After reviewing the 2024 draft constitution, it’s clear that it’s on a murky path to approval. While it has some progressive provisions (discussed below), this draft falls short of meeting the aspirations of the Gambian people as expressed in the 2020 draft.
For starters, this constitution building process was not comprehensive, and substantially, not inclusive. Some key stakeholders felt they were not adequately consulted and that the entire process was largely led by the executive branch. This was a completely different approach to the process we saw with the CRC four years ago. In essence, the national buy-in in the reviving of the constitution was grossly insufficient. Secondly, having drafted this constitution, one would have expected that the government would have also published an explanatory memorandum that provides the citizens with a summary of the major issues covered in the draft, particularly the changes that were made. [Don’t come to me with that scanty press release!] Considering the reading culture among Gambians and the fact that not many would have the time to read and examine a 171-page draft, such an important summary should have been provided. We saw the CRC do this four years ago.
Term limits – retroactive application
One of the most important issues for Gambians is the entrenchment of term limits. The 2024 draft does include TERM LIMITS, stating that “No person shall hold office as President for more than two terms of five years each, whether or not the terms are consecutive.” However, what is missing in the 2024 draft is the total omission of the retroactive application of term limits. The 2020 draft states that “The term of office of the person holding the Office of President as at the effective date shall be construed to include the existing term and the person may contest election for the Presidency for only one more term as provided in this Constitution after the expiry of the existing term.” This is deleted in the 2024 draft. We should remember that the retroactive application of term limit was perhaps the most contentious issue four years ago. A handful of 23 lawmakers sympathetic to Barrow killed that draft on arrival on the house floor, alleging it was discriminatory against President Barrow. After four years of reviving the constitution, one would have thought that the 2024 draft would have captured this very important requirement. Alas, this constitution failed woefully to address this part. What this means is, this draft, if approved, would make President Adama Barrow eligible to contest elections for two more five-year terms. This potentially gives Barrow 20 years in power, two years short of what Jammeh served. It’s gut-wrenching to think that a leader who ascended on a promise to serve a three-year transitional term could potentially be in power for 20 years. Following Jammeh’s exit, it was clear that Gambians didn’t want any more self-perpetuation in power. Gambians didn’t want any president to serve more than two terms in the office, as expressed during the 2020 constitution building process. In fact, one of the key messages sold to Gambian electorate by the 2016 coalition was ending self-perpetuation rule. That explained the three-year transitional agenda. It’s therefore baffling, if not disingenuous, that Barrow, who claimed to be a “big fan of term limits,” wants longevity in power. This unchecked ambition of Barrow runs contrary to what Gambians clearly want. It’s derailing The Gambia’s path to a true democratic dispensation, anchored on a constitution that befits it. By failing to address this issue, I don’t see how this constitution can make it through the National Assembly given the strong threshold requirement of three-quarters of members for approval. Every Gambian should speak out against this greedy desire for power elongation. Barrow should love his country more than the office he holds. In other areas, this constitution maintains some aspects of the 2020 draft, including the change of nomenclature of the Gambia Police Force to the Gambia Police Service. However, whereas the 2020 draft sought to make the police service independent, the 2024 draft falls short. Whereas both the 2020 and 2024 mandates the President to appoint the IGP, key elements have been altered. For example, the 2020 draft states that “The Inspector General of Police shall exercise independent command over The Gambia Police Service.” The 2024 draft thinned out this by stating, “The Inspector-General of Police shall exercise command over The Gambia Police Service.” The word INDEPENDENT has been deleted, thus making the IGP and the police service subject to executive control. Given the brutal past of the police force and its continued infringement on the rights of people even in a supposedly democratic Gambia, the 2024 draft should have adequately protected the police service.
50+ threshold for elections
Meanwhile, it is very progressive that the 2024 draft maintains a 50 plus victory threshold in presidential elections. Our current first-past-the-post is unfit for modern democratic dispensation. This will make the electoral field not only competitive but ensures that anyone who leads Gambians have a clear majority mandate.
Appointment of Chief Justice
Another area that caught my attention is the appointment of the Chief Justice, the head of the Judiciary. The 2020 draft states that “The Chief Justice and justices of the Supreme Court shall be appointed by the President acting on the advice of the Judicial Service Commission after confirmation by the National Assembly.” However, the 2024 draft altered this by stating that, “The President shall appoint the Chief Justice and other judges of the Supreme Court, acting on the advice of the Judicial Service Commission.” The 2024 draft removed the National Assembly from participating in such an appointment. This makes the CJ subject to executive control, as has been the case during Jammeh’s time.
DPP appointment
The same applies to the appointment of the Director of Public Prosecutions (DPP). The 2020 draft states that the DPP shall be appointed by the President, on the recommendation of the Public Service Commission, subject to confirmation by the National Assembly. The 2024 draft removed NA’s role.
IBEC
Also altered is the process to appoint members of the Independent Boundaries and Electoral Commission (IBEC). The 2020 draft states that “The members of the Commission shall be appointed by the President, subject to confirmation by the National Assembly with the votes of at least sixty percent of all the members of the Assembly.” The 2024 draft weakened this by stating, “The members of the Commission shall be appointed by the President in consultation with the Judicial Service Commission and Public Service Commission.” Again, the NA has been removed from this critical process. This potentially undermines the independence of the IBEC.
Recall of nominated members
Another area of concern is that Barrow also wants to be able to fire nominated lawmakers. The current draft caters for the President to recall a nominated member. Gambians would recall that the President failed in this attempt when he unsuccessfully fired Ya Kumba Jaiteh. It resulted in the Supreme Court decisively overturning the decision, making clear the need to nurture separation of powers.
Rights and freedoms
Notwithstanding, there are many progressive provisions in the 2024 draft, especially relating to economic and social rights, freedom of expression, freedom of association, freedom of the media, the right to operate a media house, women and children rights, rights of persons with disabilities, etc. It is also noteworthy that the draft caters to the progressive registration of citizens outside The Gambia, and the progressive realization of their right to vote. This is significant given the critical role of the diaspora in the country’s socio-economic development. For a constituency that helped brought down the dictatorship, it’s incomprehensible that they have not been able to vote in any elections nearly 10 years since this new government came into power. Meanwhile, the 2024 draft also mandates every political party to ensure that at least 10 percent of candidates for election to the National Assembly are youth. This is critical as it will encourage more young people to participate in the political process. Overall, Barrow and his government could have done better in presenting a more progressive draft. This draft fails to address a lot of issues that Gambians clearly expressed in the 2020 draft. The road ahead for this draft is bumpy, and unless significant compromises are made on both sides of the political divide, this draft is doomed to fail on arrival on the house floor.
