The Gambia

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.

 

 

 

The Gambia's human rights situation in relation to freedom of expression: Achievements and Challenges

(Photo Credit: HRW)

(Photo Credit: HRW)

As a member of the United Nations and a party to the United Nations Covenant on Civil and Political Rights (ICCPR), the Gambia has registered both positive and negative developments in guaranteeing the right to freedom of expression. This essay highlights the Gambia’s human rights situation in respect to the right to freedom of expression which over the years has been affected in many ways. It is essential for the government to take giant steps in protecting the fundamental rights and liberties of its citizens. It is also of high importance that Non-Governmental Organizations (NGOs) take a leading role in promoting the rights and liberties of people as may be in line with their mandate.

Developments in relation freedom of expression

It is noteworthy to state that the Gambia had indeed gained a bad reputation on its human rights situation under the former government of Yahya Jammeh. Jammeh’s 22 years of military turned civilian style dictatorship in the Gambia was marked by several unfathomable human rights violations including but not limited to arrests and detentions without giving due regard to the constitution. Such attracted an international attention for 22 years, making the Gambia hell for journalists as well as members of the intellectual fraternity. The media under his administration has suffered regular, systematic and repressive attacks.

In the aftermath of the December polls which saw the ‘surprising’ defeat of Jammeh by an opposition coalition of seven political parties, and his subsequent refusal to step down triggering post-election political crisis, Gambian security agents closed three private radio stations near the capital, Banjul in the names of Teranga FM, Hill Top and Afri radio.

The government under Jammeh was blamed for its failure to abide by the provisions of the ICCPR in respect to guaranteeing fundamental human rights and liberties of its people including freedom of expression. Amnesty International showed its dissatisfaction with the then government when it failed on numerous occasions to submit reports on its human rights situation as a state party to the ICCPR. The government was said to have mounted “systematic attacks on freedom of expression and of the press, harassment of human rights defenders and journalists, long term detention without trial of political detainees…”(Amnesty International)

To muzzle the press, media laws have been passed which restricts media freedom including freedom of expression. Since 2013, the Jammeh administration enacted series of repressive laws that curtail freedom of expression and the media with a new law increasing penalties for “providing false information” and the other criminalizes anyone using the internet to spread “false news” about the government or civil servants. This particular amendment to the Criminal Code increased the prison term from six months to five years and the fine from D500 ($12) to 50,000 ($1,226) for providing “false information” to a public servant which include the president, vice president, cabinet ministers and members of parliament. These according to Human Rights Watch, have restricted the proper functioning of Civil Society Organizations as well the media, serving as threats to freedom of expression.

Under the current dispensation, one may claim some improvements in respect of freedom of expression. Individuals can express their opinions without fear of victimization contrary to how it used to be under Jammeh. On the area of the media, few media houses have emerged adding to the existing ones since the change of government in 2016, including a television station which serves as the country’s second TV station since independence. However, the challenge remains that, some of the laws that hindered the right to freedom of expression under the previous administration are still in place. The Gambia Press Union continues to challenge the law on “false news” in an attempt to decriminalize it. The challenge over the case was first heard during the era of the former government but without any proper legal remedy; nevertheless, the press union continues to challenge it to this date. Even though the current government “conceded on the unconstitutionality of libel, criminal defamation and sedition, but has maintained that false news places “reasonable restriction necessary in a democracy.”

Despite contesting the 2016 election on the promise for a new constitution that would wipe out all bad laws, especially those relating to freedom of expression, such laws are still in place and have attracted public outcry. However, the government through the justice ministry has passed the bill for a constitutional reform that is expected to fundamentally guarantee the right to freedom of expression. ‘Criminal justice sector and media law reform’ are considered to be priorities. According to Human Rights Watch 2017 Report on the Gambia, the government has largely respected media and opposition freedom and also further promised to repeal all laws that restrict the right to freedom of expression, including ‘false news’. Journalists who fled the country during the era of Jammeh after being arrested and tortured have returned while the Barrow administration promised to comply with judgments of the ECOWAS Community Court against The Gambia in relation to the forced disappearance of two journalists, torture of another, to negotiate in compensating the families of the victims.

However, even though the country has registered some positive developments, challenges remain as well as mentioned earlier. In August 2017, opposition leader, Mamma Kandeh was invited for questioning by the police ‘in connection with allegations he made against the coalition government of pocketing loans that it secured from foreign financial institutions.”

Two months later, leader of another opposition party, APRC, the party of the former president was called for questioning by the police in connection to statements he made accusing the coalition government of victimizing certain individuals who are supporters of his party. In late January, the party’s spokesperson, Seedy Njie was also arrested and questioned by the police in relation to a comment he made regarding the release of a party supporter in detention.

In January 2018, a university lecturer was detained and questioned by the police in respect of a newspaper comment he made on the country’s security situation. The arrest and detention of Dr Ismaila Ceesay attracted widespread condemnation both locally and internationally including the Institute for Human Rights and Development in Africa (IHRDA), which subsequently led to his release by the authorities.

Despite gains been made in its human rights situation in relation to freedom of expression, the current government still have more work to do in fully protecting and safeguarding such a fundamental right and freedom.


References

Edward McAllister, Reuters 8th January 2017, “Gambian Authorities Shut three radio stations amid post-election crisis”
Amnesty International Press release 3rd February 2002, “Gambia: missed opportunity to promote human rights” 
World Report 2017, Human Rights Watch, “Gambia: Events of 2016”
The Standard Newspaper, 23 November 2017, “GPU Continues battle to decriminalize false news”
News24 8th February 2017, “Gambia to boost press freedom in constitution overhaul”
World Report 2018, Human Rights Watch, “Gambia: Events of 2017”
The Daily Observer 11 August 2017, All Africa, “Gambia: Police Question Mamma Kandeh”
World News 1 February 2018 “Institute for Human Rights and Development in Africa Condemns ‘Unlawful’ Arrest of Dr Ceesay”


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About the Author:
Essa holds a BSc in Political Science from the UTG, and serves as a Graduate/Teaching Assistant in the Political Science Unit. He is currently pursuing MPhil in Human Rights and Democratization in Africa at the Centre for Human Right, University of Pretoria, South Africa. He has an interest in promoting the civil and political rights of all people, especially in Africa. His research interest lies in post-conflict democratization in Africa and how different institutional and constitutional designs can be utilized in peacemaking and peace-building processes in the continent.
 

The Gambia and the African human rights system

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Synopsis of the Statement by the Gambian Delegate, Aji Adam Ceesay, Ministry of Justice at the 62nd Ordinary Session of the African Commission on Human and Peoples’ Rights. 25 April-9 May 2018, Nouakchott, Mauritania

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The Gambia’s state report focused on measures taken to integrate the country into the human rights family. Major strides include the following:

  • Promulgation of the National Human Rights Commission (NHRC). Appointment of commissioners and institutional arrangements are underway.
  • In their determination to rebuild the nation and lay the foundation for good governance and human rights, Truth, Reparations and Reconciliation Act (TRRC) was enacted.
  • The Constitutional Review Commission (CRC) Act was also enacted for the establishment of  a Commission for the drafting and guiding of the process of  promulgating a new Constitution
  • Media laws: Ministry has established national committee to review laws. Enhancement of speech and media including issuance of TV licenses.
  • In terms of political and civil rights, elections that were considered free and fair took place including, National Assembly and local government.
  • Concrete measures are also undertaken to address prison conditions.

Plans by Government

  • Formalization of the national procedures for accession to the Convention Against Torture (CAT) and subsequent domestication.
  • Commencement of the process of ratifying the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Older Persons.
  • Finalization of the Draft Disability Bill as domesticated legislation of the Convention on the Rights of Persons with Disabilities (CRPD).

 Feedback of Chairperson of the African Commission, Hon Commissioner, Soyata Maiga
She expressed delight with the progress that has been made in the normative planes and the establishment of governance institutions. She recalled how for long time, they were reporting excessive human rights violations happening in The Gambia and thus, seen as people that were manipulated by the NGOs. She reiterated that The Gambia can count on the support of Commission, and international community.

Law Hub Gambia’s Take: The Gambia SHOULD fulful its state reporting obligations

One of the most effective means by which the African Commission can ensure the promotion and protection of human and peoples’ rights is through the state reporting procedure.

However, The Gambia’s record of fulfilling its state obligation of submitting reports is extremely poor. At the African regional level, The Gambia submitted its initial report (1986-1992) on the African Charter on Human and Peoples’ Rights (African Charter) in 1992. In accordance with article 62 of the African Charter, states parties are required to submit periodic report every two years. The Gambia’s first periodic report was submitted in 1994 for duration (1992-1994) and no more have been submitted.

Since its ratification of the African Charter on the Rights and Welfare of the Charter (African Children’s Charter) on 14 December 2000 and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol) on 25 May 2005, The Gambia has never submitted any initial or periodic reports to both instruments.

During its statement, The Gambia committed to submitting its state reports after two decades in the next session, we look forward to the inclusion of civil society in the preparation of the report and subsequent submission. 

Resources

S Nabaneh ‘The impact of the African Charter and the Maputo Protocol in The Gambia’ in VO Ayeni (ed) The impact of the African Charter and the Maputo Protocol in selected African states (2016) 75-93. Available at : http://www.pulp.up.ac.za/component/edocman/the-impact-of-the-african-charter-and-the-maputo-protocol-in-selected-african-states

Report of The Gambia in accordance with Article 62 of the African Charter on Human and Peoples’ Rights, http://www.achpr.org/files/sessions/12th/state-reports/1st-1986-1992/staterep1_gambia_1992_eng.pdf

Periodic of report, ACHPR/PR/GAM/XVI http://www.achpr.org/files/sessions/16th/state-reports/1st-1992-1994/staterep1_gambia_1994_eng.pdf (accessed 15 February 2018).

How can young people shape The Gambia's democratic future?

The author gave a similar speech on the theme during the lecture on ‘The Gambia’s constitutional reform process’ organised by the International IDEA:  Institute for Democracy and Electoral Assistance and Faculty of Law, University of The Gambia, 16 March 2018.


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The role of young people in shaping democracy in The Gambia requires a deep historical reflection stretching from the struggles of our forefathers against colonialism and the struggle of young people in the defeat of a 22-year-old dictatorship in 2016. Therefore, the role of young people in shaping democracy today should not be seen as isolated efforts to ensure accountability and resistance to abuse of power, rather it should be seen as a continuity of struggles long conceived even well before the birth of our independence. However, that history will be worthwhile exploration elsewhere. Today I want to address the theme by first looking at the efforts at the regional level that were designed to enhance youth participation in democracy.

At the African regional level, the transformation of the Organisation of African Union (OAU) to the African Union (AU) in 2002 marked a renewed commitment to the promotion of democratic institutions and good governance in Africa. This commitment is premised on the recognition that inclusive participation, good governance and democracy are fundamental pillars of continental development. In 2013 the AU adopted the Solemn Declaration which called on African states to unite and articulate common development aspirations reflective of the continent’s contextual realities. That commitment gave birth to the adoption of Agenda 2063 which articulates Africa’s long-term development vision. Aspiration 6 of Agenda 2063 provides that the continent aspires for an ‘Africa, whose development is people-driven, relying on the potential of African people, especially its women and youth,’ As such, youth are critical to the realisation of Agenda 2063 as over 60% of the continent’s population is estimated to be under the age of 30.

Moreover, in recognition of the role of youth in ensuring democracy, the AU adopted other normative and institutional frameworks that require member states to enhance the participation of young people in democracy, governance and decision-making. These normative frameworks include the Youth Charter adopted in 2006, the African Charter on the Rights and Welfare of the Child (1990), the African Charter on Democracy, Elections and Governance (ACDEG) (2007), the African Charter on Human and Peoples’ Rights (1981), and the Constitutive Act of the AU (2002). All these instruments engender rights, duties and freedoms that enhance the meaningful participation of young people in issues that concern their well-being, aspirations, democracy and governance.

Based on these frameworks, the AU also devoted 2017 as the year of ‘Harnessing the Demographic Dividend through Investments in Youth’. In pursuance of this agenda the African Union Commission designed a roadmap that focuses on four pillars on youth investment. These pillars are Employment and Entrepreneurship, Education and Skills Development, Health and Wellbeing, and Rights, Governance, and Youth Empowerment. The fourth pillar which involves Rights, Governance and Youth Empowerment deals with a commitment to ensure youth participation, representation and inclusion in decision-making processes is guaranteed. The pillar also calls for an inter-generational dialogue that will foster learning for emerging young leaders in the continent.

Drawing from these standards, the AU shows a commitment to enable youth participation in democratic governance. However, the extent to which youth will effectively participate in democratic governance will depend on the level at which these frameworks are translated into realistic commitments and policies at the domestic level. Lack of political will and dictatorial tendencies can create a disjoint between regional standards and national efforts.

The Gambia is a party to many regional instruments and in fulfilment of her obligations have adopted policies and laws to enhance youth participation in democratic processes. Article 89 (1)(b) of the Constitution of the Gambia 1997, sets the minimum age limit to participate in parliamentary elections at 21 years. For presidency, Article 62(1)(b) sets the minimum age at 30 years. Moreover, Article 196 makes it mandatory on every Gambian to undertake national youth services after attaining the age of 18. In addition to the Constitution of the Gambia 1997, the government also adopted the National Youth Policy subsequent to the establishment of the Gambia National Youth council in 2000. The purpose of the NYC council is aimed at enhancing the participation of youth in national development.

The role of youth in shaping democracy in the Gambia was crystallised in the 2016 Presidential Elections when they rallied to elect a new leader that would pave the way for what would be the first democratic change of government in the history of the country since 1965. This change did not only allow the new government of The Gambia to close a dark chapter of bad governance since 1994, but also presents an opportunity for renewed commitment to the respect of human rights and democracy. In light of that change, the new government of President Adama Barrow pledges to embark on a comprehensive constitutional reform to further consolidate democracy and human rights protection in the Gambia.

The engagement and participation of youth in this election was unprecedented and critical. Due to their frustration over the autocratic regime of President Yaya Jammeh, they rallied behind the banners of opposition coalition to usher in democratic and constitutional change of government.

Beyond the 2016 elections, from civil society forums, government platforms and on the streets, young people in the Gambia manifest a strong commitment and ethos to ensure that the new government in Banjul lives up to its commitment to democracy, good governance and respect for human rights.

The change of government ensured by young people has also led to the widening of the democratic space in the Gambia where they are unhindered to hold government accountable through social accountability mechanisms. This has led to the formation of youth organisations that are contributing in the policy processes to proactively advance good governance, human rights and democracy. A-Plus Gambia is an example of a youth organisation that is making efforts to hold the government accountable through public expenditure reviews and monitoring of budget. Thus, through budget monitoring youth groups are able to assess the gaps that exist between policies and government actions to ensure the progressive realisation of socio-economic rights particularly local government service delivery. The significance of such activities by youth groups is not only important in shaping democracy but also engender discussions around alternative policy choices for the realisation of human rights.

Furthermore, youth are also involved in peace building efforts in the Gambia. On 9 and 11 May 2017, Gambian youth in partnership with young leaders from 22 African countries organised and hosted a conference under the theme ‘Youth, Peace building and Regional Solidarity: Lessons from Africa’. The conference was jointly funded by the government of The Gambia, UNESCO, and the African Council for the Development of Social Science Research. This conference provided an opportunity for stakeholders to reflect on the challenges and opportunities for youth in transitional systems. More importantly the young participants highlighted the need for intergenerational interaction and dialogue in sustaining peace and ensuring the durability of democracy. The conference also provoked discussions on gender equality, peace consolidation and youth participation in governance.

Nonetheless, as writers accurately put it that the youth bulge in Africa is a double-edged sword. While it can be a catalyst for economic growth and transformation when well-managed, but it can also spur violent conflict across the continent.

Going forward, our fears and aspirations as young people should dictate the pace of our constitutional making process. According to His Lordship the CJ Honourable Hassan B Jallow, ‘’the 1970 Constitution was a well-crafted constitution indispensable to the proper functioning of government’’ However, written constitutions are not a guarantee for democratic government based on constitutional conventions. He went further to say that ‘’the ultimate guarantee for good governance reposes not in the letter of the law, but in the will, commitment and determination of the people and their leadership to tread the path of justice and fair play.’’ It this commitment and will, we the young people of this country demand from our government. We are not negotiating our future in these trying moments of our times.

It is important to emphasise that democracy in this context is understood as popular governance that has its roots in the enlargement of the public sphere for people to constructively participate in the choice of governance they desire. As such, in this context democracy is not synonymous to western liberal democracy which does not give primacy to group rights as a basis for rights, freedoms and duties. The AU has over the years recognised African values as central to human rights, governance and democracy. Thus, Article 3(b) of the Charter for African Cultural Renaissance endears African states ‘to promote cultural democracy which is in separable from social and political democracy. The charter also calls on African states to strengthen the role of African values in promoting peace, good governance, social cohesion and human development. 

As young people, we look forward to an inclusive constitutional making process that will recognise our concerns and fears.

 

Constitutional Change and Amendment: Are we restrained by ourselves or other people?

The precommitment theory by famous Norwegian political theorist, Jon Elster presupposes that the acquisition of greater choice, and freedom, is not always desirable (Elser, 1979). At a later stage, one might need to limit himself to a certain course. This denies him the option to choose a specific act or course and thus provides for rationality as time goes by; one may think that X is the right course now, but worry that when the opportunity to choose Y arises, one might choose Y instead. This makes choosing Y impossible, more difficult, or less likely to allow for the prevalence of rationality regardless of intervening factors.

From independence, most countries in Africa have had their Constitutions changed or amended so as to accommodate new ideals and values. The Gambia is no exception to this. But what constitutes change? Where does the authority to bind people of these changes come from? It is one thing for A to bind himself and another for a group of people to be bound my Constitutional provisions. Two notions are already well known; First, a Constitution binds everyone, including the minority. Second, Constitutional commitments are vague. Free speech, and rule of law are examples. This vagueness comes in two spheres; committing a right with one hand and making it all together more problematic and impossible to achieve. This makes Constitutions contentious and political documents. The Constitution of The Gambia reads “We the People.” because it was enacted by the majority but it somehow is taken as the general will of the people only because the majority endorsed it.

"We the people of The Gambia have accomplished a great and historic task. We have had our say on how we should be governed. For this Constitution contains our will and resolve for good governance and a just, secure and prosperous society. " - Preamble of the  1997 Constitution

"We the people of The Gambia have accomplished a great and historic task. We have had our say on how we should be governed. For this Constitution contains our will and resolve for good governance and a just, secure and prosperous society." - Preamble of the 1997 Constitution

The division in Constitutional amendments are not internal but rather, they are divisions between the majority and the minority. Constitutions that are strong, will always bind generations to come to the ideals and values of those that came before them without their vote or consent.  As stated by George Washington to the framers of the US Constitution, “I do not think we are more inspired, have more wisdom, or possess more virtue, than those who will come after us” (Ackerman, 1991) It is not clear to me why one generation is at liberty to bind a future generation but what I do know is that it is possible for a particular generation to want to continue practicing the ways and appreciate the values of the past.

The interesting argument here is not just the mere fact that Constitutional commitments are binding on everyone including the minority who didn’t consent to the change in the first place; rather the commitment would be to bind other people who would challenge another person’s view. Those that drafted the Constitution may not worry about their own acts or omissions in certain times instead they would be worried about others who don’t even share the same values as them. The Constitution commitment then “changes from a technique of simple self-binding into a restrain on opposition to certain contested political values”. Society will always disagree both in “calm” and “lucid” moments, hence, the viewpoint that commitments are entrenchments of partisan politics” (Waldron, 1998). This then makes Constitutional commitments anti-democratic which further raises a “counter majoritarian difficulty” so long as it holds back the popular will of the people.

Considering the question of who makes a Constitutional commitment, it is expected that the majority that consents to the ethos of the Constitution are cognisant of what it is that they have agreed to commit to. A commitment to Constitutional rights such as free speech is vague and abstract. Interestingly, Justice Marshall has pointed out that hate speech laws should be focused “on the nature of the ideas expressed, rather than on the likely effects of the expression”.[1]  There is however a difficulty in applying this distinction. A person that is committed to free speech is bound to accept or reject it without realising the practicability of the right. This is where judicial review comes in.  By committing to the right to fair trial, “the people” of The Gambia consented to the use of strict rules of evidence that would offer a frustrating position to any prosecution.  An argument that the people that drafted or supported the right to fair trial understood this implication would be a difficult one.

This makes the commitments of Constitutional rights misleading as people in most cases are bound to obey these Constitutional commitments without knowing the consequences of the Constitutional commitment in question. But was this commitment made with full consent? It’s only fair that this question is asked. By binding ourselves to the commitments of the Constitution, we are also binding ourselves to the interpretation of judges who are not answerable to the people for their acts and also independent from any sort of influence from any authority or person. This then draws the conclusion that Constitutional commitments and judicial review have the same problems; they are both undemocratic. 

The case for Constitutional change and amendment is not as clear-cut as most people think. Because Constitutional commitments bar the pursuit of the popular will, it first of all makes us not self-binding to the Constitution and secondly, those who committed to the Constitution will never fully understand what they have committed to.

One point that was reached by Alexander Bickel is that “courts principles are required to gain assent, not necessarily to have it” (Bickel, 1986). This assent could be seen “in a rather immediate foreseeable future”. Bickel concluded by stating that in the event the assent does not materialise, the power of the people to overturn an interpretation of a constitution that they did not consent to “is how and why judicial review is consistent with theory and practice of political democracy” (Bickel, 2390. Hence, should a Constitution claim some inherent power to have a moment where it can say without a preceding legal order, there has to be some theory of constituent power? If so, does The Gambia need formal or substantive theory of Constitutional change or amendment?         

[1] Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11, [2013] 1 S.C.R 467.


References

Alexander Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (2nd edn, Yale University Press, 1986)

 Bruce Ackerman We the people, vol. 1: Foundations, (Havard University Press, 1991). 

Jeremy Waldron, “Precommitment and Disagreement” in Constitutionalism: Philosophy Foundations (1998)

Jon Elster Ulysses and the Sirens (Cambridge University Press, 1979).

Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11, [2013] 1 S.C.R 467

Sanford Levinson (ed.), Responding to Imperfection: the Theory and Practice of Constitutional Amendment (Princeton University Press, 1995)


Maria Saine is currently pursuing a masters degree in Law at Trinity College Dublin.
 

New Gambia and the Remaking of the Constitution

[Editor's Note: Satang Nabaneh's article was commissioned by International IDEA and was originally posted on ConstitutionNet, IDEA's online knowledge platform for supporting constitution builders globally.


                                         The Gambia's current President, Adama Barrow

                                         The Gambia's current President, Adama Barrow

On 1 December 2016, Gambia held a presidential election in which former President Jammeh (who had been in power for 22 years­) lost to the opposition coalition candidate Adama Barrow.  Initially, Jammeh accepted the results on 2 December only to reverse his position a week later, refusing to step down thereby plunging the country into an unprecedented political stalemate. The about-turn generated widespread local and international criticism, and started a flurry of diplomatic negotiations by ECOWAS. On 17 January 2017, the Alliance for Patriotic Reorientation and Construction (APRC) dominated National Assembly approved a state of emergency declared by the President a day before, and extended the term of the Parliament and the presidency by 90 days.

In response to the recalcitrant position of Jammeh, ECOWAS mobilized troops with the mandate to enter the country and forcefully oust the former President in case the diplomatic missions failed. Consequently, Barrow was sworn in as President on 19 January 2017 at the Gambian Embassy in Dakar, Senegal. Shortly after, a coalition of forces from five ECOWAS countries entered The Gambia stopping before the capital to finalize a diplomatic push for Jammeh’s exit.  Two days later, Jammeh, after having looted the state’s coffers, finally succumbed to diplomatic pressure and left The Gambia for Equatorial Guinea. On 26 January 2017, The Gambia’s new president, Adama Barrow returned to the country amidst widespread celebrations.

The 1997 Constitution and potential reform areas

The Gambia adopted its second republican constitution in 1997 following a referendum held on the draft constitution on 8 August 1996. President Jawara of the People’s Progressive Party (PPP) had dominated political life from pre-independence to 22 July 1994 when a coup d’état led by Yahya Jammeh, a young army lieutenant, overthrew his government. The coup d’état brought to an end the longest surviving multiparty democracy in Africa.

The Constitution recognises The Gambia as a sovereign secular republic. It is premised on the principles of separation of powers, rule of law and respect for fundamental human rights. However, trends in The Gambia characterized by the complete disregard for the rule of law and the personalization of the state by former President Jammeh over the past two decades, posed a clear and present danger to the full realization of the Constitution.

Not only was the former regime notorious for the disregard of the rule of law, but Jammeh further distinguished himself by a number of amendments to the supreme law with largely anti-human rights and undemocratic provisions, such as the removal of the two-term limit and sweeping reforms to the electoral law which required heavy financial deposits for Presidential and National Assembly candidates. Naturally, the new government has promised and has actually started the process of sweeping legal and institutional reforms, including repeals or amendments of several laws from the Jammeh era that eroded human rights.

1. Electoral Reforms

Section 26 of the Constitution guarantees citizens the right to make political choices, providing for free, fair and regular elections, and permitting qualified citizens to vote and stand for public office. On 28 February 2017, the National Assembly passed the Elections (Amendment) Bill 2017 “to encourage the widespread participation of the ordinary citizenry in the new democratization dispensation.” The Interior Minister noted that salaries of most Gambians are low, and the revenue that is derived from commercial activities is equally very low.

The amendment was a response to the major shrinking of the political space during Jammeh’s era. In July 2015, the Elections (Amendment) Act, 2015 was passed and signed by the President on 20 July 2015. The number of signatures needed to register a political party was increased from 500 to 10,000 registered voters with at least 1,000 from each of the administrative areas, in addition to the requirement that a party post a deposit of more than D 1 million (USD 24,000). Candidates for President were required to pay D 500,000 (approximately USD 12,500) raised from D 10,000 (approximately USD 250); the fee for candidates for the National Assembly was increased from D 5,000 (approximately USD 125) to D 50,000 (approximately USD 1,000) and candidates for local council office were to pay D 10,000 (about USD 200). Opposition political parties not only regarded the increases as unreasonably high but also as a ploy by the government to drastically limit the participation of the opposition in elections. The basic salary for an average government employee in The Gambia is D3000. Thus the exorbitant fees were clearly intended to discourage multiparty democracy as most people wouldn’t be able to contest without patronage and financial support from the ruling party.

Now, the 2017 amendment reduces the exorbitant fees back to their initial amounts: President D10,000, National Assembly D5000 and other categories to D2500 and D12500 respectively.  

2. Change of retirement age and removal of upper age limit for holding office as President

On the same day of the amendment of the Elections Act, the National Assembly also passed the Constitution (Amendment) Bill 2017 introduced by the Interior Minister on behalf of the President. The Bill amends section 141(2)(b) of the Constitution in extending the age at which a Supreme Court judge should vacate his or her office from seventy to seventy-five years. In addition, the amendment also removes the upper age limit of sixty-five for holding office as President provided under section 62(1)(b). According to the Interior Minister, the amendments were an attempt to ensure that competent and experienced Supreme Court judges and politicians will not be forced out of office in light of the limited number of qualified judges and political leaders.

However, the process for amendment by government was erroneous as they didn’t follow the proper procedures. In a televised statement, the Minister for Justice and Attorney General Tambedou advised President Adama Barrow not to sign the two recently amended constitutional provisions. Minister Tambedou believed “that the procedure adopted at the National Assembly to amend these constitutional provisions was misconceived. The process of amendment of the constitutional provisions should have been guided by Section 226 of the Constitution instead of Section 101 which was the procedure used at the National Assembly.” As the applicable amendments deal with sections 62(1)(b) and 141(2) of the Constitution which are not entrenched provisions, they fall within the ambit of section 226(2). The section provides that before a Bill for amendment is presented for first reading, it must be published in at least two issues of the Gazette, the latest publication being not less than three months after the first.  The Bill should also be introduced into the National Assembly not earlier than ten days after the latest publication and must be supported on the second and third reading by votes of not less than three quarters of all the National Assembly Members. This procedure was not followed.

The Minister took full responsibility for the error and promised to take actions to remedy the situation as well as avoid such occurrence in the future. He further underscored the urgent need to do a comprehensive review of the Constitution. This public apology and acceptance of responsibility showed the Government’s responsiveness to the concerns of citizens who lamented the non-adherence to the constitutional procedures in passing the amendments.

Other immediate potential reform areas for the government:

3. Introduction of presidential term limits

The issue of term limits is not stipulated in the 1997 Constitution. Currently, The Gambia and Togo remain the only two countries in West Africa without presidential term limits. When the issue was brought up at the ECOWAS Heads of State Summit in 2015, the two countries refused to agree to the plan of restricting West African presidents to two terms in office. This led to the abandonment of the idea by the sub-regional body.

The absence of term limits enabled ex-president Jammeh to stand and win elections four consecutive times and even to seek a fifth term unsuccessfully in December 2016. It further provided him the opportunity to misrule the country and govern horribly against his people for twenty-two years.

According to Memorandum of Understanding (MOU) of the Coalition, one of the key goals of the Coalition government is the institutionalization of term limits. There is an urgent need for an amendment to include a two-term limit of 5 years. In assuring Gambians that his government will introduce a two-term limit of 5 years, President Barrow stated that "with term limits, any president that comes will serve appropriately and have respect for the laws of the land because the person will know that there is an end to his or her tenure."

4. Media law reforms

Section 25 of the Constitution guarantees a wide range of rights, including freedom of speech and expression, and freedom of thought, assembly, and association. Under President Jammeh’s rule, the environment in which the media operated was a precarious one characterized by draconian laws and arbitrary arrests, detentions, and physical assaults against journalists, as well as by closure and burning down of media houses. 

As a dictator, Jammeh stifled the independent media. This was done through several changes which occurred including amendment to section 52 of the Criminal Code (Amendment) Act 2004 making any written or verbal statement that is critical of the government an offence; the offence of publishing false news with intent to cause fear or alarm to the public; the Information Act (amended) 2013 that provided a 15-year jail term for any person found guilty of using the internet to spread ‘false news’ about the regime or public officials. The amendment also imposed a fine of D 3 million (approximately USD 86,000) on persons found guilty of publishing ‘false news’ online against the regime or public officials.

There are several problems with such provisions, including the difficulty of distinguishing between fact and opinion; the chilling effect of such provisions have upon freedom of expression; and the fact that they do not serve any legitimate purpose which would justify restricting freedom of expression.

In addition to repealing these laws, a new Freedom of Information Act should be enacted to ensure the right to free speech and independence of the media. This will be in line with the promises made by the Justice Minister to make reforming media laws a priority. This will also guarantee the protection of press freedom which is vital to establishing and maintaining an open and democratic society in The Gambia.

Conclusion

We, Gambians fought against dictatorship because we wanted change: our rights and dignity restored. The hallmark of that dictatorship was the constant abuse of power through the blatant disregard for the rule of law as laid down in our Constitution. Going forward, Gambians must act as watchdogs to ensure respect for fundamental human rights by the government. It means also that every citizen must be a human rights defender or protector. Furthermore, this will also ensure efficient leadership and effective government that is responsive to our needs and accountable to the citizenry. 

In order to ensure that our democratic aspirations are attained, there is need for the creation of a participatory platform between state and non-state actors to agree on set human rights-based goals and priorities which are underpinned by the rule of law, transparency, and accountability. The Gambia can provide a blueprint for democratic movements in Africa through its transition from dictatorship to democracy. For that to be possible, provisions in our Constitution that are repugnant to natural justice or at variance with international human rights law must be expunged or amended to fall in time.

Satang Nabaneh is a Gambian human rights defender. She holds a Master of Laws (LLM) in Human Rights and Democratisation in Africa from the Centre for Human Rights, University of Pretoria, South Africa, and LL.B (Hons) from University of The Gambia.