By Omar Bah
The government has now provided an explanatory note on the controversial 2024 draft constitution aimed at clarifying concerns raised by most Gambians.
One of the most talked about omissions is the chapter on leadership and integrity.
In its explanatory note on the matter, the government said: “While the chapter on leadership and integrity in the 2020 draft constitution may be well-intentioned and necessary for promoting good governance, such provisions may also be too detailed and prescriptive for inclusion in a national constitution.”
It further argued that though it is important to emphasise the principles of transparency, accountability, and integrity in public service, the specificity of certain provisions, such as the restrictions on the activities of public officers and obligations of persons dealing with public officers, may be challenging to implement and monitor effectively.
“The inclusion of such detailed provisions in a national constitution may limit flexibility and the ability to adapt to changing circumstances. It is more appropriate for these aspects to be addressed in legislation or regulations rather than being enshrined in the constitution. Additionally, the consequences outlined in clause 29 of the 2020 draft for contraventions of the provisions are quite severe, with lifetime disqualification for public officers and terminations,” the government argued.
The severity of these punishments, the government added, is disproportionate.
“It has been resolved that it is more practical to address these aspects through legislation or regulations that can be more easily amended and enforced. Furthermore, the preamble and clause 2 of the 2024 draft effectively replicate the essence and purpose of the chapter,” it added.
72-hours detention period
On the reversal from the 48-hours detention period by the police in the 2020 draft to retaining the current 72, contained in the 1997 constitution, the government said maintaining police detention powers at 72 hours allows law enforcement agencies adequate time to thoroughly investigate and gather evidence in complex cases before deciding whether to charge an individual or release them.
It added that reducing the detention period to 48 hours could limit the ability of law enforcement to conduct a comprehensive investigation and may compromise their ability to protect public safety effectively.
“A shorter detention period may also hinder the ability of law enforcement to effectively question suspects and obtain critical information in a timely manner, potentially impeding their ability to prevent future crimes or identify potential threats to public safety. It may also result in increased pressure on law enforcement agencies to make hasty decisions regarding charging or releasing suspects, which could compromise the integrity of the investigative process and lead to mistakes or wrongful convictions,” it added.
The government argued that while protecting individual rights to personal liberty is important, it is essential to strike a balance with the need to safeguard public safety and ensure that law enforcement agencies have the necessary tools and time to carry out effective investigations.
Disclosure of assets
On the deletion of clause 103(1)(a)(ii) and (b)(ii), which require the president to disclose all his assets, liabilities, and business interests of his/her spouse, the government argued that the primary focus of the disclosure requirements should be on the president’s own financial interests and potential conflicts of interest. “Requiring detailed disclosures about the spouse’s finances may not only infringe on the privacy rights of the spouse but may also not be directly relevant to the president’s duties and could potentially expose the spouse to undue scrutiny and therefore distract the process and dilute the effectiveness of the transparency measures,” it stated.
