basic constitutional principles

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

[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: [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:,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:  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: [accessed 26 November 2018].

[16] Gambia Nationality and Citizenship Act, Cap 82 [],  18 February 1965, available at: [accessed 26 November 2018].

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


From dictatorship to a new Constitution in The Gambia: Issues and Concerns

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

As The Gambia transitions to a democratic dispensation, constitution reform, to be led by an independent Commission, will be central to the process. The success of the constitution building exercise is a test of the capacity of the new dispensation to meet popular expectations for a new and democratic Gambia. To this end, provisions for an inclusive and participatory constitution making process must be taken to heart and rigorously given effect – writes Madi Jobarteh.


In December 2017, the Gambian National Assembly adopted a Law establishing a Constitutional Reform Commission that will oversee the writing of a new constitution for the country.  When finalized, the constitution will be the country’s third since 1970 when The Gambia first became a republic. The 1970 Constitution was overthrown alongside the then government, one of the handful of democratic regimes in Africa at the time, by the military in 1994, led by former President Yahya Jammeh. The military government organized a referendum on a new constitution in 1996, ushering in the second republic in 1997. Lasting 22 years, the Alliance for Patriotic Reorientation and Constitution (APRC), a political party formed by military officers who staged the coup, dominated the Gambian political landscape, allowing it to manipulate the political process, including through numerous constitutional amendments. 

Jammeh’s dominance came to an abrupt end after the December 2016 presidential elections when he lost to current President Adama Barrow, a joint candidate of the opposition coalition. After initially accepting defeat and subsequently retracting, Jammeh was forced to leave the country following the military intervention of the ECOWAS sub-regional force. Both the campaign Manifesto and the ‘controversial’ memorandum of understanding of the opposition coalition promised the creation of a new constitution alongside other legal and institutional reforms in order to ensure a thorough revision and change of the political system. On 11 December 2017, eleven months after the new government took office, the Minister of Justice, Aboubacarr Tambadou, finally presented the Constitutional Review Commission Bill before the National Assembly. It took the Assembly only one day and one session to approve the Bill, unanimously. The director of press at State House indicated that the president signed the Bill into law a week after the parliamentary approval. Nevertheless, the members of the Commission are yet to be appointed.

Why a new Constitution?

The need for a new constitution has long been on the minds of Gambians precisely because of the numerous amendments that the 1997 Constitution was subjected to over the years. During the electoral campaign prior to the 2016 presidential elections, the opposition coalition particularly listed several provisions that they highlighted as requiring amendment in order to ensure democratic governance and better protection of human rights. Above all, they contend that the 1997 constitution has provisions that disempower both citizens and lawmakers while at the same time giving more power to the president. In addition, many Gambians consider a number of issues that must be incorporated into their constitution in order to end self-perpetuating rule, ensure effective separation of powers and restrain the government in the exercise of its functions.

The 1997 Constitution is seen as a relic of the Jammeh government and its authoritarianism.

Both the current government and citizens appear to agree that, given the numerous amendments to the constitution and the several undemocratic provisions, the need for a new constitution cannot be over-emphasized. Furthermore, the 1997 Constitution, nicknamed the ‘Jammeh Constitution’, is seen as a relic of the Jammeh government and its authoritarianism, which has tainted its legitimacy among the people, civil society and the new powerholders. Accordingly, the reform process is likely to go beyond removing the regressive amendments and affect the whole constitutional framework.   

Potential areas of reforms

While the constitution reform process will lead to a new constitution, there are certain areas that will attract particular attention. There is widespread agreement that the constitution must provide for only two five-year presidential term limits. Indeed, the inclusion of term limits is specifically mentioned as one of the guidelines in the Constitutional Review Commission Bill. The term limit, which was in the original draft of the 1997 constitution, became surreptitiously absent when that constitution was eventually put to a referendum in 1996, to allow Jammeh, who was in his early 30’s, to run for reelection without limits.

Other issues of concern that have been well highlighted by the new government in their memorandum of understanding include the 2003 amendment of section 48(3) of the constitution that changed the voting system for presidential elections from 50%+1 absolute majority, with a second round if no candidate obtained the required vote in the first round, to the first-past-the-post system. Jammeh adopted the new system to ensure continuous victory in a country with a history of weak and fragmented opposition parties. Nevertheless, in the December 2016 elections, the main opposition parties overcame their differences and fielded a joint candidate. The plurality electoral system allowed Barrow to win the elections with 43.3% of the votes (to Jammeh’s 39.6%), without the need for a second round of elections. A former ally of Jammeh won around 17%.

The first-past-the-post electoral system for the presidency, term limits, the composition of the Electoral Commission, and the manner of loss of parliamentary membership will be among the focus of reforms.

One of the overbearing powers that Jammeh had exerted over the parliament, particularly his party members, was in section 91 that stipulates that a parliamentary member can lose his seat if dismissed from her or his party. Because of this provision, in the absence of intra-party democratic culture and processes, it meant that, as the party leader, Jammeh could control parliamentarians to submit to his whims and caprices at the threat of sacking them from the party, thereby causing them to lose their seats. Considering that members of parliament are elected through the first-past-the-post electoral system in single-seat constituencies, candidates were elected formally for their individual merits, although they may campaign under the banner of their parties. The effective empowerment of a party leader to remove members of parliament was therefore unscrupulous.

Other provisions that may require refinement include section 42(6) which allows the president to unilaterally remove commissioners of the Independent Electoral Commission, who are also appointed by the President in consultation with the Judicial Service Commission and the Public Service Commission. Even though the provision requires that, before a commissioner may be removed, a tribunal be set up to investigate the matter, several commissioners have been removed without the setting up of any tribunal. Similarly, appointments were carried out without any consultation with the specified commissions.

In a manner that limits citizens’ ability to stand for presidential elections, section 62(1)(b) sets a lower and upper age limit of 30 and 65 years respectively. This particular provision became prominent after it was recognized to bar the leader of the then largest opposition party, Ousainou Darboe of the United Democratic Party (UDP), a veteran politician who contested and lost against Jammeh in four presidential elections (1996, 2001, 2006, and 2011).  

Irregularities in the enactment of the amendment removing upper age limits on the presidency and vice-presidency raise concerns regarding the integrity and credibility of the constitutional reform process. 

Interestingly, despite the clamor for a new constitution, the new government has since amended this provisionby removing the upper age limit altogether, with a view to enable the appointment of an older vice president. The amendment also extended the mandatory retirement age of superior court judges. Since assuming office in January 2017, Barrow never appointed a vice president because it was widely believed that he intended to appoint the influential ‘mother’ of the nation, Mrs. Fatoumatta Jallow Tambajang, who is above the constitutional age limit of 65 years. As it turned out, many saw the delayed appointment of a vice president and the eventual amendment of the provision to remove the upper age limit as an attempt to cater for Mrs. Tambajang.  

This action by the new government raises concerns about its sincerity and commitment to system change, and the integrity and credibility of any future constitutional reform process. It is perplexing to notice certain piecemeal amendments being undertaken, as if a new constitution would not be coming. After an initial faux pasin April 2016, when the government apologized for taking a wrong approach to the amendments, in July 2016, the Minister of Justice formally presented the constitution amendment bill before parliament, which was eventually approved

Composition and mandate of the Commission

Under the Act, the Chief Justice will chair the Commission. A vice-chairperson will be appointed by the Attorney General, who also appoints a secretary to lead the secretariat in charge of the day-to-day administration of the Commission. The President of the Republic will appoint nine more members taking into account the professional, geographical, professional and gender diversity of the country. There is no requirement for parliamentary approval of the appointments. The members may not be members of the National Assembly or of the security forces. There is no similar exclusion of ministers or high-level officials of political parties.

The Commission is required to seek the opinion of the people of The Gambia, including the diaspora.

The Commission will take decisions by consensus, and in its absence by majority vote, with a quorum of at least six members. The Act allows the Commission to establish technical committees, which may include non-members. The Commission will operate for up to 18 months, with a possibility of a six-month extension by the president on the proposal of the chairperson. 

The principal mandate of the Commission is to a draft a new constitution, and to prepare an accompanying report. In discharging its responsibilities, the Commission is required to seek the opinion of the people of The Gambia, including the diaspora, and to invite professional, civic, political and other organizations to appear before it and make presentations. The Commission must safeguard and promote a number of substantive principles, including the republican form of government, secularism, rule of law, fundamental rights, and the separation of powers. Notably, it must introduce presidential term limits. Nevertheless, the Act leaves open the length of each term and the number of terms a president may serve.

The Act proclaims the independence of the Commission, which is not subject to the direction or control of any person or authority. The members of the Commission will serve for the entire duration of the operation of the Commission, without the threat of removal on unfounded grounds. Once it has prepared the new draft constitution and the report, it submits it to the President and publishes the draft and the report in the government gazette and other platforms as may be desirable. Within 60 days of receiving the draft, the president must forward a ‘copy’, indicating that the president may not alter the draft, to the National Assembly, which will debate and approve the draft in accordance with the relevant provisions of the current constitution. Fundamentally, the Assembly must approve the draft constitution ‘without amendment’.

The President and National Assembly may not alter the draft constitution prepared by the Commission.

To ensure legal continuity, the new constitution will be adopted in the manner prescribed in the current constitution. Accordingly, the adoption of the draft constitution will require approval by 3/4th of the members of the National Assembly, and by 75% of those who vote in a referendum where at least half of all the eligible voters actually vote (i.e. there is a turnout threshold of 50% under article 226(4) of the current constitution). While presidential elections since 2000 have all secured higher than 50% turnout, turnout in all legislative elections has consistently failed below the half mark. The active support of all major political groups will be necessary to ensure the required voter turnout, and level of approval. This requires that the provisions of the Act for an inclusive and participatory constitution making process are taken to heart and rigorously given effect.

Concluding remarks

The enactment of the Bill establishing the Commission is welcome. Nevertheless, there remain concerns as to the appointments of its members. In particular, members of civil society are concerned about the independence, efficiency and transparency of the appointment process, the institution itself as well as its processes. So far, Gambian civil society organizations have not had a direct engagement on the terms of the Commission, with the drafting of the Bill largely undertaken within the walls of the ministry of justice.

There is high public expectation for a new constitution given how deeply the Gambian state was effectively personalized and abused by the former president. Thus, the catchphrase in the country is ‘system change’. There appears to be unanimous agreement that the country needs an overhaul of the current political and institutional framework in order to usher in a whole new democratic dispensation. However, there is also huge contention as to the nature, extent and process of the system change. While pro-government constituents appear to believe that in fact system change is unfolding, many on the other side claim there has been no or little change so far. The success of the constitution building exercise is highly viewed as a test of the capacity of the new dispensation to meet renewed popular and political expectations for a new and democratic Gambia.

Madi Jobarteh is a Gambian human rights defender. He is currently the program manager of The Association of NGOs in The Gambia (TANGO).