Attempted removal of nominated NAM is constitutionally wrong - Both legally and politically

By all accounts, Yayha Jammeh was a dictator. He did not have respect for democracy. He seriously undermined important state institutions. The National Assembly, the citadel of law making, was at his mercy. The Judiciary was an unwitting accomplice. When Gambians voted to remove Jammeh from power two years ago, it was unprecedented. Gambians simply wanted change. Therefore, it is callous and an attempt to roll back the political gains we made in December 2016, when the President, Adama Barrow, ill-advised or acting without legal and political advice, attempted to remove Hon. Ya Kumba Jaiteh, a nominated member, from the National Assembly. This is relevant to our political discourse because it happened at a time when the we are trying to consolidate our young democracy. If we therefore, allow the President to violate provisions of the Constitution, or act outside the limits of his executive powers, then we will be setting a very dangerous precedent, the reversal of which may become insurmountable if the President becomes too emboldened. The more reason why it is important to restrain him now before it becomes too late to do so.

Many others and I ardently believe that the attempted removal of Ya Kumba Jaiteh by the President is unconstitutional and therefore ultra vires, outside the scope of his powers. However, some legal commentators on the other hand argue that his action is lawful. I wish to add to the debate and perhaps enrich the discourse and narrative regarding the issue of constitutionality, supremacy of the Constitution, sovereignty of Parliament and the separation of powers.

I shall argue that the attempted removal of a nominated NAM is not only legally and politically wrong, it is politically naïve considering our recent past. Firstly, I admit, I only recently found out that the Speaker of the Assembly is derived from the cohort of NAMs nominated by the President and not those elected by the people. This is a fundamental anomaly. Secondly, the idea that the President as the Head of the Executive, should personally choose the Speaker and ultimately determine who the Head of the Legislative branch should be, as well as believing that he has the legal power and political authority to nominate and remove a nominated member even after confirmation is patently absurd. It erodes and undermines the fundamental doctrine of the separation of powers.  

What is a Constitution? Professor Finer, in Five Constitutions (1979), defines it as:

“codes of rules which aspire to regulate the allocation of functions, powers and duties among the various agencies and officers of government, and define the relationships between them and the public.”    

Professor King defines writes that “A constitution is the set of the most important rules that regulate the relations among the different parts of the government of a given country and also the relations between the different parts of the government and the people of the country.”

With the exception of the United Kingdom, all other jurisdictions, like The Gambia, have these rules reduced in writing and codified into a single document. South Africa’s 1996 Constitution is hailed as one of the most progressive constitutions of the modern era.

The constitution is superior to Acts of Parliament or any other statutory or delegated legislation. Section 4 of the Constitution of The Gambia 1997 (Chapter II) explicitly provides that it is the “supreme law ….. and other law found to be inconsistent with any provision of this constitution shall, to the extent of the inconsistency, to be void.” This is not unusual in other constitutions. Section 2 of the 1996 South Africa Constitution states that “This Constitution is the supreme law of the Republic; law conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.” 

Section 91 of the 1997 constitution deals with the tenure of members of the Assembly. Section 91 (1) states that:

“A member of the National Assembly shall vacate his or her seat in the National Assembly –

(a)   On the dissolution of the National Assembly;

(b)  Subject to subsection (2), if any circumstances arises which, if he or she were not a member, would cause him or her to be disqualified for election as a member or nomination as a member;   

(c)   If he or she resigns his or her office as a member;

(d)  If he or she ceases to be a member of the political party of which he or she was a member at the time of his or her election;

Provided that nothing in this paragraph shall apply on a merger of political parties at the national level where such merger is authorised by the constitution of the parties concerned;

(e)   If, having been elected a member as an independent candidate, he or she join s political party;

Section 92 provides that “An Act of National Assembly may make provision for the recall of an elected member of the National Assembly …….”

It follows therefore that this provision does not even explicitly state how a NAM may be removed from the Assembly through the recall mechanism. It simply bestows on the Assembly power to do so, however, in ways and manner that the Assembly shall deem proper. The provision did not prescribe exactly how the Assembly should do this other than by means of recall supported by at least one-third of registered constituents.  In addition, section 92 states that the National Assembly “may make provision for recall,” which clearly means that the power to legislate in respect of the removal of an NAM through recall lies within the purview of the NA. That means, it is the National Assembly, in the exercise of its unfettered powers in respect of enacting laws, specifically deriving its powers from section 92(a)(b), that is tasked with prescribing the exact grounds for recall and powers and procedures that stem from a petition for recall. Section 92 does not say the National Assembly shall make provision for recall which would have been a mandatory and compulsory imposition on the NA to enact such law. The constitution thus, either deliberately or by default, but I lean towards a deliberate and intentional aspiration of the constitution that only the National Assembly should address the issue of recall and in ways and manner that it deems appropriate other than by petition by constituents.

I contend that the constitution implicitly recognises its own limitations in governing everything and therefore, allows the NA, in the spirit of sovereignty of Parliament, to be the master of its own destiny as the Chamber representing the people through democratic and parliamentary representation. This is because the constitution is acutely conscious of the importance of sovereignty of Parliament in a pluralist democracy and why it should be sacrosanct to preserve the integrity of Parliament and thus, interference with its members by means of removal unless in exceptional circumstances. It will be egregious to suggest that the constitution contemplated vesting such power as removing an MP in the President. It defeats the concept of the separation of powers and parliamentary sovereignty. Article 104(1) of the Kenyan Constitution 2010, this provision almost identical to ours, states that the electorate under Articles 97 and 98 have the right to recall their MPs, however, Article 104(2) states that it is Parliament that shall enact legislation to provide for the grounds on which a member may be recalled and the procedure to be followed. This is another manifestation of Parliament’s inherent power regarding the issue of the removal of MPs from the House.   

 Separation of powers

 Greek philosopher Aristotle, in his work Politics, stated “There are three elements in each constitution in respect of which every serious law giver must look for what is advantageous to it; if these are well arranged, the constitution is bound to be well arranged, and the differences in constitutions are bound to correspond to the differences between each of these three elements. The three are, first the deliberative, which discusses everything of common importance; second, the officials ……; and third, the judicial element.”

The great French legal philosopher Montesquieu in The Spirit of the Laws remarked “When legislative power is united with executive power in a single person or in a single body of the magistracy, there is no liberty, because one can fear that the same monarch or senate that makes tyrannical laws will execute them tyrannically.”

“Nor is there liberty if the power of judging is not separate from legislative power and from executive power. If it were joined to legislative power, the power over the life and liberty of the citizen would be arbitrary, for the judge would be the legislator. If it were joined to executive powers, the judge could have the force of an oppressor.”

“All would be lost if the same man or the same body of principal men, either of nobles, or of the people, exercised these three powers: that of making the laws, that of executing public resolutions, and that of judging the crimes or the disputes of individuals.”

 The rationale for this well-established principle of the separation of powers is to safeguard and prevent abuse of power. This takes us back to the issue of the head of the executive branch being vested the power to determine the head of the legislative branch. Theoretically, the idea of the President nominating five individuals to the Assembly makes a certain sense. Our NA, like any other Parliament, is partisan and MPs, for the most part, toe the party line or face the wrath of their party whips. The rationale of the President being given the power to nominate five individuals to the Assembly, is to curb that tribal politics in Parliament and at the same time enhance the expertise of the House.

The rationale is not for the President to nominate those he believes will further his personal or executive agenda, but qualified and capable Gambians who will serve the interests of the country and its people. Such individuals may be retired IGP, retired CDS, retired Archbishop or retired Iman Ratib, successful businessman, retired doctor, retired Headmaster or deliberately, to allocate all the five seats to women or youth as an affirmative action to increase their representation at the top of the pyramid of law making process. The idea is thus to maintain some form of equilibrium in the Assembly. They are expected to be independent and neutral and their overriding agenda is to serve the best interests of our country and nothing else. That is the idea and rationality of vesting in the President the power to nominate. Article 97(1)(c) of the Constitution of Kenya also provides for nominated members; twelve members nominated by the parliamentary political parties according to their proportion of members in the House. This provision of the Kenyan Constitution expressly states that nomination is to represent special interests including persons with disabilities and workers.     

Section 112(b) of the constitution, on the responsibilities of the members of the National Assembly stipulates that: 

“all members shall regard themselves as servants of the people of The Gambia, desist from any conduct by which they seek improperly to enrich themselves or alienate themselves from the people, and shall discharge their duties and functions in the interest of the nation as a whole and in doing so shall be influenced by the dictates of the conscience and the national interest.”

 Practically, in the Gambian context, largely because of the lack of political maturity and our culturally subservient nature to officialdom, and unfortunately the mediocrity of the types of Assembly we have (I wish to say here that the current House has some really impressive members and who are well intentioned), our own circumstances and context differ and the purpose of nomination by the President is nothing but self-serving and completely needless. In our context, simply because the President nominates someone into the House, the subconscious conclusion is that the primary allegiance is to the President and not the Gambian people. I hope therefore, in light of the recent debate and taking into account the conflicting interests of nominated members if we take into account the history of members nominated by Jammeh, the people in their consultations with the CRC, will express their disapproval and have this provision excused from our supreme law.

It is not in dispute that section 92 does not expressly articulate the removal of nominated members from the House. Was this omission by design or default? Can it be argued that constitution did not contemplate the removal of nominated members, save for the usual justifications such as bringing the Assembly into disrepute, criminal or moral culpability to the extent that it is reasonable to adjudge that a certain MP no longer has the moral authority or standing to continue to occupy a seat in the Assembly of the “Nobles”? If that were the case, I cannot think of anything more legal and lawful than the Assembly itself, passing a statute to determine how a nominated member may lose his or her seat in the House and the procedural requirements of any such law. This will be akin to the power vested in the Assembly under section 92 in relation to the recall of elected members. Perhaps, it may be that, derived from the rationality of the purpose of having nominated members, the constitution did not envisage the removal of nominated members because they represent not individual constituencies but the entire nation as their constituency. Even if we suppose that just like their elected cohort, nominated members may also be removed from the Assembly, nonetheless, in the absence of any express constitutional provision authorising such an action, then only the Assembly can pass laws governing this and how it will operate procedurally. Then the Supreme Court to have the power to determine its constitutionality. Certainly, it is not and should not be the concern of the President how any MP is to be removed from the House. The fact that the President believes that simply because he nominated, he has the legal authority to remove a person be nominated, reveals the fundamental flaws in the whole exercise. The President erroneously believes that as the nominating authority, in the absence of definite constitutional guidance on the subject, he has the legal authority to remove a nominated member from the Assembly.

In the absence of any express constitutional provision vesting in the President the power to remove, his power is limited to nomination and not more. Once a nominated candidate takes an Oath of office, he or she becomes a bona fide member of the Assembly and anything to do with his or her removal should then become an issue for determination by the Assembly itself and not the President. If the President were to be legally able to yield such power, it will not be far-fetched and irrational to foresee a situation where in every Parliamentary term, the President can nominate and dismiss as many NAMs as he pleases if the nominated members vote against his bills or become mavericks in the House. Can you imagine such a situation? That will not only be politically damaging and disruptive, it will undermine and weaken the very foundations and principles of the separation of powers and parliament’s sovereignty, never mind our democracy.  

The sovereignty of Parliament is common in most common law jurisdictions and beyond. Section 63(3) of the Constitution states that “A person elected as President may at any time during his term of office be removed from office if a no confidence motion is passed in the National Assembly supported by two thirds of the members of the National Assembly.” This is not unique. Article 95(5)(a) and (b) of the Kenyan Constitution gives the Kenya National Assembly power to review the conduct in office of the President, Deputy-President and other State officers and also the power to initiate the process of removing them from office; as well as the exercise of oversight of state organs. All over the world, it is generally the House that prescribes the grounds and process of removing members and such a power is not vested in the President.    

The Speaker of the House is a nominated member just like Ya Kumba Jaiteh. Section 93(3)(b) of the Constitution provides that the Speaker and the Deputy Speaker shall vacate their respective offices “if he or she is removed from that office by a resolution of the National Assembly supported by the votes of not less than two-thirds of all the members of the National Assembly.” I argue that in the absence of an express constitutional provision regarding the vacation of the other nominated members, it is reasonable and logical to take a cue from this section’s procedure and conclude that the vacation of all nominated members should be initiated and determined by the House and not at the temperament of the President. There certainly has to be a strong safeguard against executive encroachment on the Parliamentary terrain.      

According to section 76(2), “In addition to the powers conferred on him or her by this Constitution, the President shall have such powers and responsibilities as may be conferred on him or her by or under an Act of the National Assembly.” 

Section 77(2), regarding the executive power and the National Assembly, provides that “The National Assembly may request the President to attend a sitting of the National Assembly for the discussion of a matter of national importance”.

Section 77(4) states “The Vice-President shall answer in the National Assembly for matters affecting the President, and the President shall be entitled to send a message to the National Assembly to be read on his or her behalf by the Vice-President.”

By section 63(3), the National Assembly has the constitutional power to remove a President at any time by two thirds majority vote in the House. The fact that the constitution gives this power to the National Assembly reinforces the supremacy or at least the sovereignty of the House in our political matters. There is nothing, anywhere in the constitution that gives the President any power to remove an MP, be it elected or nominated. It is also clear from section 76(2) that apart from the Constitution, Parliament is the source of the President’s powers and responsibilities through laws that it may pass relating to executive powers. The President’s powers are either derived explicitly or to a lesser extent implied from the Constitution, and Acts of Parliament. It will be self-defeating and contradictory for the President to be given the power to nominate and remove MPs from the same Parliament that the President derives his powers.

Similarly, section 77(2) also gives the Assembly power to request the President to attend proceedings in the House in any deliberations of national importance. This provision states that the Assembly may, at its own discretion, invite the President if it deems it necessary. This lends to the argument that the constitution gives Parliament powers to exercise an oversight role over the Executive. There is no provision anywhere giving the President power to invite MPs to answer questions. That role is only limited to Parliament. The Assembly may summon the President, through the Vice-President, to answer questions before the House under section 74(4) and there is a mandatory and not discretionary duty on the Vice-President to answer any such questions or issues raised on matters relating to the President. This is the role of Parliament in the exercise of its political and legal accountability of the executive. All things being equal and for all intents and purposes, the constitution did not envisage the executive, the President for that matter, to have legal power and control over the Assembly because that will be a very dangerous precedent. To argue therefore that the President has the power to remove an MP from the House lacks any serious legal and political reasoning and judgment. That will be inconsistent with the letter and spirit of the constitution.     

The executive is central within the constitution. The fundamental role of the executive is making and implementing policy and that is important. Notwithstanding, the executive must be accountable insofar as the the exercise of its powers. This brings us back to the separation of powers. Conventionally, government, i.e the executive, is generally held accountable by legal means through the courts and political means by Parliament. The courts rely on well-developed principles of law to ensure good governance within the ambit of the law, e.g affected individuals may file claims against government for declarations or seek certiorari, mandamus, habeas corpus or judicial review proceedings etc. Parliament on the other hand, in carrying out political accountability, may require Ministers and senior government officials to appear before the House and justify their actions. This mechanism, although a clear paradox, raise the issue of the relationship and power dynamics between legal and political interpretations of constitutionalism.  

This allows the separation of powers to function without concentrating so much power in the hands of one organ of government. If there were only legal accountability, the Judiciary will be entrusted with unequal power and it may therefore abuse its power. That is the reason why Parliament is entrusted with power to hold the executive politically accountable. It will be irrational and illogical to conclude therefore that the President has both the legal and political power to remove a nominated member from the House. I am not naïve. I admit there is no absolute separation of powers in any democratic system. However, in the Gambian context, much like elsewhere, if the President were to have powers to remove MPs, that will be giving the executive unparalleled power. English Philosopher John Locke warned “it may be too great temptation to human frailty …. for the same person to have power of making laws, to have also in their hands the power to execute them, whereby they may exempt themselves from obedience to the laws they make, suit the law both in its making and execution, to make their own private advantage.” The concept of responsible government means powers of government are scrutinised by a mixture of forty-eight democratically elected and five constitutionally nominated Parliament to whom every member of government, including the President, is individually and collectively responsible.  

Some legal commentators argue that section 231 of the constitution gives the President power to revoke nomination. Section 231(1) provides:

“Where any power is conferred by this constitution to make any proclamation, order, regulation, rule or pass any resolution or give any direction or make any declaration or designation, it shall be deemed to include the power, exercisable in like manner and subject to like condition, if any, to amend or revoke the same.” ………

Section 231(2): “Where any power is conferred by this constitution on any person or authority to do so or enforce the doing of any act of thing, all such ….  

Section 231(5): “Without prejudice to the provisions of section 167, but subject to the other provisions of this constitution, the power to make any appointments to a public office includes the power to dismiss any person so appointed.”

Section 231(5) is primarily concerned with the appointment and dismissal of public officials. It will be useful to know what section 167(a) states and it is as follows: 

“power to appoint any person to hold or act in any office in the Public Service shall include the power to confirm appointments, to exercise disciplinary control over and to remove persons holding or acting in such offices and to re-appoint or reinstate any person appointed in exercise of the power in question unless such power is expressly or by necessary implication vested in some other person or authority;

 Section 167(b) provides that “power to remove an officer in the public service shall include power to require such officer to retire from the Public Service.” Effectively, both section 231(5) and section 167(a) and (b) are specifically limited to the appointment and removal of public officials, those who work in the Public Service. The next logical issue to address is whether NAMs are public officials and work in the Public Service.

Chapter XI of the constitution deals solely with the Public Service: Officers in the Public Service and section 166(1) in respect of Public Service states:

“Subject to an Act of the National Assembly, the Public Service of The Gambia shall comprise the civil service as established immediately before this Constitution comes into force and the offices declared elsewhere in this Constitution to be offices in the Public Service.”

 Section 166(3) states: “For the avoidance of doubt, it is hereby declared that an office in the public service includes the office of judge of a superior court, and of any other court the emoluments of which are payable out of the public fund of The Gambia, and the office of a principal representative of The Gambia abroad”

Section 166(4): “In this Constitution, an office in the public service does not include-

(a)   The offices of the President, Vice-President, Speaker or Deputy Speaker of the National Assembly, Secretary of State or a member of the National Assembly.”

It is as clear as blue skies that for the purposes of section 231(5) and section 167(a) and (b), a member of the National Assembly is not one who works for the Public Service or considered to be an official of the Public Service. Therefore, the appointment of any individual in the Public Service or the exercise of disciplinary control over such persons and to remove officials holding or acting in the Public Service does not affect NAMs in any way because they are not categorised to be working in the Public Service or considered Public Service officials. Consequently, NAMs are not caught by sections 231 and 167. Further, if NAMs were considered to be officials under the Public Service, this would have been expressly stated in section 166(3) but the fact that it is explicitly spelt out in section 166(4)(a) means that the constitution does not even remotely suggest for a moment that NAMs may be nominated and dismissed at the whims and caprices of the President.

Section 80 states that “Subject to this Constitution and any Act of the National Assembly the President may constitute any public office for The Gambia and make appointments to such office and terminate such appointments.” The caveat here is firstly, provided he acts within and as prescribed by the Constitution; and secondly, any statute passed by the National Assembly giving the President necessary power, may hire and fire officials deemed to be public officials and working in the Public Service pursuant to sections 231(5), 167(a) and (b). The Constitution is very clear on those deemed to be occupying public office. I would also like to point out that appointment is different from nomination. Generally, the appointing authority retains a residue of power to terminate appointment of the appointee. This is because appointment is concerned with giving; appointment into a political office or senior government position. Nomination concerns naming a person for a vacant post or office. It presupposes that once the nominee has been confirmed, the nominating authority no longer possesses any power to circumvent the post-confirmation process. This is the reason why the forty-eight elected and five nominated members must take their Oaths before the Speaker before formally assuming their seats and tenure as MPs as required by section 88(2) of the constitution.   

Role of Supreme Court

What is the role of the Supreme Court in this constitutional and political conundrum? It appears, from the face of it, that there is an impasse. This is the more reason why this is a test case to an extent and the outcome will have serious ramifications on the trajectory of our democracy or the lack of it. The Supreme Court has serious questions to ask and the answers are not only found in the constitution but in political conventions and normative practices elsewhere. If the Supreme Court were to hold that the attempted removal of Ya Kumba Jaiteh is unconstitutional, this will send a clear message to the President that he may not act as he wishes and that there are proper structures to check and balance the exercise of his executive powers. The outcome will be far reaching. On the other hand, should the Supreme Court decide that the attempted removal is constitutional, which I doubt in my own opinion, then the next logical consideration is whether it is politically expedient for the President to remove a nominated MP at his own behest without Parliament’s involvement? So the considerations here should touch on the issue of legality and legitimacy.

In this context, legality is concerned with the lawfulness of the attempted removal within the scope of the law. Legitimacy, which I believe trump legality, is concerned with the moral rights and political authority, in the spheres of our political dispensation so far as the exercise of executive power. I still believe that the main issues here are both legal and political and both are mutually interlinked and indivisible. If the Supreme Court were to hold that the attempted removal, and it is not a revocation of the nomination as that ship has sailed, the nomination stage lapsed immediately after she took her Oath before the Speaker in the House, is valid, the message to the President will be that he has a wide margin in terms of pushing the limits of his powers. This is dangerous. Power corrupts and uncontrolled or absolute power is a danger to any democracy and rule of law, most especially our democracy at its infant stage, having snatched ourselves from the wicked jaws of a brutal dictator just over two years ago.

On the issue of legality and legitimacy, I shall argue why I believe that legitimacy overrides legality. As controversial as it may sound, I still maintain that the attack on State House on December 30th 2014 to remove Yahya Jammeh was legitimate for the following reasons. Yes, the Jammeh government was clothed with legality because there were elections which he won, the fairness of which is another debate. However, the sovereignty of a nation lies in its people. There is an obligation on the state to respect the human rights of people within its borders. If a government then abuses the rights of its people systematically, then its loses its sovereignty and legitimacy to govern and therefore any attempt to remove its political leadership by coerce means is legitimate even if it is illegal. This is a new doctrine that Kofi Annan advocated. In 1999, during the Balkan crisis, while the Serbs were committing ethnic cleansing against the Kosovars, China and Russia in the Security Council vetoed the authorisation of the use of force under Article 42 (Chapter VII of the United Nations Charter). NATO, led by the U.S and U.K, intervened to avert a humanitarian catastrophe.

There was no dispute that the NATO intervention without express Security Council approval was illegal under international law. However, instead of wide condemnation, the intervention was hailed as legitimate by international lawyers and academics because the purpose of the intervention was to stop ethnic cleansing and thus, morality (legitimacy) overrode legality especially if legality was used as a pretext under the guise of territorial sovereignty under international law to commit crimes against humanity and ethnic cleansing of Kosovars. Therefore, since the Jammeh regime was brutal and destroyed all institutions of the state and abused the human rights of the citizens at a massive scale, his government lost all legitimacy and it was morally acceptable to remove him by use of force to restore human rights. The analogy is, legitimacy can prevail over legality.

Similarly, authority, I argue, is intrinsically associated with respect, which in turn creates legitimacy that results in power. It means therefore, that authority leads to respect which leads to legitimacy and that ultimately leads to power. Government must possess authority derived from the people in order for it to govern legitimately.  In contrast, power is the capacity to do things that one wants and for people to do those things even if they disagree or don’t want to. So while the President may use his power(s) to do what he wants, even if these are against the interests of the people, Parliament has the authority, derived from the sovereign will of the people who elected them, to resist the abuse of power through its oversight and political accountability roles. And the courts through legal accountability. It is therefore important to ask if the actions of the President are legitimate. Should the President be allowed to remove a NAM simply because he or she criticises or insults the President? There is nothing wrong with insulting the President. He or she is our servant. Once he or she decides to put himself/herself forward for election, by his/her own choice, then we the electorate should have every right to criticise without boundary. It is nonsense to put our political leaders on pedestals, like they are “Gods” or sacred supernatural beings.

For far too long, as a child, I used to hear that you don’t insult “mansa.” Actually, the real “mansa” is us who vote them in, the power resides in us the “people”. It is complete rubbish how we worship our elected officials in this country. I don’t know whether these are some of the colonial traits that we inherited but it needs to stop. If the President were to have the power to sack a nominated NAM on basis that he or she criticised, insulted or is a thorn to the President, then are we saying that once you are nominated, you are deprived of the right to critique the President or vote against his bills in the House? Ya Kumba Jaiteh is one of the most hard working and useful MPs. She is one of those MPs that puts the nation’s interest first in the House, hence the more astonishing why the President should even contemplate removing her. Perhaps she is just a ‘casualty’ in a bigger cold war at the helm. May be the President is sending a coded message, and one which is less to do with Ya Kumba but more to do with the fractured relationship between the one-time novice and his political mentor.      

Section 5(1)(a) of the Supreme Court Act gives the latter exclusive original jurisdiction for the interpretation or enforcement of any provision of the Constitution with the exceptions of sections 18-33 or 36(5) which relate to fundamental human rights and freedoms of which the High Court has original jurisdiction.

Section 5(1)(c) of the Supreme Court Act gives the Court the power to determine whether an MP was validly elected to or vacated his or her seat in the National Assembly.   

In Sallah v Clerk of the National Assembly (2002-2008) GLR Vol. 1, the Supreme Court stated:

“Every court, including this Supreme Court, is accountable to the people of the country for whom it provides services and on whose behalf the courts exist and operate. We administer justice to ensure the realization of the aspirations of the people…..”.

This assertion by the Supreme Court is in tandem with section 1(2) of the Constitution which states that “The sovereignty of The Gambia resides in the people of The Gambia from whom all organs of government derive their authority and in whose name and for whose welfare and prosperity the powers of government are to be exercised in accordance with this Constitution.” It means therefore that all the three organs of government “borrow” their power from the people and on whose behalf they exercise those powers. While the Constitution is supreme in terms of laws that govern us as enshrined in section 4, Parliament is sovereign because NAMs are representative of the people and the sovereignty of our country resides in the people.

The Supreme Court has a momentous task. They have to decide, in dutifully fulfilling the ideals and aspirations of the people, whether it is justice that the President should have the power to remove a nominated member from the House. I would have thought that wise counsel would have seen the President seek clarification on the issue from the Supreme Court first before attempting to remove a nominated member from the House. It shows bullishness and a lack of respect for both the House and the Supreme Court. The fact that the letter to Ya Kumba Jaiteh was not even on an official O.P letterhead implies how the President and his counsel of “wise men” judged the attempted removal as nothing more than trivial. Who dares question the President’s order? This is not a trivial issue and it should not be treated as such. Had the President notified the Speaker or the Clerk of the National Assembly of his lack of faith in a nominated member, and for any attempted removal to emanate from the House itself through notification by means of a petition by the MPs themselves, one could perhaps forgive him for at least allowing the House to decide the issue openly in the House.

Again, the President, despite strong public criticisms regarding the appointment of the former Vice-President Fatoumata Jallow Tambajang about her age, paid no attention almost as if he was oblivious to peoples’ discontent. The President thus has propensity to defy the people and the constitution. As far as I can remember, that issue was not brought before the Courts. May be this added another ‘feather to his bow.’ It reveals why we were complicit then and if we allow the same thing to happen again, we as a people, will let ourselves down and expedite the creation of another autocratic leadership. Did the Gambian people aspire that the President should have such powers in the absence of an express provision in the constitution in section 92?

There are serious political issues to consider and the decision will either shape the longevity of our democracy or accelerate its slow death. It also means that the primary duty of the Court will be justice as per the aspirations of the people. Justice is not an abstract concept. It’s relative and ought to be tangible. I hope the Supreme Court will not just gloss over the issue superficially but engage with the tough and difficult issues substantively and address them accordingly. The Court has the power to rein in on the executive and they should not hesitate to do so should they come to a conclusion that the actions of the President were ultra vires. Yahya Jammeh sent the Judiciary into abyss because it did not do enough to sufficiently insulate itself from his excursions. It should never allow that to happen again. Like the saying goes, the courts are the last bastion of democracy and hope. That trust in the Judiciary and the Supreme Court should not be lost on them.


 Suggested citation: Abdoulie Fatty, Attempted removal of nominated NAM is constitutionally wrong - Both legally and politically, Law Hub Gambia Blog, 18 March 2019, at

Abdoulie Fatty is a lawyer at A. Fatty & Co. He previously served as Magistrate in Banjul. He studied in the U.K and was Called to the Bar of England and Wales. He has LLM in International Human Rights Law and Practice. He has strong interests in democratization, transitional justice, international law and human rights.    

 

         

 

Secularism as a tool for state neutrality

Jointly written by Maria Saine & Wilson F. Okoi, Barrister & Solicitor of The Supreme Court of Nigeria. 


[Editor’s note: This is Part VI of our special series titled “Constitutional Review in The Gambia: Contemporary Discussions.” The introduction to the special series is available here, Part I is available here, Part II is available here, Part III is available here, Part IV is available here.and Part V is here.]


Secularism is the legal assertion that a State remains neutral as relates to religious matters The state does not adopt any religion as it’s religious representation and more importantly, there exist a clear separation between government institutions and religious institutions.   It may please you to note that the idea of secularism is open to debate because it is considered polemic by many.

Proponents of the notion that The Gambia should be secular view that:

  1. It allows persons from different religions to exist together at the least common denominator; ensuring all their beliefs and rights. This assertion is said to be true because there is no preference of religious beliefs over another, people are therefore not inclined to believe that the state has a superior notional interest in one religious belief over another.      

  2.  Some others assert that secularism allows more rights and freedoms to women, who are generally attributed to submissive roles in various belief systems. This is a candid topic of debate for differing religions who are naturally accustomed to differing spiritual views guiding human behavior with humans and human behaviour with ‘superior spirituality’.

  3. It is also strongly recommended that the practice of secularism protects and promotes government administration to function on the basis of rational discourse rather than religious dogma.

On the other end however, opponents of secularism assert that humanist and secularist take religious views ‘off the public sphere’. Opponents of secularism are of the opinion that a State should have a religious view. Such ideologist are of the opinion for a variety of reasons.

First, the polity are less conscious about religious matters in the public sphere. Indeed, this infers that the states polity identifies government institutions and a religious preference as one.  

Second, a preferred religion gets patronage from the State. This is argued to be a negative and positive. The State religion is the preference of the State and therefore enjoys privileges that other religions (not adopted by the State) will not be opportune to.  Looking objectively, it is therefore negative. But from a subjective stand point (i.e. the view of those in the preferred religion of the State), it is not only in tandem with the major mass of the polity it is also the way that life should be lived.

Third, indeed, religious persons in the polity will argue concerns over the ‘moral compass’ of the nation. This is essentially because of the belief in ‘natural/divine law’ on the legal jurisprudence of same, and/or the belief that religion equates to morality.

From the foregoing, it is evident that the decision of a State to adopt a religion as it’s religious preference is a major step that guides governmental administration.

secularism2.jpg

In The Gambia, the practice of secularism and its constitutionality became a point of case law jurisprudence on the applicability of secularism in The Gambia. In the case of KEMESENG JAMMEH v THE STATE, the legal validity of the Constitution of the Republic of The Gambia, 1997 (Amendment) Act, 2001 was put to the litmus test to examine whether section 1(1) of the Constitution describing The Gambia as a secular state was made ultra voires. The Supreme Court held that section 1(1) of the Constitution and paragraph 13 of schedule II to the 1997 constitution contained in the Amendment Act (6 of 2001) were made in excess of the legislative powers conferred by the 1997 Constitution and are accordingly null and void.[1] Meaning, the amendment failed to pass through an act of referendum. Hence, unconstitutional.

From the train of thoughts above and in my humble opinion, it is instructive to assert the following observations succinctly:

·      Secularism represents how a polity should be/is governed.  

·      Secularism does not in any way or form, infer life without religion neither does it infer that one decides how to worship God.

·      The absence of secularism is the presence of Religious preference in a State.

·      The concept of (non) secularism is practiced variantly owing to factors such as geographical area, culture, population and, the advancement in technology/industrialization amongst others.          

In a sum, secularism is a practice that I believe should be embraced because it maintains the existence of neutrality and exudes the characteristics of an ability to accommodate the diversity in the way life presents itself; liberally.   The State considers the views of every one and no religious preference is an option. Indeed, and legally so, secularism is the best guarantee of freedom of religion/belief – but the enemy of religious privilege.

Suggested citation: Maria Saine & Wilson F. Okoi, Secularism as a tool for state neutrality, 1 February 2019, at https://www.lawhubgambia.com/lawhug-net/secularism-as-a-tool-for-state-neutrality.


[1] Jammeh v Attorney General (2002) AHRLR 72 (GaSC 2001)

Was the recent Supplementary Appropriation Estimate 2018 presented by the Minister of Finance in accordance with the dictates of the law and Constitution?

[Editor’s note: This is Part IV of our special series titled “Constitutional Review in The Gambia: Contemporary Discussions.” The introduction to the special series is available here, Part I is available here, Part II is available here. and Part III is available here.]

Background

The Minister of Finance and Economic Affairs tabled a Supplementary Estimate[i] on the 11th of December 2018 before the National Assembly, seeking approval for additional payments from the Consolidated Funds amounting to D1,128,337,519.7. It is important to note that the Supplementary Estimate was for the period 1st January to 31st December 2018 and was made in the last quarter of the year, literally less than two weeks before the end of the 2018 budget year. Secondly, the request was in addition to the already approved budget of D19.74 Billion Dalasi for the financial year 2018, which was already exhausted as at the time of the 11th hour request.

The National Assembly after extensive deliberations and debate rejected the Supplementary Estimate in its totality and did not get to consider the Supplementary Appropriations Bill. Many reasons were advanced by members of the National Assembly, ranging from the timing of the submission of the estimates, the quantum of estimates (too high), exorbitant amount identified for non-priority sectors and to some, it was unconstitutional.  

The focus of the article is to examine the legal framework that govern the procedures, requirements and governance of Budget Supplementary Appropriation with a view to determine the legality and propriety of the Supplementary Estimate of 2018.The author shall review the current constitutional provisions and the existing laws that govern Supplementary Appropriation, to inform the discourse on this topic. To this end, the author seeks to establish whether the proposed Supplementary Estimate and Bill submitted to the National Assembly was in conformity with the supreme law of the 1997 Constitution of the Gambia and other enabling legislation, which derive their legal authority from the constitution? .[ii]

Legal Framework

 The governance and legal framework of Public Finance Management is provided for in chapter IX of the 1997 Constitution, the Finance Act of 2014 and Government Budget Management and Accountability Act 2004. The 1997 Constitution provides the primary legal framework for the management of Public Finance in Gambia and the relevant sections germane to the subject of this article are found in sections 150 – 154 which shall be discussed in below in detail.

For the purposes of this article, it is important to note that by law all budgetary appropriations are through the Consolidated Fund by virtue of section 150 of the Constitution. [iii]  Section 150 allows for separate accounts to be created in specific circumstances only by an Act of Parliament.[iv]

The specific provision that the governs the Supplementary Appropriation is section 153 (1) and (2) which is reproduced below:

 Section 153

(1) Subject to section 154[v], if in respect of any financial year it is found that the amount appropriated under the Appropriation Act is insufficient or that a need has arisen for a purpose for which no amount has been appropriated by that Act a supplementary estimate showing the sums required shall be laid before the National Assembly before the expenditure has been incurred. [Emphasis mine]

(2) Where a supplementary estimate or estimates have been approved by the National Assembly, a supplementary appropriation Bill shall be introduced into the National Assembly for the appropriation of the sums so approved.

The first limb of section 153 (a) provides the basis upon which a Supplementary Estimate should be approved by the National Assembly. In summary, there are two scenarios -

1.      Budget Appropriation shortfall (insufficiency i.e. under budgeted) or

2.     An unforeseen contingency need arises

 It is very clear from the wording of the provision that the section 153 is to be invoked only if there is a short fall and/or a need that was not envisaged at the time of preparing the main budget estimate. The operative words in the provisions are “need” and “insufficiency.” It is my view that a close look at the budget items comprised in the 2018 Supplementary Estimate could not have passed the “needs” or “Insufficiency” Test as prescribed by the Constitution. The specific line items that constitute the Supplementary Estimate have been exhaustively debated by the national assembly members prior to the rejection of the Supplementary.[vi]

It is my contention that section 153 (a) envisages and necessitates the creation of a Contingency Fund by a statutory enactment before a Supplementary Estimate can be presented to cater for additional expenditure for the reasons stipulated in the section. The purpose of the Contingency Fund as implied in the name is to provide/cater for unplanned/unbudgeted contingency expenditures as long the amount sought does not exceed 1% of the budget approved for that year. The provision thus sets a cap of 1% of the approved estimate for the year, which in my view restricts the use of Supplementary Appropriations for marginal budget over runs. To the best of my knowledge and information, our National Assembly as required by Constitution did not create a Contingency Fund, which is a condition precedent for the application of section 153.

In a nutshell, the Hon Minister cannot apply for additional funds to be appropriated to the Consolidated Fund in the absence of the creation of a Contingency Fund, which in essence would have been the source of the additional funding within the cap set by the Constitution. The Supplementary Estimate presented for approval is for the sum of D1,128,337,519.77, which by any stretch of imagination exceeds 1% of the approved budget of 2018.[vii] In fact it represents close to 17% of the current 2018 budget.

In the final analysis, the 2018 Supplementary Estimates should not have been presented for approval, given that the amount sought was in excess of the constitutional limit set. Secondly, it appears that the Minister of Finance already approved expenditures prior to coming to seek for the approval of the National Assembly. This, in my view is in contravention of the spirit and substance of section 153. The ultimate power to approve expenditure is the National Assembly and the Constitution makes it very clear that no expenditure can be appropriated without prior approval of the National Assembly. Finally, the National Assembly can only approve the Supplementary Estimate within the limits set by the constitution. In order words, the National Assembly Public Finance Committee should have advised the Assembly that the amount presented in the Supplementary Estimates exceeds the 1% cap set by the Constitution.

Conclusion

A review of the Constitution, the applicable legislation confirms that the Minister of Finance’s 2018 Supplementary Estimate is not consistent with the dictates of the Constitution and the enabling Legislation viz. Government Budget Management and Accountability Act 2009 and the Public Finance Act 2014.  The author reiterates that the application of the enabling laws mentioned above and any power purported exercised by the Honourable Minister or his predecessor are subject to the Constitution, which is the supreme law of the land.

The Supplementary Estimate 2018 dubbed SAB2018 has exposed a fundamentally flawed budgetary process that needs to to be overhauled and reset. The old ways of budgeting in the good old days is not longer acceptable in this era of transparency and probity. The Minister of Finance is our gatekeeper of our public funds and we expect him to ensure financial /fiscal discipline is enforced to the letter without fear or favour.

Thus, there is need for the National Assembly to seek independent legal advise on such legal matters to ensure they discharge their functions within the confines of the Constitution.  The fact that the National Assembly Public Finance Committees considered the approval of the Estimate with a 45% reduction is cause for concern, as that would have flouted our constitution. It is timely for the National Assembly to appropriate sufficient resources to establish its support services in the area of legislative and legal support inter alia.

The buck stops at the Minister of Finance who has a duty to restrain Executive financial indiscipline and maintain spending within the approved budget. The Minister of Finance, by extension the Government should not use the Supplementary Appropriation Estimates as an overdraft facility and expect our National Assembly to simply rubber stamp the excess spending retroactively. 

In the interest of the betterment of our country and judicious management of our scarce financial resources, I humbly make my little contribution on this very important topic.

Suggested citation: Salieu Taal, Was the recent Supplementary Appropriation Estimate 2018 presented by the Minister of Finance in accordance with the dictates of the law and Constitution?, Law Hub Gambia Blog, 20 November 2018, at https://www.lawhubgambia.com/lawhug-net/is-supplementary-appropriation-constitutional.

For the Gambia Our Homeland

Salieu Taal

Initiator/Co-Founder #GambiaHasDecided

Managing Partner, Temple Legal Practitioners


[i] Supplementary Appropriation is governed by Section 153 of the 1997 Constitution which reads;

(1) Subject to section 154, if in respect of any financial year it is found that the amount appropriated under the Appropriation Act is insufficient or that a need has arisen for a purpose for which no amount has been appropriated by that Act a supplementary estimate showing the sums required shall be laid before the National Assembly before the expenditure has been incurred.

(2) Where a supplementary estimate or estimates have been approved by the National Assembly, a supplementary appropriation Bill shall be introduced into the National Assembly for the appropriation of the sums so approved.

[ii] Section 4 of the Constitution “ The Constitution is the supreme Law of the Gambia and any other law found to be inconsistent with any provision of this Constitution shall, to the extent of the inconsistency, be void.”

[iii] Section 150 of Constitution defines the Consolidated Fund

(1) There shall be a consolidated Fund into which shall be paid

(a)    all revenues or other money raised or received for the purpose of, or on behalf of, the Government

(b)    any other money raised or received in trust for or on behalf of the Government

[iv] This raises the issue of whether banks collection of taxes on behalf of GRA is within the law in the absence of specific legislation authorizing the collection of state revenue.

[v] Section 154 of 1997 Constitution

(1) An act of National Assembly may make provision for the establishment of a Contingencies Fund and for authorising the President to make advances from that fund if he or she is satisfied that there has arisen an unforeseen and urgent need for expenditure for which no other provision exists:

Provided that the President shall not authorize any expenditure from the contingencies Fund in excess of one percent of the estimates approved by the National Assembly for the current year before he or she has caused a supplementary estimate in respect of such excess expenditure to be presented to the National Assembly.

(2) Where any advance is made from the Contingencies Fund, a supplementary estimate shall be presented, and a Supplementary Appropriation Bill shall be introduced for the purpose of replacing the amount so advanced within ninety days of the advance being made.

[vi] See. Intervention of Sidia Jatta, PDOIS NAM, Sana Jawara etc Hansard Records

[vii] Budget Estimate for 2018 approved was D19 (Billion Dalasi)

The need for an independent Gambian judiciary

[Editor’s note: This is part III of our special series titled “Constitutional Review in The Gambia: Contemporary Discussions.” The introduction to the special series is available here, Part I is available here and Part II is available here.]


Ordinary men and women need support in their fight to claim and protect their liberties, and their natural protectors are the courts.[1] 

Introduction

I want to share with you my thoughts on judicial reform in The Gambia against the backdrop of constitutional review underway in the country. In The Gambia, it is agreed that the judicial system needs reform to make it more independent, accountable and able to deliver justice effectively and efficiently. This short article briefly discusses independence of the judiciary as guaranteed in the 1997 Constitution of The Gambia. Although a universally accepted definition of judicial independence is not available, there are three recognized theoretical constructs: impartiality, authority to have its decisions accepted by all, and free from undue influence.[2] Judicial independence is beyond mere de jure provisions that seemingly protect judicial independence.[3] Much as the constitutional guarantees are important, it also depends on a lot more than the mere letter of the law.

The conceptual background

The judiciary is the third branch of government responsible for the interpretation of the law. The principle of separation of powers as proposed by John Locke[4] and Montesquieu[5] dictates that the judiciary is independent of the executive and the legislature to allow for checks and balances. As the main check on an executive branch, a resolute judiciary is one which any ordinary citizens can protect his or her civil rights.[6] Judicial independence is recognized in many international and regional human rights instruments as one of the cornerstones of good governance.

It is beyond dispute that judicial independence is a prerequisite for a society to operate on the basis of the rule of law and is essential for the purpose of maintaining public confidence in the judiciary.[7] Fombad noted that, an independent judiciary is one that is:[8]

free to render justice on all issues of substantial legal and constitutional importance, fairly, impartially, in accordance with the law, without threat, fear of reprisal, intimidation or any other undue influence or consideration.

Judicial independence in the 1997 Constitution [9]

Sections 120 to 148 of the 1997 Constitution of The Gambia provides for the structure, composition and jurisdiction of the courts in The Gambia. Judicial power is vested in the courts.[10] Section 120(3) of Constitution states that:

In the exercise of their judicial functions, the courts, the judges and other holders of judicial office shall be independent and shall be subject only to this Constitution and the law and, save as provided in this Chapter, shall not be subject to the control or direction of any other person or authority.

The Constitution recognizes the widely acclaimed notion of judicial independence. Accordingly, the courts are not to be subjected to the control of any person or authority outside the judiciary. Section 120(4) further states that:

the government and all departments and agencies of the government shall accord such assistance to the courts as the courts may reasonably require to protect their independence, dignity and effectiveness.

This places a positive duty on all organs of the state to accord such assistance as the courts may require to protect their independence, dignity and effectiveness.[11] The head of the judiciary is the Chief Justice who is responsible for the administration and supervision of the courts.[12]

Appointment of judges and security of tenure

The appointment of judges in a transparent manner is of most importance to judicial independence. Section 138 of the Constitution mandates the President to appoint the Chief Justice after consultation with the Judicial Service Commission (JSC). Generally, the President appoints senior court judges on the recommendation of the JSC,[13] which is a weak provision as the President is not bound by the JSC’s views.

The JSC has the power to appoint magistrates and members of the subordinate courts.[14] The Commission is also mandated to appoint judges of the Special Criminal Court subject to the approval of the National Assembly.[15] The President has complete control over the appointment of the Chief Justice with the JSC having a mere consultative role.[16] The issue of possible excessive Presidential influence in the appointment of the judges arises.

The JSC consists of the Chief Justice; a judge of a superior court; the Solicitor General; a legal practitioner of at least five-years standing at the Gambia Bar nominated by the Attorney- General in consultation with the Gambia Bar Association (GBA); a presidential appointee; and one person nominated by the National Assembly.[17] The composition of the JSC envisages cooperation in the appointment of judges between the three arms of government and other stakeholders such as the legal profession. Though it might be timely not only limit the membership of the JSC to senior judiciary perceived as the “old boys club” considering the changing demographics of the legal profession in The Gambia. A more representative membership should possibly also include law lecturers designated by their peers as they are in the right position to evaluate the academic capabilities of prospective appointees. The objective should be to provide for a demonstrably independent body whose membership comprises the necessary range of expertise and experience.

Section 141 of the Constitution provides for both optional and mandatory retirements of serving judges. Section 141(2)(a) provides that a judge may retire after attaining the age of 65 years while section 141(2)(b) makes it mandatory upon a judge of the Superior Court to retire upon attaining the age of 70 which is now amended to 75 years.[18] These constitutional provisions are generous and can safeguard security of tenure.

However, section 142(2)(c) threaten this as it provides that judges may have their appointment terminated by the President in consultation with the JSC. The distinction between the use of ‘in consultation with’ and ‘upon the recommendation of’ would seem to indicate that the President is obliged to follow the decision of the JSC.  Although, this has not been the norm.

The power of the President to appoint senior court judges and to terminate their appointments severely undermines the independence of the judiciary as it provides for unnecessary dependence on the executive.

Disciplinary and removal grounds

In addition to the power of the President to dismiss judges, section 141(4)(9) of the Constitution subjects dismissal by the JSC to the approval of the National Assembly. Section 141(4 to 9) provides a comprehensive and rigid procedure for the removal from office of a superior judge on grounds of inability to perform the functions of his or her office whether arising from infirmity of body or mind or for misconduct. A superior court judge may be removed from his or her office if notice in writing signed by not less than half of all voting members of the National Assembly, is given to the Speaker setting a motion that the judge concerned is unable to exercise of his or her office on any of the grounds cited above which should be investigated.[19] A tribunal will be appointed consisting of three persons who will further investigate the matter and report to the National Assembly on whether the allegations are substantiated.[20]

This section could have served as a safeguard against arbitrary dismissal of judges, as the procedure is very transparent. However, if the President’s party commands an absolute majority in the National Assembly such a scenario can be highly politicized. A politically motivated step to remove a judge will be possible. Interestingly, the JSC has never tabled the dismissal of a judge before the National Assembly for approval.

Conclusion and recommendations

 The independence of the judiciary from the executive is essential to freedom. If the executive could have unfettered control over the appointment, promotion and dismissal of members of the Judiciary, it would be the unlimited master of the State. Judicial independence is best maintained by its formal constitutional entrenchment backed up by a commitment by all state organs to respect the rule of law and accord such assistance as the courts might require protecting their independence, dignity and effectiveness.[21]

Whereas, the validity or legitimacy of the Constitution procedures of the President’s appointments of senior judges may be legal, factors such as weaknesses in the appointment system of judges, unwillingness of the former President and by extension the executive to accept court decisions, politicalization of the removal process of judge which does not guarantee security of tenure, all serve as threats to judicial independence.

The constitutional appointment procedure for judges, given the dominance of the President and the executive over the appointments of the members of the JSC, the apparent lack of transparency with respect to the JSC processes, the absence of a clearly elaborated selection process and criteria for judicial appointments exposes judicial appointments to political influence. It follows that it is unacceptable to restrict the appointment process to the President.

 In order to ensure general transparency with regard to the appointment of judges, the JSC should advertise judicial vacancies and conduct an open application process.[22] The JSC may consider various forms of evidence when evaluating a candidate, including application forms, references, background checks and, in some cases, written tests. An interview of shortlisted candidates prior to making the selection should be conducted and held in public. Such exposure to public scrutiny will reinforce transparency and be beneficial in The Gambian setting.

While the formal appointment of judges may still be vested in the executive, the proposed prior selection process with the JSC empowered to present the executive with a shortlist of recommended candidates should be undertaken. Alternatively, the JSC can present the executive with a single, binding recommendation for the vacancy in which the executive may have the legal power to reject the JSC’s recommendation with advanced reasons for doing so.

Additionally, in terms of the institutions responsible for removal decisions, it is recommended that the power of removal of judges be vested exclusively in the National Assembly as in the case of removal on the grounds to function or infirmity of body or mind and misconduct. Section 141 (2)(c) must thus be repealed which will ensure that the dismissal of judges is through a proper, transparent and rigid procedure that safeguards judicial independence.  Alternatively, an ad hoc tribunal can be set up once investigation establishes the question of a removal, or establishment of a permanent disciplinary council established for that purpose. The Constitution should set the bar fairly high on the substantive grounds and mechanisms for removal of judges.

Given the lack of trust in the judiciary due to the actions of the former regime, the key to fostering and establishing rule of law in The Gambia is to ensure that the judiciary is not only independent but appears to be independent to gain the confidence of the Gambian people. Since the new government came into power, there have been considerable effort on their part in appointing Gambians at all levels of the judiciary. Departing from the style of the former regime of foreign appointments to the position of chief justice, President Barrow appointed a Gambian, Hassan Jallow, former prosecutor of the International Criminal Tribunal for Rwanda in Arusha, Tanzania. Following this, numerous appointments took place including at the level of the Supreme Court.[23]

Moving forward and solidifying The Gambia’s new democracy equates to strong courts that can keep the country on track so that we do not regress. The courts can assert their own autonomy and rebuild their legitimacy. As judicial independence is integral to the rule of law, which is a necessary presupposition for the protection of individual rights, it follows that judicial independence is integral to the assertion of human rights.[24] There is an indispensable link in the machinery for securing individual protection against states’ human rights abuses.[25] Thus, the Gambian courts can ensure democratic accountability by enforcing separation of powers within the branches of government. As well as, develop and protect core human rights thereby enhancing accountability between the citizenry and the government.

Suggested citation: Satang Nabaneh, The need for an independent Gambian judiciary, Law Hub Gambia Blog, 14 December 2018, at https://www.lawhubgambia.com/lawhug-net/independent-gambian-judiciary.


[1] A Chaskalson quoted in Lord Lester of Herne Hill ‘The Challenge of Bangalore: Making Human Rights a Practical Reality’ (1999) 47 Commonwealth Law Bulletin 50.

[2] C Fombad ‘A preliminary assessment of the prospects for judicial independence in post-1990 African constitutions’ (2007) Public Law 235.

[3] R. Howard & H Carey Is an independent judiciary necessary for democracy?’ (2004) 87 Judicature 189.

[4] J Locke Second Treaties on Civil Government (1764).

[5] B de Montesquieu Spirit of the laws (1748).

[6] As above.

[7]    S RugegeJudicial Independence in Rwanda’ presented at the Judicial Independence and Legal Infrastructure: Essential Partners for Economic Development conference (28 October 2005).

[8] As above.

[9] See The Gambia: Commentary in R Wolfrum, R Grote & C Fombad (eds.) Constitutions of the World (Oxford University Press, 2017) 30-32.

[10] Section 120(2).

[11] C Fombad ‘A preliminary assessment of the prospects for judicial independence in post-1990 African constitutions’ (2007) Public Law 244.

[12] Section 121(1).

[13] Section 138(2).

[14] Section 147.

[15] Section 134(3).

[16] Section 138(1).

[17] Section 145 (3).

[18] S Nabaneh ‘New Gambia and the Remaking of the Constitution’ International IDEA ConstitutionNet 16 March 2017 http://www.constitutionnet.org/news/new-gambia-and-remaking-constitution.

[19] Section 141(5).

[20] Section 141 (8).

[21]  J Hatchard, M Ndulo & P Slinne Comparative Constitutionalism & good governance in the Commonwealth: An Eastern and Southern Africa Perspective (2004).

[22] See 2010 Kenyan Constitution.

[23] G Sowe and S Nabaneh ‘The Gambia: The state of liberal democracy’ in Albert R, Landau, D, Faraguna P, and Drugda Š: The I·CONnect-Clough Center 2017 Global Review of Constitutional Law (July 19, 2018) 100.

[24] CJ Warren ‘Does judicial independence matter?’ paper presented at the Victoria Law Foundation Week Oration (27 May 2010) 6.

[25] LC Keith ‘Judicial independence and human rights protection around the world’ (2002) 85 Judicature 195.

Op-Ed: The Changing Politics of Gambian Citizenship Debate

[Editor’s note: This is part of our special series titled “Constitutional Review in The Gambia: Contemporary Discussions.” For more information on the special series, see here.]


The ongoing public consultations on the constitutional review process spearheaded by the Constitutional Review Commission (CRC) highlights a polarising debate on citizenship which reflects the difficulty of consensus building given the varied interests of stakeholders. Few of the questions at the heart of it are: should a child born in The Gambia be accorded automatic citizenship regardless of parents’ citizenship? Should a person who wishes to acquire Gambian citizenship be required to renounce any other citizenship he or she may have, when a Gambian can hold a dual nationality? Are the prescribed periods of 7 years ordinary residence for a foreign person married to a Gambian and 15 years ordinary resident for a foreign person applying for naturalisation too long?

1.      1997 Constitution and Citizenship

Chapter III of the Constitution deals with citizenship in The Gambia on four main grounds. A person is accorded Gambian citizenship either by birth or by descent. These two provisions give equal rights to a Gambian man and woman to give Gambian citizenship to his or her child. Citizen by birth applies to any person who is born in the Gambia and one of his parents is Gambian at the time of his birth. Section 9 states:

Every person born in The Gambia after the coming into force of this Constitution shall become a citizen of The Gambia at the date of his or her birth if, at the time of his or her birth, one or both of his or her parents is a citizen of The Gambia. [Emphasis added]

Citizen by descent under section 10 applies to any person who is born outside The Gambia and one of his or her parents is a Gambian at the time of his or her birth. This section only allows for citizenship to be passed for only one generation outside the country.

The Constitution takes as a requirement, the position that a parent’s citizenship is the basis for conferring citizenship to the child (jus sanguines or ancestry principle). This means that whenever a parent’s citizenship is uncertain, this undoubtedly affects the child. The primacy on the parent’s citizenship is highly disadvantageous. It is important to note that section 9 was amended in 2001[1] which originally stated that:

Every person born in The Gambia after the coming into force of this constitution shall be presumed to be a citizen of The Gambia by birth. [Emphasis added] 

The then former regime’s arbitrariness resulted to the amendment in the granting of citizenship, switching it from a right into it becoming collectivised, thus political rights likely to be compromised. The pre-amended section recognised the immateriality of a parent’s citizenship for the purposes of determining that of a child. Thus, it is proposed that the provision reverts to its original version to safeguard all children born in the country. In this way, The Gambia will adopt the role of place of birth (jus soli or birthright principle) as the basis for conferring citizenship.

 Other Constitutional provisional dealing with citizenship include:

Marriage to a citizen as provided in section 11 which states:

(1)   Any person who—

(a) is married to a citizen of The Gambia and, since the marriage, has been ordinarily resident in The Gambia for a period of not less than seven years; or [Emphasis added]

(b) has been married to another who was, during the subsistence of the marriage, a citizen of The Gambia and, since the end of the marriage (whether by annulment, divorce or death), has been ordinarily resident in The Gambia for a period of not less than seven years, shall be entitled, upon making application in such manner as may be prescribed by or under an Act of the National Assembly, to be registered as a citizen of The Gambia.

(2) The annulment of a marriage of a person who has been registered as a citizen of The Gambia under this section, or under the provisions of any earlier law for the registration as a citizen of The Gambia of a person on account of marriage, shall not affect that person's status as a citizen of The Gambia.

While it is commendable that the section recognises that both men and women married to Gambian citizens have a right to become citizens, the requirement that the person be ordinarily resident in The Gambia for period of not less than seven years is quite long and tedious.

Naturalisation as a citizen. Section 12 states:

(1)   Any person who has been ordinarily resident in The Gambia for a continuous period of not less than fifteen years and who satisfies the conditions set out in subsection (2) may apply, in such manner as may be prescribed by or under an Act of the National Assembly, to be naturalised as a citizen of The Gambia. [Emphasis added]

(2)   The conditions referred to in subsection (1) are that the applicant— 

(a) is of full age and capacity;

(b) is of good character;

(c) has clearly shown that, if naturalised, he or she intends to continue permanently to reside in The Gambia;

(d) is capable of supporting himself or herself and his or her dependants.

The same reasoning for the prescribed period for marriage to a citizen is applicable for section 12 on naturalisation of citizens which requires the person to be an ordinary resident for not less than fifteen years. 15 years is unreasonable and burdensome.

Section 12A addresses dual citizenship.[2] The section states that:

(1)    A citizen of The Gambia who acquires the citizenship of another country may, if he or she desires, retain his or her citizenship of The Gambia

(2)   An Act of the National Assembly may make provision for the better implementation of this section. [Emphasis added]

(3) The Minister shall give reasons for any refusal of an application made under this section.

(4) No person shall be naturalized until he or she has renounced any other citizenship he or she may have and taken an oath of allegiance to The Gambia.  

This section allows citizens to acquire the citizenship of their spouses without losing their Gambian citizenship if the spouse’s national laws so permits. Dual citizenship is permitted, and citizenship lost can also be regained (section 14), but this is only applicable to citizens by birth and descent. It is not clear whether citizenship by registration shall require a renunciation of the other nationality as is the case with citizenship by naturalisation. However, it can be inferred from section 13 (1) (a) where it states that a naturalised or registered citizen of the Gambia can be deprived of same if he acquires the citizenship of another country.

Section 13 states that:

 (1) The Minister may apply to the High Court for an order depriving a person who has been registered or naturalised as a citizen of The Gambia of his or her citizenship on the grounds that he or she—

(a) has acquired by registration, naturalisation or any voluntary and formal act (other than marriage) the citizenship of any other country;

(b) has acquired the citizenship of Gambia by means of fraud, false representation or the concealment of any material fact;

(c) has, at any time since acquiring citizenship of The Gambia, voluntarily claimed and exercised in a country other than The Gambia any rights available to him or her under the laws of that country, being rights accorded exclusively to its citizens;

(d) has within seven years after being registered or naturalised been convicted in any country of an offence involving fraud, dishonesty or moral turpitude. 

Thus, the Constitution does not allow for dual citizenship for other classes of citizens including naturalised citizens. The requirement to renounce one’s nationality to gain the Gambian citizenship is problematic creating an inequality issue.[3] Section 12(4) requirement that a person renounce any other citizenship in order to acquire Gambian citizenship can result in statelessness for both men and women. For instance, where the person concerned is no longer considered a national by the State given the provisions of section 13 on deprivation of citizenships and as he or she does not hold another nationality, this leads to statelessness. Thus, given the severity of the consequences of the person being stateless, it will be difficult to justify the deprivation of citizenship to be proportionate.

2.     The right to a nationality

The Gambia is a party to the major international and regional human rights instruments. The Universal Declaration of Human Rights (UDHR) recognises the right to a nationality in its Article 15. This right is reaffirmed across many core UN human rights conventions, including the International Covenant on Civil and Political Rights (ICCPR, Article 24),[4] Convention on the Rights of the Child (CRC, Article 7),[5] the International Convention on the Elimination of All Forms of Racial Discrimination (CERD, Article 5),[6] the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW, Article 9),[7] the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (CRMW, Article 29)[8] and the Convention on the Rights of Persons with Disabilities (CRPD, Article 18).[9]

At the regional level,[10] The African Charter on Human and Peoples’ Rights does not mention the right to a nationality. The African Charter on the Rights and Welfare of the Child (ACRWC)[11] under Article 6 obligates States to:

ensure that their Constitutional legislation recognize the principles according to which a child shall acquire the nationality of the State in the territory of which he has been born if, at the time of the child’s birth, he is not granted nationality by any other State in accordance with its laws

The Protocol to the African Charter on the Rights of Women in Africa in Africa (Maputo Protocol, Article 6)[12] provides for the the right of women to acquire a nationality and, on marrying, to acquire their husband’s nationality. However, it fails to mention a woman’s right to pass citizenship to her husband and by providing for national law to override the treaty’s provision for nondiscrimination in granting citizenship to children, it does not adhere to international norms.

The right of every child to a nationality has also been recognised and further elaborated through the decision of the African Committee of Experts on the Rights and Welfare of the Child (ACERWC) in the Children of Nubian descent in Kenya v. Kenya.[13] Moreover, in 2014, the ACERWC adopted a General Comment on the Right to a Name, Registration at Birth and to Acquire a Nationality elaborating Article 6 of the African Charter, outlining how this right is to be interpreted and implemented in the African region.[14] General Comments provide States with guidance for framing their domestic laws, practices, and policies to comply with treaty obligations.

3.     Setting citizenship right

The new constitution is meant to cure the ills of the past and serve as a foundation for a more just and secured society based on equality, the following should be done.

On children and citizenship

Both the CRC and the African Children’s Charter require that the best interests of the child be the primary consideration in all actions concerning the child. Given that The Gambia has ratified both instruments and domesticated it into the Children’s Act 2005, it should be bound to act in the best interests of a child within their jurisdiction irrespective of the nationality of the child.

First, grant citizenship to children born in The Gambia regardless of their parent’s citizenship. This effectively means deepening the jus soli rule rather than the jus sangunis basis for citizenship. Citizenship should be conferred on the domestically born child. This will ensure that where a child was to be normally barred from citizenship because neither of the parents were citizens, will be prevented from becoming officially stateless by virtue of being born outside of his or her parents’ country of origin.

To protect unaccompanied and separated minors found in Gambian territory, whose nationality is unknown, the Constitution should presume such minors as entitled to citizenship by birth.[15] The law should provide that a child found in the territory of the state shall, in the absence of proof to the contrary, be considered to have been born within that territory of parents possessing the nationality of that state.

 There is also need to protect foreign children through naturalisation, even when their parents are not naturalized citizens. This is in light of particular concern of children of irregular and undocumented persons who may not be able to get such protection from their country of origin. Additionally, a non-Gambian child adopted by a Gambian should be entitled to be a citizen of The Gambia.

On marriage, naturalisation and dual citizenship

Given that the prescribed periods for acquiring citizenship through marriage or naturalisation is unreasonably burdensome, it is proposed that the prescribed period of 7 years ordinary residence by a foreign person married to a Gambian be reduced to 5 years. Similarly, in cases of naturalisation, the law’s requirement of 15 years ordinary residence in The Gambia before a foreign person can apply for citizenship should be reduced to 5 years in line with international practice.

Given the unintended consequences associated with renunciation and having one’s citizenship deprived, it is proposed that dual citizenship be also applicable to registered or naturalised citizens. The Constitution should not require a person to choose one citizenship or another when a Gambian can hold dual nationality.

Dual model on citizenship

The rights to citizenship should be incorporated in the Gambian Constitution within the chapter on “citizenship” section and chapter on “fundamental human rights” respectively.  The citizenship chapter focuses on the status of citizenship while the fundamental human rights chapter focuses on the rights and duties arising from the status of such citizenship. The fundamental human rights chapter should prohibit the deprivation of citizenship. It can also limit more substantive rights including political rights. This dual nature mirrors the split in the nationality debate about the status of citizenship and the rights attendant on that status.

On obligations of the National Assembly

The National and Citizenship Act, Cap 82[16] has been in force since 1966 governing citizenship.[17] However, sections 12 and 15 of the Constitution provides for further legislation. Arguably, the National Assembly should enact a comprehensive a citizenship and immigration law that adheres to international law standards and practice.

Concluding reflections

The current citizenship debate points to a need to have a dialogue on what it means to be a Gambian which lies beyond the scope of this particular op-ed article. This should involve the extent to which citizenship represents not merely the diversity of identities and cultural affiliations, but an understanding of its intricate connection with the states project of rebuilding a unitary nation-state in the wake of the crimes committed in the past.

Suggested Citation: Satang Nabaneh, The changing politics of Gambian citizenship debate, Law Hub Gambia Blog, 29 November 2018, at https://www.lawhubgambia.com/lawhug-net/citizenship-debate-gambia

[1] Act No. 6 of 2001.

 [2] Act No. 6 of 2001 also amended section 12 to include section 12(A) (1) in the Constitution for dual citizenship thereby making it possible for Gambians to acquire citizenship of another country without losing their Gambian one.

[3] Peter J. Spiro ‘Dual citizenship as human right’ (2010) 8(1) International Journal of Constitutional Law, 111–130.

[4] The ICCPR was ratified by The Gambia on 22 March 1979.

[5] The Gambia ratified the CRC on 9 August 1990.

[6] This was ratified on 22 March 1979.

[7] The Gambia ratified the CEDAW on 16 April 1993.

[8] This was ratified on 28 September 2018.

[9] The Gambia ratified the CRPD on 6 July 2015.

[10] African Commission on Human and Peoples’ Rights (ACHPR) ‘The right to nationality in Africa’ 2015, available at: http://www.achpr.org/files/special-mechanisms/refugees-and-internally-displaced-persons/the_right_to_nationality_in_africa.pdf [accessed 26 November 2018].

[11] The Gambia ratified the ACERWC on 14 December 2000

[12] The Protocol was ratified on 25 May 2005.

[13] Institute for Human Rights and Development in Africa (IHRDA) and Open Society Justice Initiative (on behalf of Children of Nubian Descent in Kenya) v. the Government of Kenya, Decision No 002/Com/002/2009, African Committee of Experts on the Rights and Welfare of the Child (ACERWC), 22 March 2011, available at: https://www.refworld.org/cases,ACERWC,4f5f04492.html [accessed 26 November 2018].

[14] African Committee of Experts on the Rights and Welfare of the Child (ACERWC), General Comment No. 2 on Article 6 of the ACRWC: "The Right to a Name, Registration at Birth, and to Acquire a Nationality", 16 April 2014, ACERWC/GC/02 (2014), available at: https://www.refworld.org/docid/54db21734.html  accessed 26 November 2018].

[15] UN Committee on the Rights of the Child (CRC), General comment No. 6 (2005): Treatment of Unaccompanied and Separated Children Outside their Country of Origin, 1 September 2005, CRC/GC/2005/6, available at: https://www.refworld.org/docid/42dd174b4.html [accessed 26 November 2018].

[16] Gambia Nationality and Citizenship Act, Cap 82 [],  18 February 1965, available at: https://www.refworld.org/docid/3ae6b4fb18.html [accessed 26 November 2018].

[17] Ousman A.S Jammeh, The constitutional law of The Gambia: 1965-2010 (2012) 141-

 

Constitutional Change and Amendment: Should the Judiciary be allowed to review constitutional amendments?

Constitutions change overtime and in different ways, determined or dependent on the jurisdiction of that country. Constitutional amendments can be conducted as per the procedure designed by the Constitution or even outside the scope of constitutional law which can deviate from the cardinal principles of Constitutionalism. The role of the Judiciary (i.e. the courts) is said and well established to be different from that of the legislature. The legislature in most jurisdictions is vested with the power to make laws. Constitutional amendments therefore refer to the formal procedure of amending provisions of the Constitutions and not any other procedure. Hence, importing any other procedure for Constitutional amendment outside of the scope of the procedure provided for by the Constitution such as handing over the amendment power to the court is said by many against democratic principles.

In my previous blog post, “Constitutional Change and Amendment: Are we restrained by ourselves or other people?” I argued that by binding ourselves to commitments of the Constitutions we are also binding ourselves to the interpretations of judges who are not answerable to the people for their acts and are independent from any sort of influence from any person or authority. Hence, would it not be against the principles of accountability to allow the court to review Constitutional amendments?

Fundamentally, judicial review empowers the courts to decide on the legality of actions or inactions (failure to act) of both the legislature and executive and their consistencies with the Constitution Any act, omissions or decisions of the government that is inconsistent with the Constitution is, to the extent of their inconsistency declared null and void. On a general perspective, judicial review is understood from two distinct points which needs to be highlighted before delving into the subject matter. Firstly, it is a means through which courts control the exercise of administrative power. Secondly, it refers to the courts’ enforcement of the doctrine of ‘supremacy of the Constitution’ to declare null and void any act of parliament or any other act that are in conflict with the Constitution.

According to Justice Hassan B Jallow (as he then was), the Constitution of The Gambia is based on the principle of separation of power and as such supremacy “reposes in the Constitution, whether or not such is expressly declared by that instrument and not with the National Assembly or any other organ of state.” (Jallow JSC, Jammeh v. Attorney-General (2002) ). Hence any form of judicial enforcement that is inconsistent with the Constitution will take away the legitimacy and purpose of the creation of the Constitution.

As such, review of Constitutional amendments by the courts creates a conflict between the courts and legislature by handing over the responsibilities of the legislature to the court. At first look, judicial review of Constitutional amendments seems as a violation of the principle of separation of powers. Invalidating an amendment on the grounds that it is unconstitutional is constitutive in its functional meaning. It is very similar to enacting an Act of Parliament which is a duty imposed on Parliament and not on the courts.

However, if we are able to welcome the idea that the amendment power in a Constitution is like any other power vested by the Constitution, the same reasoning could apply in judicial review of Constitutional amendments. Also, the amendment power of the legislature is also limited in scope by its nature either explicitly or implicitly. This is where judicial review of amendments comes in as a mechanism to enforce those limitations. For instance, in The Gambia, the National Assembly is not allowed to alter any of the entrenched clauses found in section 226(7) unless:

(a) the Bill has been sent by the speaker to the Independent Electoral Commission.

(b) the Commission has within six months of receiving such reference held a referendum on the Bill.

(c) at least fifty percent of the persons entitled to vote in the referendum have taken part in the referendum and;

(d) the Bill is supported by seventy-five percent of those who voted.

In Jammeh v Attorney General, the Supreme Court of The Gambia ruled that failure to comply with the conditions set out in section 226(7) of the Constitution renders a purported amendment of the Constitution and assent thereto invalid, null and void and of no effect. The fundamental idea behind the involvement of the courts in the review of Constitutional amendments is to uphold the supremacy of the Constitution and that principle requires the courts to check that the legislature does not fall outside the dictates of the Constitution when exercising its power of amending the Constitution. This whole process would normally require individual(s) to bring up a case against the government in exercise of their rights as citizens or person living in The Gambia or with an express authorisation by the Constitution. But should this always be the case? Should the judiciary be reviewing Constitutional amendments in the absence of authorisation by the Constitution?

In my opinion, when courts in review amendments made by the legislature, they are only reinforcing the supremacy of the Constitution., not that of the legislature or the judiciary. After all, the amendment power is given to a constitutional organ of the government by the supreme law. Strauss highlighted that an amendment of the Constitution does not necessarily direct an ultimate concern about the document but rather the amendment is concerned about the institutional arrangements that the Constitution is supposed to control. The proposition Strauss is suggesting here is that the judiciary in reviewing Constitutional amendments only checks the exercise of the power of the legislature, which is a Constitutional institution.

It is trite law that in order to challenge an amendment or a law, one should be able to direct to a specific constitutional provision that the amendment or law violates. Elliot however makes the view that constitutional interpretations should not be “limited to the literal language contained in discreet clauses in the Constitution.” (Donald Elliot, 1989). This, in effect, forces the court to make decisions that are vulnerable because of the failure to adhere to Constitutional dictates. My view is that since the amendment power is limited in most constitutions and mainly as a delegated power, the amendment in fact helps in enforcing the limitations described by the Constitution.

For separation of powers to work effectively, we need procedures to check the balance of power between arms of government so as to settle any dispute that might arise. The separation of powers between the legislature and the judiciary presupposes that the power to amend is independent within its scope and margin so long as it does not violate the Constitution. This also in turn facilitates a procedure for determining whether the amendment made is ultra vires the Constitution. Thus, allowing the judiciary to review amendments protects the principle of separation of powers between the primary and secondary constituent power.

Accordingly, when applying the law, it is important to understand what exactly the law is or mean. As such, in the event of a conflict in law, the court, in its duty in applying the law, should be able to decipher which of the laws must take precedence over the other. In the case of reviewing amendments made by the legislature, a similar argument can be made in the sense that one of the main duties of the courts is to make decisions in conflict using the Constitution as its main tool and other legislations.

In doing so, the court will need to interpret the Constitution. If the Constitution is silent on who should determine the constitutionality of laws, then the arm of government that applies the law is the most competent to review the laws. The same applies for review of constitutional amendments. The striking similarity in the review procedure of statues and constitutional amendments resonates from the fact that they are both reviewed in a normative standard. As argued by Klein, judicial review of amendments is similar to ordinary judicial review. It is further described as “an examination of the compliance of a given legal standard to a superior standard.” (Yaniv Roznia, 2014).

————————————————————————————————————————————

References

1 Justice A.K Date-Bah, “The Law and Practice of Judicial Review

2 Donald Elliot, “Why Our Separation of Powers Jurisprudence is So Absymal”, (1989)

3 Jammeh v. Attorney General, (2002) AHRLR 72 (GaSC 2001)

4 Marbury v. Madison, 5 U.S 137 (1803 U.S LEXIS).

5 David A. Strauss, “The Relevance of Constitutional Amendments” (2001)

6 Yaniv Roznai, “Unconstitutional Constitutional Amendments: A study on the Nature and Limits of Constitutional Amendment Powers.” (2014).

The Gambia: The state of liberal democracy

Congratulations to Gaye Sowe, Executive Director – Institute for Human Rights and Development in Africa (IHRDA) and member of the Constitutional Review Commission; and Satang Nabaneh, Ph.D in Law Candidate/Founder and Editor, Law Hub Gambia. Their joint chapter on The Gambia was published as part of the I-CONnect-Clough Center 2017 Global Review of Constitutional law. We are pleased to circulate this report published by the Clough Center for the Study of Constitutional Democracy.

Abstract

This is the second edition of the I·CONnect-Clough Center Global Review of Constitutional Law (ISBN: 978-0-692-15916-3). The 2017 Global Review assembles detailed but relatively brief reports on constitutional developments and cases in 61 jurisdictions during the past calendar year. The reports are authored by academic and/or judicial experts, and often the reports are co-authored by judges and scholars. The reports in this first-of-its-kind volume offer readers systematic knowledge that, previously, has been limited mainly to local networks rather than a broader readership.

Available at SSRN: https://ssrn.com/abstract=3215613


Suggested citation

Sowe G and Nabaneh S ‘The Gambia: The state of liberal democracy’ in Albert R, Landau, D, Faraguna P, and Drugda Š: The I·CONnect-Clough Center 2017 Global Review of Constitutional Law (July 19, 2018) 97-101.


Overview of the chapter "The Gambia: The state of liberal democracy"

2017 witnessed unprecedented political events in The Gambia that resulted in a transition from a dictatorship to a democracy. The single most important development was that “The Gambia became one of Africa’s newest democracies following 22 years of authoritarian rule by Jammeh, who vowed to rule The Gambia for a billion years. 

This momentous change led to the dawn of a new political and democratic dispensation and a slow, but gradualist thrust to liberal democracy.
— Sowe & Nabaneh

This report looks at various constitutional amendments, promulgation of new laws, constitutional case law and politics including Gambianization of the judiciary and what big questions await The Gambia in 2018 or beyond.

Download The Gambia chapter and the full report here.  

 

 

Civil and Political Rights in The Gambia

Introduction 

The hallmark of the 22-year dictatorship of the former dictator Yaya Jammeh’s regime was the blatant abuse of human rights and disregard of the rule of law. This has generated a culture of impunity where State agents particularly security personnel could arbitrarily arrest, detain and torture or cause a citizen to disappear or kill with impunity. This situation had therefore cultivated a climate of fear in which citizens faced life and death situation everyday as they decide to either obey or challenge the regime. That notwithstanding, Gambians finally voted out the dictatorship in the 1 December 2016 presidential elections but not without undergoing a stiff political impasse following the rejection of the results by Jammeh. For 60 days, the country was stuck in a stalemate that had triggered diplomatic intervention by the international community with a threat of military action to force Jammeh to concede to the will of the people. The impasse prompted the Economy Community of West African States (ECOWAS) to remove the president-elect Adama Barrow out of the Gambia for safety reasons and to have him sworn-in in Dakar, Senegal on 19 January 2017. Few days later on January 23 Yaya Jammeh finally left the Gambia to seek asylum in Equatorial Guinea.

Background

In its 22-year misrule, the Gambia first witnessed a mass uprising on 10 and 11 April 2000 when the Gambia Students Union sought to submit a petition to the vice president at the time Isatou Njie Saidy to demand justice for the rape of a schoolgirl by paramilitary personnel at a sports meeting at the Independence Stadium in Bakau (10 kilometres away from Banjul) and the killing of another schoolboy Ebrima Barry by fire service officers in the semi-urban town of Brikama (about 40 kilometres from Banjul). As the students assembled to proceed to the office of the vice president, they were met with the full force of well-armed paramilitary contingent in Kanifing. What ensued was a direct confrontation and shooting that resulted into the death of 16 schoolchildren including a Red Cross volunteer and a three-month old baby with many more sustaining injuries.

The incident in Kanifing then generated protests across the country which were quelled with heavily brutal crackdown by both the police and the military. In several towns such as Essau, Barra, Farafeni, Brikama and Janjanbureh in the regions, scores of schoolchildren were shot and injured while hundreds more were detained and tortured for weeks. Eighteen years later, tens of survivors are either wheelchair-bound or on crutches and generally experiencing various forms of pain and disability.

The second time Gambians decided to stage a peaceful protest was sixteen years later on 14 April 2016 when Solo Sandeng, a youth leader of the largest opposition party UDP together with a dozen activists demonstrated for electoral reforms in downtown Kanifing (the biggest city in the Gambia) at Westfield. Naturally the group was met with a barrage of paramilitary forces that arrested all of them immediately. Within 24 hours it became known that Solo was tortured to death and hurriedly buried in an obscure grave in the coastal village of Tanji. The rest of his colleagues were subjected to severe torture including sexual violence.

The April 14 protest triggered the leadership of his party to march to the nearest police station the next day April 15 to demand his body, dead or alive. But even before they reached the station, they were also met with severe police crackdown. The party leader Ousainou Darboe and tens of his executive members and supporters were detained at the central prisons pending charges few weeks later.  Today, two years after that protest, about five of Solo’s colleagues have also died due to injuries from torture while many more are sick or in severe pain.

That mass arrest of the party leadership, supporters and citizens generally therefore gave rise to widespread demands for the opposition to coalesce for the December 2016 presidential election. After failing in many attempts in the past to form an opposition coalition, it became clear to everyone that only with a total opposition coalition could Gambians democratically remove the dictatorship. This realisation is informed by the fact that the regime was involved in electoral malpractices including interfering with the electoral commission in its favour amidst other widespread violations. In response Gambians had sought all means to remove the regime to no avail including the use of armed violence that over the past two decades the country witnessed several coup attempts as well as armed insurrections. Notable armed attacks to overthrow the regime came in 1996 in Farafeni, 1997 in Kartong and 2014 in Banjul where attackers (comprising former soldiers living abroad or Gambians serving in the US Army, with support from serving Gambian soldiers) actually entered State House in Banjul as Pres. Jammeh was out of the country, but fatally repelled. Several were caught and summarily executed while many more were detained, tortured and then court martialled and sentence to several years in jail.

The dictatorship did not only violently suppress civil and political rights, but as a consequence of that it also severely undermined the social and economic rights of Gambians. The blatant confiscation of private and community lands, properties and businesses by Pres. Jammeh was widespread and pervasive. Furthermore, the president also claimed to have a cure for HIV/AIDS, infertility, diabetes and many other diseases or health conditions for which scores of citizens were subjected to his treatment program leading to many deaths and high morbidity. The incidence of corruption and political patronage were entrenched to the point that, in practice there was no distinction between what belonged to the president and what belonged to the State. On many occasions, Jammeh had claimed to own the University of the Gambia, or the cameras of the national television or the vehicles that ministries use as well as claiming to be rich for many generations to come. Because of the way and manner he had personalised state institutions and resources, it meant that public institutions lacked the independence, professionalism and space to efficiently deliver public goods and services while citizens lack the space to hold them to account thus further aggravating the socio-economic conditions of the people. By 2016, the Gambia was one of the least developed countries of the world where 60% of the population live in poverty and one of the leading migrant producing nations in Africa.

Enter the New Dispensation

The government Pres. Adama Barrow came on the heels of a longstanding culture of abuse with scores of victims cutting across all strata of the society. Consequently the expectations and hope with which the people received the new dispensation was immensely huge and high. Even before he took office Candidate Barrow had said in his manifesto and campaigns that within six months of taking office he would repeal or reform all laws that infringe on fundamental rights and freedoms, undermine democracy and limit popular participation.

Since January 2017, there has been a largely open space in the Gambia where citizens actively enjoy their civil and political rights. Citizens have been able to speak out openly without fear of reprisal about issues in the society. Many more citizens continue to be bluntly critical, especially on social media, against the decisions and actions of the government in many ways. Radio stations and newspapers have been freely reporting on issues while in many instances citizens have protested in the streets against various issues or the government.

In May 2017 Kartong and Gunjur residents protested against the Chinese fishmeal company accusing it of polluting the environment with bad odour and dumping dead fish on the beach and liquid waste in the ocean. In Kololi (a neighbourhood in the Kanifing Municipality) the youths there also staged a peaceful demonstration against estate developers who were allocated community lands during the dictatorship. Since March 2017 residents in Bakoteh in the Kanifing Municipality have also been protesting at various times and in front of the mayor’s office against the longstanding dumpsite that releases hazardous fumes into the surrounding communities.

However, while there continues to be an open and free space for the exercise of civil and political rights, yet various decisions and actions by the new government have raised concern for the protection of human rights. For example, since taking office Barrow has not yet repealed or reformed any of the draconian laws he had promised to change during his campaign. Rather in November 2017, the Supreme Court of the Gambia went ahead to certify that the Public Order Act (POA) was in line with the constitution. Since 2009, the POA has been challenged for being unconstitutional because it contains provisions that give power to the Inspector General of Police to either grant or deny permit for protest. Observers and human rights activists had condemned the POA that it gives immense powers to the police that override the limits imposed by the constitution that guarantees the right to peaceful assembly and demonstration. In fact the Public Order Act was one of the laws targeted in Barrow’s manifestation for reform.

The Public Order Act was one piece of legislation that the former regime had consistently used to clampdown on citizens for merely exercising their civil liberties including engaging in political activity. It was because of the POA that in 2010 the opposition UDP’s campaign manager Femi Peters (late) was jailed for one year for organizing a political rally in Banjul without a police permit to use a public address system. Secondly it was because of this law that the UDP leader Ousainou Darboe and scores of his executive members and supporters were also jailed for three years in July 2016 for unlawful assembly when they marched to the police station to demand the body of their late party youth leader Solo Sandeng. Similarly it was because of the Pubic Order Act that the paramilitary forces were deployed against students in 2000 leading to the shooting to death of dozens.

Following violent riots in May 2017 by the youths in the communities of Farato (about 30km from Banjul) against the demolition of homes and in June 2017 in Kanilai (home village of the former dictator Jammeh) against the presence of ECOWAS military intervention forces in the community, it has now been noticed that the government appears to deny any form of protests. This came first in November 2017 when a youth movement, #OccupyWestfield sought a permit to protest against the poor electricity supply in the country. The police initially gave the permit only to withdraw it within 24 hours. Similarly in January 2018, a political science lecturer at the University of the Gambia Dr. Ismaila Ceesay was ‘invited’ to the police headquarters for questioning for comments he made in a newspaper interview. It turned out that when Dr. Ceesay arrived at the station, he ended up being detained overnight and then charged for ‘incitement to violence’. Following a public outcry mainly by students and the Gambian civil society, the police were forced to release him and drop the charges. These incidents, if anything to go by clearly show that the open and free space for human rights in the Gambia at the moment may not last long.

Even when the government had passed other laws that broadly speak to the promotion and protection of human rights yet there have been instances of inconsistencies that cause for concern. For example in December 2018 the government passed new laws setting up the Truth, Reconciliation and Reparation Commission, the Constitutional Review Commission and the National Human Rights Commission. These moves have been welcomed by activists, human rights organizations, development partners and citizens generally. However there have been concerns that the government has been selective in dealing with major human rights issues of the past. While the government was commended for opening investigations and prosecution into the murder of Solo Sandeng, many are concerned why similar action was not taken in the case of the April 10 and 11 students massacre or the murder of Deyda Hydara among others?

What is even more concerning to many has been the fact the new government has failed to repeal the Indemnity Act which as enacted in 2001 to exonerate public officials and security officers for their decisions and actions in the student massacre. The April 10 and 11 Commission of Inquiry held between May and August 2000 identified several officials and officers by name and rank for being responsible for the shooting of the students. Instead of prosecuting or disciplining those responsible as recommended by the Commission, the government rather went ahead to indemnify their actions by describing the incidents as a state of emergency. Thus when the new government came to power, the expectations generally have been that one of the first laws to undergo repeal would be the Indemnity Act to allow for the prosecution of perpetrators and compensation of victims. This has not happened yet.

In addition to the April 10 and 11 incident, there were also other incidents that many were of the opinion that the new government would open investigations into them in order to ensure justice. Some of these incidents include the mass killing of soldiers in November 1994 in the wake of an attempted coup, or the burning to death of the former finance minister Koro Ceesay in June 1995 as well as the shooting to death of veteran journalist Deyda Hydara in December 2004 including many cases of enforced disappearances and summary executions such as in August 2012 when nine inmates in the country’s major prison were killed.

It must however be noted that generally the president Adama Barrow continues to speak positively about protection of human rights. He has expressed his desire on many occasions that civil liberties will remain respected by his government. Marking his first anniversary in office, he said his government had removed the phenomenon of ‘management by fear’ by creating the enabling environment for the exercises of  civil and political rights.

Conclusion

The civil and political rights situation in the Gambia today is certainly better than what it was during the dictatorship; at least for the foreseeable future. But so long as the draconian laws that infringe on civil and political rights remain in the statutes and the necessary constitutional and institutional reforms are not conducted, especially among security institutions, there remains the possibility that Gambians may encounter an erosion of their human rights. So far the government is not demonstrating the necessary urgency and commitment to these reforms. While the right political statements continue to be made by the leadership yet there has not been commensurate practical steps to not only refrain from infringing on rights but to also expand rights. Apart from the Supreme Court ruling on the POA and the denial of permits to protesters, there is now growing number of police checkpoints around the country reminiscent of the dictatorship.

Some analysts have contended that political expediency or lack of experience or poor leadership or the combination of all seem to have engulfed or preoccupied the new government, while, others have noted that, after all politicians remain the same, i.e. at the end of the day it is about seeking and maintaining power  by any means. Time will tell.