Placing free, prior, and informed consent at the center of extractive industry’s regulatory reform in The Gambia

Placing free, prior, and informed consent at the center of extractive industry’s regulatory reform in The Gambia

1. INTRODUCTION

The extractive industry regulatory agenda constantly attracts debate and demands for reform. This is mainly due to its intrinsic social and environmental impacts. Almost, always, the mines and quarries that host mineral exploration activities would be found in lands situate around inhabited or farming communities. It is not uncommon therefore to have members of those communities displaced or conflicts brewing within such catchment areas or both. There is little need for debate on the amount of Africa’s mineral reserves, except perhaps the rate of its diminishing returns. However, the mineral codes of many mineral-rich African countries that were mainly promulgated in the ’70s to ’90s were, at the turn of the millennium subjected to enormous criticism and reviews. Many countries were urged to not only revised their mineral codes, but also renegotiate the investment contracts, and promulgate stricter environmental and remedial measures in the industry. 

The role of the private sector companies and sometimes specifically identified corporations, bilateral and multilateral financial agencies, remains critical to establishing mineral exploration regulatory regimes that are responsive to the social and environmental development needs of concerned communities. Many have written to question who’s benefit those the mining laws and relevant regulations seek to benefit. Arguably, the immediate post-independent African legal frameworks and regulatory reform meant to harmonize and stabilize the sector led to the creation of a more favorable business environment for foreign direct investments albeit with little impact on development. The reforms of the 80s reduced the role of the state to a mere setting of the stage. These reforms largely reduced the institutional capacity and drove down the standards in key areas for socio-economic development, and the protection of the environment in many mining countries on the continent.[1]

Arguably, new African mineral sources are going into production, and resource-rich African nations continue to earn remarkable or supposed profits. But profits are not the premise of regulation, these are always contained in separate complex web of legal documents carefully crafted to serve the peculiarity of each of those investment agreements. For every lawyer around such a table, the peculiarity of each such agreement is largely dependent on the terms of risk-sharing and insuring or hedging against the same or more of the same. This article is not intended to review any such investment contracts or propose appropriate terms for developing country investment contract negotiation.

The principal legal framework for the extractives industry in The Gambia is the Mines and Quarries Act of 2005, Petroleum (Exploration, Development, and Production) Act 2007, the Gambia Maritime Administration Act 2006, Petroleum Commission Bill 2021 (pending completion of the parliamentary process at the time of writing), and regulations relating to trading in precious minerals and stones.

Let me state that whilst the extractives industry concerns both mineral and hydrocarbon resources, the focus of this article is on the regulation of mineral resources despite the difficulty in separating them in the discourse of relevant legal and regulatory frameworks. Certainly, there are more regulations for hydrocarbons for both downstream and upstream, including Health and Safety and Environmental Regulations, in addition to the National Environment Management Act and Environment Impact Assessment (EIA) Regulations 2014, requiring EIA’s for a host of projects including explorations for hydrocarbons and mineral resources.

This article attempts a regulatory diagnosis of the country’s extractive industry and argues the central role that concerned communities must play in discussions regarding prospecting for minerals, the carrying out of mining and quarrying operations, and related social and environmental impact evaluation and remedial measures.

 2. THE EXTRACTIVES INDUSTRY IN GAMBIA

2.1  Industry background and context

The Gambia might be the smallest mainland African country. It is, however, acclaimed to be host to varying mineral resources including liquefied gas (LPG), clay, silica, sand, titanium tin, and zircon, amongst others, with an estimated reserve of recoverable minerals yield a conservative total of about 995, 000 tonnes.[2] The 2005 Minerals Year Book[3] which published United States Geological Survey into Mineral Industries of The Gambia, Senegal, and Guinea Bissau, described mining in The Gambia to have initially been limited to clay, laterite, sand and gravel, silica sand, and zircon, albeit they didn’t make any significant contribution to the economy of the country. The country has provided mining license to the Australian company, Carnegie Mineral, and at least two local companies, Alhamdullillah Petroleum and Mining Company (APAM), Gambia Africa Mining Company GAMICO, and more recently, GATCH. Mainly along with the coastal states of Sanyang, Batukunku, Karton, Bafuluto, and in the far-away remote village of Badari in the Upper River Region.

According to the 2005 Mineral’s Year Book:

Carnegie Corporation Ltd (CCL) of Australia (50%) in joint venture with Astron Ltd of China (50%) held exclusive prospecting license from the Batukunku, the Kartong, and the Sanyang mineral sand deposits in Brufut. In 2005 the joint venture completed a second-round trial dredge program at the Sanyang deposit following the completion of this dredge program and of an environmental impact assessment study, the company submitted an application to convert its prospecting license to a mining lease. As of year-end, CCL continued to wait for government approval. Total measured, indicated and inferred resources at Batukunku, the Kartong and Sanyang deposits were estimated to be 18.8million metric tons (Mt) that contained about 1 Mt of heavy mineral at cut-off grade of 1%. The heavy minerals assemblage for these deposits was estimated to be about 71% imenite, 15% zircon, 3% rutile, and 11% others…

The involvement of Carnegie is perhaps the most publicized. In 2008 the Gambia Government unilaterally terminated the Carnegie mining license. Both the company and its manager Mr. Charlie Northfield were prosecuted and convicted for economic and financial crimes against the state, who was accused of illegally mining for titanium, iron ore, and uranium.  The Special Criminal Court of the Gambia fined the company a staggering $200 000 000 and forfeited the assets and HMC stockpiles left by the company to the State. Carnegie refuted the allegations of illegal mining pointing out that titanium and iron oxide were components of ilmenite, while uranium was an inseparable trace elements within the zircon it was licensed to mine.  Carnegie initiated an arbitration before the International Centre for Settlement Investment Disputes (ICSID. The arbitral tribunal awarded $31 million Australian Dollars to Astron Corporation Limited, the parent company of Carnegie Mineral.

Interestingly, the HMC stockpiles and assets later came to be managed and explorations carried on by APAM and GAMICO, companies believed to be associated with the country’s former President.  It was not until 2017 with the establishment of the Janneh Commission Financial Inquiry into the financial carnage of the President that the country’s mineral and mineral industry came under even closer scrutiny when the Commission heard and received evidence, including site visits to the affected communities. These visits brought to the fore the immense environmental degradation that the mining activities have resulted in. There is no evidence of any direct benefit to the community from the proceeds of these exploration activities.

Beyond the few known cases of precious metals and stones mining that is reported in the country, mining of general construction sand and gravel takes place across the country.

2.2 National Mining Legal and Regulatory Framework

The Mines and Quarries Act is the country’s major legal instrument for the regulation of its mining industry. It makes provision for prospecting for minerals, for carrying out mining and quarrying operations, and for connected matters.[4]  The Act has 123 sections, making provision for the ownership and control of minerals.  And the rights and responsibilities of mining and quarrying license. Petroleum exploration and production is excluded from the application of this Act.[5]

The Act emphatically states that “for the avoidance of doubt, it is hereby declared that the entire property in and control of all minerals, in, under on the sea-bed and sub-soil of the continental shelf of The Gambia resides in the state.”[6]  The authority to issue a mining or quarrying licence resides in the Minister on the advice of the Chief Geologist. Applications are received by the Chief Geologist, who is obliged to consult with government departments, each government agency, and the relevant local government authority.[7]  The Mineral right conferred by the issued license shall be exercised reasonably and its enjoyment shall not injuriously affect the interests of an owner or occupier of the land over which the right extends.[8]  The authority may confer an exclusive right to prospect, mine, or quarry the specified mineral or minerals within the period specified.[9] The holder may subject to informing the Chief Geologist, and the payment of royalties, respectively build necessary structures and dispose of the recovered minerals.[10]

The Act further provides, subject to general capacity to contract, persons otherwise not permanently resident or incorporated in The Gambia shall not be granted a mining or quarrying license.[11] It also allows for the refusal, cancellation, or approval subject to conditions. The grant of a license shall take stock of the States mineral interests; protect the environment[12] and the lawful interests of other mining rights holders. [13] in respect of landowners, it states:

A Lawful occupier of land specified in a mining license, mining permit or quarrying license shall not erect a building or structure on the land without the consent of the holder of the license or permit;[14]

If the Chief Geologist considers that the consent is being unreasonably withheld, he or she may consent to the erection of the building or structure.

The Act makes provision for payment to fair and reasonable compensation to the lawful occupier of land, described in the Act as the person in actual occupation of the land. The accountable and transparent mechanism through legislative frameworks supported by governments, multinational corporations, political and civil society organizations continue to widen the poverty gap for the people who ought to be the primary beneficiaries of these natural resources.[15] Domestic mining or petroleum laws specify and regulate the granting of concessions and other operational rights for exploitation, royalties, taxes, and other incentives in the extractive industry.[16] Other legal instruments establish procedural requirements for human rights-based approaches and the conduct of the social and environmental impact assessments. Whilst these regulatory requirements focus mainly on the grant of concession and exploration and/or mining rights, attention ought to also be paid to the people who are disposed of their lands in favor of investors.  It’s worthy to note that although the decisions of the African Commission on Human and People’s Rights on access to land, natural resources, and to development, generally, based on articles of the African Charter, including, articles 21(2), “in case of spoliation, the dispossessed people shall have the right to the lawful recovery of its property as well as to adequate compensation.”[17] Indeed, under section 22 of the 1997 Constitution of the Republic of The Gambia, every expropriated property shall entitle the owner to receipt of payment of prompt, effective, and immediate payment of compensation. The case that has come before the African Commission regarding the right to land, natural resources, as a human rights issue, concerned mainly indigenous people. This article is not intended to underscore whether the Gambian has ‘indigenous people’ or not. Notwithstanding, the emergence of development as a human right, and its associated requirement of “free, prior, and informed consent” requires that every community that has its lands become the subject of allocation for development of extractives purposes, shall be accorded an “active, free and meaningful participation” in the entire process of such determination and not merely be consulate.  The question is whether the Gambians regulatory framework for its extractives industry has placed the members or people of the relevant communities at the heart of this natural resources development.

Decisions of the Chief Geologist and Minister are subject to Appeal at the High Court within 30 days of the decision. The Chief Geologist may also hear disputes concerning involving private persons with interests in the prospecting, mining, or quarrying operations. [18] Certified copies of the orders of the Chief Geologist are enforceable by a Civil Court with territorial jurisdiction over the subject matter.[19]

The Act further creates offences. It criminalizes, subject to public information and the disclosure relevant for the administration of the Act, to disclose any information received from a person concerning his/her affairs and the mining business without the consent of the person concerned and to falsify minerals.

The holder of a mining or quarrying license is obliged to maintain an insurance cover as customarily or prudently insured in the international mining or quarrying industry. He/she shall indemnify the State against any claim for loss, injury, or death.

3.     The human rights of free prior and informed consent

Various standard-setting international institutions and organizations exist that promulgate various regional and multilateral principles as benchmarks of standard regulatory governance of the extractive industry.  This includes the Extractive Industry Transparency Initiative (EITI), which is a global standard that ensures transparency of revenue from natural resources; Publish What You Pay, Revenue Watch Institute; Oxfam; Transparency International; Global Witness; Global Reporting Initiative; Alliance for Responsible Mining; Natural Resource Charter; and Transparency and Accountability Initiative[20] and the World Bank’s Extractive Industries Review. The incorporation of international human rights in business regulation imposes on state parties the obligation to inculcate terms and conditions in their contracts with investors. These terms seek the objective realization of environmental and climate conditions and the right of the people to development and freedom from exploitative business practices. The Gambia is a party and has international obligations to allow the participation of local communities in the process of issuance of a mining license and ensure that the exploration of its extractive resources is in the best interest of the communities concerned.

The African Charter on Human and People’s Rights obliges state parties to ensure respect for human rights in all matters of natural resources exploitation, extraction, toxic waste management, and governance in international cooperation, investment agreements, and trade regulations.  Member states, like The Gambia, are further required to promote natural resources legislation that respects human rights of all and requires transparent, maximum, and effective community participation in decision making in the prioritization, scale of and benefits from any development and on the land and other resources that affect them in any substantial way.  The state parties are further required to ensure independent social, human rights, accountability, and transparency monitoring in the entirety of the process regarding natural resources exploration. [21]

The Charter imposes a duty on contracting states to ensure that human rights are justiciable and extractive industries and investors held legally accountable in the country hosting and sending state. It guarantees for the people the right to pursue their economic and social development and to dispose of their wealth and natural resources in general.

The extractive industry of any country has a primary relationship with its land law regimes. The Gambia has different land law regimes including leasehold over state lands and customary tenure.[22] Consequently, whilst the Land Region’s Act places people at the mercy of the state on sites that are the subject of the extractive industry. This has implications on their socio-economic rights as discussed above. This section discusses the efforts that are undertaken at the international level aimed at ensuring that the people do not only benefit from these extractive resources but also partake in making decisions and are protected from the adverse effects that often characterize the extractive industry.

The Rio Declaration on Environment and Development recognizes the sovereignty of States over natural resources and places people as the centerpiece of sustainable development.[23] It recognizes that human beings are entitled to a healthy and productive life in harmony with nature. It adds that local communities have a vital role in environmental management and development and therefore their interests must be protected.[24]

Special protections also exist for indigenous people in international human rights legal frameworks. This includes groups of individuals with cultures and ways of life considerably different from the dominant society.[25] They have historical ties handed down from generations, magnified by language, social organization, religion, and spiritual values, modes of production, laws, and institutions, and usually victims of subjugation and/or discrimination.[26] participation of locals in matters regarding the use of their ancestral lands in general, and the exploitation of the natural resources on those lands, is relevant to the enjoyment of their right to self-determination.[27]

The international definition of Indigenous people may remain problematic, however, the Principle of Free Prior and Informed Consent (PFIC)[28] is material in protecting the rights of locals to self-determination.[29]  Considered to be developing into an international customary law[30], PFIC creates the “the duty of States to obtain Indigenous Peoples’ FPIC, entitles Indigenous people to effectively determine the outcome of decision-making that affects them, not merely a right to be involved.”[31]

The state in the issuing mining license is required in good faith to consult with the aboriginal groups or communities asserting title to land.[32] The degree of consultation and negotiation with aboriginal rights holders and accommodation required varies depending on the group’s claims to the land and severity of potential adverse effects upon the interests claimed.[33] It is not clear whether the aboriginal title as obtained in Canada is the same as the customary title to land as obtained in The Gambia. Within the West African Sub-regional framework, the ECOWAS Directive on the Harmonization of Guiding Principles and Policies and Policies in the Mining Sector (DHGPP),[34] sets the standard on the requisite regulatory principles that should guide exploitation of the mining resources. It doesn’t only put the locals and their interests at the core of mining regulation but as well seeks civil society participation. Most importantly, it makes provision for the need to obtain the free and informed consent of communities that are privy to the mining sites.

DHGPP expects the acquisition of land for the development of mineral resources to be according to domestic laws. It requires the payment of adequate compensation to be paid to the lawful occupiers of the land(s) in question. In considering what is adequate as compensation the following considerations need to be made;

1.     The loss to be suffered user/occupier of the land.

2.     The inconvenience which can be assessed according to legal principles in monetary terms caused to the landowner or lawful occupier.

3.     The losses and damages suffered by the immovable assets and appurtenances including loss of revenue, expected losses of agricultural income and the reasonable proven losses by providing compensation.[35]

This is in consonance with the Constitution of the Republic of The Gambia, which allows compulsory land acquisition in the interest of defense, public safety, public order, public morality, public health, town and country planning, or the development of property in order to promote public benefit and that the hardship of the compulsory acquisition is reasonably justified in accordance with the law coupled with prompt and adequate payment of compensation.[36]

DHGPP mandates the State to designate certain areas as “no mining zones” for environmental, social, and culturally sensitive to mining operations. It imposes on the holder of mining license the adoption of necessary measures to protect forests, water resources, the environment, other natural resources, and public health in its mining and to operations and operated with due regard to the environment, public health, and safety in accordance with domestic laws and international agreements.[37] In fact, Corporate Social Responsibility (CSR) and Alternative Livelihoods Programme (ALP) and required to be conditioned for grant of mining rights.[38]

It is certainly not unusual to find in Bilateral Investment Treaties (BITs) what is often called local content requirements.  The DHGPP seeks the same content in asking mining rights holders to submit a detailed programme for recruitment, technological transfer, and training local personnel.[39] The State parties are required to promulgate laws that will provide artisanal and small-scale mining rights to citizens that are environmentally sustainable. [40]

Perhaps the most important regulation demand of the DHGPP is the democratization of governance and the demand for transparency. It makes a case for member countries to achieve this transparency by subscribing to EITI and were not available, pass the freedom of information law in that regard.[41]

4.     Conclusion

 Respect for human rights and most importantly the right of the locals whose communities are the subject of mining and other extractive industry operations should form the crux of the framework for the extractive industry in The Gambia. The DHGPP in this light recognizes the economic, social, cultural, and right to the political development of these communities and the most effective participatory approach of “obtaining free, prior and informed consent of local communities before the exploration and ensure continuous consultation involving civil society organizations.  Indeed, sporadic conflict within communities associated with and relating to mining and quarrying activities ought to be a wakeup call for role players to ensure at all times that the free prior and informed consent of the people that would be directly affected by the explorative of license holders in the grant and management of extractives and other industries. Including the fishing industry.

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SUGGESTED CITATION: Saho, Abdou Aziz, Placing ‘free prior” and ‘’informed consent’’ at the center of extractive industry’s regulatory reform in The Gambia, Law Hub Gambia Blog, May 12, 2021. https://www.lawhubgambia.com/lawhug-net/extractive-regulatory-reform-gambia.

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Whatever it is, the way you tell your story online can make all the difference.

About the author

Abdou Aziz Saho is a State Counsel at the Attorney General’s Chamber and Ministry of Justice. The former Magistrate is a University of Pretoria trained international trade and investment lawyer. His practice and research interests include hydrocarbons and energy law, international trade law, and financial services regulation and arbitration. The views and opinions expressed in these articles are those of the author and do not reflect the views of the Gambia Government or the Chambers.

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 [1] B Campbell, “Regulating Mining in Africa: For whose Benefit?”, Discussion Paper 26, Uppsala (Sweden) (2004)

[2]  Fortune of Africa, Natural Resources of Gambia, http://fortuneofafrica.com/gambia/2014/02/05/natural-resources-of-gambia/  last accessed 21 June 2020

[3] O. Bermundez-Lugo, THE MINERAL INDUSTRIES OF THE GAMBIA, GUINEA BISSAU, AND SENEGAL, 2005 MINERALS YEAR BOOK, https://minerals.usgs.gov/minerals/pubs/country/2005/gapusgmyb05.pdf Last accessed 21 June 2020

[4] See the Preamble to the Mining and Quarries Act, Cap. 64: 01, Vol. 10 Laws of the Gambia, 2009.

[5] The legal regime for the exploration and production of petroleum products is regulated by the Petroleum (Exploration and production Act) Cap. 64:02 Vol 10 Laws of The Gambia 2009

[6] S. 4(2) of the Mines and Quarries Act, supra

[7] S. 14 Mines and Minerals Act, supra

[8] S.81 of the Mines

[9] See sections 61,62 and 79 of the Mines and Minerals Act, supra

[10] Ibid

[11] S. 50, ibd

[12] S. 113 of the Mines and Minerals Act requires compliance with the National Environment Management Act (NEMA).

[13]

[14] S. 84(1), Mines and Acts, supra

[15] Shari Bryan and Barrie Hofman (Eds.) , Transparency and Accountability in Africa’s Extractive Industries: THE ROLE OF THE LEGISLATURE, National Democratic Institute for International Affairs, (2007)  available at https://www.ndi.org/sites/default/files/2191_extractive_080807.pdfl; last accessed 21 June 2020

[16] Ibid

[17] E Ashamu, “Centre for Minority Rights Development (Kenya) and Minority Right Group International on behalf  of Endorois Welfare Council V. Kenya: A Landmark Decision from the African Commission,” Journal of African Law, Vol. 55 No.2 (2011) pp. 300-313

[18] S. 110 of the Minerals and Mining Act, supra

[19] S. 91 of the Mines and Quarries Act, supra

[20] J.O. Adeumi, “GOVERNANCE IN THE NIGERIA EXTRACTIVE INDUSTRY:  FROM HUMAN DEVELOPMENT PERSPECTIVE”,https://www.luc.edu/media/lucedu/prolaw/documents/volume4/D.%20GOVERNANCE%20IN%20THE%20NIGERIAN%20EXTRACTIVE%20INDUSTRIES.pdf Last accessed 21 June 2020

[21] See articles  20, 21 and 24 of the African Charter on Human and People’s Rights, 1969,

[22] See State Lands Act and Land Regions Act

[23] Rio Declaration on Environment;

[24] See Principles 2&22 of Rio Declaration on Environment and Development

[25] African Commission Work on Indigenous Peoples in Africa, “INDIGENOUS PEOPLES IN AFRICA: THE FORGOTTEN PEOPLES?” (2006) available at http://www.achpr.org/files/special-mechanisms/indigenous-populations/achpr_wgip_report_summary_version_eng.pdf last accessed 28th June 2020

[26] Food and Agricultural Organization (FA0) “Free and Informed Consent, An Indigenous People’s Right and a Good Practice for Local Communities” Manual for Practitioners,  available at http://www.fao.org/3/a-i6190e.pdf last accessed 28th June 2020

[27] See art. 1 of International Covenant on Civil and Political Rights and Covenant on Economic, Cultural and Social Rights; see also n25

[28] See United Nations Declaration on the Rights of Indigenous People; International Labour Organization 169; and the Convention on Biological Diversity

[29] Ibd

[30] Cultural Survival Quarterly, “Free, Prior and Informed Consent: Protecting Indigenous People’s Rights to Self-Determination, Participating and Decision-Making” available  https://www.culturalsurvival.org/publications/cultural-survival-quarterly/free-prior-and-informed-consent-protecting-indigenous

[31]

[32] Tsilhgot’in Nation Vs. British Columbia

[33] Ibd

[34]

[35] Article 4, ECOWAS Directive on the Harmonization of Guiding Principles and Policies in the Mining Sector,

[36] S.22 of the Constitution of The Republic of The Gambia, 1994

[37] Art. 6, (n34)

[38] Art. 11 (n34)

[39] Ibd

[40]  Ibd

[41] Art. 13 (n34)

The status of the findings of the African Commission on Purohit and Moore V The Gambia : Seventeen Years of Nothingness

It took two mental health advocates to raise the sorry situation of mentally-ill persons in The Gambia at the continental and global stages. In 2001, Ms. H. Purohit and Mr. P. Moore filed a Communication at the African Commission on Human and People’s Rights (the Commission) against the Republic of The Gambia on behalf of “patients detained at Campama, a Psychiatric Unit of the Royal Victoria Hospital, and existing and ‘future’ mental health patients detained under the Mental Health Acts of the Republic of The Gambia”[1].  The complainants made the following allegations against The Gambia:

a.     The governing mental health law in the Gambia was obsolete

b.     There is no definition of “lunatic” in the Lunatics Detention Act and no provisions and requirements establishing safeguards during the diagnosis, certification and detention of the patient

c.      Overcrowding in Campana

d.     No consent to treatment or subsequent review of continued treatment.

e.      no independent examination of administration, management and living conditions within the Unit itself

f.      patients detained in the psychiatric unit are not even allowed to vote.

g.     no provision for legal aid.

h.     provision for a patient to seek compensation if his/her rights have been violated.

On admissibility of the Communication, meaning whether the complainants had exhausted local remedies as condition for presentation of a complaint, The Gambia concedes that;

the Lunatics Detention Act does not contain any provisions for the review or appeal against an order of detention or any remedy for detention made in error or wrong diagnosis or treatment. Neither do the patients have the legal right to challenge the two separate Medical Certificates, which constitute the legal basis of their detention[2]

The Gambia submitted that the vulnerable groups have recourse to constitutional protection pursuant to section 7(d) of the 1997 Constitution of The Gambia. Also, it contended that the complainants could have sought tortious remedies for wrongful diagnosis. The Gambia promised amendment of the Lunatics Detention Act as it was imperfect.

in 2003,tThe Commission found The Gambia to be in violation of Articles 2 (non-discrimination) , 3 (equality before the law and equal protection), 5 (respect of the dignity and no cruel or inhuman treatment), 7 (1)(a) (right to appeal) and (c) (right to defense and representation), 16 (enjoyment of best state of physical and mental health) and 18(4) (special measure of protection for the aged and disabled) of the African Charter. The findings against The Gambia were as laudable as the recommendations of the Commission. The Gambia was strongly urged to:

a.     as soon as possible, repeal the Lunatics Detention Act and replace with a new legislation for mental health in The Gambia.

b.     create expert body to review cases of persons detained under Lunatics Detention Act.

c.     Provide adequate medical and material care for persons suffering from mental health problems in the Gambia.

Enforcement of the Decision and Outcomes:

There is no report from The Gambia about the implementation of the recommendations as requested by the Commission. The government of The Gambia was requested to “report back to the African Commission when it submits its next periodic report in terms of Article 62 of the African Charter on measures taken to comply with the recommendations and directions of the African Commission in this decision”.

The Next Periodic Report, and in fact the only Periodic Report after the Purohit decision, was the Combined Report on the African Charter on Human on Peoples’ Rights for the Period 1994 and 2018 and Initial Report under the Protocol to the African Charter on the Rights of Women in Africa (1994-2018). Surprisingly, there was no specific information on the implementation of the foregoing three recommendations of the Commission. The Lunatics Detention Act is still the extant law in The Gambia on mental health and no report or data is available on the creation of the review body and on its proceedings and recommendations on the cases of persons detained under the Lunatics Detention Act. Although the Campama Unit was closed and a better and more spacious detention facility was opened at Salagi Called Tanka Tanka, more mentally-ill persons are seen on the street more frequently now than before.

Seventeen years and counting, The Gambia has failed to implement the key recommendation of the African Commission. The Lunatics Detention Act which was enacted in 1917 and last amended in 1964 is not repealed or amended to capture the concerns of the Commission and the changed circumstances in the country. Equally, the draft Mental Health Bill as recommended by the Commission is on hiatus at the National Assembly.

The procedure in case of the lunacy or other incapacity of an accused person is still regulated by the Criminal Procedure Code and the Lunatics Detention Act. The appearance, bail and detention of an Accused Person who is of unsound mind and incapable of making his or her defense rest with the trial court and the minister responsible for health.

In 2012, the Summary Report of the WHO Country Office on Mental Health in The Gambia attributed the poor situation of mental health in The Gambia to;

mental health services are very limited in the Gambia; there are significant gaps in capacity, human resources, materials, medication and outreach services, most of which stem from very limited budget allocation (about 0.5% of the national health budget is spent on mental health services).[3]

Is the 2012 situation of mental health in The Gambia different from the current situation?

Would Purohit and Moore be glad with the no-progress report about the reform of mental health law and situation in The Gambia?

An anatomy of the National Health Policy 2012 – 2020 provides a measure of lack of progress for mental health in The Gambia. The Policy ends this year and its objective of improving access to quality mental health care for all Gambians is far from achieved. The formulated policy measures such as implementing the Mental Health Policy and Strategy; strengthening the capacity for the diagnosis, Management, prevention and control of mental and neurogical disorder; providing quality, equitable and affordable mental health services; revise the Lunatics Detention Act; and develop Mental Health Bill, have not happened as planned. These measures which were basically uplifted from the moribund Gambia Mental Health Strategic Plan 2007 – 2012 are either not fully implemented or not implemented at all. For example, Strategy 7 was to “strengthen community involvement and participation in mental health care delivery” through, among other activities, the creation of “local associations of psychological rehabilitations involving formal health care providers, community leaders and traditional healers within each health division”. Until today, this strategic activity did not happen. There are no in-patient mental health units to “accommodate twelve patients” in all the hospitals and major health centers in the country. Families arrange for transport and bear the cost of ferrying their mentally-ill persons to Polyclinic in Banjul or to Tanka Tanka Psychiatric Unit.

Consequently, what the Purohit Decision exposed about mental health in The Gambia and what research showed is the existing moribund and obsolete legislations and policies. The Lunatics Detention Act of 1917 and the Criminal Procedure Code 1935 have outlived their efficacy and usefulness to the management and trial of mentally ill persons. The Draft Mental Health Bill is comatose at the National Assembly without any chance of being revived soonest. The National Mental Health Policy of 2007 is outdated and the Mental Health Strategic Plan 2007 – 2012 has phased out with nothing much to ride home about.

Until seriousness, more budgetary allocation and specialized trainings are provided to the Mental health sector of the health system of the Gambia, over 118, 000[4] persons with mental health problems will continue to suffer and be discriminated.

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 About the Author:

Simon Sabally is a Gambian living and studying outside of The Gambia. He writes on law and constitutional matters, especially on the Constitution of The Gambia, 1997.

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[1] Purohit and Moore v. The Gambia, African Commission on Human and Peoples' Rights, Comm. No. 241/2001 (2003)

[2] Ibid. para.27

[3] Point Newspaper, “Mental Health in The Gambia, Sep. 25, 2012

[4] Sanneh, Amie, “Over A Hundred Thousand Gambians Suffer From Mental Health Problems” Foroyaa Newspaper, Aug. 28, 2018.

Parliamentary sovereignty: The Gambia’s perspective

Kalipha MM Mbye

Head of Table Office, National Assembly of The Gambia

Abstract

 The fundamental principle underlying the 1997 Constitution of the Republic of The Gambia is the ‘separation of powers’. This paper discusses Parliamentary sovereignty (it also referred to as ‘Parliamentary Supremacy) in the Gambian context as well as the doctrine of separation of powers. The Constitution of The Gambia is the supreme law of the land and any law or rule that contradicts it is void to the extent of the inconsistency.[1] This suggests that Parliament is not sovereign or the provision impairs Parliamentary supremacy. Whether that is true or not, this paper seeks to provide some opinion or answers on the matter. The paper also discusses the various powers that Parliament has over other organs of the State – the Executive and the Judiciary. Finally, the paper concludes on Gambia’s limited Parliamentary supremacy with comparative analysis of the English absolute Parliamentary supremacy.

 Introduction

The fundamental principle underlying the 1997 Constitution of the Republic of The Gambia is the ‘separation of powers’. The principle developed by the 18th century French philosopher, Montesquieu, divides or shares the powers of the State among three organs: The Executive, the Legislature (Parliament) and the Judiciary. The Executive powers are exercised by the Executive comprising the Government and its servants such as the civil servants, the police; the Legislative powers are exercised by Parliament (National Assembly and the judicial powers are exercised by the Judiciary, the judges.[2] The preamble of the 1997 Constitution, basically, promotes this principle of separate of powers by clearly defines the functions of the organs of State; their independence secured as well as provide checks and balances to ensure harmonious working relationship for the ‘common good’.

Parliamentary sovereignty is the other word for parliamentary supremacy. The doctrine of Parliamentary sovereignty is the principle that Parliament is the supreme law-making authority in the country – can make and unmake any law. Generally, the principle embodies that the Judiciary cannot set aside a law made by Parliament and Parliament can undo a law made by its preceding Parliament.[3]

 Does the 1997 Constitution safeguard Parliamentary supremacy?

As discussed earlier, parliamentary supremacy gives Parliament absolute authority to make and unmake law any law it wishes and this cannot necessarily be overruled by another organ of the State, in particular the court. For instance, in the United Kingdom where this doctrine is strictly applied, the Parliament is the highest source of law and as far as the law is made in accordance with the Parliamentary rules of procedure the courts MUST apply it.[4]

Furthermore, a prominent legal philosopher, Dicey (1982), explained in accordance with Parliamentary supremacy, Parliament has:

‘under the English Law, the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.’

Thus, under the British Constitution, suggest that no matter how cruelty, or public outcry, has the law made by Parliament, the law still remains valid and the courts would, in theory, be obliged to uphold the law.

However, under the 1997 Constitution, Parliament is subservient to the Constitution. The Constitution is the supreme law of the land and any law or rule that contradicts it is void to the extent of the inconsistency.[5] This suggests that Parliament is not sovereign, or the provision impairs Parliamentary supremacy. Whether that is true or not, this paper seeks to provide some opinion or answers on the matter.

Parliamentary sovereignty in Gambian context

 Establishment

The Parliament is established by the Constitution through an entrenched provision of the latter.[6] This connotes that Parliament exist by the will of the people and no authority, body or organ of State – neither the Executive nor the Judiciary, has the mandate to scrap its existence, except the people through a referendum. Even with the people’s power to scrap its existence, Parliament itself has to consent to it, first, before reaching them – the people.[7] Thus, one can opine that this provision on the existence of the Parliament has satisfied the principle of ‘Parliamentary sovereignty’.

 Legislative powers

Parliament is vested with the ‘exclusive’ jurisdiction to make laws through bills passed by it and assented to by the President.[8] Bills duly passed by Parliament and assented become law.

Theoretically, the President must assent to a Bill passed by Parliament before it can become a law.[9] However, this is more of a ‘ceremonial role’ under the Constitution. The President is required, within thirty days, to assent to a Bill presented to him or her or return it with, comment(s), requesting for reconsideration by Parliament. Where Parliament reconsiders the Bill requested by the President and revolved by votes supporting the Bill with or without the comments requested by the President, it shall again present the Bill to the President for assent and the President is statutorily compel to assent to the Bill within seven days.[10] In fact, in practice, the President has always given consent to Bills passed by Parliament.

This indicates that Parliament is granted the exclusive law-making power of the State; the President’s role is more of cosmetic and, in principle, for the Executive, as the executing organ, to be put on notice of laws being made in Parliament.

Where it is acceptable for the Judiciary, for instance the Supreme Court, to check Parliament on the law it makes, it does not mean that the judiciary has the power to strip Parliament off its power of law-making. Rather, it is a check in two-fold – whether Parliament has gone beyond its limit or whether it was made in accordance with the procedure enshrined in the Constitution or other laws.

This was manifested in the case of Kemeseng Jammeh v Attorney General in 2001. In this case, Parliament was challenged at the Supreme Court for alleged amendment of an entrenched section of the Constitution without exhausting the procedure prescribed in the Constitution. The Court partially allowed the plaintiff’s application and held that the alleged amendment of section 1(1) and paragraph 13 of schedule II to the 1997 Constitution were made in excess of the legislative powers conferred by the 1997 Constitution and are accordingly null and void.[11] However, the Court refused the application to strike out the amendment in toto, arguing that the other parts of the amendment Act cannot be severed as it was within the province of Parliament and therefore cannot be declared a nullity.

Unlike in England, where the Constitution assigned no limits to the authority of Parliament over all matters and persons within its jurisdiction[12], in The Gambia, Parliament’s legislative powers have been limited.[13] Parliament has no power to make a law establishing a one-party or religious State and to alter the decision or judgement of a court in any proceedings to the prejudice of any party to those proceedings, or deprive any person retroactively of vested or acquired rights.

Finally, others may argue that other bodies such as Councils, subsidiary law-making authorities, do make laws. To the contrary, these bodies’ law-making functions are delegatory and exist under the pleasure of Parliament.

 Procedure of law making

 Generally, Parliament is granted the power to regulate its own procedure, proceedings and how to make law.[14] In other words, Parliament is the master of its own procedure and has been allowed to make its own rules of procedure – Standing Orders.

Furthermore, save for any rule specified in the Constitution or any other law, the courts are barred from enquiring into any ‘decision, order or direction of the National Assembly or any of its Committees or the Speaker relating to the Standing Orders of the National Assembly, or to the application or interpretation of Standing Orders, or any act done by the National Assembly or the Speaker under any Standing Orders’.[15] This means that the rules of procedure of Parliament, its interpretation and application cannot be questioned in any court. Procedurally, Parliament is above board.

 Powers over the Executive

 In accordance with the Constitution, the Executive power is vested in the President and this can be exercised by him or her directly or through his or her officers including the Vice-President or Ministers.[16] In a representative democracy like The Gambia, Parliament has tremendous powers to hold the Executive to account in numerous facets. Parliament has

The Executive, including the President and Cabinet, are accountable and answerable to Parliament in the administration of the State. Section 77 of the 1997 Constitution compels the President to, at a minimum of once each year, to attend a sitting of Parliament and address it on the condition of The Gambia, the policies of the Government and the administration of the State. Furthermore, subsection 2 provides that, Parliament can, if it so wishes, request the President to attend a sitting of it for the discussion of a matter of national importance.

Similarly, the Vice-President and Ministers are collectively responsible to Parliament for any action in Cabinet and also accountable to Parliament for the administration of the departments and other business of Government committed to them.[17]

Effectively, Parliament can, by a vote of no-confidence, a motion on grounds of mental or physical incapacity, or a motion on grounds of misconduct, remove the President from Office.[18] Similarly, Parliament has the power to pass a vote of censure against the Vice President or any Cabinet Minister based on abuse of office or violation of any provision of the Constitution, misconduct in office, or any cause of inability to perform the functions of his or her office. Once the vote of censure [motion] is passed by Parliament, the resident is imperatively required to revoke such appointment of the Vice President or a Minister.[19]

Oversight powers

Equally, Parliament has oversight duty over the Executive and to some little extent to the Judiciary. Parliament has the mandate and power to perform oversight overt the Executive, including its agencies, departments and institutions. The Vice-President or a Minister is compelled to report to Parliament on any matter concerning a department or other business of Government committed to him or her, when requested to do so.

Parliament has the power and mandate to perform oversight over the Executive and in doing so, can investigate or inquire into the activities or administration of ministries or departments of the State, and investigate any matter of public importance.[20] For instance, the Finance and Public Accounts Committee (FPAC) has the mandate to examine the audited accounts of government and the Report of the Auditor General on those accounts. Similarly, Public Enterprises Committee (PEC) is established as a standing Committee to perform oversight on State Owned Enterprises. The Committee monitors the operation of enterprises and to promote efficiency, transparency and probity. Essentially, all State machineries and institutions, including the Judiciary and independent institutions are accountable to Parliament in the administration of their activities and finances.

 Grey areas: Parliament v the Executive

It is arguable that the President under section 96(2) has equally the power to dissolve Parliament. However, this is debatable and may be subject to interpretation by the competent authority. Section 96(2) provides:

“…the President may, in the public interest, declare by Order published in the Gazette, that a general election of all members of the National Assembly shall be held on such date as he or she shall determine.” 

This is subject to interpretation in a ‘purposive’ or ‘mischief’ approach by the courts, as the word ‘in the public interest’ has a purpose and is pre-requisite for such a power to be legally triggered. In case of Ya Kumba Jaiteh v Clerk of the National Assembly and Ors., the Court expounded and reasoned on the interpretation of a statute that ‘…every enactment has a purpose; the Court must seek to ascertain and to promote the object and purpose of the enactment. Words, phrases, indeed whole sections should not be read in isolation from others. Often there are linkages between different enactments and between provisions in the same enactment which need to be read together and given effect in a holistic manner’.[21]

It is arguable that if the court was to interpret the application of section 96(2) by the President, it would ascertain whether the ‘public interest’ has arisen for a general election for Members of Parliament to be held earlier that its constitutional fixed term period. The court would further read section 96(2) together with the object and purpose of enactment – whether it was enacted to deal with a scenario where Parliament was holding the general public interest at random or Parliament was in extreme chaotic situation or at standstill in performing its functions.

 International relations

Parliament has crucial constitutional mandate and responsibility over how the State conducts its international relations. The President has the responsibility to conduct international relations and the negotiation of treaties and other international agreements with other State and international organisations. However, this power is constrained that it is subject to ratification of Parliament before any treaty or international agreement can come into force. In addition, the State cannot become a member of any international organization unless Parliament is satisfied that it is in the National interest and that the membership does not derogate from the country’s sovereignty.[22] Therefore, international relations are subject to legitimate Parliamentary scrutiny and oversight.

Similarly, the Constitution provides that the President cannot declare a war or make peace with any Nation or deploy any armed troops outside The Gambia without the prior approval of Parliament.

 Powers over the Judiciary

Judicial independence is a cornerstone of democracy and the rule of law, such as the independence of Parliament. The judicial powers are vested in the courts and are exercisable by the judiciary as per their jurisdiction.[23]

In as much as independence of the judiciary has been given great importance in the Constitutional arrangement, Parliament also has some degree of oversight and check over the judiciary. This does not impair the doctrine of separation of powers and the independence of the judiciary as discussed earlier, rather it complements the principle separation of powers – no organ should operate unchecked.

In addition, although, the Judiciary is granted the power to check on Parliament in accordance with section 127(1)(b), Parliament has also been granted the power to remove a judge from office if he or she is unable to exercise the functions of the office – whether arising from infirmity of body or mind, or for misconduct.[24] Furthermore, Parliament also decides or approves the annual budget of the Judiciary.[25] This means that Parliament has mandate to hold the judiciary to account in the performance of its legitimate functions. Powers of the judiciary are exercisable only by the courts as prescribed by or under the Constitution and Acts of Parliament.

Immunity

Parliament enjoys considerable immunity ranging from: freedom of speech and debate, protection from civil or criminal proceeding for anything said in Parliament, protection from arrest while on the way or from Parliament, and cannot be compel to appear as witness before any court proceeding while attending Parliament.[26] Parliament and its officers enjoy immunity while performing their legitimate functions.

Conclusion

 Based on the above analysis and provisions of the Constitution, it could be safely concluded that Parliament of The Gambia is sovereign, but that sovereignty is not absolute, unlike the Parliament UK which is absolute and unlimited. In the UK, a law made by Parliament might be unjust or contrary to the fundamental principles of governance; but Parliament was unconstrained, and if it erred, such errors may not be corrected by any other authority but only by itself.[27]

 The power of the judiciary to question the validity of an Act of Parliament would not necessarily mean a breach of the fundamental principle of Parliamentary supremacy. It depends on the manner in which it is exercise by the court and the Parliament’s right or power to legislate.[28] For instance, in the case of Jammeh v Attorney General, 2001 , the Court agrees to the fundamental principle that an Act of Parliament duly passed and in consistent with the Constitution cannot be nullified.

Finally, it also settled that the independence of Parliament is crucial in the discharge of its functions and any attempted impairment of this from the Executive [or even the Judiciary] would be a gross violation of both the letter and spirit of the Constitution and undermine the doctrine of Parliamentary independence.[29] Based on the letter and spirit of both the Constitution and the doctrine separation of powers, Parliament is immune and sovereign while performing its legitimate functions.

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About the Author:

Kalipha MM Mbye is the Head of Table Office at the National Assembly of The Gambia. Mr. Mbye holds LLB degree (Bachelor of laws) from the University of The Gambia. Currently, he is pursuing his LLM degree (Masters of Laws) at the University of Bradford, UK. He has his interests in parliamentary democracy, Constitutionalism, the rule of law and public international law.

Suggested citation: Kalipha MM Mbye, ‘Parliamentary sovereignty: The Gambia’s perspective’ Law Hub Gambia Blog (November 3, 2020) https://www.lawhubgambia.com/lawhug-net/parliamentary-sovereignty-gambia-perspective

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[1] The Constitution of the Republic of The Gambia, 1997, s 4

[2] Emily Allbon and Sanmeet Kaur Dua, Elliott and Quinn’s English Legal System (20th edn, Pearson 2019/2020) 5

[3] ibid

[4] Allbon and Dua (n 2 above) 5

[5] The Constitution of the Republic of The Gambia, 1997, s 4

[6] ibid, s 87

[7] ibid, s 226(4)

[8] ibid, s 100(1)

[9] The Constitution of the Republic of The Gambia, 1997, s 100(1)(5)

[10] ibid, s 100(3)(4)

[11] Jammeh v Attorney General (2002) AHRLR 72 (GaSC 2001)

[12] Erskine May: Parliamentary Practice, (19th edn, Butterworths)

[13] The Constitution of the Republic of The Gambia, 1997, s 100(2)

[14] The Constitution of the Republic of The Gambia, 1997, s 108(1)

[15] ibid, s 108(2)

[16] ibid, s 76(1)

[17] ibid, s 74

[18] Ibid, s 63, 66 and 67

[19] The Constitution of the Republic of The Gambia, 1997, s 75

[20] ibid, s 109(2)

[21] Ya Kumba Jaiteh v Clerk and Ors, SC NO: 001/2019 (unreported)

[22] The Constitution of the Republic of The Gambia, 1997, s 79

[23]ibid, s 120(2)

[24] ibid, s 141(3)

[25] The Constitution of the Republic of The Gambia, 1997, s 144(1)

[26] Ibid, s 113, 114, 115, 116, 117

[27] Erskine May: Parliamentary Practice, (25th edn,) https://erskinemay.parliament.uk/section/4535/extent-of-legislative-authority-of-parliament/ (accessed 02nd November, 2020)

[28] Jonathan L. Black‐Branch, Parliamentary Supremacy or Political Expediency?: The Constitutional Position of the Human Rights Act under British Law, Statute Law Review, Volume 23, Issue 1, 2002, Pages 59–81, https://doi-org.brad.idm.oclc.org/10.1093/slr/23.1.59 (accessed 02nd November, 2020)

[29] Ya Kumba Jaiteh v Clerk and Ors, SC NO: 001/2019 (unreported)

THE JUDICIARY: BEACON OF HOPE FOR THE PROTECTION OF HUMAN RIGHTS AND DEMOCRACY IN THE GAMBIA

Introduction

Since the ousting of former President Yahya Jammeh on 1 December 2016, the protection of human rights has taken a center stage in The Gambia. The preamble to the Universal Declaration of Human Rights (1948) states that, the recognition of the inherent dignity and of the equal inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world. The preamble to the African Charter on Human and People’s Rights (1986) expresses the conviction of African States to promote and protect human and people’s rights and freedoms taking into account the important African values. The 1997 Constitution of The Gambia does not only resolve for good governance and a just, secure, and prosperous society, it also makes provisions for a plethora of rights with mechanisms for their enforcement. The organ of government that bears a primary responsibility in the protection and enforcement of these rights is the Judiciary.

In this article, an attempt is made to examine how effective the Gambian Judiciary has been in the protection of human rights and sustenance of democracy in The Gambia. The paper also examines how well the Judiciary has impacted on the country’s nascent democracy in the performance of its role as well as its traditional duty of checking the excesses of the other two organs of government. This is because ‘’rights are among the essential building blocks of a democratic process of government’’.[1]

The organ of government that bears a primary responsibility in the protection and enforcement of human rights is the Judiciary.

While there is widespread acceptance of the importance of human rights in a democratic society, there is considerable confusion as to their precise nature and role in law. The question of what is meant by right is itself controversial and the subject of intense jurisprudential debate. The problem of enforcement and sanctions with regards to human rights is another issue which can affect the characterisation of the phenomenon. According to the United Nations, human rights are ‘’those rights which are inherent in our nature and without which we cannot function as human beings.’’[2] Thus, human rights underpin the aspiration of a world in which every man, woman, and child lives free from hunger and protected from oppression, violence, and discrimination.

Understanding the nature of the ‘’right’’ involved can help clarify one’s consideration of the degree of protection available, the nature of limitation or exceptions, the priorities to be afforded to various rights and delicate balancing of competing interests. The answers to these questions will evolve overtime through rulings, interpretations, judgments and in some cases pragmatic compromises. But how those answers emerge will be largely influenced, if not driven by the legal and moral justifications of the human rights in issue.

Entrenchment of Human Rights

The question of entrenchment of human rights in the constitution is as controversial as the subject matter itself. Some scholars believe that formal entrenchment of human rights in the constitution would enhance their enjoyment and enforcement, others think otherwise. For instance, Professor Stanley de Smith and Rodney Brazier[3], opined that entrenchment of human rights obstruct governments from doing what they want to do. They are therefore said to be undemocratic because they obstruct fulfilment of the will of the people as expressed by their elected representatives. They lead to ‘’government by judges’’ if the constitution is rigid. The duo further argues that, justifiable guarantees and prohibitions induce delay and uncertainty because the executive will not be sure of what they are entitled to until the judges have told them. This, they claim, would engender a litigious spirit.[4]

On the other hand, Professor JAG Griffith doubts whether judges are qualified to protect human rights. According to him, judges are traditionally selected from a cohesive and limited socio-economic class. They are predominantly male middle or upper class and middle aged. Judges by virtue of their training, it is argued from this perspective, are not suited to the task of protecting the rights of the poor, socially and economically disadvantaged, or members of groups and association in society whose outlook and background is so different from that of the judges.[5]

While admitting the soundness and validity of some of the views expressed above, I respectfully submit that, it still seems better to entrench human rights including economic and social rights in the constitution as these justiciable guarantees and prohibitions will not only ensure certainty and predictability but would also enhance the promotion and protection of human rights by creating a constitutional benchmark upon which rights can be assessed.

The fundamental rights guaranteed in Chapter IV of the 1997 Constitution include, the right to life, rights to personal liberty, right to fair hearing, protection from slavery and forced labour, protection from inhuman treatment, right to freedom of thought, conscience and religion, right to freedom of expression and the press, right to peaceful assembly and association, right to freedom from discrimination just to name but a few. In addition to the copious provisions for fundamental human rights in the 1997 Constitution, it has also provided the machinery for their enforcement with the Judiciary being given a pride of place. However, it is important to highlight that the above chapter guarantees limited socio-economic rights.

The Judiciary and Enforcement of Fundamental Rights

Section 37 (1) of the 1997 Constitution specifically vests the Judiciary with the authority to enforce fundamental human rights. The section provides that any person who alleges that any of the provisions of section 18 to 33 or section 36 (5) of this Chapter (Chapter IV Protection of Fundamental Rights and Freedoms) has been, is being or is likely to be contravened in relation to himself or herself by any person he or she may apply to the High Court for redress. Aside from an application brought pursuant to section 37 (2), only a person having locus standi can institute an action for the enforcement of any of the provisions contained in Chapter IV.

The doctrine of locus standi under the 1997 Constitution and the hitherto stringent interpretation by the courts have greatly hindered the accessibility of the Gambian courts to the citizens and persons living in The Gambia by precluding them from bringing action to enforce the provisions mentioned above unless the alleged contravention is in relation to them. A person who is not interested in the subject matter has no locus standi to invoke the jurisdiction of the court.

Section 34 of the 2020 Draft Constitution has now liberalized the above rule of locus standi. The said section now permits the ‘’public spirited’ person (s) to institute court proceedings claiming that a fundamental right or freedom in Chapter VI has been denied, violated or infringed, or threatened with contravention. Similarly, by subsection (3) thereof, the Chief Justice is empowered to make rules with respect to the practice and procedure of the court. Thus, the widening of the traditional rule of locus standi and the introduction of public interest litigation by section 34 of the 2020 Draft Constitution is a significant phase in the enforcement of human rights.

Restriction of Human Rights

Like what obtains under the provisions of other human rights instruments to which The Gambia is a party to, the fundamental rights and freedoms guaranteed under the 1997 Constitution are not absolute. Under certain circumstances, some of these rights could be restricted or limited for the general interest of the society and hence the need for restriction clauses. Under the 1997 Constitution, these clauses are of two types. While some restriction clauses are attached to specific rights, section 35 (2) of the 1997 Constitution contains omnibus restriction clause. It provides that nothing contained in or done under the authority of an Act of parliament shall be held to be inconsistent with or in contravention of sections 19 (protection of right to personal liberty), section 23 (privacy), section 24 (provision to secure protection of the law and fair play other than (5) to (8) thereof) or section 25 (freedom of speech, conscience, assembly, association and movement) of this Constitution to the extent that it is reasonably justifiable in the circumstances arising or existing during a period of public emergency for the purpose of dealing with the situation.

Sections 18 allows restriction on the right to life. Similarly section 25 (4) placed restrictions on the right to freedom of speech, conscience, assembly and association so far as the law imposes reasonable restrictions on the exercise of these rights and freedoms thereby conferred, which are necessary in a democratic society and are required in the interests of the sovereignty and integrity of The Gambia, national security, public order, decency or morality, or in relation to contempt of court. However, the constitution does not define what is meant by the expressions ‘’ public order, decency, or morality and what is reasonably justifiable in a democratic society.’’

The Supreme Court of The Gambia had occasion to deal with these phrases in the case of Ousainou Darboe & 19 Ors v. Inspector General of Police & 2 Ors [6] where the applicants invoked the original jurisdiction of the Supreme Court seeking inter alia, a declaration that section 5 of the Public Order Act which requires a permit from the IGP before anyone can exercise the right to freedom of assembly and demonstrate peaceably without arms as unconstitutional and a violation of section 25 of the Constitution which guarantees the above rights.

In its judgment, the Supreme Court unanimously held that the restrictions imposed on the grounds set out in section 25 (4) of the Constitution read in conjunction with section 5 of the Public Order Act were reasonably justifiable in a democratic society. The Court per his lordship Chief Justice Hassan B. Jallow, went further to state as follows;

‘’The right to assembly, as with other individual or collective rights, is usually exercise within the public space. As a result, its exercise by anyone may conflict with the exercise of the same right by others or with the exercise or enjoyment of other rights by other persons or with the needs for the maintenance of public order and security. Hence the need for some regulation or restrictions on the exercise of the right… The requirement of a licence from the Inspector General of Police for the holding of a public procession... to prevent a breach of the peace are reasonable limitations on the right to assembly and to free expression’’.[7]

Be that as it may, the apex Court in my considered view did not satisfactorily set out the standards for a lawful restriction that is in accordance with international human rights law, as the decision failed to provide any evidentiary or factual foundation for the assessment that prior approval for the enjoyment of the right to assemble and demonstrate peaceably is not unconstitutional. Moreover, the grounds permitting restrictions under section 25 (4) of the Constitution cited by the Court does not support its conclusion, because the Constitution did not envisage outright denial of the exercise of these rights.

While I agree with the Supreme Court that restrictions are necessary in the interest of public order, and the competing interest to secure the rights of others, the restrictions imposed by the Constitution are broadly crafted and therefore any part of the constitution which protects and entrenches fundamental rights and freedoms should be given a generous and purposive construction, rather than vague interpretation as this may cause unreasonable restriction of rights. Thus, the purpose of the restrictions in section 25 (4) of the constitution are necessary, but the measures adopted to achieve the purpose through section 5 of the Public Order Act is arbitrary and unreasonable.

Equally, in the case of Gambia Press Union & 2 Ors v. Attorney General [8], the plaintiffs filed an action before the Supreme Court on 2nd September 2014 challenging the constitutionality of  sections 51, 52 A, 53, 54, 59 and 181 A of the Criminal Code all dealing with sedition and false publication and broadcasting. They argued that these sections of the Criminal Code are inconsistent with sections 4, 5, 17, 25 (1) (a) & (b) and 25 (4) of the 1997 Constitution. The court unanimously held that, sections 51 (b), (c), (d), (e), 52, 52A, 53, 54, 59 and 181 A of the Criminal Code are not unconstitutional. However, the court declared section 51 (a) of the Criminal Code invalid and unconstitutional.

Following the judgment of the court, the lawyer representing the GPU Hawa Sisay Sabally had this to say; ‘’law on defamation has been taken out and the laws relating to the internet such as false news and caricature of public officials has also been struck out’’[9]. The President of the GPU Emil Touray expressed mixed feelings in that, he was elated that the Supreme Court had declared ‘’criminal defamation and false publication unconstitutional’’, but was also sad that sedition against the president and false publication and broadcasting remained valid under the law.[10]

In the case of Ya Kumba Jaiteh v. Clerk of the National Assembly & 3 Ors [11] the plaintiff filed a suit against the defendants pursuant to the original jurisdiction of the Supreme Court seeking inter alia a declaration by the court that; ‘’the purported termination of the plaintiff’s membership of the National Assembly through an Executive decision was null and void’’. At the end of the hearing, the Supreme Court finds, holds and declares that the purported termination of the plaintiff’s membership of the National Assembly through an Executive decision from the office of the President was unconstitutional, invalid, null and void and of no effect.[12] Even though, I am not in agreement with the reasoning of the Supreme Court, their decision on this  matter, in my view, further strengthen the confidence reposed on the judiciary.

Similarly, the Court of Appeal in the case of M.A. Kharafi & Sons Limited v. The Attorney General [13], the court dismissed an application for stay of execution of the adverse findings of the ‘’Janneh Commission’’ made against M.A. Kharafi & Sons Limited. The court further held that, findings or recommendations of the Janneh Commission is not self-executory since it is not a judgment or order of a court.[14] However, in the case of T.K Motors v. The Attorney General, a different panel of the Court of Appeal granted an application for a stay of execution of adverse findings of the Janneh Commission made against T.K Motors.[15] In light of these different rulings from the same court, a further decision on this point from the Supreme Court will be crucial to the prospect of commissions of inquiries in The Gambia.

Conclusion

Despite the widespread acceptance of the importance of human rights in the ‘’New Gambia’’, there is still controversy about their nature and scope. The enforcement of human rights is not less controversial. The Judiciary is the organ of Government tasked with the enforcement of fundamental rights and freedoms. The Gambian Judiciary has seen many encouraging developments since the restoration of democracy and rule of law following the December 2016 Presidential election. The Chief Justice should ultimately take advantage of the provision of section 34 (3)  of the 2020 Draft Constitution to relaxed the procedural rules and make more liberal and highly simplified to commence an action for the enforcement of fundamental rights and freedoms. Besides that, cases involving alleged violations of fundamental rights should be expeditiously heard and unwarranted adjournments discouraged. Legal practitioners should also imbibe the culture of providing pro bono legal services to victims of human rights violations while legal aids scheme should be strengthened and widened beyond its present scope. The media, civil society organisations and other independent human rights institutions should continue to enlighten the public about their rights in order to discourage violations. Finally, members of the Judiciary should always bear in mind their role as the last hope of the common man.  

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About the Author 

This article is written by Mansour Jobe Esq. (LLB (Hons), BL, LLM). Mansour his Master of Laws (LLM) degree in Human Rights Law from the University of Nottingham in the UK and holds a Bachelor of Laws (LLB) from Igbinedion University in the Federal Republic of Nigeria. He completed his Bar Finals (BL) from the Gambia Law School in 2014 and eventually enrolled as a Barrister and Solicitor of the Supreme Court of The Gambia.

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[1] Dahl, Robert 1988. On Democracy Yale University Press. P48

[2] United Nations, available at https://www.un.org/en/sections/issues-depth/human-rights/ accessed on 10th August 2020

[3] De Smith, Stanley and Brazier, Rodney, 1994. Constitutional and Administrative Law. England. Pengiun 7th edn p 458.

[4] Ibid.

[5] Griffith, JAG 1997. The Politics of the Judiciary London. Fontana cited in Barnet, Hilaire 2000. Constitutional and Administrative Law. London Cavendish.

[6] Civil Suit No: SC 003/2016 (Unreported)

[7] Ibid pages 7-8

[8] Supreme Court Civil Suit No: 1/2014

[9] Standard Newspaper May 10, 2018 publication available at https://standard.gm/supreme-court-declares-sedition-constitutional-struck-out-defamation/ accessed on 11th August 2020.

[10] Ibid

[11] S.C No: 001/2019

[12] Ibid pages 35-36

[13] Civil Appeal No: GCA 046/2019

[14] Ibid page 21

[15] See the Standard Newspaper publication of 10th June 2020

The Draft Constitution of The Gambia and its impact on the criminal justice delivery

ABSTRACT

Following the defeat of former President Yahya Jammeh in the 2016 Presidential elections, the new Government of President Adama Barrow, in 2017, set in motion the process of promulgating a new constitution for The Gambia with the objective of installing good governance, protecting human rights and enhancing the criminal justice delivery system. The Draft Constitution has introduced several new provisions to achieve these objectives. This article focuses on one such provision and its overall impact on the criminal justice delivery system. The introduction of section 45 (5) in the Draft Constitution is meant, in effect, to alter and overrule the common law position on the admissibility of illegally obtained evidence. This article commences by providing a background on the Draft Constitution and proceeds to examine the current common law position on the admissibility of illegally obtained evidence and critically analyzed the effect of section 45(5) of the Draft Constitution on the criminal justice delivery system and concluded by making recommendations for stakeholders in the criminal justice delivery system.

 BACKGROUND

On 1st December 2016, Gambians went to the polls in what turned out to be a monumental defeat of the dictatorial regime of former President, Yahya Jammeh. The defeat of the strongman brought renewed hope to Gambians both home and abroad. In an effort to rebuild the foundations for good governance and restore democracy in the country, the new Government of President Adama Barrow “formulated a National Transitional Justice Programme to help restore democratic governance in the country. In this regard, the Government resolved to review the 1997 Constitution and draft a new Constitution to address the wishes and aspirations of Gambians.”[1]

In December 2017, the National Assembly enacted the Constitutional Review Commission Act with the mandate “to draft and guide the process of promulgating a new Constitution for The Gambia.[2] On the 15th November 2019 the Constitutional Review Commission published the first draft of the proposed Constitution and invited members of the public to make contributions with a view of further enriching the instrument. On the 30th March 2020, the final Draft Constitution was released to members of the public and on the 28th May 2020, the final Draft Constitution was gazetted in the National Gazette to kick start the process of promulgating the Draft Constitution into the Constitution of the Republic of The Gambia, 2020.[3]

 By far, the Draft Constitution appears to be the most consultative and participatory constitution in the history of The Gambia for it arguably represents, and captures the wishes and aspirations of Gambians both home and abroad.  Aside from its widely consultative and participatory nature, the Draft Constitution has introduced new provisions that are aimed at ensuring respect for the rule of law and human rights and enhancing the criminal justice delivery system. This article focuses on one such novel provision- section 45(5) of the Draft Constitution.

 The rational for focusing on section 45 (5) of the Draft Constitution instead of a wholesome commentary of the entire Draft, is that section 45(5) has a wide reaching implication on our criminal justice delivery system and therefore it is pertinent that this article bring its implication to the fore with the objective of raising awareness for stakeholders in the criminal justice delivery system.

 The implication of section 45 (5) of the Draft Constitution is that once adopted it will alter the long-held common law position on the admissibility of illegally obtained evidence and will in effect, introduce in our criminal justice system the so-called ‘Exclusionary Rule’ inspired by the Fourth Amendment to the United States Constitution.

The introduction of section 45 (5) in the Draft Constitution is meant, in effect, to alter and overrule the common law position on the admissibility of illegally obtained evidence.

Current common law position on illegally obtained evidence

By virtue of section 7 of the 1997 Constitution, the English common law rules form part and parcel of the corpus juris of The Gambia and consequently the common law position on illegally obtained evidence has since the enunciation of the rule been applied in our courts. Under English common law, the rule is that once a piece of evidence is relevant to a judicial inquiry, subject to certain procedural rules, it becomes admissible; and as Cross puts it, it is immaterial to the court the method or manner by which such incriminating evidence was obtained, although it may warrant punitive or remedial proceedings against those responsible for the illegality.[4]

 In dealing with illegally obtained evidence, the common law courts are usually confronted with two conflicting public interests- (a) the interest of the citizen to be protected from illegal or irregular invasions of his liberties by the authorities, and; (b) the interest of the state to secure that evidence bearing upon the commission of a crime and necessary to enable justice to be done shall not be withheld from courts of law on any mere formal or technical ground...”[5] In balancing these two conflicting interests, the common law courts adapted the attitude of admitting evidence regardless of how it was obtained. Emphasis therefore is placed on relevancy. This can be seen in the following cases. In Jones v. Owens,[6] Mellor J was of the view that if such evidence could not be used against the accused, it would be “a dangerous obstacle to the administration of justice”.  In R v. Leatham,[7] Crompton J went as far as to say that “if you steal it even, it would be admissible”. The Privy Council per Lord Goddard CJ in the Kenyan case of Kuruma Son of Kaniu v. R[8] reinforced the common law position and maintained that the test to be applied in considering whether the evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the court is not concerned with how the evidence was obtained.[9]

 In essence, the common law courts are more concerned with vindicating the truth with the aid of relevant evidence, rather than excluding such evidence on the ground that it has been improperly obtained.[10] However, in England and Wales, the introduction of the Civil Procedure Rules (CPR) in April 1999 and the effect of the Human Rights Act 1998, which incorporated certain Articles of the ECHR into English law has modified the common law position.  Rule 32.1 (2) of the CPR gives the courts of England and Wales discretion to exclude illegally obtained evidence.[11]

In the United States, where the rule originates, illegally obtained evidence and any knowledge gleaned therefrom, subject to some exceptions is excluded in criminal proceedings. Known in US jurisprudence as ‘the exclusionary rule’, it emanates from the Fourth Amendment to the US Constitution, which prohibits ‘unreasonable searches and seizures’. The exclusionary rule applies not only to the original evidence illegally obtained but also to copies and knowledge gleaned therefrom. The precedents have established that both the ‘primary evidence obtained as a direct result of an illegal search or seizure’ and ‘evidence later discovered and found to be derivative of an illegality, the so-called “fruit of the poisonous tree” are inadmissible in criminal proceedings.

Having determined the current position of the law as it relates to illegally obtained evidence, it is now apposite to examine the effect of section 45(5) of the Draft Constitution on the current law.

Section 45 (5) of the Draft Constitution

As indicated above, one of the new provisions in the Draft Constitution is section 45(5). The said provision, subsumed under the right to fair trial, provides:

“Evidence obtained in a manner that violates any fundamental right or freedom under this Chapter [Chapter VI] shall be excluded if the admission of that evidence would render the trial unfair, or would otherwise be detrimental to the administration of justice”.

The foregoing provision, contrary to the common law position, compels a trial judge to exclude any evidence proven to have been obtained in a manner that violates any fundamental right or freedom under chapter VI. It is worthy to mention at this stage that even though the provision, on a literal interpretation, seems to apply to both civil and criminal cases, the focus of this article however will be on the overall impact of the provision in the criminal justice delivery system. The propriety of extending the provision to civil cases will be the subject of a separate article having regard to the fact that even in the United States where the ‘exclusionary rule’ originates, there are authorities[12] to suggest that the rule does not apply to civil cases, with the exception of forfeiture proceedings.[13]  It is worthy of mention that this provision is a carbon copy of section 50 (4) of the Kenyan constitution, 2010.

Be that as it may, what can be gleaned from the provision is that, in the exercise of the power conferred on a court to exclude illegally obtained evidence, the court would resort in applying two tests to wit: (1) whether the admissibility of the evidence would ‘render the trial unfair’ and (2) whether the admissibility of the evidence would be ‘detrimental to the administration of justice’.

While this provision is desirable from a human rights perspective, it will have a great impact on the criminal justice system especially with law enforcement, having regards to the current or existing investigation techniques of law enforcement officers. In consonance with the common law position on illegally obtained evidence, investigators have adopted techniques, supported by extant laws, of obtaining evidence regardless of whether same was obtained lawfully or otherwise. Section 45(5) has therefore come to change the game for investigators and prosecutors alike.

New rules for investigators and prosecutors

The Criminal Procedure Code, the Police Act, the Drug Control Act, the Customs and Excise Act, the National Intelligence Agency Act, the Gambia Armed Forces Act and the Anti-Terrorism Act amongst others confer various powers of arrest, search and seizure, detention, investigations, and prosecutions of various offences on officers appointed pursuant to the foregoing regimes. The extent of these powers varies from one security outfit to another but common among these security outfits is the power to arrest, search and seize item from persons suspected to have committed an offence with the objective of using the seized items as evidence without a warrant.

 Very often and perhaps owing to the common law position towards illegally obtained evidence, searches done on the person of suspects or their homes are done in violation of their fundamental human rights especially the right to privacy. The current position of the law is that irrespective of the violation of a fundamental right, except torture, evidence obtained from a suspect once proven to be relevant would be admissible. However, if the Draft Constitution is adopted in a referendum, investigators must conform with the following rules during investigations:

 (i)            when a suspect is arrested on suspicion of having committed an offence, he or she must be reminded of his/her right to remain silent pursuant to section 45(2)(i);

(ii)          when a suspect is arrested for any offence, before he/she is interrogated with a view of obtaining evidence from him/her, the suspect must be informed of his right to counsel pursuant to section 45(2)(g); and

 (iii)          when a suspect is arrested and the investigators intend to search the home or premises of a suspect to obtain evidence that is intended to be used in evidence, the search must conform with section 43- right to privacy.

The violation of “ANY“ of the foregoing rules, will  render any evidence obtained from a suspect inadmissible if the admissibility of the evidence would ‘render the trial unfair’ or if the admissibility of such evidence would be ‘detrimental to the administration of justice’. It is glaring now that the game will change for investigators and prosecutors as the courts have now been empowered to toss out illegally obtained evidence and thereby hindering the pursuit of justice by victims of crimes.

In our criminal justice delivery system, the role of the investigator is perhaps more important than the role of the prosecutor. The prosecutor becomes seized of the file after investigations are supposedly concluded and his/her success or failure in the prosecution of an offence largely depends on the proprietary of the evidence obtained. There is a chain reaction when the investigator fails to comply with the rules itemized above- the evidence gathered of a fundamental right or freedom will get tossed out, then the case could fail as a result and the victim end up getting no justice and the confidence in the criminal justice system begins to erode. Reform therefore becomes pertinent.

Recommendations for reform

As the erudite Nigerian jurist Justice Oputa once expounded, justice is not a one-way traffic, neither is it a two-way traffic. It is a three-way traffic- justice for the accused who stands accused of a heinous crime; justice for the victim who wants vengeance; and justice for society whose social norms and values have been desecrated and broken. To ensure that justice is served, the institutions in the criminal justice delivery system have to engage in a reform to live by the new rule of section 45(5). Below are some recommendations for reform.

1. Training of criminal investigators

In light of the new rules expatiated above, crime investigators need to be trained and reoriented with a view of acquainting them with the new rules and the effect of non-adherence to same. As I highlighted above, there is now a consequence for not reminding a suspect of (1) his right to remain silent; (2) his right to counsel and (3) adhering to his right to privacy. These rights if violated will render any evidence obtained from a suspect inadmissible during the trial. And needless to say that when the most vital piece of evidence is excluded from evidence, the entire case may likely suffer. Therefore, training and reorienting investigators so that they can conform to the new rules becomes very important in this regard. 

2. Creating a synergy between investigators and prosecutors

As it currently obtains, there is a disconnect between the investigator and the prosecutor. In The Gambia, the procedural trajectory of a case commences from the alleged commission of an offence. The allegations sets in motion an investigation of the offence. Once the investigation is concluded, the case file to the office of the Director of Public Prosecutions (DPP) for legal advice and prosecution. Since the investigation is conducted solely by the investigator, who usually has a limited knowledge of the law and procedure and the basic elements of the offence required to prove the offence, the prosecutor’s case is therefore as good as the investigator. To obviate a scenario where an investigator does a shabby work of gathering the evidence, leaving the prosecutor with an uphill task in court with a pile of inadmissible evidence, it becomes important that a synergy is created between the investigators and the DPP’s office to facilitate proper guidance in obtaining the evidence and policing the manner in which the evidence is obtained. In light of the new circumstances, this synergy becomes even more important now especially with the attendant risk of having the court exclude relevant evidence.

3. Creating Rules and Procedure to test the admissibility of the evidence

While section 45(5) of the Draft Constitution has conferred discretionary power on the courts to exclude illegally obtained evidence, the provision leaves many questions unanswered. The adoption of section 45(5) of the Draft Constitution will immediately impact the dispensation of justice. How would a court determine whether the admissibility of a piece of evidence renders the trial unfair or be detrimental to the administration of justice? This is a question of law and fact. Since the answer to that question would require an examination of the facts surrounding the evidence, it therefore calls for the establishment of a trial procedure (mini trial) to test the admissibility of the evidence with a view of determining the manner in which it was obtained, in the same manner the voluntariness of a confession is tested before its admissibility or otherwise.

CONCLUSION

It is worthy to note that while the provision of section 45 (5) has in effect overruled the position of the common law, it leaves so many questions unanswered. For example, since section 45(5) excludes evidence directly obtained by the breach of the rights and freedoms enshrined under Chapter VI, what happens to evidence or knowledge gleaned from such violations? Would such evidence be subjected to the same test or would it serve as an exception?

 Further, would this new rule apply to evidence illegally obtained before the coming into effect of the Draft Constitution? If no, would the court then during trial segregate cases on the basis of when the evidence was obtained? Whatever the answer is, this would sure cause quite a conundrum for the courts.

In conclusion, from a human rights perspective, the provision is a welcome improvement on an accused person’s right to fair trial but from a law enforcement perspective; it has created a nightmare for investigators and prosecutors.

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About the Author

Abdulrahman Bah is currently the Director of Legal and Board Services at Gambia Revenue Authority (GRA). Mr. Bah was a former Public Prosecutor and State Counsel at the Attorney General’s Chambers, Ministry of Justice. He is also an Adjunct Lecturer at the Law Faculty of the University of The Gambia where he lectures the Law of Evidence. He holds a double Masters degrees in Intellectual Property and International Commercial Law. His research interest cut across, criminal law and procedure, law of evidence, IPR, tax law, and oil and gas law.

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[1] Report of the Constitutional Review Commission on the Draft Constitution for the third Republic of The Gambia, 30th March 2020

[2] Preamble of the Constitutional Review Commission Act

[3] Gazette No. 88/2020 dated 28th May, 2020

[4] Cross on Evidence (Butterworths, London, seventh edition, 1990)

[5] R v. Jacquith and Emode [1989] Crim LR 508

[6] (1870) 34 JP, 759

[7] (1861) 8 Cox CC498

[8] [1955] AC 197 at 203

[9] Supra

[10] Colson et al, “The Fruits of a Poisoned Tree- Use of Unlawfully Obtained Evidnece”, International Litigation Newsletter, Sept 2017

[11] Ibid

[12] See US v. Janis, 428 US 433, 454 (1976)

[13] Mejia v. City of New York, 119 F Suppl 2nd 232, 254, N27 (EDNY 2000)

Constitutional Developments in The Gambia: Readying for a New Constitution

Constitution building in the Gambia dates back to the colonial period particularly when the country became a full-fledged colony between 1894 and 1902. In order to ensure effective control over the Gambia the British had to develop various constitutions through which they built institutions to enforce their authority over the lands and people of the Gambia.

Two of the foremost institutions through which the colonialists governed the country were the Legislative Council and the Executive Council. The Legislative Council for the Gambia met for the first time in 1843. Since then various constitutions were created to expand and determine its mode of membership, i.e. either by selection, nomination or election. Usually membership was concentred on Europeans until 1883 when a Gambian, J.D. Richards was appointed into the body. But by 1947 a new constitution was created that allowed for the election of an African representative from the colony for which EF Small was elected for Banjul.  

The Legislative Council was eventually abolished in 1960 to be replaced by a House of Representatives following the 1959 constitutional conference and the subsequent creation of a new constitution by Governor Edward Windley. That constitution established the House of Representatives consisting of 34 members, 19 of whom were directly elected. It also gave the right to the people of the protectorate for the first time to directly elect their representatives. It was this constitution that actually opened the floodgates for the journey towards Gambian Independence.

The constitutional development process continued in 1961 when another conference was held in Banjul from 4 – 11 May 1961. This led to the London constitutional conference which was held in the same year on July 24. It was these conferences that gave birth to the 1962 Constitution which set the stage for elections that year and constituted the House of Representatives thus; 25 seats for Protectorate, 7 seats for Colony and 4 Chiefs. Consequently the 1962 elections resulted in PPP winning 18 seats, UP 13 seats and DCA with 1 seat. The 1962 Constitution also created an Executive Council headed by the Governor, a prime minister, an attorney general and 8 other ministers.

The significance of the 1962 constitution was that it created 32-member representatives and set the motion for the Gambia to attain internal self-rule. Therefore when the PPP won the majority seats, the Governor appointed Jawara as Premier and asked him to form his cabinet. In October 1963 the colonialists gave the country full internal self-rule status and Jawara then became Prime Minister.

In the following year, 1964 the most significant constitutional conference was held in London where the subject matter was the independence of the Gambia.  This conference led to the enactment of the Gambia Independence Act in December 1964 by the British Parliament with the title, ‘An Act to make provision for, and in connection with, the attainment by The Gambia of fully responsible status within the Commonwealth’.

The London conference agreed that the Gambia would become independent on 18 February 1965 on the basis that it will seek membership of the Commonwealth and that the Queen of England would also become the Queen of the Gambia. On the appointed date, at a huge colourful ceremony in Banjul the Union Jack was lowered and the Gambian flag was hoisted. Jawara was formally confirmed as Prime Minster and Sir John Paul was appointed as Governor-General. In 1966, Paul was replaced by Sir Farimang Singhateh as the Governor General.

From the foregoing it is clear that the Gambia was indeed not an Independent country by 1965 but a British dominion with internal self-government status. Hence the journey towards independence continued with two referendums on the question of being a republic. The first referendum was held in November 1965 but the ‘Yes Vote’ fell short of the two-thirds majority by only 758 votes. The second referendum was held in April 1970 where the two-thirds majority was met and the Gambia was declared an independent republic on 24 April 1970.

The result of that referendum meant that another constitutional process had to emerge leading to the creation of the 1970 Republican Constitution. However by then this constitution was already passed by the House of Representatives on 18 December 1969 but then assented to by the Queen of England on 24 April 1970. That constitution unified the office of Head of State into an Executive Presidency and abolished the office of the Governor General, as head of state and representative of the Queen of England. Jawara became the first President of the Republic and Sir Farimang Singhateh ceased to be Governor General.

Since 1970 the Gambia did not encounter any major constitutional issues until 1994 when the military overthrew the PPP government and suspended parts of the 1970 Constitution. Following a transitional process lasting two years a new constitution was drafted and subjected to a referendum in August 1996 that came into force in January 1997.

There exist fundamental differences between the 1970 and 1997 constitutions. For example while Section 1 of the 1970 Constitution stated that the Gambia was a sovereign republic yet it did not establish on who resided that sovereignty. In the 1997 Constitution, section 1 subsection 2 clearly states that the sovereignty of the Gambia resides in the people of the Gambia and the legitimacy of the state is derived from the people. The 1970 Constitution did not have a preamble which is contained in the 1997 Constitution. While both constitutions have stipulated the fundamental rights and freedoms of Gambians, yet the 1997 constitution was more extensive and explicit under the Chapter Four.  Furthermore the 1970 Constitution did not provide for the establishment of most state institutions as is the case in the 1997 Constitution. In fact the 1970 Constitution was enacted as an act of parliament and not subjected to a referendum as was the case with the 1997 Constitution. However the 1997 Constitution also leaves much to be desired especially given the uncountable amendments it has been subjected to over the period to satisfy the whims and caprices of former president Yaya Jammeh.

In building a new constitution for the Third Republic, major lessons must be learnt from both Independence constitutions to ensure that fundamental republican and democratic values, standards, institutions and processes are clearly provided and protected to ensure good governance. This includes presidential term limits, limitation of the powers of the president, expansion of the rights of citizens and strengthening the oversight functions of the parliament.  

A constitution of any society does not only provide a legal basis for the existence of that body but also establishes the rights and obligations of the members individually as well as the body itself as a whole. A constitution further defines and sets the aims and objectives of that body as well as the values, standards, rules, processes and institutions of that society. Hence a constitution therefore is also a performance assessment and an accountability tool that determines the health and strength of any body and its members. For that matter a constitution is usually set in a kind of language and structure that makes it long-lasting, difficult to change and sustainable in order to cater for the present and the future needs of society at the same time.

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This article draws from many sources including;

1.      Hughes, Arnold and Perfect, David. “Historical Dictionary of the Gambia”. The Scarecrow Press, Plymouth, fourth edition, 2008

2.      Hughes, Arnold and Perfect, David. “A Political History of the Gambia, 1816 – 1994”, Rochester, N.Y.: University of Rochester Press, 2006

3.      K. Jawara, Dawda. “Kairaba”, Haywards Heath, West Sussex, UK. 2009

4.      A.S. Jammeh, Ousman. “The Constitutional Law of the Gambia: 1965 – 2010”, AuthorHouse, 2011

5.      Saine, Abdoulaye S, Ceesay, Ebrima Jogomai and Sall, Ebrima. Eds. “State and Society in the Gambia Since Independence: 1965 – 2012”, Africa World Press, Trenton New Jersey, 2013

6.      Constitution of the Republic of the Gambia 1970

7.      Constitution of the Republic of the Gambia 1997

Constitutional Change and Amendment: Are we restrained by ourselves or other people?

The precommitment theory by famous Norwegian political theorist, Jon Elster presupposes that the acquisition of greater choice, and freedom, is not always desirable (Elser, 1979). At a later stage, one might need to limit himself to a certain course. This denies him the option to choose a specific act or course and thus provides for rationality as time goes by; one may think that X is the right course now, but worry that when the opportunity to choose Y arises, one might choose Y instead. This makes choosing Y impossible, more difficult, or less likely to allow for the prevalence of rationality regardless of intervening factors.

From independence, most countries in Africa have had their Constitutions changed or amended so as to accommodate new ideals and values. The Gambia is no exception to this. But what constitutes change? Where does the authority to bind people of these changes come from? It is one thing for A to bind himself and another for a group of people to be bound my Constitutional provisions. Two notions are already well known; First, a Constitution binds everyone, including the minority. Second, Constitutional commitments are vague. Free speech, and rule of law are examples. This vagueness comes in two spheres; committing a right with one hand and making it all together more problematic and impossible to achieve. This makes Constitutions contentious and political documents. The Constitution of The Gambia reads “We the People.” because it was enacted by the majority but it somehow is taken as the general will of the people only because the majority endorsed it.

"We the people of The Gambia have accomplished a great and historic task. We have had our say on how we should be governed. For this Constitution contains our will and resolve for good governance and a just, secure and prosperous society." - Preamble of the 1997 Constitution

The division in Constitutional amendments are not internal but rather, they are divisions between the majority and the minority. Constitutions that are strong, will always bind generations to come to the ideals and values of those that came before them without their vote or consent.  As stated by George Washington to the framers of the US Constitution, “I do not think we are more inspired, have more wisdom, or possess more virtue, than those who will come after us” (Ackerman, 1991) It is not clear to me why one generation is at liberty to bind a future generation but what I do know is that it is possible for a particular generation to want to continue practicing the ways and appreciate the values of the past.

The interesting argument here is not just the mere fact that Constitutional commitments are binding on everyone including the minority who didn’t consent to the change in the first place; rather the commitment would be to bind other people who would challenge another person’s view. Those that drafted the Constitution may not worry about their own acts or omissions in certain times instead they would be worried about others who don’t even share the same values as them. The Constitution commitment then “changes from a technique of simple self-binding into a restrain on opposition to certain contested political values”. Society will always disagree both in “calm” and “lucid” moments, hence, the viewpoint that commitments are entrenchments of partisan politics” (Waldron, 1998). This then makes Constitutional commitments anti-democratic which further raises a “counter majoritarian difficulty” so long as it holds back the popular will of the people.

Considering the question of who makes a Constitutional commitment, it is expected that the majority that consents to the ethos of the Constitution are cognisant of what it is that they have agreed to commit to. A commitment to Constitutional rights such as free speech is vague and abstract. Interestingly, Justice Marshall has pointed out that hate speech laws should be focused “on the nature of the ideas expressed, rather than on the likely effects of the expression”.[1]  There is however a difficulty in applying this distinction. A person that is committed to free speech is bound to accept or reject it without realising the practicability of the right. This is where judicial review comes in.  By committing to the right to fair trial, “the people” of The Gambia consented to the use of strict rules of evidence that would offer a frustrating position to any prosecution.  An argument that the people that drafted or supported the right to fair trial understood this implication would be a difficult one.

This makes the commitments of Constitutional rights misleading as people in most cases are bound to obey these Constitutional commitments without knowing the consequences of the Constitutional commitment in question. But was this commitment made with full consent? It’s only fair that this question is asked. By binding ourselves to the commitments of the Constitution, we are also binding ourselves to the interpretation of judges who are not answerable to the people for their acts and also independent from any sort of influence from any authority or person. This then draws the conclusion that Constitutional commitments and judicial review have the same problems; they are both undemocratic. 

The case for Constitutional change and amendment is not as clear-cut as most people think. Because Constitutional commitments bar the pursuit of the popular will, it first of all makes us not self-binding to the Constitution and secondly, those who committed to the Constitution will never fully understand what they have committed to.

One point that was reached by Alexander Bickel is that “courts principles are required to gain assent, not necessarily to have it” (Bickel, 1986). This assent could be seen “in a rather immediate foreseeable future”. Bickel concluded by stating that in the event the assent does not materialise, the power of the people to overturn an interpretation of a constitution that they did not consent to “is how and why judicial review is consistent with theory and practice of political democracy” (Bickel, 2390. Hence, should a Constitution claim some inherent power to have a moment where it can say without a preceding legal order, there has to be some theory of constituent power? If so, does The Gambia need formal or substantive theory of Constitutional change or amendment?         

[1] Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11, [2013] 1 S.C.R 467.

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References

Alexander Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (2nd edn, Yale University Press, 1986)

 Bruce Ackerman We the people, vol. 1: Foundations, (Havard University Press, 1991). 

Jeremy Waldron, “Precommitment and Disagreement” in Constitutionalism: Philosophy Foundations (1998)

Jon Elster Ulysses and the Sirens (Cambridge University Press, 1979).

Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11, [2013] 1 S.C.R 467

Sanford Levinson (ed.), Responding to Imperfection: the Theory and Practice of Constitutional Amendment (Princeton University Press, 1995)

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Maria Saine is currently pursuing a masters degree in Law at Trinity College Dublin.
 

From dictatorship to a new Constitution in The Gambia: Issues and Concerns

[Editor's Note: Madi Jobarteh's article was commissioned by International IDEA and was originally posted on ConstitutionNet, IDEA's online knowledge platform for supporting constitution builders globally.

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As The Gambia transitions to a democratic dispensation, constitution reform, to be led by an independent Commission, will be central to the process. The success of the constitution building exercise is a test of the capacity of the new dispensation to meet popular expectations for a new and democratic Gambia. To this end, provisions for an inclusive and participatory constitution making process must be taken to heart and rigorously given effect – writes Madi Jobarteh.

Introduction

In December 2017, the Gambian National Assembly adopted a Law establishing a Constitutional Reform Commission that will oversee the writing of a new constitution for the country.  When finalized, the constitution will be the country’s third since 1970 when The Gambia first became a republic. The 1970 Constitution was overthrown alongside the then government, one of the handful of democratic regimes in Africa at the time, by the military in 1994, led by former President Yahya Jammeh. The military government organized a referendum on a new constitution in 1996, ushering in the second republic in 1997. Lasting 22 years, the Alliance for Patriotic Reorientation and Constitution (APRC), a political party formed by military officers who staged the coup, dominated the Gambian political landscape, allowing it to manipulate the political process, including through numerous constitutional amendments. 

Jammeh’s dominance came to an abrupt end after the December 2016 presidential elections when he lost to current President Adama Barrow, a joint candidate of the opposition coalition. After initially accepting defeat and subsequently retracting, Jammeh was forced to leave the country following the military intervention of the ECOWAS sub-regional force. Both the campaign Manifesto and the ‘controversial’ memorandum of understanding of the opposition coalition promised the creation of a new constitution alongside other legal and institutional reforms in order to ensure a thorough revision and change of the political system. On 11 December 2017, eleven months after the new government took office, the Minister of Justice, Aboubacarr Tambadou, finally presented the Constitutional Review Commission Bill before the National Assembly. It took the Assembly only one day and one session to approve the Bill, unanimously. The director of press at State House indicated that the president signed the Bill into law a week after the parliamentary approval. Nevertheless, the members of the Commission are yet to be appointed.

Why a new Constitution?

The need for a new constitution has long been on the minds of Gambians precisely because of the numerous amendments that the 1997 Constitution was subjected to over the years. During the electoral campaign prior to the 2016 presidential elections, the opposition coalition particularly listed several provisions that they highlighted as requiring amendment in order to ensure democratic governance and better protection of human rights. Above all, they contend that the 1997 constitution has provisions that disempower both citizens and lawmakers while at the same time giving more power to the president. In addition, many Gambians consider a number of issues that must be incorporated into their constitution in order to end self-perpetuating rule, ensure effective separation of powers and restrain the government in the exercise of its functions.

The 1997 Constitution is seen as a relic of the Jammeh government and its authoritarianism.

Both the current government and citizens appear to agree that, given the numerous amendments to the constitution and the several undemocratic provisions, the need for a new constitution cannot be over-emphasized. Furthermore, the 1997 Constitution, nicknamed the ‘Jammeh Constitution’, is seen as a relic of the Jammeh government and its authoritarianism, which has tainted its legitimacy among the people, civil society and the new powerholders. Accordingly, the reform process is likely to go beyond removing the regressive amendments and affect the whole constitutional framework.   

Potential areas of reforms

While the constitution reform process will lead to a new constitution, there are certain areas that will attract particular attention. There is widespread agreement that the constitution must provide for only two five-year presidential term limits. Indeed, the inclusion of term limits is specifically mentioned as one of the guidelines in the Constitutional Review Commission Bill. The term limit, which was in the original draft of the 1997 constitution, became surreptitiously absent when that constitution was eventually put to a referendum in 1996, to allow Jammeh, who was in his early 30’s, to run for reelection without limits.

Other issues of concern that have been well highlighted by the new government in their memorandum of understanding include the 2003 amendment of section 48(3) of the constitution that changed the voting system for presidential elections from 50%+1 absolute majority, with a second round if no candidate obtained the required vote in the first round, to the first-past-the-post system. Jammeh adopted the new system to ensure continuous victory in a country with a history of weak and fragmented opposition parties. Nevertheless, in the December 2016 elections, the main opposition parties overcame their differences and fielded a joint candidate. The plurality electoral system allowed Barrow to win the elections with 43.3% of the votes (to Jammeh’s 39.6%), without the need for a second round of elections. A former ally of Jammeh won around 17%.

The first-past-the-post electoral system for the presidency, term limits, the composition of the Electoral Commission, and the manner of loss of parliamentary membership will be among the focus of reforms.

One of the overbearing powers that Jammeh had exerted over the parliament, particularly his party members, was in section 91 that stipulates that a parliamentary member can lose his seat if dismissed from her or his party. Because of this provision, in the absence of intra-party democratic culture and processes, it meant that, as the party leader, Jammeh could control parliamentarians to submit to his whims and caprices at the threat of sacking them from the party, thereby causing them to lose their seats. Considering that members of parliament are elected through the first-past-the-post electoral system in single-seat constituencies, candidates were elected formally for their individual merits, although they may campaign under the banner of their parties. The effective empowerment of a party leader to remove members of parliament was therefore unscrupulous.

Other provisions that may require refinement include section 42(6) which allows the president to unilaterally remove commissioners of the Independent Electoral Commission, who are also appointed by the President in consultation with the Judicial Service Commission and the Public Service Commission. Even though the provision requires that, before a commissioner may be removed, a tribunal be set up to investigate the matter, several commissioners have been removed without the setting up of any tribunal. Similarly, appointments were carried out without any consultation with the specified commissions.

In a manner that limits citizens’ ability to stand for presidential elections, section 62(1)(b) sets a lower and upper age limit of 30 and 65 years respectively. This particular provision became prominent after it was recognized to bar the leader of the then largest opposition party, Ousainou Darboe of the United Democratic Party (UDP), a veteran politician who contested and lost against Jammeh in four presidential elections (1996, 2001, 2006, and 2011).  

Irregularities in the enactment of the amendment removing upper age limits on the presidency and vice-presidency raise concerns regarding the integrity and credibility of the constitutional reform process. 

Interestingly, despite the clamor for a new constitution, the new government has since amended this provisionby removing the upper age limit altogether, with a view to enable the appointment of an older vice president. The amendment also extended the mandatory retirement age of superior court judges. Since assuming office in January 2017, Barrow never appointed a vice president because it was widely believed that he intended to appoint the influential ‘mother’ of the nation, Mrs. Fatoumatta Jallow Tambajang, who is above the constitutional age limit of 65 years. As it turned out, many saw the delayed appointment of a vice president and the eventual amendment of the provision to remove the upper age limit as an attempt to cater for Mrs. Tambajang.  

This action by the new government raises concerns about its sincerity and commitment to system change, and the integrity and credibility of any future constitutional reform process. It is perplexing to notice certain piecemeal amendments being undertaken, as if a new constitution would not be coming. After an initial faux pasin April 2016, when the government apologized for taking a wrong approach to the amendments, in July 2016, the Minister of Justice formally presented the constitution amendment bill before parliament, which was eventually approved. 

Composition and mandate of the Commission

Under the Act, the Chief Justice will chair the Commission. A vice-chairperson will be appointed by the Attorney General, who also appoints a secretary to lead the secretariat in charge of the day-to-day administration of the Commission. The President of the Republic will appoint nine more members taking into account the professional, geographical, professional and gender diversity of the country. There is no requirement for parliamentary approval of the appointments. The members may not be members of the National Assembly or of the security forces. There is no similar exclusion of ministers or high-level officials of political parties.

The Commission is required to seek the opinion of the people of The Gambia, including the diaspora.

The Commission will take decisions by consensus, and in its absence by majority vote, with a quorum of at least six members. The Act allows the Commission to establish technical committees, which may include non-members. The Commission will operate for up to 18 months, with a possibility of a six-month extension by the president on the proposal of the chairperson. 

The principal mandate of the Commission is to a draft a new constitution, and to prepare an accompanying report. In discharging its responsibilities, the Commission is required to seek the opinion of the people of The Gambia, including the diaspora, and to invite professional, civic, political and other organizations to appear before it and make presentations. The Commission must safeguard and promote a number of substantive principles, including the republican form of government, secularism, rule of law, fundamental rights, and the separation of powers. Notably, it must introduce presidential term limits. Nevertheless, the Act leaves open the length of each term and the number of terms a president may serve.

The Act proclaims the independence of the Commission, which is not subject to the direction or control of any person or authority. The members of the Commission will serve for the entire duration of the operation of the Commission, without the threat of removal on unfounded grounds. Once it has prepared the new draft constitution and the report, it submits it to the President and publishes the draft and the report in the government gazette and other platforms as may be desirable. Within 60 days of receiving the draft, the president must forward a ‘copy’, indicating that the president may not alter the draft, to the National Assembly, which will debate and approve the draft in accordance with the relevant provisions of the current constitution. Fundamentally, the Assembly must approve the draft constitution ‘without amendment’.

The President and National Assembly may not alter the draft constitution prepared by the Commission.

To ensure legal continuity, the new constitution will be adopted in the manner prescribed in the current constitution. Accordingly, the adoption of the draft constitution will require approval by 3/4th of the members of the National Assembly, and by 75% of those who vote in a referendum where at least half of all the eligible voters actually vote (i.e. there is a turnout threshold of 50% under article 226(4) of the current constitution). While presidential elections since 2000 have all secured higher than 50% turnout, turnout in all legislative elections has consistently failed below the half mark. The active support of all major political groups will be necessary to ensure the required voter turnout, and level of approval. This requires that the provisions of the Act for an inclusive and participatory constitution making process are taken to heart and rigorously given effect.

Concluding remarks

The enactment of the Bill establishing the Commission is welcome. Nevertheless, there remain concerns as to the appointments of its members. In particular, members of civil society are concerned about the independence, efficiency and transparency of the appointment process, the institution itself as well as its processes. So far, Gambian civil society organizations have not had a direct engagement on the terms of the Commission, with the drafting of the Bill largely undertaken within the walls of the ministry of justice.

There is high public expectation for a new constitution given how deeply the Gambian state was effectively personalized and abused by the former president. Thus, the catchphrase in the country is ‘system change’. There appears to be unanimous agreement that the country needs an overhaul of the current political and institutional framework in order to usher in a whole new democratic dispensation. However, there is also huge contention as to the nature, extent and process of the system change. While pro-government constituents appear to believe that in fact system change is unfolding, many on the other side claim there has been no or little change so far. The success of the constitution building exercise is highly viewed as a test of the capacity of the new dispensation to meet renewed popular and political expectations for a new and democratic Gambia.

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Madi Jobarteh is a Gambian human rights defender. He is currently the program manager of The Association of NGOs in The Gambia (TANGO).