constitution building

Constitutional Developments in The Gambia: Readying for a New Constitution

Constitution building in the Gambia dates back to the colonial period particularly when the country became a full-fledged colony between 1894 and 1902. In order to ensure effective control over the Gambia the British had to develop various constitutions through which they built institutions to enforce their authority over the lands and people of the Gambia.

Two of the foremost institutions through which the colonialists governed the country were the Legislative Council and the Executive Council. The Legislative Council for the Gambia met for the first time in 1843. Since then various constitutions were created to expand and determine its mode of membership, i.e. either by selection, nomination or election. Usually membership was concentred on Europeans until 1883 when a Gambian, J.D. Richards was appointed into the body. But by 1947 a new constitution was created that allowed for the election of an African representative from the colony for which EF Small was elected for Banjul.  

The Legislative Council was eventually abolished in 1960 to be replaced by a House of Representatives following the 1959 constitutional conference and the subsequent creation of a new constitution by Governor Edward Windley. That constitution established the House of Representatives consisting of 34 members, 19 of whom were directly elected. It also gave the right to the people of the protectorate for the first time to directly elect their representatives. It was this constitution that actually opened the floodgates for the journey towards Gambian Independence.

The constitutional development process continued in 1961 when another conference was held in Banjul from 4 – 11 May 1961. This led to the London constitutional conference which was held in the same year on July 24. It was these conferences that gave birth to the 1962 Constitution which set the stage for elections that year and constituted the House of Representatives thus; 25 seats for Protectorate, 7 seats for Colony and 4 Chiefs. Consequently the 1962 elections resulted in PPP winning 18 seats, UP 13 seats and DCA with 1 seat. The 1962 Constitution also created an Executive Council headed by the Governor, a prime minister, an attorney general and 8 other ministers.

The significance of the 1962 constitution was that it created 32-member representatives and set the motion for the Gambia to attain internal self-rule. Therefore when the PPP won the majority seats, the Governor appointed Jawara as Premier and asked him to form his cabinet. In October 1963 the colonialists gave the country full internal self-rule status and Jawara then became Prime Minister.

In the following year, 1964 the most significant constitutional conference was held in London where the subject matter was the independence of the Gambia.  This conference led to the enactment of the Gambia Independence Act in December 1964 by the British Parliament with the title, ‘An Act to make provision for, and in connection with, the attainment by The Gambia of fully responsible status within the Commonwealth’.

The London conference agreed that the Gambia would become independent on 18 February 1965 on the basis that it will seek membership of the Commonwealth and that the Queen of England would also become the Queen of the Gambia. On the appointed date, at a huge colourful ceremony in Banjul the Union Jack was lowered and the Gambian flag was hoisted. Jawara was formally confirmed as Prime Minster and Sir John Paul was appointed as Governor-General. In 1966, Paul was replaced by Sir Farimang Singhateh as the Governor General.

From the foregoing it is clear that the Gambia was indeed not an Independent country by 1965 but a British dominion with internal self-government status. Hence the journey towards independence continued with two referendums on the question of being a republic. The first referendum was held in November 1965 but the ‘Yes Vote’ fell short of the two-thirds majority by only 758 votes. The second referendum was held in April 1970 where the two-thirds majority was met and the Gambia was declared an independent republic on 24 April 1970.

The result of that referendum meant that another constitutional process had to emerge leading to the creation of the 1970 Republican Constitution. However by then this constitution was already passed by the House of Representatives on 18 December 1969 but then assented to by the Queen of England on 24 April 1970. That constitution unified the office of Head of State into an Executive Presidency and abolished the office of the Governor General, as head of state and representative of the Queen of England. Jawara became the first President of the Republic and Sir Farimang Singhateh ceased to be Governor General.

Since 1970 the Gambia did not encounter any major constitutional issues until 1994 when the military overthrew the PPP government and suspended parts of the 1970 Constitution. Following a transitional process lasting two years a new constitution was drafted and subjected to a referendum in August 1996 that came into force in January 1997.

There exist fundamental differences between the 1970 and 1997 constitutions. For example while Section 1 of the 1970 Constitution stated that the Gambia was a sovereign republic yet it did not establish on who resided that sovereignty. In the 1997 Constitution, section 1 subsection 2 clearly states that the sovereignty of the Gambia resides in the people of the Gambia and the legitimacy of the state is derived from the people. The 1970 Constitution did not have a preamble which is contained in the 1997 Constitution. While both constitutions have stipulated the fundamental rights and freedoms of Gambians, yet the 1997 constitution was more extensive and explicit under the Chapter Four.  Furthermore the 1970 Constitution did not provide for the establishment of most state institutions as is the case in the 1997 Constitution. In fact the 1970 Constitution was enacted as an act of parliament and not subjected to a referendum as was the case with the 1997 Constitution. However the 1997 Constitution also leaves much to be desired especially given the uncountable amendments it has been subjected to over the period to satisfy the whims and caprices of former president Yaya Jammeh.

In building a new constitution for the Third Republic, major lessons must be learnt from both Independence constitutions to ensure that fundamental republican and democratic values, standards, institutions and processes are clearly provided and protected to ensure good governance. This includes presidential term limits, limitation of the powers of the president, expansion of the rights of citizens and strengthening the oversight functions of the parliament.  

A constitution of any society does not only provide a legal basis for the existence of that body but also establishes the rights and obligations of the members individually as well as the body itself as a whole. A constitution further defines and sets the aims and objectives of that body as well as the values, standards, rules, processes and institutions of that society. Hence a constitution therefore is also a performance assessment and an accountability tool that determines the health and strength of any body and its members. For that matter a constitution is usually set in a kind of language and structure that makes it long-lasting, difficult to change and sustainable in order to cater for the present and the future needs of society at the same time.

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This article draws from many sources including;

1.      Hughes, Arnold and Perfect, David. “Historical Dictionary of the Gambia”. The Scarecrow Press, Plymouth, fourth edition, 2008

2.      Hughes, Arnold and Perfect, David. “A Political History of the Gambia, 1816 – 1994”, Rochester, N.Y.: University of Rochester Press, 2006

3.      K. Jawara, Dawda. “Kairaba”, Haywards Heath, West Sussex, UK. 2009

4.      A.S. Jammeh, Ousman. “The Constitutional Law of the Gambia: 1965 – 2010”, AuthorHouse, 2011

5.      Saine, Abdoulaye S, Ceesay, Ebrima Jogomai and Sall, Ebrima. Eds. “State and Society in the Gambia Since Independence: 1965 – 2012”, Africa World Press, Trenton New Jersey, 2013

6.      Constitution of the Republic of the Gambia 1970

7.      Constitution of the Republic of the Gambia 1997

 

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.