Let me begin by welcoming you, the members of the media, to this historic dialogue with the Constitutional Review Commission (CRC). We have had many interactions during which we updated you on matters concerning the ongoing assignment of the CRC. And you played your part, within the spirit of the partnership we’ve developed from inception, in imparting relevant information to the general public. We remain satisfied with the partnership and assure you of our continued cooperation as we get closer to the finishing line to “perfect” and deliver a new Constitution for the Republic of The Gambia.
We at the CRC are fully aware that many, if not all, of our compatriots are waiting in anticipation to see and learn of what the proposed draft Constitution contains and, perhaps even more importantly, whether the draft achieves the goal of addressing their wishes and aspirations. I am pleased to announce, on behalf of my colleague Commissioners and indeed the Secretary and staff of the CRC, that in a matter of minutes from now we will publish the proposed draft Constitution. The purpose of the publication, as we had indicated during our various public consultations, is to continue the inclusive and participatory process of Gambians in the design and development of the new Constitution for The Gambia. The eleven Commissioners are merely leaders in this exercise, but the draft Constitution is effectively the effort of all who have participated and continue to participate in its development.
However, I consider it important to take us back a little bit to where the CRC started. The CRC was established by the Constitutional Review Commission Act, 2017 (CRC Act) through the enactment by the National Assembly and the President. This was seen as particularly necessary given the history of the current Constitution which had undergone numerous amendments to the extent that not all were in agreement on the actual number of amendments effected to it in a short span of time. It therefore became necessary to review the current Constitution with a view to ensuring the development of a new one that can stand through thick and thin for generations to come.
On June 4th 2018, His Excellency the President of The Republic appointed and swore into office the members of the CRC who immediately went to work commencing on 5th June, 2018. Under the CRC Act, the CRC has 18 months to review, draft and deliver a new Constitution. That journey, though tough on many occasions, turned out to be a very rewarding and satisfying one for all of us. We are indeed grateful that we have together been able to reach this far in the execution of our assignment.
Throughout the execution of our assignment, the CRC Act has been our guide, ensuring at all times that we adhere as closely as possible to the terms of the Act. Specifically, section 6 (2) of the Act requires that, in carrying out our functions, we seek public opinion and take those into account as considered appropriate, adhere to national values and ethos, and safeguard and promote the existence of The Gambia as a sovereign independent State, the country’s republican system of governance, including its democratic values and respect for human rights, the separation of powers, national unity, cohesion and peace, the importance of ensuring periodic democratic elections, including term limit for the Office of President, and The Gambia’s continued existence as a secular State in which all faiths are treated equally and encouraged to foster national cohesion and unity. In this process, we were also required to afford Gambians, both at home and abroad, the opportunity to express their opinions and indicate their wishes and aspirations. In addition, we were empowered to invite persons to appear before the CRC to freely express their opinions. In performing all of these functions, the CRC was to remain independent and not subject to any direction or control.
Following the development and adoption of various strategic documents and the hiring of necessary support staff, the CRC embarked on various forms of public consultations. We had the face-to-face in-country public consultations and focus group discussions at which we had direct face-to-face dialogue with specific interest groups including Schools; we also undertook and conducted household surveys using The Gambia Bureau of Statistics (GBOS)’ enumeration areas; we rolled out online questionnaires soliciting opinions; we invited written comments and recommendations from the general public and civil society groups; we had the external face-to-face public consultations with Gambians in select jurisdictions; we facilitated in-house consultations at individual and institutional levels; we met with officials of the three organs of government and had good discussions, as we similarly did with the registered political parties; we received a number of other stakeholders outside the country who engaged the CRC on general and specific issues; we also received communication from external international institutions. In addition to all of these initiatives and efforts, we were able to benefit from the expert partnership and guidance of the International Institute for Democracy and Electoral Assistance (International IDEA); I am proud to say that we continue to enjoy that partnership.
We believe that the CRC has taken adequate strides to reach out to Gambians at all levels to hear and learn from them and receive proposals for constitutional reform.
When the CRC embarked on the process of consulting with the Gambian public and other stakeholders on the review of the 1997 Constitution, we knew expectations were quite high in terms of what the people wanted to see reflected in their new Constitution. These expectations were clearly manifested during the face-to-face dialogue with our people; these were equally manifested in the written submissions we received, including in the other consultation platforms used by the CRC. It was only legitimate that the people had such high expectations. Our job at the CRC, in addition to listening and recording their views and aspirations, was to manage the expectations. We’ve made it very clear in all our public consultations that while we would take into account every opinion canvassed with the CRC, the reality was that not every opinion would likely find its way into the draft new Constitution. We got the impression that generally people understood that.
On our part as the CRC, we have found the opinions expressed by the general public, including all of our other stakeholders, very illuminating and referenced real issues. Some were of a constitutional nature; some were of a statutory nature (that is, matters that properly should be left to legislation enacted or to be enacted by the National Assembly); others related to issues of policy and clear failures of implementation of existing laws. Our remit is to deal with constitutional law issues. However, our Report (which will accompany the final draft of the new Constitution) will, where considered appropriate, reference the non-constitutional issues that have been raised so that the authorities concerned become aware of them (if they’re not already) and hopefully take necessary steps to address the people’s concerns.
As already noted, one of the guiding principles for the CRC under the CRC Act is to “seek public opinion and take into account such proposals as it considers appropriate”. On the one hand, the CRC is expected to consult with and consider public opinion; on the other hand, it is expected to factor into the draft Constitution such opinions as it considers appropriate. Ordinarily, this is not always the easiest to do. In our case, the burden has been lightened by the multiplicity of excellent ideas we have received from the public.
In reviewing the current Constitution, we also have an obligation to consider international treaties that The Gambia is a party to and, consequently, under which it has certain legal obligations. Furthermore, we have to consider what constitutes international best practice in relation to certain specific subject matters. We also have an obligation to “adhere to national values and ethos” as provided in section 6 (2) (c) of the CRC Act. The end result of taking all these elements into account is that what may, in certain cases, constitute public opinion may not necessarily translate into a constitutional text; yet, on the other hand, what constitutes international best practice may not necessarily become a constitutional requirement if, all things considered, it does not represent the “national values and ethos” of The Gambia. I say these things simply to make the point that we have thoroughly considered all the relevant variables in arriving at decisions with respect to the draft Constitution.
Our team of statisticians, under the guidance and direction of the former Head of Programmes, has been vigorous in collecting, collating and tabulating all data received to establish the public opinion canvassed. For all the various platforms used to consult with the general public, the team was able to provide the quantitative and qualitative analysis of the collected data to map out the areas in which the strength of opinion lies. The CRC has, in turn, relied on that data to determine the wishes and aspirations of the Gambian people, contrasting that against The Gambia’s treaty obligations and international best practice. Weight has been given to national values and ethos.
What’s new in the draft Constitution?
The draft Constitution comprises 20 Chapters (3 Chapters less than what is contained in the current Constitution); it has a total of 315 clauses. And perhaps I should pause here to state that some of our compatriots, particularly those in the diaspora, had expressed the wish for a leaner Constitution. We took note of their wishes and carried out research into comparable jurisdictions. We have come to the conclusion that while a leaner Constitution may be desirable, it ought not to be the yard stick by which we measure the strength and effectiveness of the Constitution. We have taken into account the fact that we have a young democracy with not so strong institutions – one of the things we have attempted to rectify in the draft Constitution – and the need to ensure clarity. Many of the recent constitutions we have considered, especially those in Africa, have chosen the path of strengthening democratic governance with a good measure of clarity. We, therefore, have the option of taking the approach of a leaner Constitution that leaves much to statutory development and legal interpretation or concentrating on teasing out issues that are fundamental to the development of our young democracy, irrespective of the size of the Constitution. We have equally considered the general public opinion canvassed with the CRC, especially by our rural communities, to have a Constitution that is crafted in simple language and easier to read and understand. In this context, we have chosen the latter approach, shying away from the “danger” of leaving too much of too many fundamental issues to interpretation.
Each Chapter of the draft Constitution addresses a different issue, although in some instances certain Chapters have a correlation with provisions contained in other Chapters. Appropriate sectional references and cross references are made where necessary in order to ensure clarity and/or avoid or prevent inconsistencies. These are necessary aspects of drafting. In essence, the draft Constitution we present to the Gambian public today is the embodiment, as we have been able to discern from the opinions canvassed with the CRC, of the people of The Gambia. We have crafted them in a manner that we consider best represents constitutionalism in our young democracy as we look forward into the future.
The draft Constitution has a Preamble which revises the Preamble of the current Constitution to embody elements considered fundamental to the Constitution, including placing emphasis on respect for the rule of law and fundamental rights and freedoms. It also places emphasis on good governance, separation of powers, sustainable environment and equitable distribution and use of resources, and equality before the law.
In terms of what is new in the draft Constitution (and I’m sure that’s an area many will be interested in), the following may be noted though not comprehensive in themselves:
(1) In the first Chapter dealing with the Republic and sovereignty of the people, specific provision is made to declare The Gambia as a multi-party democratic State that is founded on respect for the rule of law and the national values and principles of governance enshrined in the Constitution. In addition, it identifies the three organs of government (Executive, Legislature and Judiciary) to whom the sovereign power of the people is delegated and on whose behalf that power must be exercised for the welfare and prosperity of the people. We also take account the emphasis placed by the people on empowering local government authorities and the importance of devolution of government;
(2) Chapter II clarifies that a treaty The Gambia has entered into does not automatically become law unless it is transposed into domestic legislation. The courts are empowered to have due regard to international human rights treaties that The Gambia is a party to where that is considered necessary to aid the interpretation or application of a provision of this Constitution with respect to any right or freedom;
(3) The core area of public opinion, however, centred on issues relative to the values of Gambians as a people and concerns for good governance. In that regard, we found it necessary and have created a new Chapter II on National Values and Principles of Governance and a new Chapter V on Leadership and Integrity, which bind all State organs, Local Government Authorities, public officers and all other persons, whether holding elective office or otherwise or merely having some form of relationship with government. Specific provision is made outlining the duties and obligations of citizens, including the duty to protect and preserve public property, and to expose or engage in any lawful act to prevent the misuse and waste of public funds and property. Accordingly, any person who is engaged in that endeavour is protected against any form of prosecution.
(4) Chapter IV deals with Citizenship. In addition to preserving the existing citizenship of Gambians, provision is made to remove the distinction between Gambians born within and outside the country – that is, citizenship by birth and by descent. The Commission sees no value in this artificial distinction when in reality they enjoy the same status and privilege as citizens. In this vein, any person born of parents one of whom is a citizen of The Gambia is to be treated as having the status of a citizen by birth.
In equal measure, a child of not more than eight years found in The Gambia with unknown parents is to be presumed to be a citizen by birth.
In relation to non-Gambians who have lived in the country for fifteen years or upwards and wish to naturalise, they no longer have to give up their original citizenship if, based on the laws of their country of origin, a Gambian can naturalise without giving up his or her Gambian citizenship – this applies the principle of reciprocity.
A non-Gambian (man or woman) who is married to a citizen of The Gambia and had, since the marriage, been ordinarily resident in the country, is entitled to be registered as a citizen of The Gambia upon application.
A non-Gambian child who is adopted by a Gambian parent is entitled, on application, to be registered as a citizen of The Gambia.
Generally, Gambians were of the opinion that a child born in The Gambia of non-Gambian parents should be accorded automatic citizenship. The Commission considered the resource implications of such a measure which requires further in-depth research and assessment, which the Commission could not do having regard to the tight timeframe within which it has to deliver on its mandate. It, however, giving due regard to the public’s views on the subject, empowers the National Assembly to consider registration as a citizen of The Gambia of a person who, on or before 15th November, 2019, was born in The Gambia of non-Gambian parents, if the person had, since his or her birth, lived in The Gambia. This will allow sufficient time to carry out the necessary research and assessment on the resource implications to take an informed decision. The Commission further formed the considered view that in order not to open the floodgates to citizenship without a thorough consideration of the resource implications, this process should be limited to children born in The Gambia to non-Gambian parents as at today’s date. The National Assembly is further empowered to enact legislation, where it considers it necessary, to enable other persons to acquire citizenship of The Gambia if they are not eligible to become citizens under the draft Constitution. This may include persons who fall within the category of Descendants of African Slaves, who made strong submissions to the CRC to be considered for some form of “fast track” citizenship;
(5) In Chapter V on Leadership and Integrity, provision is made to the effect that a gift to a public officer (which includes any person occupying elective office) on a public or official
Let me begin by welcoming you, the members of the media, to this historic dialogue with the Constitutional Review Commission (CRC). We have had many interactions during which we updated you on matters concerning the ongoing assignment of the CRC. And you played your part, within the spirit of the partnership we’ve developed from inception, in imparting relevant information to the general public. We remain satisfied with the partnership and assure you of our continued cooperation as we get closer to the finishing line to “perfect” and deliver a new Constitution for the Republic of The Gambia.
We at the CRC are fully aware that many, if not all, of our compatriots are waiting in anticipation to see and learn of what the proposed draft Constitution contains and, perhaps even more importantly, whether the draft achieves the goal of addressing their wishes and aspirations. I am pleased to announce, on behalf of my colleague Commissioners and indeed the Secretary and staff of the CRC, that in a matter of minutes from now we will publish the proposed draft Constitution. The purpose of the publication, as we had indicated during our various public consultations, is to continue the inclusive and participatory process of Gambians in the design and development of the new Constitution for The Gambia. The eleven Commissioners are merely leaders in this exercise, but the draft Constitution is effectively the effort of all who have participated and continue to participate in its development.
However, I consider it important to take us back a little bit to where the CRC started. The CRC was established by the Constitutional Review Commission Act, 2017 (CRC Act) through the enactment by the National Assembly and the President. This was seen as particularly necessary given the history of the current Constitution which had undergone numerous amendments to the extent that not all were in agreement on the actual number of amendments effected to it in a short span of time. It therefore became necessary to review the current Constitution with a view to ensuring the development of a new one that can stand through thick and thin for generations to come.
On June 4th 2018, His Excellency the President of The Republic appointed and swore into office the members of the CRC who immediately went to work commencing on 5th June, 2018. Under the CRC Act, the CRC has 18 months to review, draft and deliver a new Constitution. That journey, though tough on many occasions, turned out to be a very rewarding and satisfying one for all of us. We are indeed grateful that we have together been able to reach this far in the execution of our assignment.
Throughout the execution of our assignment, the CRC Act has been our guide, ensuring at all times that we adhere as closely as possible to the terms of the Act. Specifically, section 6 (2) of the Act requires that, in carrying out our functions, we seek public opinion and take those into account as considered appropriate, adhere to national values and ethos, and safeguard and promote the existence of The Gambia as a sovereign independent State, the country’s republican system of governance, including its democratic values and respect for human rights, the separation of powers, national unity, cohesion and peace, the importance of ensuring periodic democratic elections, including term limit for the Office of President, and The Gambia’s continued existence as a secular State in which all faiths are treated equally and encouraged to foster national cohesion and unity. In this process, we were also required to afford Gambians, both at home and abroad, the opportunity to express their opinions and indicate their wishes and aspirations. In addition, we were empowered to invite persons to appear before the CRC to freely express their opinions. In performing all of these functions, the CRC was to remain independent and not subject to any direction or control.
Following the development and adoption of various strategic documents and the hiring of necessary support staff, the CRC embarked on various forms of public consultations. We had the face-to-face in-country public consultations and focus group discussions at which we had direct face-to-face dialogue with specific interest groups including Schools; we also undertook and conducted household surveys using The Gambia Bureau of Statistics (GBOS)’ enumeration areas; we rolled out online questionnaires soliciting opinions; we invited written comments and recommendations from the general public and civil society groups; we had the external face-to-face public consultations with Gambians in select jurisdictions; we facilitated in-house consultations at individual and institutional levels; we met with officials of the three organs of government and had good discussions, as we similarly did with the registered political parties; we received a number of other stakeholders outside the country who engaged the CRC on general and specific issues; we also received communication from external international institutions. In addition to all of these initiatives and efforts, we were able to benefit from the expert partnership and guidance of the International Institute for Democracy and Electoral Assistance (International IDEA); I am proud to say that we continue to enjoy that partnership.
We believe that the CRC has taken adequate strides to reach out to Gambians at all levels to hear and learn from them and receive proposals for constitutional reform.
When the CRC embarked on the process of consulting with the Gambian public and other stakeholders on the review of the 1997 Constitution, we knew expectations were quite high in terms of what the people wanted to see reflected in their new Constitution. These expectations were clearly manifested during the face-to-face dialogue with our people; these were equally manifested in the written submissions we received, including in the other consultation platforms used by the CRC. It was only legitimate that the people had such high expectations. Our job at the CRC, in addition to listening and recording their views and aspirations, was to manage the expectations. We’ve made it very clear in all our public consultations that while we would take into account every opinion canvassed with the CRC, the reality was that not every opinion would likely find its way into the draft new Constitution. We got the impression that generally people understood that.
On our part as the CRC, we have found the opinions expressed by the general public, including all of our other stakeholders, very illuminating and referenced real issues. Some were of a constitutional nature; some were of a statutory nature (that is, matters that properly should be left to legislation enacted or to be enacted by the National Assembly); others related to issues of policy and clear failures of implementation of existing laws. Our remit is to deal with constitutional law issues. However, our Report (which will accompany the final draft of the new Constitution) will, where considered appropriate, reference the non-constitutional issues that have been raised so that the authorities concerned become aware of them (if they’re not already) and hopefully take necessary steps to address the people’s concerns.
As already noted, one of the guiding principles for the CRC under the CRC Act is to “seek public opinion and take into account such proposals as it considers appropriate”. On the one hand, the CRC is expected to consult with and consider public opinion; on the other hand, it is expected to factor into the draft Constitution such opinions as it considers appropriate. Ordinarily, this is not always the easiest to do. In our case, the burden has been lightened by the multiplicity of excellent ideas we have received from the public.
In reviewing the current Constitution, we also have an obligation to consider international treaties that The Gambia is a party to and, consequently, under which it has certain legal obligations. Furthermore, we have to consider what constitutes international best practice in relation to certain specific subject matters. We also have an obligation to “adhere to national values and ethos” as provided in section 6 (2) (c) of the CRC Act. The end result of taking all these elements into account is that what may, in certain cases, constitute public opinion may not necessarily translate into a constitutional text; yet, on the other hand, what constitutes international best practice may not necessarily become a constitutional requirement if, all things considered, it does not represent the “national values and ethos” of The Gambia. I say these things simply to make the point that we have thoroughly considered all the relevant variables in arriving at decisions with respect to the draft Constitution.
Our team of statisticians, under the guidance and direction of the former Head of Programmes, has been vigorous in collecting, collating and tabulating all data received to establish the public opinion canvassed. For all the various platforms used to consult with the general public, the team was able to provide the quantitative and qualitative analysis of the collected data to map out the areas in which the strength of opinion lies. The CRC has, in turn, relied on that data to determine the wishes and aspirations of the Gambian people, contrasting that against The Gambia’s treaty obligations and international best practice. Weight has been given to national values and ethos.
What’s new in the draft Constitution?
The draft Constitution comprises 20 Chapters (3 Chapters less than what is contained in the current Constitution); it has a total of 315 clauses. And perhaps I should pause here to state that some of our compatriots, particularly those in the diaspora, had expressed the wish for a leaner Constitution. We took note of their wishes and carried out research into comparable jurisdictions. We have come to the conclusion that while a leaner Constitution may be desirable, it ought not to be the yard stick by which we measure the strength and effectiveness of the Constitution. We have taken into account the fact that we have a young democracy with not so strong institutions – one of the things we have attempted to rectify in the draft Constitution – and the need to ensure clarity. Many of the recent constitutions we have considered, especially those in Africa, have chosen the path of strengthening democratic governance with a good measure of clarity. We, therefore, have the option of taking the approach of a leaner Constitution that leaves much to statutory development and legal interpretation or concentrating on teasing out issues that are fundamental to the development of our young democracy, irrespective of the size of the Constitution. We have equally considered the general public opinion canvassed with the CRC, especially by our rural communities, to have a Constitution that is crafted in simple language and easier to read and understand. In this context, we have chosen the latter approach, shying away from the “danger” of leaving too much of too many fundamental issues to interpretation.
Each Chapter of the draft Constitution addresses a different issue, although in some instances certain Chapters have a correlation with provisions contained in other Chapters. Appropriate sectional references and cross references are made where necessary in order to ensure clarity and/or avoid or prevent inconsistencies. These are necessary aspects of drafting. In essence, the draft Constitution we present to the Gambian public today is the embodiment, as we have been able to discern from the opinions canvassed with the CRC, of the people of The Gambia. We have crafted them in a manner that we consider best represents constitutionalism in our young democracy as we look forward into the future.
The draft Constitution has a Preamble which revises the Preamble of the current Constitution to embody elements considered fundamental to the Constitution, including placing emphasis on respect for the rule of law and fundamental rights and freedoms. It also places emphasis on good governance, separation of powers, sustainable environment and equitable distribution and use of resources, and equality before the law.
In terms of what is new in the draft Constitution (and I’m sure that’s an area many will be interested in), the following may be noted though not comprehensive in themselves:
(1) In the first Chapter dealing with the Republic and sovereignty of the people, specific provision is made to declare The Gambia as a multi-party democratic State that is founded on respect for the rule of law and the national values and principles of governance enshrined in the Constitution. In addition, it identifies the three organs of government (Executive, Legislature and Judiciary) to whom the sovereign power of the people is delegated and on whose behalf that power must be exercised for the welfare and prosperity of the people. We also take account the emphasis placed by the people on empowering local government authorities and the importance of devolution of government;
(2) Chapter II clarifies that a treaty The Gambia has entered into does not automatically become law unless it is transposed into domestic legislation. The courts are empowered to have due regard to international human rights treaties that The Gambia is a party to where that is considered necessary to aid the interpretation or application of a provision of this Constitution with respect to any right or freedom;
(3) The core area of public opinion, however, centred on issues relative to the values of Gambians as a people and concerns for good governance. In that regard, we found it necessary and have created a new Chapter II on National Values and Principles of Governance and a new Chapter V on Leadership and Integrity, which bind all State organs, Local Government Authorities, public officers and all other persons, whether holding elective office or otherwise or merely having some form of relationship with government. Specific provision is made outlining the duties and obligations of citizens, including the duty to protect and preserve public property, and to expose or engage in any lawful act to prevent the misuse and waste of public funds and property. Accordingly, any person who is engaged in that endeavour is protected against any form of prosecution.
(4) Chapter IV deals with Citizenship. In addition to preserving the existing citizenship of Gambians, provision is made to remove the distinction between Gambians born within and outside the country – that is, citizenship by birth and by descent. The Commission sees no value in this artificial distinction when in reality they enjoy the same status and privilege as citizens. In this vein, any person born of parents one of whom is a citizen of The Gambia is to be treated as having the status of a citizen by birth.
In equal measure, a child of not more than eight years found in The Gambia with unknown parents is to be presumed to be a citizen by birth.
In relation to non-Gambians who have lived in the country for fifteen years or upwards and wish to naturalise, they no longer have to give up their original citizenship if, based on the laws of their country of origin, a Gambian can naturalise without giving up his or her Gambian citizenship – this applies the principle of reciprocity.
A non-Gambian (man or woman) who is married to a citizen of The Gambia and had, since the marriage, been ordinarily resident in the country, is entitled to be registered as a citizen of The Gambia upon application.
A non-Gambian child who is adopted by a Gambian parent is entitled, on application, to be registered as a citizen of The Gambia.
Generally, Gambians were of the opinion that a child born in The Gambia of non-Gambian parents should be accorded automatic citizenship. The Commission considered the resource implications of such a measure which requires further in-depth research and assessment, which the Commission could not do having regard to the tight timeframe within which it has to deliver on its mandate.
It, however, giving due regard to the public’s views on the subject, empowers the National Assembly to consider registration as a citizen of The Gambia of a person who, on or before 15th November, 2019, was born in The Gambia of non-Gambian parents, if the person had, since his or her birth, lived in The Gambia. This will allow sufficient time to carry out the necessary research and assessment on the resource implications to take an informed decision.
The Commission further formed the considered view that in order not to open the floodgates to citizenship without a thorough consideration of the resource implications, this process should be limited to children born in The Gambia to non-Gambian parents as at today’s date. The National Assembly is further empowered to enact legislation, where it considers it necessary, to enable other persons to acquire citizenship of The Gambia if they are not eligible to become citizens under the draft Constitution. This may include persons who fall within the category of Descendants of African Slaves, who made strong submissions to the CRC to be considered for some form of “fast track” citizenship;
(5) In Chapter V on Leadership and Integrity, provision is made to the effect that a gift to a public officer (which includes any person occupying elective office) on a public or officialoccasion or on account of the office he or she holds, is a gift or donation to the State or the institution he or she represents and shall be handed to the State or the institution concerned;
(6) Chapter VI provides general principles relative to respect for fundamental human rights and freedoms and incorporates economic and social rights, including provisions on the rights of the elderly, right of access to information, right to a clean environment, right to fair labour practices, rights of the youth, right to development, consumer protection rights, rights of the sick, and duty to ensure gender balance and fair representation. The right to education is elaborated on to provide such right to extend to free education up to secondary school level. The right to free tertiary education, including university level, is provided for but to be attained progressively. The rights relating to communication and the media are now made part of the Chapter on fundamental rights and freedoms and elaborated on. All these rights are in addition to the fundamental rights and freedoms enshrined in the current Constitution and may be described as justiciable. Consequently, the Commission has dispensed with the Chapter in the current Constitution on the Directive Principles of State Policy;
(7) Chapter VII relates to the Representation of the People and outlines general principles of the electoral system and makes further provision requiring a continuous voter registration system of eligible voters, and eligibility to contest election as an independent candidate. The current Independent Electoral Commission (IEC) is being transformed into the Independent Boundaries and Electoral Commission (IBEC) and given the constitutional authority for the delineation of electoral boundaries. The IBEC’s functions are outlined, including the method of boundaries delineation.
The obligation of political parties to declare to the public their revenues and assets, and the sources of those revenues and assets is provided. This is in addition to publishing to the public annually their audited accounts within six months of the end of the financial year, failing which the Independent Boundaries and Electoral Commission may deregister a defaulting political party. Only citizens of The Gambia may make contributions or donations to a political party registered in the country.
The candidates of each political party contesting National Assembly elections must be made up of at least ten percent youths;
(8) The Executive is provided for in Chapter VIII and makes the following new provisions:
(a) Where the President takes a decision or issues a directive in the performance of any function under this Constitution or an Act of the National Assembly, the decision or directive must be in writing, and must bear the seal and signature of the President;
(b) Where the signature of the President is required on any instrument, the signature must be confirmed by the Public Seal;
(c) Where a person acts or purports to act on a decision made or a directive given by the President which does not comply with these two requirements, the person will be personally liable if any loss or other harm results to the State as a consequence of his or her action;
(d) Election to the Office of President is to be held three weeks before the end of the term of the incumbent President, and the winner of the election to the Office of President assumes office on the day after the date of expiry of the incumbent President’s term of office
(e) All candidates for election to the Office of President and National Assembly Member are required to declare their assets to the Anti-Corruption Commission at least twenty-one days before the election;
(f) The Independent Boundaries and Electoral Commission is required, as soon as possible, but in any case not beyond seventy-two hours, after the polls are closed to declare the result of the Presidential election and the winner thereof;
(g) Amongst other required qualifications for election to the Office of President, a candidate must hold a minimum of an undergraduate degree plus five years’ work experience after the date of attaining that degree, or
hold a minimum of a senior secondary school certificate or its equivalent plus twelve years’ work experience after the date of attaining that certificate;
(h) A candidate for election to the Office of President is elected if the candidate has received more than half of all the votes validly cast in the election (that is the absolute majority or 50% + 1 vote);
(i) The President cannot hold office for more than two terms of five years each, whether or not the terms are consecutive;
(j) The President is to declare his or her assets within three months of assuming office and must similarly declare those of his or her spouse; the same process is repeated within three months of demitting office in respect of the assets acquired since assuming the Presidency. The Vice President and Cabinet Ministers will be bound by the same requirements;
(k) The President is prohibited from establishing, or advocating for, participating in or promoting the establishment, or in any other way engaging in the establishment, directly or indirectly, of any organisation or institution of a civic, charitable or other nature;
(l) Considering the importance of the Office of President and as a way of ensuring dignity to the Office and office holder after demitting office, benefits are outlined for the President when he or she demits office;;
(m) The number of Cabinet Ministers a President can appoint is capped at fifteen, excluding the Attorney General and Minister of Justice;
(n) The offices of Cabinet Secretary, Chief of Staff to the President and Solicitor General and Legal Secretary are established;
(9) The National Assembly is constitutionally established and the following new provisions are made:
(a) Only elected members shall constitute the National Assembly;
(i) 53 elected from single member constituencies;
(ii) 14 elected women, two from each Administrative Area; and
(iii) 2 persons, elected by persons with disabilities from amongst the members of the federation representing such persons;
(b) There is no residency requirement to be eligible for National Assembly election, although a candidate must satisfy the other qualifications outlined in the Constitution;
(c) The method for initiating a recall of an elected member of the National Assembly is provided for;
(d) Considering the increased size of the National Assembly, provision is made to enable the Assembly to elect two Deputy Speakers;
(e) The positions of Majority Leader and Minority Leader of the National Assembly are established;
(f) The business of the National Assembly is to be conducted in the English language or in any other language indigenous to The Gambia, and the Assembly is required to encourage and facilitate the progressive realisation of the use of languages indigenous to The Gambia in the conduct of the business of the Assembly within five years of the coming into force of the draft Constitution;
(g) Provision is made to enable members of the public to petition the National Assembly on any matter within the authority of the Assembly; and
(h) The National Assembly Service Commission is established to deal with staff matters relative to the Assembly;
(10) In respect of the Judiciary, the following new provisions have been created:
(a) Provision is made outlining the principles of justice;
(b) The Chief Justice and all other judges of the superior courts must be Gambians; however, provision is made allowing for the recruitment and appointment of non-Gambians in circumstances where a sufficient number of Gambians are not available for appointment to a particular judicial office;
(c) The Supreme Court is given supervisory jurisdiction over all other superior courts, while the High Court and Shari’ah High Court have such jurisdiction over the subordinate courts under them;
(d) The Shari’ah High Court is established, with jurisdiction to hear and determine Shari’ah causes or matters relating to adoption, marriage, divorce, burial, inheritance, or endowment (waqf); the Cadi Courts are to be transformed into Shari’ah Courts;
(e) In view of the restrictions placed on a judge who has retired from office, provision is made for benefits, provided the judge has served for a specified number of years;
(f) The composition of the Judicial Service Commission has been streamlined to make the institution more democratic;
(11) In response to the overwhelming public opinion to empower local government authorities, a new Chapter has been created on Local Government and Decentralisation. Included in this, is provision for the election of Seyfo; the office of Alkalo remains to be dealt with in accordance with traditional lines of inheritance. In order to restore the tradition that abounds the offices of Seyfo and Alkalo, a person in such office serves for a life time unless removed (on specified grounds) or the office holder resigns. Both Seyfolu and Alkalolu are prohibited from taking part in partisan politics as they are traditionally the nucleus of community unity, peace and stability;
(12) A new Chapter XII is created on Independent Institutions and Offices. Included under this Chapter are the National Human Rights Commission, Anti-Corruption Commission, Ombudsperson, Auditor-General, and Central Bank of The Gambia. These institutions and offices are considered pivotal to good governance and are constitutionally protected with appropriate checks and balances. Although established under a separate Chapter, the Independent Boundaries and Electoral Commission is governed by some of the provisions contained in this Chapter. Commissions of inquiry are also placed under this Chapter, essentially retaining the features of the current Constitution;
(13) Chapter XIII deals with Public Finance. It makes specific provision for financial support to local government authorities and the need for public consultation on matters relating to the imposition of taxes to enable members of the public to express their views on tax proposals.
(14) A new Development Fund has been created for purposes of providing basic services including water, roads, health facilities and electricity to marginalised groups and disadvantaged areas to the extent necessary to bring the quality of services with respect to those groups and areas to the level generally enjoyed by the rest of the nation, so far as possible. Specific provision has been made in relation to public procurement;
(15) A new Chapter XIV has been created on Land, Environment and Natural Resources. Provisions are made on land ownership by Gambians and non-Gambians, including the establishment of the Land, Environment and Natural Resources Commission;
(16) Chapter XV deals with the Public Service and, in addition to the Public Service Commission, three new service commissions have been established, namely (under this Chapter) the Teachers Service Commission and Health Service Commission and (under Chapter XVI) the National Security Service Commission. The Office of Secretary General has now been specifically established to be the Head of the Civil Service and to function purely on professional matters pertaining to the public service. In addition, the Office of Permanent Secretary is established;
(17) The security service sector is dealt with under Chapter XVI, with the establishment of the National Security Service Commission having defined functions.
(18) Chapters XVII and XVIII respectively deal with National Youth Development and the National Council for Civic Education.
(19) Chapter XIX deals with Amendments to the draft Constitution, outlining the entrenched and non-entrenched clauses. Specific provision is made prohibiting the National Assembly from amending the Constitution to extend the term of the President beyond what has been constitutionally mandated;
(20) Chapter XX considers and establishes Miscellaneous matters considered relevant to the proper interpretation and construction of the provisions of the draft Constitution. Specific provision is made to the effect that no power exercised, or an order given, on the basis of an executive directive issued by any person or authority shall be inconsistent with the draft Constitution or any other law, and any directive issued in that regard is not to be acted upon by any person if the directive is so inconsistent; and
(21) The draft Constitution concludes with three Schedules. The first relates to identifying the Administrative Areas of the country; the second outlines the constituencies in respect of which elections may be held; and the third Schedule deals with matters pertaining to transitioning from the current Constitution to the draft new Constitution. Under the third Schedule the current term of the incumbent President is considered in the context of the term of office of a person who is elected to the Office of President. Having carefully researched and considered this subject, the Commission has come to the decision that the current term of the current President of the Republic is to count in computing the maximum term one can serve in the Office of President – that is a maximum of ten years as provided in the draft Constitution.
This is just a summarized rundown of the new elements contained in the draft Constitution. We urge the general public to carefully review the provisions and provide the CRC with their considered and constructive opinions to assist the timely finalisation of the draft Constitution. We do not by any means suggest that this is a perfect draft, but together we can produce a final draft that hopefully will serve The Gambia going into the long future.
What is left to be said now is for me to express words of appreciation: First to the Government and the National Assembly, for seeing the wisdom in the need to review the current Constitution which had undergone numerous amendments and to draft a new one that is people-centred.
Second to His Excellency the President of the Republic, for appointing all eleven Commissioners on the strength of the belief and confidence that we can discharge the functions given to us to review the current Constitution. We can only hope that we are on the right path to vindicating that belief and confidence.
Third to the Hon. Attorney General and Minister of Justice (under whom this project falls), for his outstanding support and encouragement to the CRC and to me personally. He has throughout this journey (which is yet to reach its destination) been relentless in his support and even took the opportunity to visit the CRC Office to see the environment for himself and see how he could assist to make our work even more conducive. Yet in all this process, neither he nor any other person in Government has ever interfered with our work.
Fourth to the Office of the President, for their support in facilitating all of our public consultations, especially in relation to providing needed transportation to carry out our assignments.
Fifth to the Minister of Finance and his Ministry, for the timeous provision of funding to the CRC to ensure that we operated within the terms of our mandate without undue delay.
Sixth to the Ministry of Foreign Affairs, for facilitating all of our external consultations and, in particular, to their Permanent Secretary, Mrs. Salimatta Touray, and our Ambassadors, High Commissioners, Consul Generals and all their support staff in the countries we visited for wonderful arrangements to guide our work.
Seventh to the people of The Gambia and all other stakeholders, including civil society organisations, for taking their invaluable time to attend our public consultations, participate in our surveys and questionnaires and providing written recommendations. We appreciate every single thought that has gone into their efforts, for it is those efforts that have lightened our work at the CRC.
Eighth to our wonderful partners – the UNDP, International IDEA and ECOWAS – with whom we interacted regularly and who either provided direct financial support or technical advice and strength or simply stood with us as we journeyed to this date.
Ninth to members of our various Technical Committees in the areas of public finance management; media, public education and communication; land, environment and natural resources; constitutional law; and Constitution Drafting and Report Writing. They all have acquitted themselves creditably and served their country well. I say thank you on behalf of all at the CRC. To our two external consultants, Prof. Dr. Albert Fiadjoe of Ghana and Justice Willy Mutunga of Kenya, we at the CRC are truly proud of your support and sterling work in assisting us with our assignment. You both, from inception, adopted and renewed your commitment to The Gambia. For that, we are enormously grateful.
I end up with the last, only because it was and has always been the first: the members of the media. You started this journey with us and you’re still here and you’ve vowed to continue that partnership right to the end when we submit the final draft Constitution. You’ve done well not only for the CRC, but even more for your country. You should each be proud of yourselves for the hard work and dedication to this national course and we at the CRC remain forever grateful for your kindness and candour.
Finally and on a personal note, I would like to recognise the staff of the CRC, both past and present. You have been very supportive to the cause of the CRC. I know you have been quite patient with my many demands and those of my colleague Commissioners and I thank you for being quiet with them to allow us to get on with it.
Finally (Finally), to my most able and hardworking Commissioners. You have been my anchor in this project. I have relied on your expertise, patience and guidance to help me steer with you this constitutional review process. I know we still have some way to go, but I believe that with the continued commitment to professionalism we can get to the end successfully together. I want to recognise and thank you for your very kind efforts.
I conclude by, once again, commending this proposed draft Constitution to the Gambian people and our other stakeholders inviting their constructive comments and suggestions to enable the CRC to prepare a final draft to submit to HE The President for further attention.
I am now pleased to announce that the CRC draft Constitution of the Republic of The Gambia is published, both online and in hard copies. I thank you all! And may the Almighty God who knows better and has power over all else and all things continue to guide and protect our constitutional review and development process. Amen.
