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.
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).