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Gambia Constitutional Building Process – a second bite at the cherry

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Adama Barrow as flag bearer of a coalition of political parties defeated President Yayha Jammeh in the December 1st elections of 2016 and was sworn as president of Gambia in 2017 bringing an end to a 22-year long dictatorship that was characterised by a systematic abuse of the law and manipulation of the constitution with the aid of a rubber stamp National Assembly. The Barrow led government in line with its campaign promise to replace the 1997 constitution, proposed the Constitution Promulgation Bill in 2020, which aimed to replace the 1997 Constitution of the Gambia and establish a new one. The new Constitution would have introduced significant changes such as presidential term limits, quotas for women’s participation, parliamentary vetting of the appointment of senior public officers and limitations on the power of the executive. The 2020 draft also introduced socio-economic rights and had a more progressive bill of rights provisions. The 2020 draft would have marked a significant departure from the 1997 constitution which was amended over 52 times at the whim of the former president. Despite the overwhelming public buy-in and participation in the 2020 constitutional building process, the government sponsored bill was rejected at the first reading at the National Assembly.  The Bill could not pass the first stage as it did not receive the required three-quarters majority in the National Assembly, with only 31 out of 54 members supporting it. Despite this setback, the president of Gambia at the 2023 Legal Year promised to re-introduce a new Constitution in line with the legitimate expectations of the Gambian people. The minister of justice has not made any formal pronouncements on the modalities of introducing a new constitution or the applicable legal framework. It is presumed that the legal basis of re-enacting a new constitution will be section 226 of the 1997 Constitution. However, it is interesting to note that some scholars and politicians have questioned the constitutionality of using section 226 and some even characterised the attempt to replace the 1997 constitution using section 226 as treasonous. Suffice to say that, the first attempt to enact a new constitution in 2020 using section 226 was not challenged at the courts, it is prudent to examine the provision and its applicability for the wholesale replacement of the 1997 constitution. In this article, the authors will provide a brief history of the making of the Gambia’s 1997 Constitution and constitutional structure and the practical challenges that may arise in constitution’s reformation/reenactment. The authors will critically examine the constitutional basis of replacing the 1997 constitution under the current constitution.

In 1997, The Gambia’s current Constitution was established after a military coup against one of Africa’s oldest democracies led by Sir Dawda Kairaba Jawara in 1994. The military junta, called the Armed Forces Provisional Ruling Council (AFPRC), led by a young captain, initially suspended and eventually dissolved the Constitution through a decree passed by the AFPRC council, ending the first republic. The current Constitution was adopted through a direct referendum and not a constituent assembly, as proposed by the National Consultative Committee (NCC), a body constituted by the military junta to establish the timetable and modalities for the return to civilian rule.

The 1997 Constitution’s preamble stated that the people of Gambia endorsed the “change of government on July 22” (the day the first republic was undemocratically and unconstitutionally ended). The constitutional building process initiated by the APRC military junta’s context and background is not discussed in this blog, but many observers have commented that the process was under repressive circumstances and opaque.

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The democratic removal of Yahya Jammeh from the office in the Gambia marked the beginning of a transition from dictatorship to democracy in Gambia, which involved drafting a new constitution and addressing past human rights violations through the Truth, Reconciliation, and Reparations Commission (TRRC).[2] The new government, as part of their campaign promise, established a National Transitional Justice Program, which included the formulation of a new constitution. The Constitutional Review Commission (CRC) was established in December 2017 to review the 1997 Constitution and draft a new one. The CRC had a two-fold mandate to review the constitution and prepare a report on the draft constitution. They used a participatory approach to gather the views of Gambians on constitutional issues, which led to the creation of a comprehensive list of 369 questions and issues.

The CRC conducted nationwide consultations, engaged with various stakeholders, and consulted with Gambians in the diaspora to prepare a draft constitution, which was published in November 2019. The CRC then conducted a second nationwide consultation tour to gather feedback on the draft constitution, which was submitted to the President on 30 March 2020. The Bill was twice published in the government Gazette and introduced in the National Assembly but failed to receive the requisite majority vote in the National Assembly at the first reading.

In reference to the Gambian Constitution of 1997, there appears to be no exit provision that provides for the formation of a constituent body for the re-enactment of the Constitution. Article 226 of the Gambian Constitution provides the power to initiate a process for the substitution of the Constitution with a new one. The power to initiate such a process lies with the National Assembly. The Preamble to the Gambian Constitution confirms that the sovereignty in Gambia lies with the people of Gambia. It affirms that all power emanates from the people and mentions that participatory democracy is a key element in the Gambian Constitution, which provides for the undiluted choice of the people. Article 1 (2) further provides that sovereignty lies with the people and that the organs of the state must perform their role in accordance with the Constitution. Article 4 further emphasises that the Constitution is supreme.

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The Constitution of Gambia states that the people’s sovereignty was not relinquished in the 1997 Constitution. Instead, they maintained their original will which is represented by their representatives in the Gambian National Assembly. There are no implicit constraints on amending the Gambian Constitution as per the constitutional text. The power to amend the Constitution granted to the National Assembly by Article 226 is a manifestation of the constituent power, rather than a derived constituent power. Hence, the Gambian Constitution can be amended to the extent that a new constitution can be formed by exercising the power to amend.[5]

The wording of Article 226 offers a legal pathway for the re-enactment of a constitution with or without changes. This in our view gives full legal authority to the National Assembly to consider the replacement of the existing constitution with a new constitution provided the procedures stipulated in detail under s 226 are complied with.

The authors are of the view that formation of a new constitution is a political question and not a legal one. The 1997 constitution has set a very high bar for the amendment of certain clauses mentioned in article 226(7) which require higher threshold for amendment (a replacement of the constitution will be result  to the amendment those clauses ). At the initiation stage (2nd and 3rd reading) 75 % (three quarters) of the members must agree. This means that there has to be political consensus at the National Assembly due to the fact that the no ruling political party has an absolute majority in the National Assembly. This means the ruling and main opposition party must work on a bipartisan basis if the draft constitution is to be reacted as each of the major parties has a de facto veto power due to the high threshold.[6]. Even after scaling this hurdle , the final hurdle which is even a taller order is the threshold set at the referendum stage [ 50% of all registered voters and 75% of those who have cast their vote].[7]Given the very high threshold for public acceptance through a referendum, the need for a high level of political consensus and a bipartisan approach is critical to drum up public support.

The challenge  in Gambia is whether the ruling party  is able  to get  a super majority (75% ) in National Assembly election. Without a super majority or a bipartisan coalition , it will be difficult to reform the Constitution. The procedure for amendment of the constitution provided in Article 226 of the constitution functions as express limitation on the amendment power. The Constituent power can be exercised in the manner provided under article 226. Without procedural compliance, there may be incompatibility with the constitution.

In conclusion, whether or not the Gambia gets a new constitution befitting of an emerging democracy is more of a political than a legal question. Notwithstanding, constitutional building is a tapestry of legal, social and political processes which are all interlinked. The Government Gambia has an opportunity to re-enact a new constitution and the possibility of doing so in keeping with the participatory approach taken in the 2020 constitutional building process.

The authors conclude that section 226 of the current constitution provides the Government a legal pathway in our view to re-enact a new constitution to finally usher in a Third Republic.

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