Constitutional law

2019 Global Review of Constitutional Law: The Gambia in Focus

Congratulations to Dr Satang Nabaneh, Founder & Editor, Law Hub Gambia, Gaye Sowe, Executive Director – Institute for Human Rights and Development in Africa (IHRDA); and Maria Saine, Legal Fellow, IHRDA & University of The Gambia. Their joint country report on The Gambia was published as part of the I-CONnect-Clough Center 2019 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 fourth edition of the I·CONnect-Clough Center Global Review of Constitutional Law. This 2019 Global Review assembles detailed but relatively brief reports on constitutional developments and cases in 73 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://papers.ssrn.com/sol3/papers.cfm?abstract_id=3736382

Suggested citation:


Nabaneh, Satang and Sowe, Gaye and Saine, Marie ‘Gambia’ in Albert, Richard and Landau, David and Faraguna, Pietro and Drugda, Šimon, I·CONnect-Clough Center 2019 Global Review of Constitutional Law (November 26, 2020) The I·CONnect-Clough Center 2019 Global Review of Constitutional Law, pp. 129-133.


The Gambia: In focus

 The year 2019 saw The Gambia move from setting up key institutions such as the Constitutional Review Commission (CRC), Truth Reconciliation, and Reparations Commission (TRRC) and the National Human Rights Commission (NHRC) to actualising the key transitional justice standards required to restore rule of law and democracy in the country.

This report gives a brief overview of constitutional developments and major constitutional law cases in 2019 and looks at the way forward for The Gambia in 2020.

Download The Gambia Chapter here.

The full report is available here.

 

Commentary on the Landmarks in the 2020 Draft Constitution of The Gambia

While the Final Draft Constitution generated many controversies from the public, it also lay before us tremendous opportunities to map out a durable constitutional compact from the ongoing transitional justice process. Former British judge, Lord Denning once wrote, ‘the law never stands still. It goes on space. You have to run fast to keep up.’ Inspired by this universal truth in the continuous evolution of the law, these essay series highlight some of the significant transformations that the Final Draft Constitution 2020 seeks to usher in Gambia’s constitutional history.

Following the defeat of President Yahya Jammeh in 2016, the country immediately embarked on a massive constitutional reform, citing the numerous amendments made to the 1997 Constitution since its adoption and the palpable desire to set the country on a secure constitutional democracy. After lengthy and unprecedented public consultations, the constitutional reform agenda gave birth to a long-awaited ‘New Constitution’, which was submitted to His Excellency President Adama Barrow on 30 March 2020 in accordance with Section 21 of the Constitutional Review Commission Act, 2017.

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These essay series are intended as a modest contribution to the ongoing constitutional dialogue and to bring out the major landmarks in the Final Draft by identifying the significant additions from the perspective of constitutional democracy and human rights. By landmarks, I refer to those major additions that have immediate and significant ramifications on the existing state architecture from the legislature, the executive, the judiciary, and individual rights. These analyses proceed on the theory that the basic essence of a constitution is to prevent tyranny and ensure efficient delivery of socio-economic services, on account of the state’s central role of safeguarding the dignity of individuals. Equally, a Constitution must empower the government to effectively and efficiently deliver its functions to the citizens. The content of the Final Draft has ever since provoked different reactions, with mixed feelings of hope, national accomplishment, and skepticism. Some of my learned friends at the Bar have rightly described it as ‘a very ambitious constitution’ while few skeptics have described it as ’carbon copy’ of the 2010 Kenyan Constitution.

There seem to be some element of truth in all these reactions if one considers the lofty visions of the Final Draft and the obvious similarities, almost word for word in certain provisions, with the 2010 Kenyan Constitution. However, even though a Constitution is supposed to derive its uniqueness from the views and aspirations of the people, it remains an instrument of governance that is usually grounded in universal values and principles that cut across countries, people, geography, and time. Such values may include democratic pluralism, administrative fairness, separation of powers, transparency, accountability, and human rights. The importance of these values in the Final Draft should remind us of the consequences of their absence in the affairs of a state. One just needs to follow the testimonies of witnesses before the truth commission to appreciate the gruesome price paid by many Gambians in a state of constitutional disregard. Therefore, some of the values can be seen as responses to the recent past of the country.

In the interest of providing a counter to this ‘plagiarism of the Kenyan Constitution argument’, I must state that when position papers were submitted by individuals and organisations, some of these papers explicitly asked the Commission to adopt certain provisions from other Constitutions including the Kenyan Constitution. If the commission copied some of these sections, it was because the commission took into consideration the views of the Gambian people, as it is obligated to.  

It is only natural that I commence this reflection with  certain core values that underpin the Final Draft noting the fact that the framers have set the basic structures of the draft Constitution on certain core values. Foremost, the Preamble. It provides that we give ourselves and future generations ‘this Constitution as a beacon of hope, stability and national unity, progress, peace, and prosperity.’ Section 1 (1) maintains the democratic pluralism of The Gambia and beautifully put to rest the contentious secularism debate under sub-section (2) with the consequence of guaranteeing fair treatment of all faiths. In addition to these democratic values, Chapter 3 is dedicated to ‘national values and principles.’ It is my view that the inclusion of these values in the operative texts or provisions of the Final Draft indicates the real effects that are intended to bear on the conduct of the state and the people. They strengthen the guiding principles in the Preamble. This reflects a departure from the 1997 Constitution, wherein the national values are subsumed in the Directive Principles of State Policy with a caveat that they are not justiciable. However, section 11 of the Final Draft provides that national values bind all state organs, local government authorities, public officers, and all persons where they interpret, enact, or make public policy decisions.

On leadership, Section 24 of the Final Draft enumerates the virtues of ‘desirable leadership’ in public offices requiring a commitment to integrity, accountability, transparency, respect for the rule of law, dignity, and selfless service to the public interest. The rationale for the inclusion of these virtues in public administration means that the framers do not rule out the fact that the change of government in 2016 may not automatically end the complicit culture that transforms seemingly good leaders into unaccountable tyrants.

Professor Charles Fombad argues that to ensure that the good people put in public offices do not become the tyrants and dictators we abhor, constitutions must be devised that do not only promote constitutionalism but also guarantee accountability and responsibility. Therefore, the above principles do not only serve as benchmarks to ensure accountability of public offices, but they also impose constitutional commitments of selfless service by the leaders towards the general public from whom every leadership derives its legitimacy.

The next analysis will focus on the elaborate and extensive bill of rights in the Final Draft. It is often said that a bill of rights may occupy a small portion of a Constitution, but it has the potential to safeguard individuals from tyranny on the basis of universal standards and benchmarks.  

Published! The 2018 Global Review of Constitutional Law: The Gambia in Focus

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, Founder and Editor, Law Hub Gambia, whose chapter on The Gambia was published as part of the I-CONnect-Clough Center 2018 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 third edition of the I·CONnect-Clough Center Global Review of Constitutional Law ISBN: 978-0-692-15916-3.)

The 2018 Global Review assembles detailed but relatively brief reports on constitutional developments and cases in 65 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.

The Gambia: In Focus

 With the peaceful transition after 22 years under an authoritarian regime that began in July 1994, 2018 saw the new government of The Gambia, headed by President Barrow, take measures to restore good governance, rebuild public confidence in key institutions, uphold human rights in the context of transitional justice. This is happening in two-fold: first dealing with past human rights violations and abuses; and second, ensuring that the governance architecture upholds the highest standards of respect for human rights, the rule of law and justice. This report looks at major constitutional developments and constitutional cases in The Gambia in the past year.

“Despite the excitement and enthusiasm that greeted the onset of multiparty democracy following decades of authoritarian rule, The Gambia’s democracy remains fragile. There are concerns regarding the absence of a comprehensive anti-discrimination legislation and existing repressive laws.”

Nabaneh & Sowe

Available SSRN: https://ssrn.com/abstract=3471638 or http://dx.doi.org/10.2139/ssrn.3471638

Suggested citation:


Nabaneh, S and Sowe G ‘The Gambia: The state of liberal democracy’ in Albert R, Landau, D, Faraguna P, and Drugda Š. The I·CONnect-Clough Center 2018 Global Review of Constitutional Law (October 21, 2019), pp: 107- 111.


You can download the whole report here:

Download The Gambia chapter.

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.