Background
The Constitution Bill, 2024 is a step by the Government of The Gambia to strengthen democracy and entrench the rule of law after decades of authoritarian rule. The journey towards this new Constitution began in 2018 when the Government established the Constitutional Review Commission (CRC) through the Constitution Review Commission Act, 2017. The CRC was tasked with drafting a new Constitution that would reflect the will of the people of The Gambia and address the shortcomings of the 1997 Constitution, which was viewed as inadequate to uphold the tenets of democracy or provide good governance.
After 18 months of extensive consultations with Gambians across the country and in the diaspora, the CRC submitted its Draft Constitution to President Adama Barrow in March 2020. The Draft Constitution was regarded as a pivotal instrument to guide The Gambia through a trajectory to democratic transition. However, when the Draft Constitution was presented to the National Assembly, it was severely opposed. Unfortunately, the Draft Constitution passed the first reading in the legislative process but did not sail through the second reading. Some major reasons that account for its failure to sail through the second reading include the term limits for the presidency, the retroactivity of the limits, provisions regarding citizenship, and the process for impeaching a sitting President.
The rejection and subsequent failure of the Draft Constitution highlighted deep political divisions between those who largely supported the Draft and those who opposed it. In response to this impasse, the Government sought the assistance of the International Institute for Democracy and Electoral Assistance (International IDEA) to mediate and find a way forward. The mediation process involved several rounds of consultations with political parties, civil society, and other stakeholders. Despite efforts to build a consensus, some contentious issues remained unresolved.
Undeterred by few the unresolved contentions, the Constitution Bill, 2024 emerged from the process and reflects the outcome of the efforts at mediation. It also incorporates adjustments based on lessons learned from the failed Draft Constitution of the CRC. Moreover, the Constitution Bill, 2024 represents a renewed attempt to make an autochthonous Constitution that can garner the necessary support in the National Assembly and be endorsed by the people of The Gambia. This Bill aims to establish a legal framework that not only addresses the historical injustices of the past but also lays a solid foundation for a democratic and prosperous future for The Gambia.
Consultations preceding the draft constitution 2024
Following the rejection of the Draft Constitution prepared by the Constitutional Review Commission in September 2020 (the 2020 Draft”), the Government, through the Ministry of Justice and in partnership with International IDEA, facilitated a series of mediation sessions on the revival of a draft constitution for The Gambia. Since the 2020 Draft had been struck out, the drafting team from the Ministry and IDEA have worked to adjust the different clauses of the draft Constitution on which action was agreed by stakeholders. IDEA met with H.E President Adama Barrow on 12 January 2021 to brief him on progress and share thoughts about the next steps envisaged to ensure that the revised Constitutional document successfully sails through parliament and is approved at a Referendum.
IDEA and the Ministry engaged with media editors as well as the leadership of the Gambian civil society Transitional Justice Working Group (TJNW, the Gender Platform, and the Youth Forum). During these engagements, it clarified disinformation regarding their review process, especially regarding financing, and launched initiatives aimed at catalyzing an upsurge of support for their work towards a new Constitution. These initiatives included participatory national and community radio programmes involving listener phone-ins.
Overall, significant progress has been made since the mediation began in December 2020. Supported by various international partners, and the consultation process has gone through two phases, with the goal of reaching a consensus on key contentious issues identified in the CRC’s Draft.
First phase
The first phase of the mediation took place between December 2020 to March 2021, with the support of the United Kingdom Foreign Commonwealth and Development Office. Facilitated by H.E. Goodluck E. Jonathan, former president of the Republic of Nigeria, this phase involved intense consultations with political party leaders, Civil Society Organizations, traditional rulers, and faith-based organizations.
This culminated into a high-level Consultative Retreat for Political party leaders on the draft Constitution of The Gambia held at the Transcorp Hilton Hotel in Abuja, Nigeria from the 23rd to 25th February 2021. Facilitated by H.E Dr. Goodluck Jonathan, the event aimed to secure party leadership commitment to the Constitutional process. Convened at the instance of the Office of the Attorney General & Minister of Justice of The Gambia and International IDEA, the retreat was attended by leaders of all but two political parties in The Gambia and an ECOWAS representative.
In preparation for this consultative retreat in Abuja, the revised draft of the Constitution had been circulated to the leaders of all political parties and civil society for their information, review, and any further input prior to gazetting.
The purpose of this Consultative Retreat was for political party leaders and the Attorney-General and Minister of Justice to meet with H.E Dr. Goodluck Jonathan to assess the adjustments that have been made to the CRC Draft. It also afforded an opportunity to H.E Dr. Goodluck Jonathan as well as Ecowas leadership to encourage the party leaders to renew their commitment to seeing the Constitutional process to fruition. Finally, it served to facilitate a post-mediation mission to The Gambia for H.E Dr. Goodluck Jonathan to meet with all political party leaders and address members of the National Assembly.
By the end of this phase, a consensus was reached on twenty-one out of twenty-four issues identified, leading to an agreement to restart the process after the 2021 electoral cycle in The Gambia.
Second phase
The second phase of the mediation began in August 2023, supported by the Netherlands Ministry of Foreign Affairs and the European Union Delegation to The Gambia. Facilitated by H.E Dr Mohamed Ibn Chambas, AU High Representative on Silencing the Guns, and three Local Moral Guarantors (Imam Darboe, Bishop Bannie Manga and Mrs Fatou Jagne Senghore), this phase involved follow-up consultations with party leaders on the remaining three issues of contention.
On the 12 of August 2023, the Eminent Person, H.E. Dr Mohamed Ibn Chambas and IDEA Regional Director and his Team arrived in The Gambia. The Eminent Person and the local Guarantors conducted bilateral consultations with political party leaders including the leaders of the NPP, Hon. Seedy S.K Njie, UDP, H.E Ousainu Darboe, PDOIS, Hon. Halifa Sallah and GDC, Hon. Mama Kande on the possibility of reintroducing the draft constitution by seeking consensus on certain aspects of the draft constitution that are considered contentious amongst political parties.
On the 14 of August 2023, there was a working lunch with all Political party leaders at the Sir Dawda K. Jawara ICC. This was followed by an Information and Consultation Session where the leaders expressed their thoughts and opinion on the reintroduction of the draft constitution, and overall, reiterated their support of the reintroduction of the draft constitution. In the evening, HE Dr Chambas and his team briefed the international partners on the consultations they had with political parties and the way forward.
On the 15 of August 2023, HE Dr Chambas held an Information Session with the Members of the Interparty Committee at Sir Dawda K. Jawara ICC on the constitution. This was followed by another Session with CSO platforms involved in the Constitutional Reform Process.
On February 12, 2024, HE Dr Mohamed Ibn Chambas paid a courtesy visit to HE Adama Barrow President of The Gambia at the State House. The purpose of the visit was to brief President Barrow on the consultations conducted thus far with various stakeholders regarding the Draft Constitution. Dr Chambas provided an update on the progress of the consultations and discussed the next steps in the consultative process.
On February 12th and 13th, 2024, HE Dr Mohamed Ibn Chambas held a consultative meeting with members of the National Assembly at the International Conference Center to discuss the Draft Constitution with a view of paving a way of its reintroduction in the National Assembly.
On February 12, 2024, HE Dr Mohamed Ibn Chambas hosted a working dinner at Coco Ocean Hotel to brief international partners on the Draft Constitution. The event provided a platform for Dr Chambas to update attendees on the consultative process with different stakeholders. The goal of the briefing was to facilitate feedback and strengthened international support for the constitutional process, ensuring continued collaboration and transparency moving forward.
On February 13, 2024, HE Dr Mohamed Ibn Chambas held bilateral consultations with political party leaders represented in the National Assembly regarding the Draft Constitution. The consultations took place at Coco Ocean Resort and included discussions with Honourable Halifa Sallah leader DPOIS, H.E Ousainou Darboe leader of the UDP, and Honourable Mama Kandeh the leader of GDC.
HE Chambers departed from The Gambia on the 14th day of February 2024.
Additionally, information sessions were held with various stakeholders, including Civil Society Organizations, traditional rulers, and faith-based organizations. An induction session for National Assembly Members and a capacity development session for the Standing Committee on Human Rights and Constitutional Affairs were also conducted during this period.
Therefore, during the second phase, a consensus was reached by National Assembly members on compromises reached during the first phase and on the remaining issues of contention. This consensus was confirmed by party leaders at the National Assembly. However, there were few technical issues, such as cross-carpeting by MPs and citizenship, which were not settled and further intra-party dialogue and consensus-building with independent members of the National Assembly was recommended.
Concluding remarks
There was a consultation process for the draft constitution in The Gambia which led to significant progress and brought parties closer to an agreement on key issues. The involvement of diverse stakeholders and leadership facilitation were crucial in advancing the process. There is no doubt that further discussions and dialogue are still needed to reach a full consensus.
The report from the mediation process was one of the documents considered by the Cabinet during its review. Building a constitution is a complex task, as it aims to address numerous societal issues in a single document. Due to the significant national issues a constitution seeks to tackle, it garners greater attention and contention than ordinary legislation, which usually focuses on specific aspects of society.
The Government of The Gambia remains committed to ushering in a new, progressive Constitution that is an embodiment of our collective will and resolve for democracy, good governance, separation of powers, sustainable environment and equitable distribution and use of resources, the rule of law, equality and observance of the principles of fundamental human rights and freedoms.
