By Morro Gaye
Many promises have been made in the past months to adopt the new constitution before the end of 2024 by President Barrow. Yet, the chance of realizing this dream is now becoming a distant possibility. The current proceedings at the National Assembly will soon come to an end and it is noted with grave concern that the proposed Constitutional Promulgation Bill 2020 is not included in this 2nd session’s agenda. However, the next ordinary session will be held in September 2024 immediately after the MP’s long holiday recess.
It is now 4 years since the bill was rejected at the House. With time running short, it would be impossible to promulgate the new 2020 Constitution and gazette it before its second reading. It could be recalled that the bill was suspended for failing to meet the required number of votes dashing the hopes of many Gambians who wanted to have the old 1997 Constitution replaced. This existential threat to our constitutional democracy can only be solved by the enigmatic Adama Barrow.
It is a national disgrace to hear ECOWAS expressing serious concerns about the long-delayed bill and reminding the president to urgently put it into force as soon as possible. Unlike many other African countries, Gambia has had a remarkable constitutional history since the time of colonialism. Constitutional development in the Gambia began in 1765 to grant churchmen, military personnels and merchants a forum on how to administer the colony. In 1821, a new constitution came into force separating the colony from the rest of the country called the Protectorate and placing the country under the jurisdiction of the Governor of Sierra Leone.
According to historical records, there were more constitutional changes made in 1883, 1893, 1915, 1921 and 1945 when the Gambia was given Parliamentary status. This was revised in 1951 resulting in the introduction of the ministerial system of government. Further changes were made in 1953 through a consultative committee and a revised constitution came into force in 1954. Following consultation with leaders of political parties and representation of the Protectorate another constitution was adopted in 1960.
This was however amended in 1962 when elections were held and Sir Dawda Jawara won decisively to become Premier. Further consultations followed and in 1963 the position of Premier was changed to Prime Minister with full internal self-government. The constitutional conference held in London; England provided the setting up the Gambia Independence Act and another constitution came into effect the date of Independence, 18th February 1965.
Historical records further indicated that after independence, Gambia had three other constitutional changes namely the 1965 Constitution, the 1970 Republican Constitution which was suspended following the overthrow of the democratically elected government of President Jawara in 1994. That AFPRC military coup was led by Yahya Jammeh then lieutenant who was ruling the country by Decree.
Following a series of consultations from concerned citizens and international development partners, a two-year transition programme was prepared to return the country to civilian rule which saw the creation of a Constitutional Review Commission to prepare a new constitution that was later adopted in 1997.
Regrettably, after seven years in power, Adama Barrow still refused to change the 1997 constitution which was prepared 27 years ago during military dictatorship and many of its original provisions have been changed more than 50 times from 2001 to 2017 without following due process. This document has a number of its provisions still unsuitable for use in a democratic governance, In the absence of a revised constitution our court systems, legislature as well as those at the executive branch of Government are still being guided by the significantly flawed 1997 constitution with its outdated provisions.
As the association of the brightest legal minds in this country, why the Gambia Bar Association is still silent on the dilly-dallying of the executive and some members of the legislature to delay the passing of the draft constitution? Before coming out to defend the renumerations and retirement benefits of Judges whose numerous allowances far exceeded that of the cabinet ministers, it should be noted that the only allowances our judges are not being paid is ‘reading-glasses’ allowances. The GBA must take the lead in the fight to bring back life to the dying draft constitution. otherwise, those of us with limited legal background would be unrelenting in our struggle to right some of the many wrongs prevailing in this government.
Following the 2016 presidential elections which brought Adama Barrow to power, two very important bills were passed in the National Assembly- the TRRC Act and the Constitutional Amendment Act. The TRRC has since completed its work with the necessary reports submitted to the Government and, based on those reports, a White Paper was issued for the implementation of the recommendations contained therein which is now on course.
With regards to the Constitutional Promulgation Act, a Constitutional Review Committee (CRC) was established to carry out the work of building a new constitution. Extensive consultations with civil societies, religious bodies, political parties and even Barrow and his cabinet were carried out. That process was very thorough, transparent and all-inclusive, the team had to travel both inside and outside the country to meet Gambians in the diaspora and capture their views and opinions on the document. The whole process cost over D100 million many people became disappointed when the draft bill was killed and could not go pass the second reading at the House.
Those lawmakers who rejected the bill were all members of Barrow’s NPP political party. Concerns were raised that the new constitution did not favor the sitting president as it stipulated that the counting of term limits should begin from the first term of his rule. With 23 members voting against the proposed Constitution Promulgation Bill 2020, it fell short of the three-quarters required to put it to a referendum.
The rejection of the bill violated the basic structure doctrine of constitutional building process. Every amendment or substitution of existing constitutions are determined by the wishes and desires of the people. it is the people, not those elected political class, who give lives to a self-sustaining constitution. What the president and the lawmakers are doing to ordinary Gambians, denying them the opportunity to express their wishes and desires in the 2020 draft constitution through a referendum are unconstitutional. The 1997 constitution have been amended more than 50 times from 2001 to 2017, and many of its entrenched clauses have been replaced or amended without being subject to referendum as required by law.
One of the deficiencies in our superior courts is the lack of a dedicated Constitutional Court with the sole mandate to adjudicate on matters of strictly constitutional nature. As was observed in the recent political tensions that gripped our neighboring Senegal, it was the decisions of the ‘Conseil Constitutionel’ that prevented our neighboring country from descending into a state of anarchy when the former president decided to set his own timeframe for the presidential election.
The immunity of our lawmakers and even the president should have been set aside in matters of purely constitutional nature if they affect the desires and wishes of the people. In a constitutional democracy, power belongs to the people. The elected political class have unfair advantage over the ordinary people by virtue of their elected offices. Those offices are institutions and should not have the power to block the passage of the people’s bills neither do they have any legal authority to manipulate the provisions of the constitution to overstay in power or to delay the adoption of a new constitution to circumvent the term limits. These actions are not only illegal, but ethically unacceptable.
The 2020 Constitution Promulgation Bill was dead on arrival. The rejection of the bill by the National Assembly left many Gambians in anger and disappointment. But since its obituary is yet to be cast on stone, there is a glimmer of hope that as we are heading to the 2026 presidential elections, and if the promises we continue to hear from President is fulfilled, the old unsuitable 1997 constitution will soon be buried.
The president must pay close attention to the request from ECOWAS because when the time was tough in 2016, it was the military intervention of the regional bloc that facilitated his ascension to power and they are still relevant to the security of the country after 7 years in power. Will the voices of the people of the Gambia be heard? only time will tell. But time is now our only enemy as we match towards the path of achieving a genuine constitutional democracy.
Adopting a new constitution must be a priority!
