018) that “the approach taken in the implementation of the CDF in Nigeria tends to point to the fact that constituents are often vulnerable to manipulations by their representatives who withhold information from them. Most of the system operations seem to be shrouded in secrecy, and as such, constituents are not aware of the essence of the policy. They may sometimes seem to be taking part in meetings, but they really do not make an input to the project selection or the siting of such projects in their constituencies. They merely attend those meetings as nominal participants and play no part in the decisions that are made.”

Thirdly, the implementing countries of CDF may contemplate on making an Act instead of a policy. The Act, which is more binding than a policy, will detail out the manner of distributing the funds, identify implementing agencies and accounting officers, and outline penalties among others. The policy is merely a guideline which may be subverted to suit convenience. As a matter of fact, the violation of an act will be more grievous.

 Conclusion

Different approaches have been adopted by different countries to allow them to conveniently implement projects and programmes under CDF in order to meet their overall developmental needs and objectives. Some of the factors that guide the allocation and implementation of the funds include both cultural and geopolitical considerations.

There may not be a “the” way of institutionalising the CDF. However, as a newcomer in the CDF realm, the National Assembly of The Gambia can continue to learn from the experiences, successes, challenges and best practices of parliamentary jurisdictions that have vibrantly flourished through the effective and efficient utilisation of the funds.

As a matter of fact, CDF could be a very fast way for the legislature to respond to the development needs of their constituencies as they are closer to the people than the executive. However, stringent checks are necessary to control the tendency for excesses in the course of fund allocation, implementation or award of contracts to prospective bidders.

REFERENCES

 

 

 

 

Prof. Nyarkotey delivers expert lecture on Traditional and Alternative Medicine Legislation

By: Prof. Raphael Nyarkotey Obu

A renowned Ghanaian Naturopathic Professor, medical and science writer, author, and columnist, Prof. Raphael Nyarkotey Obu, a Bar student at the Gambia Law School, Banjul, will deliver an expert lecture on the need for National legislation on Traditional and Alternative Medicine in the Gambia. The event is scheduled for the 1st July 2023, at the Gambia College, Brikama, at Noon.

The programme is sponsored and under the auspices of the National Traditional Healers Association of The Gambia (TRAHASS).  Prof. Nyarkotey has been championing the national legislation on traditional and alternative medicine in the Gambia since he arrived from Ghana to pursue his legal education at the Gambia Law School in 2022. He has succeeded in raising huge awareness of scientific natural remedies with his prolific writings in the national dailies.

He also petitioned the Minister of Health this year to take action on traditional medicine. His advocacy has paved the way for action to be taken on the development of national action on traditional medicine legislation.

The theme for the event is “Legislative Regulation of Traditional and Alternative Complementary Medicine Practitioners in the Gambia: A Tool for Recognition in the Healthcare System”.

For decades, traditional healers in the Gambia have been fighting for national recognition in the healthcare system but all their efforts proved futile.  However, the emergence of Prof. Nyarkotey, a very renowned Naturopathic Professor and president of Nyarkotey University College of Holistic Medicine in Ghana, in the Gambia, to pursue his legal education at the Gambia Law School has resurrected the hope of traditional and alternative healers.

The conference will attract over 500 healers over the country and abroad to deliberate on the need for the importance of legislation in the Gambia.

Prof. Nyarkotey at the Gambia Law School, Banjul.

Professor Nyarkotey, who is an aspiring Legal Practitioner in training as well at the Gambia Law School, believes that there is a huge potential for natural medicine in the Gambia if legislation is Fas tracked. He believes that his legal training at the Gambia Law School will open more opportunities for natural medicine across the continent of Africa and the world.

He avers that medicine is not competition. Hence, there is no need for conventional and natural healers to be at loggerheads. He calls for collaboration in the healthcare system.

Also, he explains that legislation will go a long way to enhance standardization. He cited how countries such as India, China, Ghana, South Africa, and many others are benefiting from Natural Healthcare.

Prof. Nyarkotey said natural healthcare tends to improve the economy with legislation.  The Gambian Law School student, who has created a global niche for himself in the profession of Naturopathy and Holistic Healthcare, is engaging traditional healers in the Gambia, to see how to improve their services.

Prof. Raphael Nyarkotey Obu, who is also a well-known medical and science writer in Ghana, the Gambia, and the international level has created a niche for himself in the Ghanaian and global medical and science writing space with his prolific articles on natural medicines. He has produced some blockbuster scientific articles on the Gambian natural remedies which have generated public interest in recent times. He has also authored three books and seven academic papers  as a student of the law in the Gambia.

“As a Professor of Naturopathic Healthcare and a researcher with interest in the legal aspect of Traditional and Complementary Medicines in the African sub-region, I aim to support the regulation of naturopathy and to assist in any way that I can”.

The key to his achievement is setting up a University College to train Practitioners in Naturopathy and Holistic Medicine. Grandaunts of the college are eligible to sit for the Traditional Medicine Practice Council, Ministry of Health Professional Qualifying Examination in Ghana. The College is also an educational member of the World Naturopathic Federation (WNF).

With the support of his team in Ghana, developed Ghana’s first ever National Occupational Standard in Naturopathy and Holistic Medicine at the Higher National Diploma(HND) and Bachelors level under the Commission for Technical and Vocational Education and Training (CTVET)”.

Prof. Nyarkotey Obu, is the President of Nyarkotey University College of Holistic Medicine & Technology, Ashaiman, Ghana’s first Natural Medicine university college dedicated to the promotion and advocacy of natural remedies.

He has won many awards in Ghana and on the international front such as the 40under40 Achievers Award in education(2019) and was inducted into the West African Nobles Forum as a young Noble at age 34.

He was conferred Professorship at age 34 becoming one of the youngest Professors in Ghana in recent times.  In 2022, he was honored by the India Medical Association, JDN, Odisha, chapter with the title “ Father of Modern Naturopathy in Ghana” for shaping the science of modern naturopathy.

Prof Nyarkotey & Dr. Pandit: The science behind Yoga; benefits to immunity and quality of life

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Group Yoga exercise training

Yoga has evolved to become one of the most commonly used complementary and alternative health practices in the world. Today, Yoga is even more popular than chiropractic adjustments, osteopathic manipulations, meditation, herbal treatments and massage therapy.

A 2012 article in the New York Times authored by William J. Broad, created a controversy on Yoga suggesting that some people get seriously injured, or even die, on their Yoga mats.  How true is this? Our extensive review of literature revealed that the article by William Broad, adapted from the book The Science of Yoga: The Risks and Rewards, which suggested that Yoga caused widespread harm to its practitioners; from ruptured disks to stroke to brain injury, was largely based on selected anecdotes.  That same year, it was also reported that more than 20 million Americans practiced Yoga, making it one of the most popular forms of exercise. It has also been reported by Neil MacFarquhar (2015) in the New York Times that Vladimir Putin, a devotee of “macho sports,” added downward dog to his repertoire. The question here is whether Yoga affects our health as compared to other exercises such as tai chi and meditation.  In this article, we explore what Yoga is, together with its scientific underpinning from a purely objective standpoint on the International Day of Yoga.

First ever Yoga study

Patel and North, (1975) conducted the first randomized trial on Yoga in which was published in The Lancet. The study found that Yoga was more effective than relaxation for reducing high blood pressure. That trial was however a retrospective study. Further, all the participants already had high blood pressure and the study only involved 34 people, making it difficult to know the effect of Yoga on a larger prospective trial of healthy people. We examine this in this article.

Yoga, Origin

Yoga is derived from the root yuj

 The Sanskrit word Yoga is derived from the root “yuj”, which means ‘to attach, join, harness, yoke’. In the 4th Century BCE, there was a very renowned Sanskrit philologist, grammarian, and revered scholar in ancient India named Pāṇini. He wrote that the term Yoga could be derived from either of two roots: yujir Yoga (to yoke) or yuj samādhau (to concentrate).  In the context of the Yoga Sutras, the root yuj samādhau (to concentrate) is considered the correct etymology by traditional commentators.

Yoga, Definition

According to the Vaiśeṣika Sūtra which was authored by the Hindu sage Kanada, also known as Kashyapa, Yoga is ‘pleasure and suffering arising as a result of the drawing together of the sense organs, the mind and objects. When that does not happen because the mind is in the self, there is no pleasure or suffering for one who is embodied’.

Katha Upanishad also defines Yoga as “when the five senses, along with the mind, remain still and the intellect is not active, that is known as the highest state. They consider Yoga to be firm restraint of the senses. Then one becomes un-distracted for Yoga is the arising and the passing away“.

Shrimad Bhagavad Gita is a 700-verse Hindu scripture that is part of the epic Mahabharata and is considered to be one of the holy scriptures for Hinduism. It captures Yoga as “Be equal minded in both success and failure. Such equanimity is called Yoga” (2.48).

To a lay man’s understanding, Yoga means union’ or ‘connection’. Yoga is a state of connection and a body of techniques that allow us to connect to anything. The practice aims to create union between body, mind and spirit, as well as between the individual self and universal consciousness. Such a union tends to neutralize ego-driven thoughts and behaviors, creating a sense of spiritual awakening. Yoga combines physical exercises, mental meditation and breathing techniques to strengthen the muscles and relieve stress. The secret of Yoga is awareness and consciousness of wellbeing.

Patañjali, also called Gonardiya, or Gonikaputra, was a sage in Ancient India who outlined an eightfold path of Yoga which offers a guide to individuals who are dedicated to creating a union between body, mind and spirit.

Yoga: Practices

Yamas – Five universal, ethical and moral observances to live by (nonviolence, truthfulness, non-stealing, continence and non-covetousness)

Niyamas – Five spiritual and self-discipline observances (cleanliness, contentment, spiritual austerities, study of scriptures and surrender to God)

Asana – physical posture, originally intended only for seated meditation, but more recently adapted to encompass all physical Yoga practices

Pranayama – breathing exercises to control the flow of prana (vital life force)

Pratyahara – Withdrawal of the senses

Dharana – Single pointed concentration

Dhyana – Meditation

Samadhi – Liberation or blissful union with the Divine

Yoga: Types

Types of Yoga

 Hatha Yoga

Hatha is the Sanskrit word meaning force, which works on the harmony between the chakras and energy points. Hatha Yoga comprises many physical postures and positions that balance the body and mind. Hatha Yoga purifies and heals our mental system. Regular practice of Hatha leads to weight loss and toned muscles.

Ashtanga Yoga

Of the many Yoga forms, Ashtanga is one of the most athletic forms of Yoga. Ashtanga Yoga is a dynamic, set sequence of poses, breathing, and focal points. Ashtanga Yoga has eight pillars: Principles, personal discipline, asana and postures, pranayama, withdrawal, concentration, meditation and salvation.

 Vinyasa Yoga

Vinyasa Yoga is a good choice for people who like high-intensity exercises. In addition, Vinyasa Yoga is ideal for anxiety, depression, blood pressure and sleep. Meditation is a part of advanced vinyasa Yoga practices, making the form more mindful. Vinyasa Yoga is a good choice for people who like high-intensity exercises.

 

Kundalini Yoga

Kundalini Yoga is known as Yoga of Awareness. The term “Kundalini” comes from the Sanskrit word “kundal”, which means “circular”. Kundalini Yoga is a form of Yoga that involves chanting, singing, breathing exercises, and repetitive poses. Compared with other forms of Yoga, Kundalini Yoga is a more spiritual practice.

Iyengar Yoga

Iyengar is a form of hatha Yoga that focuses on proper alignment and precise technique. Iyengar Yoga has effectively treated musculoskeletal disorders and disabilities of the spine. Iyengar Yoga helps in the management of gynecological and gastroenterological diseases.

The Science behind Yoga

 Yoga, Flexibility support

Studies demonstrate that Yoga aids flexibility

Two leading organizations; Yoga Journal and Yoga Alliance (2016) conducted a global survey examining a variety of statistics about Yoga in an attempt to quantify its value amid ever-increasing popularity.  They found that, the reason people opted for Yoga was to make them flexible.

Additionally, two studies (Amin and Goodman, 2013; Polsgrove et al., 2016) also found that being flexible is a significant aspect of physical health.  The study was of the view that, though many Yoga types exist, the lowest intensity styles have been found to increase flexibility.

A recent study on flexibility by Sivaramakrishnan et al., (2019) found that Yoga appears to be good in improving flexibility in adults aged 65 and older.

Yoga and Stress

Yoga aids in stress management, according to studies

High levels of stress have become a major issue in Ghana and the world at large.  The science suggests that people battling stress can benefit from Yoga. This has been supported by Shohani et al., (2018) which found that Yoga, especially asana, is excellent in reducing stress.  Apart from the physical aspect, meditation, breath work, and auditory rituals, like chanting and sound baths, have all also been shown to significantly lessen tension and relieve stress (Goldsby et al.,2017).

 Yoga, Mental Health

Movement-based Yoga therapies and breathing-based practices were found to significantly improve depressive symptoms.

Bridges & Sharma (2017) meta-analysis of 23 interventions looking at the effects of Yoga-based treatments on depressive symptoms overwhelmingly concluded that Yoga can now be considered an effective alternative treatment for MDD. Major depressive disorder (MDD) is one of the most common mental health disorders in the world. Another study by Streeter et al., (2017) also revealed that both movement-based Yoga therapies and breathing-based practices were found to significantly improve depressive symptoms.

 Yoga and Inflammation

Studies demonstrate linkage between Yoga and cardiovascular health

 According to Pahwa et al., (2021), there is a link between cardiovascular disease, diabetes and other chronic diseases to chronic inflammation. However, the good news is that, one review which examined 15 studies by Djalilova et al., (2018) found a common result: Yoga; of various styles, intensities, and durations; reduced the biochemical markers of inflammation across several chronic conditions.

 Yoga and Strength

Yoga Study found improves strength in breast cancer, older adults, and children.

Apart from stretching and flexibility, some types of Yoga classes can also be considered strength-building.  The review by Divya et al., (2019) found Yoga asana as a multimodal form of exercise. Other studies by Yagli et al., (2015) and Pereira et al., (2016) also found improved strength in breast cancer patients, older adults, and children. Additionally, another study by Harder et al., (2015) on air force personnel found Yoga to be an effective strength-building practice across many age groups of healthy participants.

Yoga and Anxiety

Yoga asana may be effective as an alternative treatment for anxiety disorders

Two studies (Duan-Porter et al., 2016; Shohani et al., 2018) held the view that Yoga asana may be effective as an alternative treatment for anxiety disorders, though all of the researchers requested additional replicated studies before conclusively stating as much. Additionally, one study by Ferreira-Vorkapic et al., (2018) found that Yoga nidra, which is a body scan/guided meditation, reduces symptoms of anxiety.

Yoga and Quality of Life

Yoga improves QOL

A study by  Ediebah et al., (2018) found that Quality of Life is significant predictor of people’s longevity and patients’ likelihood of improvement when treated for a chronic illness or injury. A 2019 meta-analysis showed promising potential for Yoga to improve QOL in people with chronic pain.

 Yoga, Immunity

Yoga boost immune health

One study by Natalie et al., (2019) found that Yoga fights inflammation and improves cell-mediated immunity.

 Yoga, Balance

Constant Yoga practice may balance people (Jeter et al., 2014)

A review of the research conducted By Jeter et al., (2014) on healthy populations found that constant Yoga practice may balance people.  Osth et al., (2019) research suggests Yoga can improve balance in older populations. However, more studies with large sample sizes are needed before a general conclusion can be drawn. Kristine et al., (2019) also found that Yoga asana can also be helpful at improving balance in people with brain injuries. Others such as, Adaptive Yoga or chair Yoga also support older people.

Yoga and Cardio Support

Yoga aids heart health

 Pranayama, another aspect of Yoga normally term “yogic breathing,” plays significant role in heart health. Saoji et al., (2019) review of 1,400 studies examined the impact of pranayama.  The review found that yogic breathing can improve the functioning of several systems in the body.  The study additionally found that the cardiovascular system is one aspect which Yoga breathing supports.  The study finally asserted that yogic breathing may actually influence the brain’s cardiorespiratory center to improve functioning.

 Yoga and Sleep

Yoga improves sleep

 In measured sleep, scientists examine a person’s ability to both fall asleep and stay asleep.  This is because these are the two ways by which insomnia can affect people. Two studies (Dolezal et al., 2017; Wang et al. 2020) demonstrated that Yoga improves one’s ability to fall asleep and how deeply they stay asleep.  The reason being that, Yoga has aftereffects of exercise together with mental calming and stress relief.

Two other studies (Datta et al., 2017; Moszeik et al., 2020) also found that, apart from Yoga improving anxiety, there are many studies that demonstrate that Yoga nidra purposely helps in improving sleep.

 Yoga and Self Esteem

Yoga enhances self esteem

For those battling low self-esteem; it appears Yoga is your friend.  Two studies (Neumark-Sztainer et al., 2018; Neumark-Sztainer et al., 2018) demonstrated positive results in improving one’s self-esteem and perceived body image with the help of Yoga. One recent study, Rizzuto et al., (2021) demonstrates promising evidence that Yoga could help with the accompanying symptoms of obsession, anxiety, and depression in patients with anorexia nervosa.

 Yoga and Osteoporosis

Ezrin (2021) article explains that, in Plank Pose, which is an upper pushup position, the arms, trunk, and legs are all engaged, without shortening or lengthening as they would if you were moving through a pushup. Florio et al., (2017) study also found that, in Warrior II, one holds a position with the lead leg bent at both the hip and knee. In these Isometric exercises, especially when performed with the joints in flexion, the study found yoga to increase bone density.

Yoga asana may also help reverse bone loss associated with osteopenia and osteoporosis.  This was demonstrated in a study by Lu et al., (2016) which found that just 12 minutes of Yoga per day can significantly improve bone health.  Despite the proven positive impacts of Yoga on bone density, there some studies which also revealed mixed results (some not so positive) (Lein et al., 2018).

 Yoga, posture and body awareness

A recent review by Aalst et al., (2020) of 34 empirical studies found an emerging pattern; Yoga improved brain functioning in the centers responsible for interoception (recognizing the sensations within your body) and posture. A previous study by Grabara & Szopa (2015) also found that Yoga’s focus on mobility and flexibility can contribute to better alignment by releasing muscles that are often tight, such as the hamstrings, and improving mobility of the spine.

Yoga, and Brain Health

Yoga improves Brain Health

As a mind-body exercise, one review by Aalst et al., (2020) found that practicing Yoga activated areas of the brain responsible for motivation, executive functioning, attention, and neuroplasticity.

 Yoga and burn out

Yoga aids in the management of burn out

 Heeter et al., (2021) study examined burnout among hospice workers during the COVID-19 pandemic and found that Yoga-based meditation interventions helped significantly reduce the effects of burnout by improving interoceptive awareness.

Market size of Yoga

According to the Economic Times, although Yoga originated from India, the US continues to be the biggest market for Yoga wear with estimated revenues of about $27 billion a year, growing at 20% annually.

The Expert Market research also reported that in 2020, the global Yoga market attained a value of nearly USD 41.05 billion. India is one of the leading exporters of mats and Yoga accessories. The Yoga accessory industry is worth about Rs 500-700 crore.

The training of Yogi is another big market. The Economic Times (2015) reports that, in towns such as Rishikesh and the adjoining village of Tapovan, almost every hotel and resort doubles up as a residential Yoga school.  They package Yoga into 200 or 500-hour certificate courses with fees that range from $3,000 to $5,000 (Rs 1.8 lakh-Rs 3 lakh). Local farmers have turned landlords, renting houses to students or rooms for practice and setting up hotels and resorts. In Mysuru for instance, the city boasts of connections with two Yoga greats -Pattabhi Jois and BKS Iyengar. There are 65 Yoga institutes here, the most renowned being Pattabhi Jois Ashtanga Yoga Institute. During Yoga season, around 1,000 to 3,000 foreigners visit the city.

Rents in the area have gone up by around 50% in the last couple of years, and single bedroom units can fetch rents between Rs 15,000 and Rs 18,000.

Take Home: Key studies:

Yoga improves general wellness according to studies

In conclusion, two key aspects of Yoga exist: physical activity and meditation techniques which one can focus on.  At the end of our extensive review of existing literature, we found the following major studies:

Patel and  North (1975): Lancet — “Randomized controlled trial of Yoga and bio feedback in management of hypertension.” This is the first-ever randomized trial on Yoga, and it found that Yoga was more effective than relaxation in reducing high blood pressure.

1985: British Medical Journal — “Yoga for bronchial asthma: a controlled study”. This is the first randomized trial on Yoga for asthma, and it was one of the first to show the effects of Yoga on the inner organs.

1998: JAMA — “Yoga-based intervention for carpal tunnel syndrome.” This was a well-regarded randomized trial that showed the benefits of Yoga for carpal tunnel syndrome compared with wrist splinting and no intervention.

Sherman et al., (2005): Annals of Internal Medicine — “Comparing Yoga, exercise, and a self-care book for chronic low back pain.” This is the most important trial on Yoga for lower back pain and the first really high-quality trial on Yoga. Based on this trial, Yoga has become increasingly recognized as an effective treatment for chronic lower back pain.

Lakkireddy et al., (2013): Journal of the American College of Cardiology — “Effect of Yoga on arrhythmia burden, anxiety, depression, and quality of life in paroxysmal atrial fibrillation.” One of the first trials to show that Yoga may have an impact on life-threatening diseases such as atrial fibrillation.

Tracy and Hart (2013): Journal of Strength and Conditioning Research — “Bikram Yoga Training and Physical Fitness in Healthy Young Adults.” This trial found Bikram Yoga can improve strength and flexibility but not aerobic capacity.

2014: Journal of Clinical Oncology — “Randomized, controlled trial of Yoga in women with breast cancer undergoing radiotherapy.” This high-quality trial demonstrated Yoga can have benefits for women being treated for breast cancer.

Bower and Irwin (2015): Brain, Behavior, and Immunity — “Mind-body therapies and control of inflammatory biology.” A review of the evidence on Yoga and other mind-body activities, and their relationship to reducing inflammation.

Prof Raphael Nyarkotey Obu is a Professor of Naturopathic Healthcare and President of the Nyarkotey University College of Holistic Medicine & Technology (NUCHMT)/African Naturopathic Foundation. Dr. Mayukh Pandit is Board Certified Dental Surgeon/ Researcher in Anatomy and faculty member, India. E-mail: [email protected]. 

          

The Authors

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Fortune’s goal machine on the radar of European clubs

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Fortune Football Club goal poacher Alieu Barry, who has scored 16 goals in the league this season in the top tier of Gambian football, has attracted interest from clubs in England, Portugal, and France, The Fatu Network gathers.

The agile and dazzling attacker is on fire for the Petroleum Boys in the league this season, with his 16 league goals a testament to his superb form.

Alieu, for a large chunk of this season, has been monitored by top African scouts who discovered and continue to discover top talents on the continent.

Word is that several Portuguese, French and English clubs scouted the Fortune FC talisman to be a perfect fit for European football. His exploits in the league this season, scoring breathtaking goals and giving nightmares to opponents have put the former U20 star in the spotlight for good reasons.

Barry, 21, joined Fortune FC in January 2023 and has since established himself as the team’s goal machine, scoring week in, week out.

The former National U20 and U23 striker has caught the attention of a renowned football scout, Mr. Marcelo Simonian of Dodici Sports Management, who sees Barry as a top prospect.

Known for his pace, technique, dribbling, and clinical goal-scoring, Barry scored in five consecutive games for Fortune FC in the league this season, becoming the club’s top scorer in a single season with his 16-goal mark with a game to go.

The summer European transfer window will see clubs in Europe battling for the youngster.

Mr. Marcelo Simonian, who has discovered the attacker recently and introduced him to European teams, is a top-notch football scout known for discovering talented African youngsters.

With 16 goals to his name, Barry is currently one of the best attacking players in the country. His consistency and athleticism, coupled with his poacher instincts, have made him one of the best players in the league.

Open Letter to the National Assembly: Suggestions & Recommendations on the Pending Anti-Corruption Bill

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By Sarjo Barrow, Esq.

The most important institution that should nurture and protect our nascent democracy is National Assembly (“NA”). Yet, the institution failed to attract talent or is considered irrelevant. But suppose the country is to learn anything during the past six years. In that case, NA can set the country’s trajectory, ensure efficient oversight, and require excellent service delivery because they control the country’s purse.

As NA deliberates and considers the Anti-Corruption Bill for enactment, citizens exert pressure on their NAMs to pass the legislation, and watching the debate on the Assembly floor was no fun. You can observe lawmakers visibly frustrated as they go back and forth with the sections and clauses. Frankly speaking, they find it hard to comprehend the bill or what it intends to proscribe. And considering most of the lawmakers do not have a legal background or adequate experience in legislation, arguably, the bill was over their heads. Notable among their fear or frustration is that the legislation may significantly legislate against the genuine Gambian culture of giving, supporting, and tradition. Rather than criticizing the shortcomings of the NAMs, it is imperative that we also offer natural and humble solutions or recommendations that the NA can consider during their sitting—the reason for this piece.

Some of the questions raised during the debate with the Attorney General (“AG”) are:

  • Whether the phrase “any other person,” in section 19(1)(a), refers to an act between private citizens or to conduct such as giving to griots or hardworking traffic officers.
  • Limiting the maximum fine to a million could cause loss to the state if the corruption involved is threefold the maximum.
  • Should NA set a minimum fine when acts of corruption come in varying degrees?
  • And if it would be prudent to leave punishment open and trust the judiciary to do the right thing.

Instead of getting into the interpretation of 19(1)(a), I think the problem with the phrase is the result of the “copy and paste” syndrome. As such, I strongly caution NA not to remove the word but fix it. As written, the section states:

(1) A person who-

(a) asks for, receives, or obtains any property or benefit of any kind, directly or indirectly, for himself or herself or [for] any other person;

Inserting the word “for,” as done under paragraph (b) of the same section, would resolve the issue. As the heading suggests, the section punishes illegal official gratuities. Period. Adding the word “for” would mean that a would-be Defendant can still be prosecuted for receiving benefits on behalf of a third person.

Suggestions and Recommendations.

First, lawmakers should be trained in or familiarized with the country’s jurisprudence. This foundation would help them in drafting laws. For instance, if lawmakers know about the four rules of statutory interpretation, they will endeavour to ensure that legislative intent is clear even under the literal rule.

Second, although the bill addresses bribery in the private sector, the goal here should focus on public corruption. I think NA should revisit sections 19 and 20 before passing. The sections should address bribery of public officials and witnesses. For example, NA should divide section 19 into two subparts. Subpart 1 should address the giving and receiving bribes, while the other addresses illegal official “gratuity.”

As to the first part—giving or receiving bribes—the law should proscribe the conduct of the giver and receiver. For the giver, NA should require the AG to show that something of value was corruptly given, offered, or promised, directly or indirectly, to a public official. And for the recipient, NA should require the AG to show that something of value was corruptly demanded, sought, received, accepted, or agreed to be received or accepted by a public official. While NAMs raised legitimate concerns regarding the unintentional legislation of the Gambian culture, the intent required for the giver should be the intent “to influence any official act.” In contrast, the intent that should be necessary for the recipient is the intent to be “influenced in the performance of any official act.”

For the second part—illegal gifts to public officials—again, the conduct of the giver and recipient is being regulated. For the Giver, NA should require the AG to show that something of value was given, offered, or promised to a public official. As to the recipient, it requires a showing that something of value was demanded, sought, received, accepted, or agreed to be received or accepted by a public official. Here, the law should not require a specific intent to alleviate the lawmakers’ fear concerning culture. Instead, the unlawful gratuity must be “for or because of any official act performed or to be performed by such public official.”[1]

Third, adopting this recommendation, as standard in contemporary jurisprudence, would distinguish conduct such as giving an “attaya” to a hardworking public servant from corrupting a public official with an “attaya.” How? The critical distinction between the bribery (receiving & giving) and illegal gratuity sections is that bribery would require a specific intent “to influence” a particular official act (in the case of the giver) or “being influenced” in an official act (in the case of the recipient); however, an illegal gratuity would only require that the unlawful gift be given or received “for or because of” any official act. Moreover, unlike illegal compensation, which can be forward- or backwards-looking at a past or future official action, bribery would require a specific intent to give or receive something of value in exchange for a future official act—in other words, an explicit quid pro quo or direct nexus between the value given and a particular future action.

Moreover, as the current bill addresses it under section 19, the bill should clarify that the bribery and illegal gratuity offences would not require an unlawful gift to be paid or even that the object of the illicit gift is attainable. The section should prohibit conduct as soon as an offer (in the case of the giver) or an acceptance (in the case of the recipient) has occurred.

Furthermore, I have a different view regarding punishment. Although the penalty for bribery should be more severe than an unlawful gift to a public official, to reconcile the fear of lawmakers that do not want corporations or individuals that commit serious financial loss/gain to the state to have a fine capped at a million, I think the approach below would strike a good balance. Since we can all agree that corruption is cancer killing our development and progress as a nation, the punishment must fit the crime. To this effect, the bill should put a minimum statutory fine of D50,000 for individuals and D250,000 for corporate bodies for bribery. For unlawful gratuity to a public official, a minimum statutory penalty of D10,000 for individuals and D50,00 for the corporation. The law should require up to 15 years for a prison sentence for bribery and up to 2 years for illegal gratuity to a public official.

Finally, the law would require that upon conviction, the person should be fined under this Act [the minimum] or not more than three times the monetary equivalent of the thing of value, whichever is greater, or imprisoned for not more than fifteen years, or both, and gives the judges the discretion to disqualify the individual from holding any office of honour, trust, or profit under the Gambia. See Election Act for similar sections. Indeed, I am open to helping NAMs draft specific areas regarding the Anti-Corruption Bill.

 NOTE ABOUT THE AUTHOR: The Author’s practice focuses on constitutional law, national security law, and human and civil rights litigation.

[1]  See Title 18, Chapter 11 of the United States Code

Understanding the evolving flood hazard map of the Gambia: A call to action

By: Muhammed Hydara
Environmentalist and Human Right Enthusiast

Over the past few years, the Gambia has relied on the flood hazard map based on data from ESA (2017) and Geofabrik (2019) as a valuable resource. However, with the map’s development dating back to 2019 by the World Bank, it is crucial to acknowledge that our understanding of flood-prone areas may have evolved since then. Recent events, particularly a surge in heavy downpours, have exposed the vulnerability of the URR community, previously unidentified as a critical flood-prone region. This raises significant questions about the underlying causes of these flood occurrences in the highland areas of our country.

The increased flooding in the highland areas of URR can be attributed to a combination of factors, including deforestation, inadequate drainage systems, and climate change. Deforestation reduces the natural water absorption capacity, while inadequate drainage systems hinder water flow. Additionally, climate change contributes to more intense rainfall events, exacerbating the situation. It is imperative that we address these issues promptly to mitigate the impacts of heavy downpours.

To combat the ongoing crisis, it is crucial to implement reforestation efforts to restore natural water absorption capacity, improve drainage infrastructure, and develop climate-resilient strategies. In collaboration with international organizations and local communities, the government must take immediate action to protect vulnerable communities and prevent further damage.

The devastating consequences of the recent floods have left hundreds of households in the Gambian upcountry damaged, and an astonishing 2000 people grappling with the aftermath. These individuals have lost their homes, belongings, and most importantly, their sense of security. We cannot afford to stand idly by while our fellow citizens suffer.

We call upon the global community, environmental activists, policymakers, and concerned individuals to join forces and prioritize the urgent needs of The Gambia. The time for action is now. Let us come together to address the root causes, implement effective solutions, and support those affected by this disaster.

 

Muhammed Hydara
Environmentalist and Human Right Enthusiast
Twitter: @muhammed_hydara
Email: [email protected]

The Senegalese Political Tragedy

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By: Joomay Ndongo Faye

Manipulation of the people to further one’s political cause?

The history of the political development of human societies teaches us that tragedies have often occurred when two of the most prominent political leaders in a social entity put their personal interests above those of their people in their battle for preservation and/or conquest of power. These protagonists begin by identifying the sources of great fear, uncertainty and concern among their people and decide to use them as a rallying point for their camp. Each one poses as the one and only person capable of leading the people to the other shore where the causes that underlie these feelings will disappear thanks to the magician’s stick that only he is able to make good use of. If the institutions of this administrative space are strong enough, this tragedy can lead to their reinforcement, this was the case of the civil war of the United States from 1861 to 1865. Otherwise, it is possible to have an outcome like what is happening in Somalia today.

These two political leaders in Senegal today are President Macky Sall and the undisputed leader of the current Senegalese opposition Ousmane Sonko. These two people must look at themselves in the mirror and ask themselves the following question: would I like historians to attach my name to the decay of the Republic of Senegal?

A historical precedence?

President Macky Sall and those around him are driven by a strong intention to keep power. They use all the means at their disposal, and they are enormous, to prevent any credible candidacy of their opposition to the presidential election of Senegal. First, it was Karim Wade and Khalifa Sall and now it’s Ousmane Sonko. Regarding the first two people mentioned, it was on an accusation of embezzlement and personal use of state funds. I have no data to deny or confirm these accusations. What I do know, however, like any good Senegalese who follows national news religiously, is that there are several people who are not at all concerned by the Senegalese justice system under the Presidency of Macky Sall despite the damning reports on his Administration’s management of the property of the Senegalese State and despite signs of weaponization of the judiciary.

Demonisation of Sonko and PASTEF

In the case of Ousmane Sonko, he was first accused of being a Salafist. Some people who are basically unaware of what Salafism is or are motivated by bad intentions attach this nickname to him to make him seem like a radical Islamist who will put an end to the secularism of our republic and impose Sharia on the Senegalese people as soon as he will accede to the supreme magistracy of the country. For those who don’t know, Salafism was nothing more than a movement to return to the teachings of the Prophet Mohammad (PSL) and the first four Khalifs Abu Bakr (632-634), Omar (634- 644), Ôthman (644-656) and Ali (656-661). In a way, a call for a return to authenticity and a rejection of the divergent interpretations that divided Muslims.

Based on the results of the last legislative elections, it became clear to Macky Sall and his APR and BBY companions that this demonization of Ousmane Sonko and his party, PASTEF (African Patriots of Senegal for Work, Ethics and Fraternity), did not have the desired effect on the Senegalese people. The PASTEF electoral score, which has nothing to envy to those obtained by all the political oppositions that followed one another during the regimes of Senghor, Diouf and Wade, is remarkable. This excellent performance by Ousmane Sonko’s party has certainly sufficiently demonstrated that the latter can indeed defeat any candidate in 2024 put forth by the APR and BBY (Alliance Pour la République) and (Benno Bokk Yaakar).

Since the demonization did not produce the expected result, Macky Sall and his companions who are determined to stay in power had to ask themselves the following question: What can be done to break the momentum of PASTEF and especially Ousmane Sonko in their march which seems to be unshakable towards the conquest of power?

Politically-motivated trials or instrumentalization of the judiciary?

They first brought out the complaint of one of the leaders of Sall’s APR for defamation, accusing Sonko of a false claim that a state audit had revealed mismanagement of funds during the implementation of the Community Agricultural Development Program. Ousmane Sonko was then quickly sentenced to a six-month suspended prison sentence at the end of this trial. Some thought that was enough to put him out of harm’s way to the APR and BBY’s ambition to retain power. But the lack of clarity on the consequences of this verdict on the eligibility of Ousmane Sonko did not put Macky Sall and his companions at ease. Certainly, the law clearly says that this verdict prevents Ousmane Sonko from registering on the electoral lists of Senegal. But given that the latter is already registered and that the law says nothing about eligibility, wanting to ban Ousmane Sonko from running for office in 2024 on the basis of this verdict will not be justifiable and/or credible. Thus, the suspended prison sentence did not effectively preclude him from seeking the presidency according to the articles (L 29 and L 30) of the electoral code.

The pending legal case against Ousmane Sonko, his accusation of rape and death threat by Adji Sarr, then became the spare tire. To eliminate the danger that a possible candidacy of Ousmane Sonko represents for the preservation of power by Macky Sall and his companions, everything had to be done so that the verdict of this trial puts him aside. But the dismissal of the rape accusation at the trial by Sitor Ndour and the lack of merit of the evidence presented by Adji Sarr and her lawyers very quickly showed the Prosecutor that a guilty verdict against Ousmane Sonko will not be at all credible in the eyes of public opinion of the Senegalese and global community which are watching this trial like milk on the fire. Thus, knowing that he was going to lose, the prosecutor asked the judge that, if he could not be convicted for what he was accused of, he should be incriminated for the offence of “youth corruption”. Based on the testimonies during the trial, especially that of the young girl who was with Adji Sarr in the massage room and whom the latter had asked to leave to leave her alone with Ousmane Sonko, no self-respecting judge was going to take the offer of the Prosecutor.

Despite these inconsistencies in the presentation of the evidence to prove that Mr. Sonko deserves a conviction by the Senegalese justice, the Judge decided to follow the prosecutor for reasons that only God and himself know. One thing is certain, the lightness of the evidence presented to him and the seriousness of the situation that would be created by a guilty verdict capable of preventing Ousmane Sonko from being a candidate for the presidential election of Senegal in 2024, should have caused the judge to be cautious. Certainly, force must remain with the law. But this force will have to be based on judicial decisions that suffer from no shadow of an objective doubt.

A heavy-handed clampdown on civil disobedience

The other thing that I blame Macky Sall and his companions for is the excessive use of force in the form of selective imprisonments on dubious grounds and which a self-respecting judge would never have approved. The case of Bassirou Diomaye Faye is a typical example. In matters of justice, the procedure is as important as the evidence presented to convict a person. In the case of Diomaye Faye, the police at least violated the procedure. The time at which he was brought to the police station and the absence of an arrest warrant constitutes procedural defects that the judge before whom he was presented had no right to ignore. Outright relaxation should have been his decision the first time he was presented in front of the latter. Not only is Diomaye Faye rotting away in jail with no idea when his trial will be, but the charge on which he was arrested would lack weight before any self-respecting judge who has the smallest grain of desire to prove that what Diomaye Faye said before in his Facebook text was unfounded. To say that a minority of decision-makers within the Senegalese judiciary are corrupt is an undeniable truth. It is, moreover, an evil from which all the judiciaries of the world suffer, regardless of the state of progress of the political development of their countries. No magistrate who respects himself and accepts the rule of law as the lifeblood of the republic would dream of condemning Diomaye Faye on the grounds of insulting the judiciary for having expressed such an opinion which has been a world truth for centuries. PASTEF has, according to its leaders, more than 400 (four hundred) of its members in prison for reasons related to their political activities. Certainly, it is very likely that among the people included in this count of PASTEF members, there are individuals guilty of flagrante delicto of actions having caused material damage. It is, however, no exaggeration to say that the vast majority of these detainees are for what they said. Not seeing these people as political prisoners is certainly more than bizarre behaviour.

What about Ousmane Sonko and PASTEF?

Although my son, Bassirou Diomaye Faye is in the leadership of this party, I must say here that I am not a member of this party. In fact, although being an activist of the Senegalese left, I stopped being involved in a political party because I realized the real limits of their ability to get my country out of the neocolonial abyss.

PASTEF’s political program is certainly commendable, but it should be remembered that this is not new to Senegal. Many political parties were born in this country and had offered excellent programs to the Senegalese people. But for various reasons, they never reached the level of popularity of PASTEF. The two big reasons behind the rapid success of PASTEF are in my humble opinion:

  •  The level reached by the lack of hope to find work among a largely skilled and educated Senegalese youth, what economists call mismanagement of the demographic dividend by the Senegalese state.
  • The development of social media and the extraordinary ability of the members of the PASTEF communication unit to put them at the service of their cause, where the hype on social networks amplifies “the Sonko effect”.

Is PASTEF and its leadership plunging the country into chaos at all costs?

Our country, like the overwhelming majority of African countries, is sitting on a social time bomb: Mismanagement by their State, for structural reasons, of the Demographic Dividend or in other words the inability of the State/country to create optimal conditions for the absorption of the vast majority of well-educated and skilled young people who enter the labour market each year.

Opinion leaders, be they politicians, religious, or civil society in the country, will have to do everything to not be the cause of the production of the spark that can set off this bomb. Political leaders must absolutely refrain, in their efforts to conquer or retain power, from giving our youth, at the height of their frustration, any reason to express their anger against the government by resorting to violence. Rather than doing everything to prevent this bomb from exploding and setting the Senegalese society ablaze with all the harmful consequences that this can cause for the country and the Sahel region, Ousmane Sonko and his supporters seem to be taking advantage of the despair of Senegalese youth to accede to power as quickly as possible. The development of the culture of the “GATSA GATSA” attitude is a danger for Senegal. It is a tactic that can certainly be used to mobilize a youth disoriented by the perverse effects of the non-viability and vulnerability of the overwhelming majority of African states, but it is a way of digging the grave of the political current that uses it to gain power.

In a republic, only the state has the right to use violence. It goes without saying that many crooked politicians have abused the trust of their people and resorted to an ill-holy use of violence, but the only justifiable and sustainable reaction to such abuse that is meted out to the citizens of a democratic republic is the ballot, as long as that franchise option is made available – not a club, a machete, a Molotov cocktail or whatever.

The absence of a condemnation of the acts of vandalism and chaos that have arisen each time Ousmane Sonko has been treated in a way that his supporters perceive as an abuse of power is disturbing to me. Ousmane Sonko, who aspires to the supreme office of our country, should be the first to unreservedly condemn this expression of a total lack of civism. Any other attitude, silence or encouragement makes the leaders of PASTEF the chief gravediggers of any possibility of governing in peace when the Senegalese people entrust them with the heavy task of managing their state. What these thugs do not know is that it is themselves and their families who will pay through taxes and loans in the name of Senegal, the damage they are causing, especially the destruction of public properties and critical social assets directly benefitting the ordinary people, like the Sheikh Anta Diop University. A Pulaar proverb that was shared with me by a Pulaar teacher friend who lives here in upstate New York says that “So ñiiwa ene habaa e ñiwaako hudo booretee” (when two elephants fight it’s the grass that suffers regardless of the outcome of the battle, regardless of who is right or wrong”. It is the Senegalese baadolo who will pay the price for the violent confrontations between Macky Sall and Ousmane Sonko through the dozens of avoidable casualties but also through taxes, cuts in state social services and many other ways.

A warning and concluding recommendations

To conclude I would say this: It is long overdue for the Duo Macky Sall-Ousmane Sonko to come to their senses for the higher interest of the Senegalese nation but also for the Africans who use Senegal as an example to prove to their compatriots that the Democratic Republic is possible in Africa south of the Sahara. The sages of my Wolof cousins say that “alal du doy, doylu moy alal”. President Macky Sall and his companions must carefully weigh this Wolof saying and significantly reduce their intention to keep power to preserve their material interests. With regard to Ousmane Sonko and some of his “Yewi Askan Wi” coalition partners, it is important to take ownership of this lesson that world political history has taught us: you will lose power by the way in which you acquired it.

The tragedy always ends with the death of one of the two protagonists who are stuck in it. The socio-economic and material damage for Senegal will be incalculable if Macky Sall and Ousmane Sonko know the outcome of the vast majority of tragedies. It is time, Mr. President of the Republic, to remind you that by entrusting you alone with the right to exercise violence, the Senegalese people did not want you to use this right for your personal gain and/or those of your companions. Over to you Ousmane Sonko, I advise you to do everything to avoid jeopardizing the governability of Senegal by the elected people.

We are only at the beginning of this already very painful play for the families who have lost one of their own in the violent demonstrations linked to it. You two can avoid a more tragic end in Senegal by making the peace of the brave. President Sall, make it clear to your companions who fear losing the privileges that come with the maintenance of power by the APR/BBY that nothing is eternal, especially the advantages linked to accession to power in a democratic republic. Ousmane Sonko, tell the members of PASTEF and your coalition supporters that without a culture of respect for public goods and the rejection of any recourse to violence, whatever the injustices committed by those in power, no party or coalition that reaches the top of our country’s political pyramid will be able to benefit from the climate of social peace without which economic prosperity is impossible.

To my brothers and sisters who brandish the argument that Ousmane Sonko and the PASTEF will destroy our republic if they come to power, I would say this: you think in that manner because you either have a negative subjective attitude towards Ousmane Sonko and/or PASTEF or a limited knowledge of the history of democracy. First, you have no proof of the intentions that you attribute to Ousmane Sonko and his party. Second, even if Ousmane Sonko had these intentions, it is up to the Senegalese people to decide whether or not they trust him to occupy the highest office in their country. Any intention to snatch this decision from the Senegalese people, whatever the means used to do so, constitutes a danger to the peaceful political development of the Senegalese Republic and must therefore be vigorously condemned. Replacing the Senegalese people in the process of choosing the person to whom they will hand over the Presidency of the Republic in 2024 is neither less nor more than an administrative coup d’état and therefore a constitutional crime against our republic.

 

Diomaye Ndongo Faye

Consultant in Political Strategy Development

Princeton, New Jersey, United States

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APEMETA has extensive knowledge in providing information and building useful bridges for international cooperation

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APEMETA has extensive knowledge of the entire sector, providing information and building useful bridges for international cooperation. Here you can find partners for your business and a set of competent companies available to collaborate internationally in different markets.

Portuguese companies in the area of environmental technologies and services have to offer multiple solutions adaptable to different contexts, as well as the capacity to understand and adapt to the needs of each market/client.

 

‘Her Virginity’: The hymen is not a reliable indicator of virginity

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         By Prof. Raphael Nyarkotey Obu & Fatou Camara

           

‘Her Virginity’: The hymen is not a reliable indicator of virginity.

‘Her Virginity’ is a new book by Fatou Camara, that aims to address the social perspective on virginity.  In this article, we examine and address the notion that the hymen is what differentiates between being a virgin and not a virgin.

The question is does “losing your virginity” the same as “losing” your hymen? And how do you lose your virginity anyway? There is a lot of misinformation and many myths about the hymen, and we address them in this article.

Many people have the misconception that the vaginal corona is a thick membrane that entirely covers the vaginal opening and ruptures the first time a person has intercourse or any kind of insertive vaginal sex.

One myth goes like this: If a bride doesn’t bleed from a ruptured hymen on her wedding night, this means that she has had sex and isn’t a “virgin.This is not true.

Most women don’t know what the hymen looks like, how varied their appearance and dimensions are, and how little they comply with their cultural myths. Because of our lack of knowledge, we rely on stories that suggest hymen and virginity are some of the most important things about women.

In male-controlled societies, hymens have huge cultural significance.  Men were told that a hymen that is intact until marriage, and bleeds on the wedding night, is thought to demonstrate the woman’s sexual and moral “purity.”  But in reality, many women don’t bleed during first intercourse, either because their hymen has already been stretched or torn through other activities, or because it was very thin or flexible, to begin with.

Learning about our hymens, and our bodies in general, can help us to feel more comfortable and in control in sexual situations. Unlearning the misinformation that we’ve been taught can help us better protect ourselves from STIs, as well as increase our sexual pleasure.

The Hymen

The hymen doesn’t cover the vagina. First, let’s take a look at the hymen’s meaning. Coming from the Greek word meaning membrane, the hymen is a small piece of skin found inside the opening of the vagina.  Contrary to its name, the hymen is not a complete membrane covering the full vaginal opening. After all, menstrual blood can pass through the vagina before we have had penetrative sex for the first time.

Due to this controversy, a new name called the vaginal corona was proposed to replace the hymen in 2009 by a Swedish sexual rights group in an attempt to dispel harmful myths about hymens.  The membrane is located just inside the entrance to the vagina.

Hymens come in many shapes and sizes. The mucous membrane that makes up the vaginal corona may be tightly or more loosely folded. It may be slightly pink, almost transparent, but if it is thicker, it may look a little pale or whitish regardless of your skin colour. The vaginal corona may resemble the petals of a flower, or it may look like a jigsaw piece or a half-moon. It may be a scanty fringe of tissue, or even completely absent at birth.

The vaginal corona may tear or thin out during exercise, masturbation, tampon use, or other forms of vaginal penetration. Because of this, no one can look at or touch a vaginal corona and know whether a person has had vaginal intercourse, or even whether they have masturbated.

In rare cases, the hymen covers the entire vaginal opening. This is called an imperforate or microperforate hymen. Sometimes an imperforate hymen isn’t discovered until puberty when a person experience cramping and pain because the menstrual blood in their uterus can’t pass through the vaginal opening. In these cases, the hymen can be surgically opened so that the person can have regular periods, use tampons, and have other kinds of vaginal penetration.

Somewhat more commonly, a hymen band may be present across the vaginal opening, allowing menstruation but preventing tampon insertion. If the opening is very small or partially obstructed, minor surgery can correct this.

 Why virginity is a big deal

 In both the Christian and Muslim communities, being a virgin is a religious and cultural construct, not a medical or scientific term.  Our value as human beings should not be based on our sex lives, whatever our gender. Because virginity is a big deal, in some communities, girls may be prevented from running, jumping, or riding horses to protect the hymen; girls’ and women’s activities may be tightly policed to prevent cross-sex mingling. This emphasis on virginity also sets up a “virgin/whore dichotomy,” in which sexually active women are rejected as bad, defiled, ruined, and dangerous. The rejection takes many forms, including “slut shaming,” social ostracizationun-marriageability, rape justifications, and “honour killings.”

This notwithstanding, two studies (Knight, Bernard, 1997; Sally et al. 2004) found that the hymen is not a reliable indicator of virginity. And does breaking the hymen define who a virgin is? If that is the case, then, in the Ghanaian jurisdiction where young girls are taken through puberty right called Dipo in the Krobo communities; what metrics do they use to know that they are virgins?

Also, if your hymen was broken by other means and not through sexual intercourse; would that amount to not being a virgin? How are they able to test these young girls’ virginity before accepting them into puberty rights?

This is because, from a scientific angle, some women are born with very small hymen or with no hymen at all. Would those born without a hymen be considered virgins for those puberty rights? Or do the gods reject them because they have no hymen? Okay, if a young lady completes puberty right and a man decides to marry her and later finds that she did not bleed during the wedding night; how would the gods justify that? Because the man would be expecting the lady, he marries to bleed the first night.

The fact that those girls do not have hymen doesn’t mean that they are not virgins. This is nature and this is perfectly healthy and does not mean that they are missing anything, or need medical attention. For some, hymens can be stretched long before they have penetrative sex, whether it’s from sports, self-exploration, or using menstrual products like tampons. So in a nutshell,  the hymen stretches – it doesn’t break. When we have penetrative sex for the first time, nothing disappears, the hymen may simply stretch.

This contradicts much of the language we’re familiar with when we talk about virginity. In reality, nothing physical is lost, and while the first time having sex may be significant for many of us, there isn’t a biological change to our bodies.

Virginity Testing: Not Scientific

In 2019 the American College of Obstetricians and Gynecologists released a statement saying that they do not guide virginity testing. This is because you can’t tell whether a woman has had sex or not just by looking at her vagina.  Also, every hymen looks different, so there is no set standard for finding evidence of penetration.

This idea that the hymen breaks during first sex has also led to a belief that our first time should be painful. In reality, pain during penetration is more likely to arise from anxiety or sexual inexperience, than from stretching the hymen.

In 2018, UN Human Rights, UN Women, and the World Health Organization (WHO),  called to end what is termed virginity testing — a gynaecological examination conducted under the belief that it determines whether a woman or girl has had vaginal intercourse.  The WHO believes that is violence against women and girls everywhere. Also, the WHO held that this testing is medically unnecessary, and often painful, humiliating, and traumatic practice.

The WHO noted that there is no medical exam on earth that can tell if a woman or girl is a virgin. Unfortunately, parents, prospective in-laws, police, and even schools and employers still sometimes subject girls and women to coerced or forced “virginity testing.”

The WHO says: “From a human rights perspective virginity testing is a form of gender discrimination, as well as a violation of fundamental rights, and when carried out without consent, a form of sexual assault.

The use of virginity testing by police in cases of sexual assault is often paired with the sexist belief that if a woman isn’t a virgin, she “couldn’t” have been raped. Performing this medically unnecessary and harmful test violates several human rights and ethical standards including the fundamental principle in medicine to ‘do no harm’. WHO recommends that this test should not be performed under any circumstances.

UN Human Rights, UN Women, and WHO are committed to ending virginity testing and ensuring that the rights of all women and girls are upheld. The following are recommended strategies to eliminate virginity testing in settings where it occurs:

  • Health professionals and their professional associations should be aware that virginity testing has no scientific merit and cannot determine past vaginal penetration. They should also know the health and human rights consequences of virginity testing, and never perform or support the practice;
  • Governments should enact and enforce laws that ban virginity testing; and
  • Communities and all relevant stakeholders should implement awareness campaigns that challenge myths related to virginity and harmful gender norms that emphasize control of women’s and girls’ sexuality and bodies.

 

 

Finally, we concluded that the status of your hymen has nothing to do with your virginity and it is prudent to create awareness to educate the public on this issue affecting our families, homes, and marital institutions.

 

Prof. Nyarkotey Obu is a science and medical journalist, columnist, author, and BL Candidate at the Gambia Law School, Banjul, Gambia.  Fatou Camara is the author of the Book ‘Her Virginity’ E-mail: [email protected].

 

 

Medical Negligence: Medical Records as Patient’s Weapon?

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By Prof. Raphael Nyarkotey Obu & Daniel Sackey

 Medical Negligence: Medical Records as Patient’s Weapon?

In a recent news by kasapafmonline.com, the Accra High Court orders the Chief of Defence Staff, (CDS) and the 37 Military Hospital to release an investigation report conducted on the circumstances leading to the death of a 48-year-old man, Solomon Asare – Kumah to his family within 10 days.

The order culminated from an action of medical negligence which was commenced in 2019 by the family of Solomon Asare-Kumah (the deceased) against the Hospital, a medical doctor- Col/Dr. G. A. O. Appiah, the CDS, and Attorney General. The family is demanding GHc2 million in damages for alleged medical negligence that led to the death of the deceased. Prior to the suit, the family had petitioned the CDS to conduct an inquiry into the circumstances surrounding their relative’s death but after the investigation, the report was not made available to them.

After suing the hospital for damages in the sum of GHc2 million and pending the determination of the substantive matter, the family through Emmanuel Asare-Kumah, filed an application for an order for Discovery on October 21, 2022.

In this article, we will examine the legal question as to whether patients have the right to disclosure of their medical records in the case of medical negligence civil litigation and we will also interrogate the legal basis of discovery in medical negligence civil litigation.  We would finally look at the medical records of the patient as a weapon for the plaintiff.

 

 

Medical Records as a Plaintiff’s Weapon

Medical records are used to track events and transactions between patients and healthcare providers. They offer information on diagnoses, procedures, lab tests, and other services. Medical records help us measure and analyze trends in healthcare use, patient characteristics, and quality of care.

Indeed, medical records are patients’ strong weapon in medical negligence litigation. This is because, to be able to get legal advice from the lawyer, the lawyer’s first task is to review the medical records. Also don’t forget that medical negligence and malpractice litigation is built around the medical record, which provides the only objective record of the patient’s condition and the care provided.

For the lawyer, the medical records will help to establish specific acts of negligence and the overall quality of the record.  Good and strong medical litigation lawsuits are cemented on well-documented, specific acts of negligence. In most cases, however, negligence is inferred from documented and undocumented events. If the patient’s case depends at least partially on assuming that certain events were not recorded, the lawyer must be able to cast doubt on the credibility of the record.

Medical records are also the weapon for a physician’s defense. The patient has injuries to show the court; the physician or other medical care practitioner has only the medical records to prove that the injuries were not due to negligence. If the record is incomplete, illegible, or incompetently kept, this is the health care practitioner’s failure. Although courts and juries usually give a defendant the benefit of the doubt on ambiguous matters, this does not extend to ambiguities created by incompetent recordkeeping.

The least credible records are those that are internally inconsistent—for example, the physician’s progress notes report that the patient was doing well and improving steadily, but the nurses’ records indicate that the patient had developed a high fever and appeared to have a major infection. More commonly, the credibility of the records is attacked by demonstrating that it is incomplete. If it is clear that medically important information is missing from the record, then it is easier to convince a jury that the missing information supports the patient’s claims.  They are also the basis of expert opinion that will determine the outcome of the litigation.

Discovery: The Essence in Civil Litigation

In civil litigation, discovery is the process whereby a party to an action is obliged to disclose to the other party the existence of all documents which are or have been in his possession, custody, or power which are material to the issues in the action.

In law, ‘Documents’ is not restricted to paper writings, but extends to anything upon which evidence or information is recorded. Thus, tape recordings (whether audio or video) and computer disks are disclosable. Documents to be disclosed are those which relate to the matters in question in action. However, the scope of discovery is thus very wide.

A case law, Companies Financiere v Peravian Guano Co. (1882) 11 QBD 55, established that documents to be disclosed are those that relate to the subject matter and further went to include those that can indirectly enhance the party (requiring discovery) either to advance his case or to damage that of his opponent.

Hence, in the case of alleged medical negligence, medical records and any other medical information that tend to help the plaintiff requiring discovery to either advance his case or damage the case of the defendant (ie. the hospital) is important to that plaintiff.  Hence, the plaintiff can apply to the court for notice to produce to enable the hospital to disclose those medical-related documents.  Also, these medical-related records are important to the defendant-the hospital. In Ghana for instance, any party may apply at the stage of application of directions for such discovery as is necessary and the court may order the respondent to serve a list of documents in his or her custody or possession on the applicant. The court may order discovery even after the application for direction stage if reasonable cause is shown. Under Order 21 r 6 of the Ghanaian High Court Civil Procedure Rules (CI 47), the court will only order discovery when satisfy that the discovery is necessary to dispose fairly of the cause or matter and will save costs.

Disclosure, not Sacrosant

However, disclosure of these documents is not sacrosanct. This is because some documents are privileged from production and inspection.  For instance, documents protected by legal professional privilege; documents tending to incriminate the person making the disclosure, and documents privileged on the grounds of public policy. For instance, in the Gambia, Section 127(1) (d) of the 1997 Constitution excludes documents from discovery on the grounds of prejudice to National Security.

However, when the court gives such an order for discovery and a party fails to comply with an order for the discovery of documents or to produce any document or record for purposes of inspection or fails to comply with the rules, the court may make such orders as it thinks just, including the following: the action may be dismissed, the defence may be struck out and judgment entered accordingly, where the document is favourable to the defaulting party’s case, the party may not use the document at the trial, except with the leave of court or where the document is not favourable to the party’s case, the party may be committed for contempt.

Disclosure:  Right to obtain

The court may order any party to the suit to make a discovery on oath of the documents, which are or have been in his possession or power, relating to any matter in question in the suit per the rules of the court.  The party is also permitted to inspect these medical documents.

In the notice to produce, in the Gambia for instance, there is no time stated to produce. However, case law, Dwyer v Collins (1852) Exch 639, explained that a reasonable time should be given. In this case, the Accra High Court orders the Chief of Defence Staff, (CDS) and the 37 Military Hospital to release the documents within 10 days.

The Plaintiff’s Case for Disclosure

In this case, the plaintiff sought; “an order directed at the 2nd Defendant (CDS) to furnish plaintiff with the final Report of the Board of Inquiry held in respect of the death of Solomon Asare-Kumah and allegations of extortion against the 4th Defendant.”

Secondly, “an order directed at the 3rd Defendant to furnish Plaintiff with the full and complete medical record of Solomon Asare-Kumah (deceased)”.

 The Defendants relied on Privileged

But responding to the application in an affidavit to the request deposed to by Justice Oteng, a Legal Officer at the Department of Legal Services, Ghana Armed Forces, General Headquarters, on the authority of the 1st to 3rd Defendants/Respondents opposed to the request and said the report is exclusively for internal use.

“..The 2nd Respondent is vehemently opposed to the request by the Applicant for the Report/Record of the Board of inquiry,” the affidavit in opposition stated.

It contends that “the Report of the Board of Inquiry is a restricted document meant for the exclusive internal use of the Ghana Armed Forces.”

The defense further contended that the said report is exclusively for internal use. It further stated that “the Report of the Board of Inquiry conducted under the auspices of the Ghana Armed Forces is privileged and same cannot be disclosed to the Public even in legal proceedings.

“That per with the Armed Forces Regulations [Administration] Volume 1 (AFR Vol. 1) (C.I 12), applications for the release of record or report of a Board of an Inquiry requires the express instructions of the 2nd Defendant herein.

“That pursuant to the AFR. Vol 1, the 2nd Defendant stated that the Report of the Board of Inquiry as requested by the Applicant is confidential and same cannot be released.

It further contended that “that the discovery of the Report of the Board of Inquiry as prayed is not necessary for a fair and effectual disposal of the instant action and will rather prejudice the trial.”

It stated further that, “the Applicant has not shown any reasonable cause for the discovery of the report of the Board of Inquiry,” and “that the 3rd Respondent is however not opposed to Plaintiff/Applicant’s request for the disclosure of the medical records of the deceased in its custody.”

The Judge thinks the Patient’s Fundamental Human Right is Paramount

For a comprehensive analysis, we will at this point reproduce excerpts of the ruling of the discovery application which forms the crux of this article.

Justice Charles Ekow Baiden in his ruling stated as follows:

“I take judicial notice and it is so proven that on or around January 2023 a summary report of the Board of Inquiry into the alleged missing baby at the 3rd Defendant/Respondent hospital maternity unit, which the Board of Inquiry was convened by the 3rd Defendant/Respondent was disclosed to an aggrieved couple in that matter. In so doing, I am minded that judicial notice can be taken of facts that are so capable of accurate and ready determination by resorting to sources whose accuracy cannot reasonably be questioned, as provided for pursuant to Section 9(1) of NRCD 323. According to Brobbey JSC., (as he then was), the learned author of ESSENTIALS OF THE GHANA LAW OF EVIDENCE, “I…J judicial notice is not just a form of evidence. It is a form of proof.” (Emphasis added).

After lengthy experiments with military regimes, we the people of Ghana began a new path towards constitutional supremacy in 1992.

The 1992 Constitution we adopted for ourselves embodied principles of accountability and the protection and preservation of fundamental human rights and freedoms.

To achieve these solemn goals, the 1992 Constitution vested final judicial power in the Judiciary. Article 125(3) of the 1992
Constitution provides that: “The judicial power of Ghana shall be vested in the Judiciary, accordingly, neither the President nor Parliament nor any organ or agency of the President or Parliament shall have or be given final judicial power.” (Emphasis added).

In furtherance of this, Article 140(1) of the 1992 Constitution vested the High Court with jurisdiction in all matters and in particular, in civil and criminal matters and such
original, appellate, and other jurisdiction as conferred by the Constitution or any other law. The combined effect of Articles 33(1) and 140(2) of the 1992 Constitution is that
this Court has the responsibility to protect and preserve the natural and inalienable rights fundamental to the well-being of all persons.

Article 12(1) of the 1992 Constitution provides that: ”The fundamental human rights and freedoms enshrined in this Chapter shall be respected and upheld by the Executive, Legislature and the Judiciary and all other organs of government and its agencies and, where applicable by all natural and legal persons in Ghana, and shall be enforceable by the Courts as provided for in this Constitution.” (Emphasis added).

He further reasoned that the principles of accountability enshrined in the Preamble, Articles 23 and 296 of the 1992 Constitution frowns upon the unbridled exercise of such wide discretionary power contained in Article 21.17.1 of AFR (Volume 1) C.I 12 which purports to oust the jurisdiction of the court.

Even if, the 1st to 3rd Defendants/Respondents have the discretion to not disclose a Board of Inquiry Report to the Plaintiff/ Applicant, such discretion must be exercised fairly, reasonably, and not arbitrarily or in a biased manner.

He also referred to Article 17 of the 1992 Constitution that which abhors discrimination against persons such as the Plaintiff/Applicant herein. Article 17(3) provides that: “For the purposes of this article, “discriminate” means to give different treatment to different persons attributable only or mainly to their respective descriptions by race, place of origin, political opinions, colour, gender, occupation, religion or creed, whereby persons of one description are subjected to disabilities or restrictions to which persons of another description are not made subject or are granted privileges or disadvantages which are not granted to persons of another description.”

It has not been demonstrated to this Court that there is reasonable justification for treating the Plaintiff/Applicant differently from the manner the couple in Exhibit “D’ and “E” has been treated.

I find that the Plaintiff/Applicant alleges negligence in tort, breach of contract, misrepresentation, and undue influence.

The Defendants/Respondents have denied the existence of a contract. If so, the Defendants/Respondents must be made to subiect this dispute to the ordinary rules of negligence in tort, contract, and the remedies available to a party who alleges violation.

In so far as the Defendants/Respondents engage in commercial transactions, they must necessarily abide by the rules of engagement including good faith obligations and the duty of care, among others.

The 1st to 3rd Defendants/Respondents ought not to be allowed to seek refuge elsewhere.

For all the above reasons, “I am of the firm view that the Plaintiff/Applicant has shown reasonable cause for this Court to grant the order prayed for as the report relating to the death of the Deceased is necessary to fairly dispose of the matter, pursuant to the overriding objective of Order 1 rule 2 of C.I. 47.

The report or record of proceedings of the Board of Inquiry relating to the admission, treatment and death of the Deceased, howsoever described by the Is to 3rd Defendant/Respondents, together with the medical records of the Deceased shall be furnished to the Plaintiff/Applicant within ten (10) days hereof”.

With the subject matter, the family contends that “the hospital and its employees fail to exercise due care when they wrongly inserted Solomon’s breathing tube under his skin thereby denying oxygen for a considerable amount of time and as such causing stain on his heart and other organs and thus causing his death.”

Previous Rulings on Patient Medical Records as Human Rights

In Elizabeth Vaah v Lister Hospital and Fertility Centre, HRCM 69/10 [2010], a client who was under the care of the defendant hospital sued the hospital, relying on the right to information guaranteed under Article 21(1)(f) of 1992 Constitution of Ghana (the Constitution), when she sought to recover her medical record to clarify the cause of death of her stillborn baby. The applicant’s case is that her fundamental human rights have been violated by the respondent when the latter refused to release her medical records to her.

The respondent argued that it was justified in refusing the applicant’s request for medical records because by speaking to the press about the circumstances in which she gave birth at the respondent’s hospital, she had evinced an intention to abuse the records. It was held that the plaintiff was entitled to a copy of her medical record from Lister Hospital. The legal principle found, in this case, is that a medical facility cannot violate or prevent a patient from accessing their records.

Finally, in Jehu Appiah v Nyaho Healthcare Limited [2021], where the plaintiff accused the facility of allegedly damaging her fallopian tube, which nearly led to her death. According to the case, the plaintiff, upon conception utilized antenatal care services at the respondent hospital. But at a point, she claimed she had to undergo life-saving surgery at a different health facility due to the “actions and inactions” of the Nyaho hospital. After the life-saving surgery, she made a formal complaint to Nyaho Healthcare Limited, after which she was promised investigations into the matter and the results communicated to her. The plaintiff noted that all efforts to compel the respondent hospital to release her medical documents (including scans, tests, diagnosis, and treatment) proved futile. The court held that the complete medical records be released to the patient.

Conclusion

A party alleging medical negligence has the right to obtain disclosure from the defendant’s hospital.  Though, some documents are privileged from disclosure on public policy grounds. It is also prudent to know that the fundamental purpose of disclosure is to further the overriding objective by ensuring parties to litigation are on an equal footing. The court will exercise its discretion in favour of the plaintiff if the disclosure aids the court in dispensing justice and a fair trial.

Also, the meaning of ‘documents’ is not restricted to paper or writing but extends to any form of record-keeping. This includes computer databases, microfilms used to keep records, video and audio tapes, and discs. Hence, in today’s medical care industry, where hospitals have adopted electronic record systems, discovery extends to them.

Thus, in clinical negligence claims, the most important category of the document to be disclosed is likely to be the claimant’s medical records. They will provide the most contemporaneous record of the treatment given to a patient and will, in almost all cases, be the basis of expert opinion that will determine the outcome of the litigation. Early and objective scrutiny of medical records can save a lot of time and expense and is necessary to assess the merits, strengths, and weaknesses of any proposed claim from the outset. For the defendant, case laws proved that patients have rights to the medical records, and it is also your source of defense in medical negligence civil litigation.                             

Prof. Raphael Nyarkotey Obu is a (BL) candidate at the Gambia Law School, Banjul, The Gambia, and Daniel Sackey is a Part Two student of the Ghana School of Law, Accra, Ghana. E-mail: [email protected]The authors have an interest in medico-legal issues and patient rights. The legal article is for academic awareness only.  

The Bonds That Bind

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REFLECTION

By Cherno Baba Jallow

Ousman “Ous” Kamara and I aren’t blood relatives, but the bonds between us, pardon the cliche, are as old as the hills. They have endured.

Ous Kamara (he is the only one in his family who spells his last name with a K), and I were once roommates in the US city of Detroit and then close neighbours in nearby Southfield, both in the state of Michigan. Our neighbourhoods were a walking distance from each other. But since we are talking about Michigan, where folks just love to drive for any distance, Ous and I often drove to each other’s homes, crossing the Telegraph Road off West 12 Mile.

We would link up during the weekends. We would watch sports, grill some lamb, snack up on fruits and peanuts, and turn ourselves into castaways of the maudlin past. We would go on long recollections about our upbringing, the soccer games in our childhood neighbourhood, the good, old stories, the episodes and personalities that have left lasting impressions on us.

Ous and I grew up in the same neighbourhood in Basse. We are the grandsons of the Jallows and the Camaras, two families that have lived next-door to each other for several decades —- a century isn’t far off.

How and when the two families came to live in close proximity with each other is still something for me to look into —- I haven’t asked about or researched, it yet. All I know is that the two families came from two different shores: mine, (maternal side), came from Dalein, several miles outside of Labe in north-central Guinea. And Ous’s came from Wuli Bantun-N’ding in the northeastern part of The Gambia.

They all resettled in Basse. Both of my maternal grannies arrived in the late 1920s. Probably they found the Camaras already there. Or probably their would-be neighbours were the ones who came sometime later, joining them in residency, in the present-day location once known for its thick bushes, and hyenas often heard howling their way from the nearby riverbanks to the hills of the contiguous areas of Sare Koba and Manneh Kunda.

These Jallow and Camara families are the perfect examples of close-knit neighbours — neighbours, who are each other’s support unit, who love and care for each other, who represent the best of neighbourly outreach and shared humanity.

Our grandmothers Adama Oury Diallo and Koday Camara were the best of chums. Granny, born in the exclusively Pulaar-speaking part of Guinea, spoke no Mandinka, the dialect of the Camara household. But Ma Koday spoke fluent Pulaar. They visited each other, had long chats, exchanged pleasantries and laughed out loud, the bonhomie of two elderly women partaking off some leisurely time together in rural Africa.

Both women loved to cook lots of food. Granny would cook “To-rie” and “Fut-ti,” two popular dishes in her rural part of Guinea. And she would ask me to carry some next-door to her friend. When Granny fell sick with the flu, Ma Koday would prepare her some soup, usually some fish sautéed in spices, lemon juice and thin tomato sauce. Sometimes she would bring it to Granny, walking over through the gate that separated the two homes. Other times she would send Ous or the other grandkids — Balaba or Wassa or Ba Juldeh.

During family crisis, the two friends were each other’s consoler-in-chief. Almost any distress could send Granny into an emotional tailspin. She was wont to be comprehensively anguished over family deaths in her native Guinea. She would wail intermittently throughout the day. Ma Koday would be by her side, consoling her and imploring her to let it go, to reconcile herself to the inevitability of death and to the vicissitudes of life.

Ma Koday and Ma Oury (how the Camaras called Granny) were like the head-representatives of the two families. Their warmth for each other was emblematic of the harmonious co-existence between the two families. From the grannies down on, we all interacted on a daily basis, attended each other’s functions and ran into each other doing errands on the opposite ends of the family homes.

It’s remarkable how these two families, hailed from two different cultures and origins, could get along so well. But then again this is Upper River, eastern Gambia, the land of the Ko’nyaji, the Fulbe, the Mandinka and the Serehule, the land where diversity is a cherished way of life.

As I occasionally traipse around the halcyon days of my upbringing, I am constantly reminded of a childhood steeped in fun and fanfare, enriched by an unshrinking love from my family and from the one next-door: the Camaras. Having good neighbours like them takes pure luck. Or an act of providence. G. K. Chesterton, the English writer and philosopher, told us: “We make our friends, we make our enemies, but God makes our next-door neighbour.”

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