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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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 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

Civil and Political Rights in The Gambia

Introduction 

The hallmark of the 22-year dictatorship of the former dictator Yaya Jammeh’s regime was the blatant abuse of human rights and disregard of the rule of law. This has generated a culture of impunity where State agents particularly security personnel could arbitrarily arrest, detain and torture or cause a citizen to disappear or kill with impunity. This situation had therefore cultivated a climate of fear in which citizens faced life and death situation everyday as they decide to either obey or challenge the regime. That notwithstanding, Gambians finally voted out the dictatorship in the 1 December 2016 presidential elections but not without undergoing a stiff political impasse following the rejection of the results by Jammeh. For 60 days, the country was stuck in a stalemate that had triggered diplomatic intervention by the international community with a threat of military action to force Jammeh to concede to the will of the people. The impasse prompted the Economy Community of West African States (ECOWAS) to remove the president-elect Adama Barrow out of the Gambia for safety reasons and to have him sworn-in in Dakar, Senegal on 19 January 2017. Few days later on January 23 Yaya Jammeh finally left the Gambia to seek asylum in Equatorial Guinea.

Background

In its 22-year misrule, the Gambia first witnessed a mass uprising on 10 and 11 April 2000 when the Gambia Students Union sought to submit a petition to the vice president at the time Isatou Njie Saidy to demand justice for the rape of a schoolgirl by paramilitary personnel at a sports meeting at the Independence Stadium in Bakau (10 kilometres away from Banjul) and the killing of another schoolboy Ebrima Barry by fire service officers in the semi-urban town of Brikama (about 40 kilometres from Banjul). As the students assembled to proceed to the office of the vice president, they were met with the full force of well-armed paramilitary contingent in Kanifing. What ensued was a direct confrontation and shooting that resulted into the death of 16 schoolchildren including a Red Cross volunteer and a three-month old baby with many more sustaining injuries.

The incident in Kanifing then generated protests across the country which were quelled with heavily brutal crackdown by both the police and the military. In several towns such as Essau, Barra, Farafeni, Brikama and Janjanbureh in the regions, scores of schoolchildren were shot and injured while hundreds more were detained and tortured for weeks. Eighteen years later, tens of survivors are either wheelchair-bound or on crutches and generally experiencing various forms of pain and disability.

The second time Gambians decided to stage a peaceful protest was sixteen years later on 14 April 2016 when Solo Sandeng, a youth leader of the largest opposition party UDP together with a dozen activists demonstrated for electoral reforms in downtown Kanifing (the biggest city in the Gambia) at Westfield. Naturally the group was met with a barrage of paramilitary forces that arrested all of them immediately. Within 24 hours it became known that Solo was tortured to death and hurriedly buried in an obscure grave in the coastal village of Tanji. The rest of his colleagues were subjected to severe torture including sexual violence.

The April 14 protest triggered the leadership of his party to march to the nearest police station the next day April 15 to demand his body, dead or alive. But even before they reached the station, they were also met with severe police crackdown. The party leader Ousainou Darboe and tens of his executive members and supporters were detained at the central prisons pending charges few weeks later.  Today, two years after that protest, about five of Solo’s colleagues have also died due to injuries from torture while many more are sick or in severe pain.

That mass arrest of the party leadership, supporters and citizens generally therefore gave rise to widespread demands for the opposition to coalesce for the December 2016 presidential election. After failing in many attempts in the past to form an opposition coalition, it became clear to everyone that only with a total opposition coalition could Gambians democratically remove the dictatorship. This realisation is informed by the fact that the regime was involved in electoral malpractices including interfering with the electoral commission in its favour amidst other widespread violations. In response Gambians had sought all means to remove the regime to no avail including the use of armed violence that over the past two decades the country witnessed several coup attempts as well as armed insurrections. Notable armed attacks to overthrow the regime came in 1996 in Farafeni, 1997 in Kartong and 2014 in Banjul where attackers (comprising former soldiers living abroad or Gambians serving in the US Army, with support from serving Gambian soldiers) actually entered State House in Banjul as Pres. Jammeh was out of the country, but fatally repelled. Several were caught and summarily executed while many more were detained, tortured and then court martialled and sentence to several years in jail.

The dictatorship did not only violently suppress civil and political rights, but as a consequence of that it also severely undermined the social and economic rights of Gambians. The blatant confiscation of private and community lands, properties and businesses by Pres. Jammeh was widespread and pervasive. Furthermore, the president also claimed to have a cure for HIV/AIDS, infertility, diabetes and many other diseases or health conditions for which scores of citizens were subjected to his treatment program leading to many deaths and high morbidity. The incidence of corruption and political patronage were entrenched to the point that, in practice there was no distinction between what belonged to the president and what belonged to the State. On many occasions, Jammeh had claimed to own the University of the Gambia, or the cameras of the national television or the vehicles that ministries use as well as claiming to be rich for many generations to come. Because of the way and manner he had personalised state institutions and resources, it meant that public institutions lacked the independence, professionalism and space to efficiently deliver public goods and services while citizens lack the space to hold them to account thus further aggravating the socio-economic conditions of the people. By 2016, the Gambia was one of the least developed countries of the world where 60% of the population live in poverty and one of the leading migrant producing nations in Africa.

Enter the New Dispensation

The government Pres. Adama Barrow came on the heels of a longstanding culture of abuse with scores of victims cutting across all strata of the society. Consequently the expectations and hope with which the people received the new dispensation was immensely huge and high. Even before he took office Candidate Barrow had said in his manifesto and campaigns that within six months of taking office he would repeal or reform all laws that infringe on fundamental rights and freedoms, undermine democracy and limit popular participation.

Since January 2017, there has been a largely open space in the Gambia where citizens actively enjoy their civil and political rights. Citizens have been able to speak out openly without fear of reprisal about issues in the society. Many more citizens continue to be bluntly critical, especially on social media, against the decisions and actions of the government in many ways. Radio stations and newspapers have been freely reporting on issues while in many instances citizens have protested in the streets against various issues or the government.

In May 2017 Kartong and Gunjur residents protested against the Chinese fishmeal company accusing it of polluting the environment with bad odour and dumping dead fish on the beach and liquid waste in the ocean. In Kololi (a neighbourhood in the Kanifing Municipality) the youths there also staged a peaceful demonstration against estate developers who were allocated community lands during the dictatorship. Since March 2017 residents in Bakoteh in the Kanifing Municipality have also been protesting at various times and in front of the mayor’s office against the longstanding dumpsite that releases hazardous fumes into the surrounding communities.

However, while there continues to be an open and free space for the exercise of civil and political rights, yet various decisions and actions by the new government have raised concern for the protection of human rights. For example, since taking office Barrow has not yet repealed or reformed any of the draconian laws he had promised to change during his campaign. Rather in November 2017, the Supreme Court of the Gambia went ahead to certify that the Public Order Act (POA) was in line with the constitution. Since 2009, the POA has been challenged for being unconstitutional because it contains provisions that give power to the Inspector General of Police to either grant or deny permit for protest. Observers and human rights activists had condemned the POA that it gives immense powers to the police that override the limits imposed by the constitution that guarantees the right to peaceful assembly and demonstration. In fact the Public Order Act was one of the laws targeted in Barrow’s manifestation for reform.

The Public Order Act was one piece of legislation that the former regime had consistently used to clampdown on citizens for merely exercising their civil liberties including engaging in political activity. It was because of the POA that in 2010 the opposition UDP’s campaign manager Femi Peters (late) was jailed for one year for organizing a political rally in Banjul without a police permit to use a public address system. Secondly it was because of this law that the UDP leader Ousainou Darboe and scores of his executive members and supporters were also jailed for three years in July 2016 for unlawful assembly when they marched to the police station to demand the body of their late party youth leader Solo Sandeng. Similarly it was because of the Pubic Order Act that the paramilitary forces were deployed against students in 2000 leading to the shooting to death of dozens.

Following violent riots in May 2017 by the youths in the communities of Farato (about 30km from Banjul) against the demolition of homes and in June 2017 in Kanilai (home village of the former dictator Jammeh) against the presence of ECOWAS military intervention forces in the community, it has now been noticed that the government appears to deny any form of protests. This came first in November 2017 when a youth movement, #OccupyWestfield sought a permit to protest against the poor electricity supply in the country. The police initially gave the permit only to withdraw it within 24 hours. Similarly in January 2018, a political science lecturer at the University of the Gambia Dr. Ismaila Ceesay was ‘invited’ to the police headquarters for questioning for comments he made in a newspaper interview. It turned out that when Dr. Ceesay arrived at the station, he ended up being detained overnight and then charged for ‘incitement to violence’. Following a public outcry mainly by students and the Gambian civil society, the police were forced to release him and drop the charges. These incidents, if anything to go by clearly show that the open and free space for human rights in the Gambia at the moment may not last long.

Even when the government had passed other laws that broadly speak to the promotion and protection of human rights yet there have been instances of inconsistencies that cause for concern. For example in December 2018 the government passed new laws setting up the Truth, Reconciliation and Reparation Commission, the Constitutional Review Commission and the National Human Rights Commission. These moves have been welcomed by activists, human rights organizations, development partners and citizens generally. However there have been concerns that the government has been selective in dealing with major human rights issues of the past. While the government was commended for opening investigations and prosecution into the murder of Solo Sandeng, many are concerned why similar action was not taken in the case of the April 10 and 11 students massacre or the murder of Deyda Hydara among others?

What is even more concerning to many has been the fact the new government has failed to repeal the Indemnity Act which as enacted in 2001 to exonerate public officials and security officers for their decisions and actions in the student massacre. The April 10 and 11 Commission of Inquiry held between May and August 2000 identified several officials and officers by name and rank for being responsible for the shooting of the students. Instead of prosecuting or disciplining those responsible as recommended by the Commission, the government rather went ahead to indemnify their actions by describing the incidents as a state of emergency. Thus when the new government came to power, the expectations generally have been that one of the first laws to undergo repeal would be the Indemnity Act to allow for the prosecution of perpetrators and compensation of victims. This has not happened yet.

In addition to the April 10 and 11 incident, there were also other incidents that many were of the opinion that the new government would open investigations into them in order to ensure justice. Some of these incidents include the mass killing of soldiers in November 1994 in the wake of an attempted coup, or the burning to death of the former finance minister Koro Ceesay in June 1995 as well as the shooting to death of veteran journalist Deyda Hydara in December 2004 including many cases of enforced disappearances and summary executions such as in August 2012 when nine inmates in the country’s major prison were killed.

It must however be noted that generally the president Adama Barrow continues to speak positively about protection of human rights. He has expressed his desire on many occasions that civil liberties will remain respected by his government. Marking his first anniversary in office, he said his government had removed the phenomenon of ‘management by fear’ by creating the enabling environment for the exercises of  civil and political rights.

Conclusion

The civil and political rights situation in the Gambia today is certainly better than what it was during the dictatorship; at least for the foreseeable future. But so long as the draconian laws that infringe on civil and political rights remain in the statutes and the necessary constitutional and institutional reforms are not conducted, especially among security institutions, there remains the possibility that Gambians may encounter an erosion of their human rights. So far the government is not demonstrating the necessary urgency and commitment to these reforms. While the right political statements continue to be made by the leadership yet there has not been commensurate practical steps to not only refrain from infringing on rights but to also expand rights. Apart from the Supreme Court ruling on the POA and the denial of permits to protesters, there is now growing number of police checkpoints around the country reminiscent of the dictatorship.

Some analysts have contended that political expediency or lack of experience or poor leadership or the combination of all seem to have engulfed or preoccupied the new government, while, others have noted that, after all politicians remain the same, i.e. at the end of the day it is about seeking and maintaining power  by any means. Time will tell.

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

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