2019 Global Review of Constitutional Law: The Gambia in Focus

Congratulations to Dr Satang Nabaneh, Founder & Editor, Law Hub Gambia, Gaye Sowe, Executive Director – Institute for Human Rights and Development in Africa (IHRDA); and Maria Saine, Legal Fellow, IHRDA & University of The Gambia. Their joint country report on The Gambia was published as part of the I-CONnect-Clough Center 2019 Global Review of Constitutional law. We are pleased to circulate this report published by the Clough Center for the Study of Constitutional Democracy.

Abstract

This is the fourth edition of the I·CONnect-Clough Center Global Review of Constitutional Law. This 2019 Global Review assembles detailed but relatively brief reports on constitutional developments and cases in 73 jurisdictions during the past calendar year. The reports are authored by academic and/or judicial experts, and often the reports are co-authored by judges and scholars. The reports in this first-of-its-kind volume offer readers systematic knowledge that, previously, has been limited mainly to local networks rather than a broader readership.

Available at SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3736382

Suggested citation:

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Nabaneh, Satang and Sowe, Gaye and Saine, Marie ‘Gambia’ in Albert, Richard and Landau, David and Faraguna, Pietro and Drugda, Šimon, I·CONnect-Clough Center 2019 Global Review of Constitutional Law (November 26, 2020) The I·CONnect-Clough Center 2019 Global Review of Constitutional Law, pp. 129-133.

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The Gambia: In focus

 The year 2019 saw The Gambia move from setting up key institutions such as the Constitutional Review Commission (CRC), Truth Reconciliation, and Reparations Commission (TRRC) and the National Human Rights Commission (NHRC) to actualising the key transitional justice standards required to restore rule of law and democracy in the country.

This report gives a brief overview of constitutional developments and major constitutional law cases in 2019 and looks at the way forward for The Gambia in 2020.

Download The Gambia Chapter here.

The full report is available here.

Should the National Assembly of The Gambia oversee subsidiary legislation? A critique of Standing Order

The article was published in June 2020 in the Loophole, the online journal of the Commonwealth Association of Legislative Counsel  (CALC).

Abstract

This article addresses the issue of whether subsidiary legislation should be subject to parliamentary oversight through a procedure adopted by the National Assembly of The Gambia under Order 80 of the latest edition of its Standing Orders. The procedure involves the publication in the Gazette for a specified time and laying before the Assembly of subsidiary legislation. The main thrust of the article is that National Assembly scrutiny of subsidiary legislation is a worthy initiative, albeit one that could be fraught with problems.

The most obvious impediment is that the procedure established by the Standing Orders conflicts with the procedure prescribed by the Interpretation Act. This raises the question of whether Standing Orders can abrogate or override primary legislation. The article examines how certain jurisdictions based on the Westminster parliamentary system have established a general obligation to lay subsidiary legislation before their Parliaments and posits that the challenges of implementing Order 80 are surmountable through respecting the hierarchy of laws and recognising the importance of parliamentary development.

The article is online.

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About the author:

Abubakarr Siddique Kabbah is the Principal Legal Draftsperson, Attorney General’s Chambers and Ministry of Justice of The Gambia. The views expressed in this article are solely his. They do not in any way reflect the views of the Attorney General’s Chambers and Ministry of Justice and he is responsible for any error or inaccuracy in the article.

Commentary on the Landmarks in the 2020 Draft Constitution of The Gambia

While the Final Draft Constitution generated many controversies from the public, it also lay before us tremendous opportunities to map out a durable constitutional compact from the ongoing transitional justice process. Former British judge, Lord Denning once wrote, ‘the law never stands still. It goes on space. You have to run fast to keep up.’ Inspired by this universal truth in the continuous evolution of the law, these essay series highlight some of the significant transformations that the Final Draft Constitution 2020 seeks to usher in Gambia’s constitutional history.

Following the defeat of President Yahya Jammeh in 2016, the country immediately embarked on a massive constitutional reform, citing the numerous amendments made to the 1997 Constitution since its adoption and the palpable desire to set the country on a secure constitutional democracy. After lengthy and unprecedented public consultations, the constitutional reform agenda gave birth to a long-awaited ‘New Constitution’, which was submitted to His Excellency President Adama Barrow on 30 March 2020 in accordance with Section 21 of the Constitutional Review Commission Act, 2017.

These essay series are intended as a modest contribution to the ongoing constitutional dialogue and to bring out the major landmarks in the Final Draft by identifying the significant additions from the perspective of constitutional democracy and human rights. By landmarks, I refer to those major additions that have immediate and significant ramifications on the existing state architecture from the legislature, the executive, the judiciary, and individual rights. These analyses proceed on the theory that the basic essence of a constitution is to prevent tyranny and ensure efficient delivery of socio-economic services, on account of the state’s central role of safeguarding the dignity of individuals. Equally, a Constitution must empower the government to effectively and efficiently deliver its functions to the citizens. The content of the Final Draft has ever since provoked different reactions, with mixed feelings of hope, national accomplishment, and skepticism. Some of my learned friends at the Bar have rightly described it as ‘a very ambitious constitution’ while few skeptics have described it as ’carbon copy’ of the 2010 Kenyan Constitution.

There seem to be some element of truth in all these reactions if one considers the lofty visions of the Final Draft and the obvious similarities, almost word for word in certain provisions, with the 2010 Kenyan Constitution. However, even though a Constitution is supposed to derive its uniqueness from the views and aspirations of the people, it remains an instrument of governance that is usually grounded in universal values and principles that cut across countries, people, geography, and time. Such values may include democratic pluralism, administrative fairness, separation of powers, transparency, accountability, and human rights. The importance of these values in the Final Draft should remind us of the consequences of their absence in the affairs of a state. One just needs to follow the testimonies of witnesses before the truth commission to appreciate the gruesome price paid by many Gambians in a state of constitutional disregard. Therefore, some of the values can be seen as responses to the recent past of the country.

In the interest of providing a counter to this ‘plagiarism of the Kenyan Constitution argument’, I must state that when position papers were submitted by individuals and organisations, some of these papers explicitly asked the Commission to adopt certain provisions from other Constitutions including the Kenyan Constitution. If the commission copied some of these sections, it was because the commission took into consideration the views of the Gambian people, as it is obligated to.  

It is only natural that I commence this reflection with  certain core values that underpin the Final Draft noting the fact that the framers have set the basic structures of the draft Constitution on certain core values. Foremost, the Preamble. It provides that we give ourselves and future generations ‘this Constitution as a beacon of hope, stability and national unity, progress, peace, and prosperity.’ Section 1 (1) maintains the democratic pluralism of The Gambia and beautifully put to rest the contentious secularism debate under sub-section (2) with the consequence of guaranteeing fair treatment of all faiths. In addition to these democratic values, Chapter 3 is dedicated to ‘national values and principles.’ It is my view that the inclusion of these values in the operative texts or provisions of the Final Draft indicates the real effects that are intended to bear on the conduct of the state and the people. They strengthen the guiding principles in the Preamble. This reflects a departure from the 1997 Constitution, wherein the national values are subsumed in the Directive Principles of State Policy with a caveat that they are not justiciable. However, section 11 of the Final Draft provides that national values bind all state organs, local government authorities, public officers, and all persons where they interpret, enact, or make public policy decisions.

On leadership, Section 24 of the Final Draft enumerates the virtues of ‘desirable leadership’ in public offices requiring a commitment to integrity, accountability, transparency, respect for the rule of law, dignity, and selfless service to the public interest. The rationale for the inclusion of these virtues in public administration means that the framers do not rule out the fact that the change of government in 2016 may not automatically end the complicit culture that transforms seemingly good leaders into unaccountable tyrants.

Professor Charles Fombad argues that to ensure that the good people put in public offices do not become the tyrants and dictators we abhor, constitutions must be devised that do not only promote constitutionalism but also guarantee accountability and responsibility. Therefore, the above principles do not only serve as benchmarks to ensure accountability of public offices, but they also impose constitutional commitments of selfless service by the leaders towards the general public from whom every leadership derives its legitimacy.

The next analysis will focus on the elaborate and extensive bill of rights in the Final Draft. It is often said that a bill of rights may occupy a small portion of a Constitution, but it has the potential to safeguard individuals from tyranny on the basis of universal standards and benchmarks.  

Secularism as a tool for state neutrality

Jointly written by Maria Saine & Wilson F. Okoi, Barrister & Solicitor of The Supreme Court of Nigeria. 

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[Editor’s note: This is Part VI of our special series titled “Constitutional Review in The Gambia: Contemporary Discussions.” The introduction to the special series is available here, Part I is available here, Part II is available here, Part III is available here, Part IV is available here.and Part V is here.]

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Secularism is the legal assertion that a State remains neutral as relates to religious matters The state does not adopt any religion as it’s religious representation and more importantly, there exist a clear separation between government institutions and religious institutions.   It may please you to note that the idea of secularism is open to debate because it is considered polemic by many.

Proponents of the notion that The Gambia should be secular view that:

1. It allows persons from different religions to exist together at the least common denominator; ensuring all their beliefs and rights. This assertion is said to be true because there is no preference of religious beliefs over another, people are therefore not inclined to believe that the state has a superior notional interest in one religious belief over another.      

2.  Some others assert that secularism allows more rights and freedoms to women, who are generally attributed to submissive roles in various belief systems. This is a candid topic of debate for differing religions who are naturally accustomed to differing spiritual views guiding human behavior with humans and human behaviour with ‘superior spirituality’.

3. It is also strongly recommended that the practice of secularism protects and promotes government administration to function on the basis of rational discourse rather than religious dogma.

On the other end however, opponents of secularism assert that humanist and secularist take religious views ‘off the public sphere’. Opponents of secularism are of the opinion that a State should have a religious view. Such ideologist are of the opinion for a variety of reasons.

First, the polity are less conscious about religious matters in the public sphere. Indeed, this infers that the states polity identifies government institutions and a religious preference as one.  

Second, a preferred religion gets patronage from the State. This is argued to be a negative and positive. The State religion is the preference of the State and therefore enjoys privileges that other religions (not adopted by the State) will not be opportune to.  Looking objectively, it is therefore negative. But from a subjective stand point (i.e. the view of those in the preferred religion of the State), it is not only in tandem with the major mass of the polity it is also the way that life should be lived.

Third, indeed, religious persons in the polity will argue concerns over the ‘moral compass’ of the nation. This is essentially because of the belief in ‘natural/divine law’ on the legal jurisprudence of same, and/or the belief that religion equates to morality.

From the foregoing, it is evident that the decision of a State to adopt a religion as it’s religious preference is a major step that guides governmental administration.

In The Gambia, the practice of secularism and its constitutionality became a point of case law jurisprudence on the applicability of secularism in The Gambia. In the case of KEMESENG JAMMEH v THE STATE, the legal validity of the Constitution of the Republic of The Gambia, 1997 (Amendment) Act, 2001 was put to the litmus test to examine whether section 1(1) of the Constitution describing The Gambia as a secular state was made ultra voires. The Supreme Court held that section 1(1) of the Constitution and paragraph 13 of schedule II to the 1997 constitution contained in the Amendment Act (6 of 2001) were made in excess of the legislative powers conferred by the 1997 Constitution and are accordingly null and void.[1] Meaning, the amendment failed to pass through an act of referendum. Hence, unconstitutional.

From the train of thoughts above and in my humble opinion, it is instructive to assert the following observations succinctly:

·      Secularism represents how a polity should be/is governed.  

·      Secularism does not in any way or form, infer life without religion neither does it infer that one decides how to worship God.

·      The absence of secularism is the presence of Religious preference in a State.

·      The concept of (non) secularism is practiced variantly owing to factors such as geographical area, culture, population and, the advancement in technology/industrialization amongst others.          

In a sum, secularism is a practice that I believe should be embraced because it maintains the existence of neutrality and exudes the characteristics of an ability to accommodate the diversity in the way life presents itself; liberally.   The State considers the views of every one and no religious preference is an option. Indeed, and legally so, secularism is the best guarantee of freedom of religion/belief – but the enemy of religious privilege.

Suggested citation: Maria Saine & Wilson F. Okoi, Secularism as a tool for state neutrality, 1 February 2019, at https://www.lawhubgambia.com/lawhug-net/secularism-as-a-tool-for-state-neutrality.

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

The need for an independent Gambian judiciary

[Editor’s note: This is part III of our special series titled “Constitutional Review in The Gambia: Contemporary Discussions.” The introduction to the special series is available here, Part I is available here and Part II is available here.]

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Ordinary men and women need support in their fight to claim and protect their liberties, and their natural protectors are the courts.[1] 

Introduction

I want to share with you my thoughts on judicial reform in The Gambia against the backdrop of constitutional review underway in the country. In The Gambia, it is agreed that the judicial system needs reform to make it more independent, accountable and able to deliver justice effectively and efficiently. This short article briefly discusses independence of the judiciary as guaranteed in the 1997 Constitution of The Gambia. Although a universally accepted definition of judicial independence is not available, there are three recognized theoretical constructs: impartiality, authority to have its decisions accepted by all, and free from undue influence.[2] Judicial independence is beyond mere de jure provisions that seemingly protect judicial independence.[3] Much as the constitutional guarantees are important, it also depends on a lot more than the mere letter of the law.

The conceptual background

The judiciary is the third branch of government responsible for the interpretation of the law. The principle of separation of powers as proposed by John Locke[4] and Montesquieu[5] dictates that the judiciary is independent of the executive and the legislature to allow for checks and balances. As the main check on an executive branch, a resolute judiciary is one which any ordinary citizens can protect his or her civil rights.[6] Judicial independence is recognized in many international and regional human rights instruments as one of the cornerstones of good governance.

It is beyond dispute that judicial independence is a prerequisite for a society to operate on the basis of the rule of law and is essential for the purpose of maintaining public confidence in the judiciary.[7] Fombad noted that, an independent judiciary is one that is:[8]

free to render justice on all issues of substantial legal and constitutional importance, fairly, impartially, in accordance with the law, without threat, fear of reprisal, intimidation or any other undue influence or consideration.

Judicial independence in the 1997 Constitution [9]

Sections 120 to 148 of the 1997 Constitution of The Gambia provides for the structure, composition and jurisdiction of the courts in The Gambia. Judicial power is vested in the courts.[10] Section 120(3) of Constitution states that:

In the exercise of their judicial functions, the courts, the judges and other holders of judicial office shall be independent and shall be subject only to this Constitution and the law and, save as provided in this Chapter, shall not be subject to the control or direction of any other person or authority.

The Constitution recognizes the widely acclaimed notion of judicial independence. Accordingly, the courts are not to be subjected to the control of any person or authority outside the judiciary. Section 120(4) further states that:

the government and all departments and agencies of the government shall accord such assistance to the courts as the courts may reasonably require to protect their independence, dignity and effectiveness.

This places a positive duty on all organs of the state to accord such assistance as the courts may require to protect their independence, dignity and effectiveness.[11] The head of the judiciary is the Chief Justice who is responsible for the administration and supervision of the courts.[12]

Appointment of judges and security of tenure

The appointment of judges in a transparent manner is of most importance to judicial independence. Section 138 of the Constitution mandates the President to appoint the Chief Justice after consultation with the Judicial Service Commission (JSC). Generally, the President appoints senior court judges on the recommendation of the JSC,[13] which is a weak provision as the President is not bound by the JSC’s views.

The JSC has the power to appoint magistrates and members of the subordinate courts.[14] The Commission is also mandated to appoint judges of the Special Criminal Court subject to the approval of the National Assembly.[15] The President has complete control over the appointment of the Chief Justice with the JSC having a mere consultative role.[16] The issue of possible excessive Presidential influence in the appointment of the judges arises.

The JSC consists of the Chief Justice; a judge of a superior court; the Solicitor General; a legal practitioner of at least five-years standing at the Gambia Bar nominated by the Attorney- General in consultation with the Gambia Bar Association (GBA); a presidential appointee; and one person nominated by the National Assembly.[17] The composition of the JSC envisages cooperation in the appointment of judges between the three arms of government and other stakeholders such as the legal profession. Though it might be timely not only limit the membership of the JSC to senior judiciary perceived as the “old boys club” considering the changing demographics of the legal profession in The Gambia. A more representative membership should possibly also include law lecturers designated by their peers as they are in the right position to evaluate the academic capabilities of prospective appointees. The objective should be to provide for a demonstrably independent body whose membership comprises the necessary range of expertise and experience.

Section 141 of the Constitution provides for both optional and mandatory retirements of serving judges. Section 141(2)(a) provides that a judge may retire after attaining the age of 65 years while section 141(2)(b) makes it mandatory upon a judge of the Superior Court to retire upon attaining the age of 70 which is now amended to 75 years.[18] These constitutional provisions are generous and can safeguard security of tenure.

However, section 142(2)(c) threaten this as it provides that judges may have their appointment terminated by the President in consultation with the JSC. The distinction between the use of ‘in consultation with’ and ‘upon the recommendation of’ would seem to indicate that the President is obliged to follow the decision of the JSC.  Although, this has not been the norm.

The power of the President to appoint senior court judges and to terminate their appointments severely undermines the independence of the judiciary as it provides for unnecessary dependence on the executive.

Disciplinary and removal grounds

In addition to the power of the President to dismiss judges, section 141(4)(9) of the Constitution subjects dismissal by the JSC to the approval of the National Assembly. Section 141(4 to 9) provides a comprehensive and rigid procedure for the removal from office of a superior judge on grounds of inability to perform the functions of his or her office whether arising from infirmity of body or mind or for misconduct. A superior court judge may be removed from his or her office if notice in writing signed by not less than half of all voting members of the National Assembly, is given to the Speaker setting a motion that the judge concerned is unable to exercise of his or her office on any of the grounds cited above which should be investigated.[19] A tribunal will be appointed consisting of three persons who will further investigate the matter and report to the National Assembly on whether the allegations are substantiated.[20]

This section could have served as a safeguard against arbitrary dismissal of judges, as the procedure is very transparent. However, if the President’s party commands an absolute majority in the National Assembly such a scenario can be highly politicized. A politically motivated step to remove a judge will be possible. Interestingly, the JSC has never tabled the dismissal of a judge before the National Assembly for approval.

Conclusion and recommendations

 The independence of the judiciary from the executive is essential to freedom. If the executive could have unfettered control over the appointment, promotion and dismissal of members of the Judiciary, it would be the unlimited master of the State. Judicial independence is best maintained by its formal constitutional entrenchment backed up by a commitment by all state organs to respect the rule of law and accord such assistance as the courts might require protecting their independence, dignity and effectiveness.[21]

Whereas, the validity or legitimacy of the Constitution procedures of the President’s appointments of senior judges may be legal, factors such as weaknesses in the appointment system of judges, unwillingness of the former President and by extension the executive to accept court decisions, politicalization of the removal process of judge which does not guarantee security of tenure, all serve as threats to judicial independence.

The constitutional appointment procedure for judges, given the dominance of the President and the executive over the appointments of the members of the JSC, the apparent lack of transparency with respect to the JSC processes, the absence of a clearly elaborated selection process and criteria for judicial appointments exposes judicial appointments to political influence. It follows that it is unacceptable to restrict the appointment process to the President.

 In order to ensure general transparency with regard to the appointment of judges, the JSC should advertise judicial vacancies and conduct an open application process.[22] The JSC may consider various forms of evidence when evaluating a candidate, including application forms, references, background checks and, in some cases, written tests. An interview of shortlisted candidates prior to making the selection should be conducted and held in public. Such exposure to public scrutiny will reinforce transparency and be beneficial in The Gambian setting.

While the formal appointment of judges may still be vested in the executive, the proposed prior selection process with the JSC empowered to present the executive with a shortlist of recommended candidates should be undertaken. Alternatively, the JSC can present the executive with a single, binding recommendation for the vacancy in which the executive may have the legal power to reject the JSC’s recommendation with advanced reasons for doing so.

Additionally, in terms of the institutions responsible for removal decisions, it is recommended that the power of removal of judges be vested exclusively in the National Assembly as in the case of removal on the grounds to function or infirmity of body or mind and misconduct. Section 141 (2)(c) must thus be repealed which will ensure that the dismissal of judges is through a proper, transparent and rigid procedure that safeguards judicial independence.  Alternatively, an ad hoc tribunal can be set up once investigation establishes the question of a removal, or establishment of a permanent disciplinary council established for that purpose. The Constitution should set the bar fairly high on the substantive grounds and mechanisms for removal of judges.

Given the lack of trust in the judiciary due to the actions of the former regime, the key to fostering and establishing rule of law in The Gambia is to ensure that the judiciary is not only independent but appears to be independent to gain the confidence of the Gambian people. Since the new government came into power, there have been considerable effort on their part in appointing Gambians at all levels of the judiciary. Departing from the style of the former regime of foreign appointments to the position of chief justice, President Barrow appointed a Gambian, Hassan Jallow, former prosecutor of the International Criminal Tribunal for Rwanda in Arusha, Tanzania. Following this, numerous appointments took place including at the level of the Supreme Court.[23]

Moving forward and solidifying The Gambia’s new democracy equates to strong courts that can keep the country on track so that we do not regress. The courts can assert their own autonomy and rebuild their legitimacy. As judicial independence is integral to the rule of law, which is a necessary presupposition for the protection of individual rights, it follows that judicial independence is integral to the assertion of human rights.[24] There is an indispensable link in the machinery for securing individual protection against states’ human rights abuses.[25] Thus, the Gambian courts can ensure democratic accountability by enforcing separation of powers within the branches of government. As well as, develop and protect core human rights thereby enhancing accountability between the citizenry and the government.

Suggested citation: Satang Nabaneh, The need for an independent Gambian judiciary, Law Hub Gambia Blog, 14 December 2018, at https://www.lawhubgambia.com/lawhug-net/independent-gambian-judiciary.

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[1] A Chaskalson quoted in Lord Lester of Herne Hill ‘The Challenge of Bangalore: Making Human Rights a Practical Reality’ (1999) 47 Commonwealth Law Bulletin 50.

[2] C Fombad ‘A preliminary assessment of the prospects for judicial independence in post-1990 African constitutions’ (2007) Public Law 235.

[3] R. Howard & H Carey ‘Is an independent judiciary necessary for democracy?’ (2004) 87 Judicature 189.

[4] J Locke Second Treaties on Civil Government (1764).

[5] B de Montesquieu Spirit of the laws (1748).

[6] As above.

[7]    S Rugege ‘Judicial Independence in Rwanda’ presented at the Judicial Independence and Legal Infrastructure: Essential Partners for Economic Development conference (28 October 2005).

[8] As above.

[9] See ‘The Gambia: Commentary’ in R Wolfrum, R Grote & C Fombad (eds.) Constitutions of the World (Oxford University Press, 2017) 30-32.

[10] Section 120(2).

[11] C Fombad ‘A preliminary assessment of the prospects for judicial independence in post-1990 African constitutions’ (2007) Public Law 244.

[12] Section 121(1).

[13] Section 138(2).

[14] Section 147.

[15] Section 134(3).

[16] Section 138(1).

[17] Section 145 (3).

[18] S Nabaneh ‘New Gambia and the Remaking of the Constitution’ International IDEA ConstitutionNet 16 March 2017 http://www.constitutionnet.org/news/new-gambia-and-remaking-constitution.

[19] Section 141(5).

[20] Section 141 (8).

[21]  J Hatchard, M Ndulo & P Slinne Comparative Constitutionalism & good governance in the Commonwealth: An Eastern and Southern Africa Perspective (2004).

[22] See 2010 Kenyan Constitution.

[23] G Sowe and S Nabaneh ‘The Gambia: The state of liberal democracy’ in Albert R, Landau, D, Faraguna P, and Drugda Š: The I·CONnect-Clough Center 2017 Global Review of Constitutional Law (July 19, 2018) 100.

[24] CJ Warren ‘Does judicial independence matter?’ paper presented at the Victoria Law Foundation Week Oration (27 May 2010) 6.

[25] LC Keith ‘Judicial independence and human rights protection around the world’ (2002) 85 Judicature 195.

Op-Ed: The Changing Politics of Gambian Citizenship Debate

[Editor’s note: This is part of our special series titled “Constitutional Review in The Gambia: Contemporary Discussions.” For more information on the special series, see here.]

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The ongoing public consultations on the constitutional review process spearheaded by the Constitutional Review Commission (CRC) highlights a polarising debate on citizenship which reflects the difficulty of consensus building given the varied interests of stakeholders. Few of the questions at the heart of it are: should a child born in The Gambia be accorded automatic citizenship regardless of parents’ citizenship? Should a person who wishes to acquire Gambian citizenship be required to renounce any other citizenship he or she may have, when a Gambian can hold a dual nationality? Are the prescribed periods of 7 years ordinary residence for a foreign person married to a Gambian and 15 years ordinary resident for a foreign person applying for naturalisation too long?

1.      1997 Constitution and Citizenship

Chapter III of the Constitution deals with citizenship in The Gambia on four main grounds. A person is accorded Gambian citizenship either by birth or by descent. These two provisions give equal rights to a Gambian man and woman to give Gambian citizenship to his or her child. Citizen by birth applies to any person who is born in the Gambia and one of his parents is Gambian at the time of his birth. Section 9 states:

Every person born in The Gambia after the coming into force of this Constitution shall become a citizen of The Gambia at the date of his or her birth if, at the time of his or her birth, one or both of his or her parents is a citizen of The Gambia. [Emphasis added]

Citizen by descent under section 10 applies to any person who is born outside The Gambia and one of his or her parents is a Gambian at the time of his or her birth. This section only allows for citizenship to be passed for only one generation outside the country.

The Constitution takes as a requirement, the position that a parent’s citizenship is the basis for conferring citizenship to the child (jus sanguines or ancestry principle). This means that whenever a parent’s citizenship is uncertain, this undoubtedly affects the child. The primacy on the parent’s citizenship is highly disadvantageous. It is important to note that section 9 was amended in 2001[1] which originally stated that:

Every person born in The Gambia after the coming into force of this constitution shall be presumed to be a citizen of The Gambia by birth. [Emphasis added] 

The then former regime’s arbitrariness resulted to the amendment in the granting of citizenship, switching it from a right into it becoming collectivised, thus political rights likely to be compromised. The pre-amended section recognised the immateriality of a parent’s citizenship for the purposes of determining that of a child. Thus, it is proposed that the provision reverts to its original version to safeguard all children born in the country. In this way, The Gambia will adopt the role of place of birth (jus soli or birthright principle) as the basis for conferring citizenship.

 Other Constitutional provisional dealing with citizenship include:

Marriage to a citizen as provided in section 11 which states:

(1)   Any person who—

(a) is married to a citizen of The Gambia and, since the marriage, has been ordinarily resident in The Gambia for a period of not less than seven years; or [Emphasis added]

(b) has been married to another who was, during the subsistence of the marriage, a citizen of The Gambia and, since the end of the marriage (whether by annulment, divorce or death), has been ordinarily resident in The Gambia for a period of not less than seven years, shall be entitled, upon making application in such manner as may be prescribed by or under an Act of the National Assembly, to be registered as a citizen of The Gambia.

(2) The annulment of a marriage of a person who has been registered as a citizen of The Gambia under this section, or under the provisions of any earlier law for the registration as a citizen of The Gambia of a person on account of marriage, shall not affect that person's status as a citizen of The Gambia.

While it is commendable that the section recognises that both men and women married to Gambian citizens have a right to become citizens, the requirement that the person be ordinarily resident in The Gambia for period of not less than seven years is quite long and tedious.

Naturalisation as a citizen. Section 12 states:

(1)   Any person who has been ordinarily resident in The Gambia for a continuous period of not less than fifteen years and who satisfies the conditions set out in subsection (2) may apply, in such manner as may be prescribed by or under an Act of the National Assembly, to be naturalised as a citizen of The Gambia. [Emphasis added]

(2)   The conditions referred to in subsection (1) are that the applicant— 

(a) is of full age and capacity;

(b) is of good character;

(c) has clearly shown that, if naturalised, he or she intends to continue permanently to reside in The Gambia;

(d) is capable of supporting himself or herself and his or her dependants.

The same reasoning for the prescribed period for marriage to a citizen is applicable for section 12 on naturalisation of citizens which requires the person to be an ordinary resident for not less than fifteen years. 15 years is unreasonable and burdensome.

Section 12A addresses dual citizenship.[2] The section states that:

(1)    A citizen of The Gambia who acquires the citizenship of another country may, if he or she desires, retain his or her citizenship of The Gambia

(2)   An Act of the National Assembly may make provision for the better implementation of this section. [Emphasis added]

(3) The Minister shall give reasons for any refusal of an application made under this section.

(4) No person shall be naturalized until he or she has renounced any other citizenship he or she may have and taken an oath of allegiance to The Gambia.  

This section allows citizens to acquire the citizenship of their spouses without losing their Gambian citizenship if the spouse’s national laws so permits. Dual citizenship is permitted, and citizenship lost can also be regained (section 14), but this is only applicable to citizens by birth and descent. It is not clear whether citizenship by registration shall require a renunciation of the other nationality as is the case with citizenship by naturalisation. However, it can be inferred from section 13 (1) (a) where it states that a naturalised or registered citizen of the Gambia can be deprived of same if he acquires the citizenship of another country.

Section 13 states that:

 (1) The Minister may apply to the High Court for an order depriving a person who has been registered or naturalised as a citizen of The Gambia of his or her citizenship on the grounds that he or she—

(a) has acquired by registration, naturalisation or any voluntary and formal act (other than marriage) the citizenship of any other country;

(b) has acquired the citizenship of Gambia by means of fraud, false representation or the concealment of any material fact;

(c) has, at any time since acquiring citizenship of The Gambia, voluntarily claimed and exercised in a country other than The Gambia any rights available to him or her under the laws of that country, being rights accorded exclusively to its citizens;

(d) has within seven years after being registered or naturalised been convicted in any country of an offence involving fraud, dishonesty or moral turpitude. 

Thus, the Constitution does not allow for dual citizenship for other classes of citizens including naturalised citizens. The requirement to renounce one’s nationality to gain the Gambian citizenship is problematic creating an inequality issue.[3] Section 12(4) requirement that a person renounce any other citizenship in order to acquire Gambian citizenship can result in statelessness for both men and women. For instance, where the person concerned is no longer considered a national by the State given the provisions of section 13 on deprivation of citizenships and as he or she does not hold another nationality, this leads to statelessness. Thus, given the severity of the consequences of the person being stateless, it will be difficult to justify the deprivation of citizenship to be proportionate.

2.     The right to a nationality

The Gambia is a party to the major international and regional human rights instruments. The Universal Declaration of Human Rights (UDHR) recognises the right to a nationality in its Article 15. This right is reaffirmed across many core UN human rights conventions, including the International Covenant on Civil and Political Rights (ICCPR, Article 24),[4] Convention on the Rights of the Child (CRC, Article 7),[5] the International Convention on the Elimination of All Forms of Racial Discrimination (CERD, Article 5),[6] the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW, Article 9),[7] the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (CRMW, Article 29)[8] and the Convention on the Rights of Persons with Disabilities (CRPD, Article 18).[9]

At the regional level,[10] The African Charter on Human and Peoples’ Rights does not mention the right to a nationality. The African Charter on the Rights and Welfare of the Child (ACRWC)[11] under Article 6 obligates States to:

ensure that their Constitutional legislation recognize the principles according to which a child shall acquire the nationality of the State in the territory of which he has been born if, at the time of the child’s birth, he is not granted nationality by any other State in accordance with its laws

The Protocol to the African Charter on the Rights of Women in Africa in Africa (Maputo Protocol, Article 6)[12] provides for the the right of women to acquire a nationality and, on marrying, to acquire their husband’s nationality. However, it fails to mention a woman’s right to pass citizenship to her husband and by providing for national law to override the treaty’s provision for nondiscrimination in granting citizenship to children, it does not adhere to international norms.

The right of every child to a nationality has also been recognised and further elaborated through the decision of the African Committee of Experts on the Rights and Welfare of the Child (ACERWC) in the Children of Nubian descent in Kenya v. Kenya.[13] Moreover, in 2014, the ACERWC adopted a General Comment on the Right to a Name, Registration at Birth and to Acquire a Nationality elaborating Article 6 of the African Charter, outlining how this right is to be interpreted and implemented in the African region.[14] General Comments provide States with guidance for framing their domestic laws, practices, and policies to comply with treaty obligations.

3.     Setting citizenship right

The new constitution is meant to cure the ills of the past and serve as a foundation for a more just and secured society based on equality, the following should be done.

On children and citizenship

Both the CRC and the African Children’s Charter require that the best interests of the child be the primary consideration in all actions concerning the child. Given that The Gambia has ratified both instruments and domesticated it into the Children’s Act 2005, it should be bound to act in the best interests of a child within their jurisdiction irrespective of the nationality of the child.

First, grant citizenship to children born in The Gambia regardless of their parent’s citizenship. This effectively means deepening the jus soli rule rather than the jus sangunis basis for citizenship. Citizenship should be conferred on the domestically born child. This will ensure that where a child was to be normally barred from citizenship because neither of the parents were citizens, will be prevented from becoming officially stateless by virtue of being born outside of his or her parents’ country of origin.

To protect unaccompanied and separated minors found in Gambian territory, whose nationality is unknown, the Constitution should presume such minors as entitled to citizenship by birth.[15] The law should provide that a child found in the territory of the state shall, in the absence of proof to the contrary, be considered to have been born within that territory of parents possessing the nationality of that state.

 There is also need to protect foreign children through naturalisation, even when their parents are not naturalized citizens. This is in light of particular concern of children of irregular and undocumented persons who may not be able to get such protection from their country of origin. Additionally, a non-Gambian child adopted by a Gambian should be entitled to be a citizen of The Gambia.

On marriage, naturalisation and dual citizenship

Given that the prescribed periods for acquiring citizenship through marriage or naturalisation is unreasonably burdensome, it is proposed that the prescribed period of 7 years ordinary residence by a foreign person married to a Gambian be reduced to 5 years. Similarly, in cases of naturalisation, the law’s requirement of 15 years ordinary residence in The Gambia before a foreign person can apply for citizenship should be reduced to 5 years in line with international practice.

Given the unintended consequences associated with renunciation and having one’s citizenship deprived, it is proposed that dual citizenship be also applicable to registered or naturalised citizens. The Constitution should not require a person to choose one citizenship or another when a Gambian can hold dual nationality.

Dual model on citizenship

The rights to citizenship should be incorporated in the Gambian Constitution within the chapter on “citizenship” section and chapter on “fundamental human rights” respectively.  The citizenship chapter focuses on the status of citizenship while the fundamental human rights chapter focuses on the rights and duties arising from the status of such citizenship. The fundamental human rights chapter should prohibit the deprivation of citizenship. It can also limit more substantive rights including political rights. This dual nature mirrors the split in the nationality debate about the status of citizenship and the rights attendant on that status.

On obligations of the National Assembly

The National and Citizenship Act, Cap 82[16] has been in force since 1966 governing citizenship.[17] However, sections 12 and 15 of the Constitution provides for further legislation. Arguably, the National Assembly should enact a comprehensive a citizenship and immigration law that adheres to international law standards and practice.

Concluding reflections

The current citizenship debate points to a need to have a dialogue on what it means to be a Gambian which lies beyond the scope of this particular op-ed article. This should involve the extent to which citizenship represents not merely the diversity of identities and cultural affiliations, but an understanding of its intricate connection with the states project of rebuilding a unitary nation-state in the wake of the crimes committed in the past.

Suggested Citation: Satang Nabaneh, The changing politics of Gambian citizenship debate, Law Hub Gambia Blog, 29 November 2018, at https://www.lawhubgambia.com/lawhug-net/citizenship-debate-gambia

[1] Act No. 6 of 2001.

 [2] Act No. 6 of 2001 also amended section 12 to include section 12(A) (1) in the Constitution for dual citizenship thereby making it possible for Gambians to acquire citizenship of another country without losing their Gambian one.

[3] Peter J. Spiro ‘Dual citizenship as human right’ (2010) 8(1) International Journal of Constitutional Law, 111–130.

[4] The ICCPR was ratified by The Gambia on 22 March 1979.

[5] The Gambia ratified the CRC on 9 August 1990.

[6] This was ratified on 22 March 1979.

[7] The Gambia ratified the CEDAW on 16 April 1993.

[8] This was ratified on 28 September 2018.

[9] The Gambia ratified the CRPD on 6 July 2015.

[10] African Commission on Human and Peoples’ Rights (ACHPR) ‘The right to nationality in Africa’ 2015, available at: http://www.achpr.org/files/special-mechanisms/refugees-and-internally-displaced-persons/the_right_to_nationality_in_africa.pdf [accessed 26 November 2018].

[11] The Gambia ratified the ACERWC on 14 December 2000

[12] The Protocol was ratified on 25 May 2005.

[13] Institute for Human Rights and Development in Africa (IHRDA) and Open Society Justice Initiative (on behalf of Children of Nubian Descent in Kenya) v. the Government of Kenya, Decision No 002/Com/002/2009, African Committee of Experts on the Rights and Welfare of the Child (ACERWC), 22 March 2011, available at: https://www.refworld.org/cases,ACERWC,4f5f04492.html [accessed 26 November 2018].

[14] African Committee of Experts on the Rights and Welfare of the Child (ACERWC), General Comment No. 2 on Article 6 of the ACRWC: "The Right to a Name, Registration at Birth, and to Acquire a Nationality", 16 April 2014, ACERWC/GC/02 (2014), available at: https://www.refworld.org/docid/54db21734.html  accessed 26 November 2018].

[15] UN Committee on the Rights of the Child (CRC), General comment No. 6 (2005): Treatment of Unaccompanied and Separated Children Outside their Country of Origin, 1 September 2005, CRC/GC/2005/6, available at: https://www.refworld.org/docid/42dd174b4.html [accessed 26 November 2018].

[16] Gambia Nationality and Citizenship Act, Cap 82 [],  18 February 1965, available at: https://www.refworld.org/docid/3ae6b4fb18.html [accessed 26 November 2018].

[17] Ousman A.S Jammeh, The constitutional law of The Gambia: 1965-2010 (2012) 141-

New Gambia and the Remaking of the Constitution

[Editor's Note: Satang Nabaneh'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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                                         The Gambia's current President, Adama Barrow

On 1 December 2016, Gambia held a presidential election in which former President Jammeh (who had been in power for 22 years­) lost to the opposition coalition candidate Adama Barrow.  Initially, Jammeh accepted the results on 2 December only to reverse his position a week later, refusing to step down thereby plunging the country into an unprecedented political stalemate. The about-turn generated widespread local and international criticism, and started a flurry of diplomatic negotiations by ECOWAS. On 17 January 2017, the Alliance for Patriotic Reorientation and Construction (APRC) dominated National Assembly approved a state of emergency declared by the President a day before, and extended the term of the Parliament and the presidency by 90 days.

In response to the recalcitrant position of Jammeh, ECOWAS mobilized troops with the mandate to enter the country and forcefully oust the former President in case the diplomatic missions failed. Consequently, Barrow was sworn in as President on 19 January 2017 at the Gambian Embassy in Dakar, Senegal. Shortly after, a coalition of forces from five ECOWAS countries entered The Gambia stopping before the capital to finalize a diplomatic push for Jammeh’s exit.  Two days later, Jammeh, after having looted the state’s coffers, finally succumbed to diplomatic pressure and left The Gambia for Equatorial Guinea. On 26 January 2017, The Gambia’s new president, Adama Barrow returned to the country amidst widespread celebrations.

The 1997 Constitution and potential reform areas

The Gambia adopted its second republican constitution in 1997 following a referendum held on the draft constitution on 8 August 1996. President Jawara of the People’s Progressive Party (PPP) had dominated political life from pre-independence to 22 July 1994 when a coup d’état led by Yahya Jammeh, a young army lieutenant, overthrew his government. The coup d’état brought to an end the longest surviving multiparty democracy in Africa.

The Constitution recognises The Gambia as a sovereign secular republic. It is premised on the principles of separation of powers, rule of law and respect for fundamental human rights. However, trends in The Gambia characterized by the complete disregard for the rule of law and the personalization of the state by former President Jammeh over the past two decades, posed a clear and present danger to the full realization of the Constitution.

Not only was the former regime notorious for the disregard of the rule of law, but Jammeh further distinguished himself by a number of amendments to the supreme law with largely anti-human rights and undemocratic provisions, such as the removal of the two-term limit and sweeping reforms to the electoral law which required heavy financial deposits for Presidential and National Assembly candidates. Naturally, the new government has promised and has actually started the process of sweeping legal and institutional reforms, including repeals or amendments of several laws from the Jammeh era that eroded human rights.

1. Electoral Reforms

Section 26 of the Constitution guarantees citizens the right to make political choices, providing for free, fair and regular elections, and permitting qualified citizens to vote and stand for public office. On 28 February 2017, the National Assembly passed the Elections (Amendment) Bill 2017 “to encourage the widespread participation of the ordinary citizenry in the new democratization dispensation.” The Interior Minister noted that salaries of most Gambians are low, and the revenue that is derived from commercial activities is equally very low.

The amendment was a response to the major shrinking of the political space during Jammeh’s era. In July 2015, the Elections (Amendment) Act, 2015 was passed and signed by the President on 20 July 2015. The number of signatures needed to register a political party was increased from 500 to 10,000 registered voters with at least 1,000 from each of the administrative areas, in addition to the requirement that a party post a deposit of more than D 1 million (USD 24,000). Candidates for President were required to pay D 500,000 (approximately USD 12,500) raised from D 10,000 (approximately USD 250); the fee for candidates for the National Assembly was increased from D 5,000 (approximately USD 125) to D 50,000 (approximately USD 1,000) and candidates for local council office were to pay D 10,000 (about USD 200). Opposition political parties not only regarded the increases as unreasonably high but also as a ploy by the government to drastically limit the participation of the opposition in elections. The basic salary for an average government employee in The Gambia is D3000. Thus the exorbitant fees were clearly intended to discourage multiparty democracy as most people wouldn’t be able to contest without patronage and financial support from the ruling party.

Now, the 2017 amendment reduces the exorbitant fees back to their initial amounts: President D10,000, National Assembly D5000 and other categories to D2500 and D12500 respectively.  

2. Change of retirement age and removal of upper age limit for holding office as President

On the same day of the amendment of the Elections Act, the National Assembly also passed the Constitution (Amendment) Bill 2017 introduced by the Interior Minister on behalf of the President. The Bill amends section 141(2)(b) of the Constitution in extending the age at which a Supreme Court judge should vacate his or her office from seventy to seventy-five years. In addition, the amendment also removes the upper age limit of sixty-five for holding office as President provided under section 62(1)(b). According to the Interior Minister, the amendments were an attempt to ensure that competent and experienced Supreme Court judges and politicians will not be forced out of office in light of the limited number of qualified judges and political leaders.

However, the process for amendment by government was erroneous as they didn’t follow the proper procedures. In a televised statement, the Minister for Justice and Attorney General Tambedou advised President Adama Barrow not to sign the two recently amended constitutional provisions. Minister Tambedou believed “that the procedure adopted at the National Assembly to amend these constitutional provisions was misconceived. The process of amendment of the constitutional provisions should have been guided by Section 226 of the Constitution instead of Section 101 which was the procedure used at the National Assembly.” As the applicable amendments deal with sections 62(1)(b) and 141(2) of the Constitution which are not entrenched provisions, they fall within the ambit of section 226(2). The section provides that before a Bill for amendment is presented for first reading, it must be published in at least two issues of the Gazette, the latest publication being not less than three months after the first.  The Bill should also be introduced into the National Assembly not earlier than ten days after the latest publication and must be supported on the second and third reading by votes of not less than three quarters of all the National Assembly Members. This procedure was not followed.

The Minister took full responsibility for the error and promised to take actions to remedy the situation as well as avoid such occurrence in the future. He further underscored the urgent need to do a comprehensive review of the Constitution. This public apology and acceptance of responsibility showed the Government’s responsiveness to the concerns of citizens who lamented the non-adherence to the constitutional procedures in passing the amendments.

Other immediate potential reform areas for the government:

3. Introduction of presidential term limits

The issue of term limits is not stipulated in the 1997 Constitution. Currently, The Gambia and Togo remain the only two countries in West Africa without presidential term limits. When the issue was brought up at the ECOWAS Heads of State Summit in 2015, the two countries refused to agree to the plan of restricting West African presidents to two terms in office. This led to the abandonment of the idea by the sub-regional body.

The absence of term limits enabled ex-president Jammeh to stand and win elections four consecutive times and even to seek a fifth term unsuccessfully in December 2016. It further provided him the opportunity to misrule the country and govern horribly against his people for twenty-two years.

According to Memorandum of Understanding (MOU) of the Coalition, one of the key goals of the Coalition government is the institutionalization of term limits. There is an urgent need for an amendment to include a two-term limit of 5 years. In assuring Gambians that his government will introduce a two-term limit of 5 years, President Barrow stated that "with term limits, any president that comes will serve appropriately and have respect for the laws of the land because the person will know that there is an end to his or her tenure."

4. Media law reforms

Section 25 of the Constitution guarantees a wide range of rights, including freedom of speech and expression, and freedom of thought, assembly, and association. Under President Jammeh’s rule, the environment in which the media operated was a precarious one characterized by draconian laws and arbitrary arrests, detentions, and physical assaults against journalists, as well as by closure and burning down of media houses. 

As a dictator, Jammeh stifled the independent media. This was done through several changes which occurred including amendment to section 52 of the Criminal Code (Amendment) Act 2004 making any written or verbal statement that is critical of the government an offence; the offence of publishing false news with intent to cause fear or alarm to the public; the Information Act (amended) 2013 that provided a 15-year jail term for any person found guilty of using the internet to spread ‘false news’ about the regime or public officials. The amendment also imposed a fine of D 3 million (approximately USD 86,000) on persons found guilty of publishing ‘false news’ online against the regime or public officials.

There are several problems with such provisions, including the difficulty of distinguishing between fact and opinion; the chilling effect of such provisions have upon freedom of expression; and the fact that they do not serve any legitimate purpose which would justify restricting freedom of expression.

In addition to repealing these laws, a new Freedom of Information Act should be enacted to ensure the right to free speech and independence of the media. This will be in line with the promises made by the Justice Minister to make reforming media laws a priority. This will also guarantee the protection of press freedom which is vital to establishing and maintaining an open and democratic society in The Gambia.

Conclusion

We, Gambians fought against dictatorship because we wanted change: our rights and dignity restored. The hallmark of that dictatorship was the constant abuse of power through the blatant disregard for the rule of law as laid down in our Constitution. Going forward, Gambians must act as watchdogs to ensure respect for fundamental human rights by the government. It means also that every citizen must be a human rights defender or protector. Furthermore, this will also ensure efficient leadership and effective government that is responsive to our needs and accountable to the citizenry. 

In order to ensure that our democratic aspirations are attained, there is need for the creation of a participatory platform between state and non-state actors to agree on set human rights-based goals and priorities which are underpinned by the rule of law, transparency, and accountability. The Gambia can provide a blueprint for democratic movements in Africa through its transition from dictatorship to democracy. For that to be possible, provisions in our Constitution that are repugnant to natural justice or at variance with international human rights law must be expunged or amended to fall in time.

Satang Nabaneh is a Gambian human rights defender. She holds a Master of Laws (LLM) in Human Rights and Democratisation in Africa from the Centre for Human Rights, University of Pretoria, South Africa, and LL.B (Hons) from University of The Gambia.

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