By Omar Bah
The controversial draft constitution currently under debate, has omitted the clause in the 2020 draft constitution which provides a right to natural or juristic persons to own and operate media in The Gambia, and limited this right to only Gambians. This means that under the new draft, only Gambians can own media houses in the country.
Justifying this changes in its explanatory note, the government said: “The 2024 draft limits the right to own and operate media to only Gambians whether natural or juristic, because in the context of a small nation like The Gambia, restricting media ownership to citizens helps promote national security, preserve cultural integrity, ensure economic gains for locals, build public trust, and enhance regulatory efficiency.”
“Overall, confining the ownership and operation of media houses to Gambians is a measure to protect the national sovereignty of The Gambia and will also ensure that the media reflect and promote local content from a balanced and objective view, then report news about The Gambia from an indigenous perspective. The government also believes that this provision will promote economic empowerment by creating opportunities for Gambians to invest in the media sector,” it added.
Protest
Also, justifying the changes and limitations to Clause 50 in the 2020 draft which provides that every person has the right, peaceably and unarmed, to assemble, to demonstrate, to picket, and to present petitions to public authorities or private institutions, the government said this is informed by the need to balance the protection of rights and public interests. “Clause 42 of the 2024 draft explicitly acknowledges the importance of balancing individual rights with broader societal needs. While it protects the freedom of assembly and demonstration, it also allows for necessary restrictions in cases where such freedoms might jeopardise national security, public order, or other critical societal values,” it argued.
On the other hand, the government argued, Clause 50 of the 2020 draft provides broad and somewhat unchecked rights without explicitly considering the potential need for restrictions in certain circumstances, which could lead to situations where public safety or national security might be compromised.
“The ability to impose ‘reasonable restrictions’ is critical in a democracy, where the exercise of one person’s rights should not infringe on the rights of others or threaten the stability of the nation. This approach provides the clarity and legal precision that will prevent arbitrary enforcement”.
According to the explanatory note, the provision also aligns with international standards such as the rights recognised by the International Covenant on Civil and Political Rights (ICCPR).
“The provision under the 2020 draft Constitution does not sufficiently provide the necessary safeguards to address potential risks to public safety and order. Neither does it establish guidelines to stabilise individual freedoms with the collective needs of society, on the proverbial scale of justice. Invariably, this portends challenges in maintaining peace and respect for cultural norms. The new provision, therefore, offers a more comprehensive and practical framework that will secure the right to peaceful assembly without impeding the broader interests of the nation,” the government explained.
Supreme Court
On the matter of the Supreme Court, the 2024 executive draft deleted the entire clause dealing with jurisdiction of the Supreme Court to decide the validity of a declaration of a state of public emergency. This clause provides the Supreme Court with the authority to decide on the validity of declarations of state of public emergency, extensions of such declarations, and any legislation or actions taken in consequence.
However, according to the government, the National Assembly already exercises oversight on the process of declaring a state of emergency and therefore the implementation of this clause in the draft constitution poses several potential challenges.
“This clause introduces the possibility of conflict between the judiciary (Supreme Court) and the legislature (National Assembly). When both have overlapping oversight authority, disagreements over the validity of emergency declarations could arise, leading to institutional friction,” it argued.
The government further argued that the National Assembly’s oversight could be undermined if the Supreme Court has the ultimate say on the validity of its decisions concerning state emergencies. ”This might be perceived as diminishing the legislative branch’s power and affecting the balance of power within the government. The necessity of judicial approval for declarations and extensions of states of emergency could slow down government response time during crises, as each step might require legal validation. This might delay expedited governmental response in genuine emergencies,” the government argued.
