Making Economic, Social and Cultural Rights a Reality in "New Gambia": Lessons from the 1997 Constitution

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

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Judicial inquiry into Economic, Social and Cultural Rights (ESCRs) across the world has increasingly taken center stage in human rights discourse. In many cases relying on the progressive interpretation of ESCRs, courts have in numerous occasions found states actions inconsistent with domestic, regional and international standards relevant to the progressive realization of ESCRs. However, the major challenge courts face in addressing human deprivations have been largely due to the absence of normative domestic constitutional benchmarks to assess and measure states’ compliance with their international obligations. This has compelled courts to go beyond their traditional roles of merely interpreting positive law to venture into uncertain paths in their quest to protect and enhance human dignity. Thus, they became forums for constitutional dialogue and deliberative democracy. To that end, they have ordered: the halting of eviction orders on the basis of the right to adequate housing; states to reinstate social welfare benefits; states to reinstate essential medical programmes for the poor and required children from minority groups to be provided schools and deprived communities to have access to clean water.

On the other hand, courts in some jurisdictions declined any invitations for the enforcement of ESCRs on the basis that the content of such rights are notoriously uncertain and in avoiding ‘’purely political’’ decisions which are reserve for the executive, they have shied away from ESCRs. This school of thought is probably a steadfast servant of Lon Fuller’s polycentric effects theory. The pursuit of that theory is obviously not the essence of this contribution.

Therefore, this paper seeks to draw the attention of stakeholders in the constitutional review process to avail ESCRs their rightful constitutional positions in the new constitution as for the legitimacy of any government will be severely tested if it turns a ‘’blind eye’’ to the dire socio-economic conditions of its people. Equally, the enjoyment of ESCRs goes to the heart of human dignity which is the foundational basis for the enjoyment of all rights. The Gambia over the years relegated ECSRs as mere policy aspirations that were only pursued to meet political ends. The 1997 Constitution of the Gambia contains a bill of rights guaranteeing a limited number of ESCRs. These rights include the right to primary education, to property, and the right to join trade unions.  Thus, those rights that are expressly guaranteed in Chapter 4 of the Constitution can be enforced through a judicial process in terms of article 37. Fundamental rights such as the right to food, shelter, clean water, adequate standard of living only form part of the National Objectives, and as such makes it difficult for individuals and stakeholders to hold the government of the Gambia accountable for ESCRs violations through the judicial process.

What is required of the Gambia under international human rights law is to make efforts for the progressive realisation of ESCRs. This requires the Gambia to move as expeditiously as possible towards the full realization of ESCRs, bearing in mind that certain ESCRs cannot be achieved in the short term.  In General Comment No 3, the UN CESCR posits that these steps must be deliberate, concrete, and targeted as clearly as possible.  It further emphasized that there are certain ESCRs that impose immediate obligations that are capable of immediate application.  Thus, irrespective of resource availability ‘minimum core’ of ESCRs should be guaranteed. Therefore, guaranteeing ESCRs in the New Constitution will not only be symbolic in translating the political commitment/will to reality, but also ensure the prioritization of ESCRs in resource allocations, and will allow courts to ensure accountability for any violations. For the courts to go to the theater there should be adequate ESCRs sign posts in the New Constitution giving them directions.

To be continued…

Suggested Citation: Sainey Bah, Making Economic, Social and Cultural Rights a Reality in the ‘’New Gambia’’: Lessons from the 1997 Constitution, Law Hub Gambia Blog, 6 December 2018, at https://www.lawhubgambia.com/lawhug-net/newgambia-economic-social-cultural-rights.

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-

Constitutional Change and Amendment: Should the Judiciary be allowed to review constitutional amendments?

Constitutions change overtime and in different ways, determined or dependent on the jurisdiction of that country. Constitutional amendments can be conducted as per the procedure designed by the Constitution or even outside the scope of constitutional law which can deviate from the cardinal principles of Constitutionalism. The role of the Judiciary (i.e. the courts) is said and well established to be different from that of the legislature. The legislature in most jurisdictions is vested with the power to make laws. Constitutional amendments therefore refer to the formal procedure of amending provisions of the Constitutions and not any other procedure. Hence, importing any other procedure for Constitutional amendment outside of the scope of the procedure provided for by the Constitution such as handing over the amendment power to the court is said by many against democratic principles.

In my previous blog post, “Constitutional Change and Amendment: Are we restrained by ourselves or other people?” I argued that by binding ourselves to commitments of the Constitutions we are also binding ourselves to the interpretations of judges who are not answerable to the people for their acts and are independent from any sort of influence from any person or authority. Hence, would it not be against the principles of accountability to allow the court to review Constitutional amendments?

Fundamentally, judicial review empowers the courts to decide on the legality of actions or inactions (failure to act) of both the legislature and executive and their consistencies with the Constitution Any act, omissions or decisions of the government that is inconsistent with the Constitution is, to the extent of their inconsistency declared null and void. On a general perspective, judicial review is understood from two distinct points which needs to be highlighted before delving into the subject matter. Firstly, it is a means through which courts control the exercise of administrative power. Secondly, it refers to the courts’ enforcement of the doctrine of ‘supremacy of the Constitution’ to declare null and void any act of parliament or any other act that are in conflict with the Constitution.

According to Justice Hassan B Jallow (as he then was), the Constitution of The Gambia is based on the principle of separation of power and as such supremacy “reposes in the Constitution, whether or not such is expressly declared by that instrument and not with the National Assembly or any other organ of state.” (Jallow JSC, Jammeh v. Attorney-General (2002) ). Hence any form of judicial enforcement that is inconsistent with the Constitution will take away the legitimacy and purpose of the creation of the Constitution.

As such, review of Constitutional amendments by the courts creates a conflict between the courts and legislature by handing over the responsibilities of the legislature to the court. At first look, judicial review of Constitutional amendments seems as a violation of the principle of separation of powers. Invalidating an amendment on the grounds that it is unconstitutional is constitutive in its functional meaning. It is very similar to enacting an Act of Parliament which is a duty imposed on Parliament and not on the courts.

However, if we are able to welcome the idea that the amendment power in a Constitution is like any other power vested by the Constitution, the same reasoning could apply in judicial review of Constitutional amendments. Also, the amendment power of the legislature is also limited in scope by its nature either explicitly or implicitly. This is where judicial review of amendments comes in as a mechanism to enforce those limitations. For instance, in The Gambia, the National Assembly is not allowed to alter any of the entrenched clauses found in section 226(7) unless:

(a) the Bill has been sent by the speaker to the Independent Electoral Commission.

(b) the Commission has within six months of receiving such reference held a referendum on the Bill.

(c) at least fifty percent of the persons entitled to vote in the referendum have taken part in the referendum and;

(d) the Bill is supported by seventy-five percent of those who voted.

In Jammeh v Attorney General, the Supreme Court of The Gambia ruled that failure to comply with the conditions set out in section 226(7) of the Constitution renders a purported amendment of the Constitution and assent thereto invalid, null and void and of no effect. The fundamental idea behind the involvement of the courts in the review of Constitutional amendments is to uphold the supremacy of the Constitution and that principle requires the courts to check that the legislature does not fall outside the dictates of the Constitution when exercising its power of amending the Constitution. This whole process would normally require individual(s) to bring up a case against the government in exercise of their rights as citizens or person living in The Gambia or with an express authorisation by the Constitution. But should this always be the case? Should the judiciary be reviewing Constitutional amendments in the absence of authorisation by the Constitution?

In my opinion, when courts in review amendments made by the legislature, they are only reinforcing the supremacy of the Constitution., not that of the legislature or the judiciary. After all, the amendment power is given to a constitutional organ of the government by the supreme law. Strauss highlighted that an amendment of the Constitution does not necessarily direct an ultimate concern about the document but rather the amendment is concerned about the institutional arrangements that the Constitution is supposed to control. The proposition Strauss is suggesting here is that the judiciary in reviewing Constitutional amendments only checks the exercise of the power of the legislature, which is a Constitutional institution.

It is trite law that in order to challenge an amendment or a law, one should be able to direct to a specific constitutional provision that the amendment or law violates. Elliot however makes the view that constitutional interpretations should not be “limited to the literal language contained in discreet clauses in the Constitution.” (Donald Elliot, 1989). This, in effect, forces the court to make decisions that are vulnerable because of the failure to adhere to Constitutional dictates. My view is that since the amendment power is limited in most constitutions and mainly as a delegated power, the amendment in fact helps in enforcing the limitations described by the Constitution.

For separation of powers to work effectively, we need procedures to check the balance of power between arms of government so as to settle any dispute that might arise. The separation of powers between the legislature and the judiciary presupposes that the power to amend is independent within its scope and margin so long as it does not violate the Constitution. This also in turn facilitates a procedure for determining whether the amendment made is ultra vires the Constitution. Thus, allowing the judiciary to review amendments protects the principle of separation of powers between the primary and secondary constituent power.

Accordingly, when applying the law, it is important to understand what exactly the law is or mean. As such, in the event of a conflict in law, the court, in its duty in applying the law, should be able to decipher which of the laws must take precedence over the other. In the case of reviewing amendments made by the legislature, a similar argument can be made in the sense that one of the main duties of the courts is to make decisions in conflict using the Constitution as its main tool and other legislations.

In doing so, the court will need to interpret the Constitution. If the Constitution is silent on who should determine the constitutionality of laws, then the arm of government that applies the law is the most competent to review the laws. The same applies for review of constitutional amendments. The striking similarity in the review procedure of statues and constitutional amendments resonates from the fact that they are both reviewed in a normative standard. As argued by Klein, judicial review of amendments is similar to ordinary judicial review. It is further described as “an examination of the compliance of a given legal standard to a superior standard.” (Yaniv Roznia, 2014).

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References

1 Justice A.K Date-Bah, “The Law and Practice of Judicial Review”

2 Donald Elliot, “Why Our Separation of Powers Jurisprudence is So Absymal”, (1989)

3 Jammeh v. Attorney General, (2002) AHRLR 72 (GaSC 2001)

4 Marbury v. Madison, 5 U.S 137 (1803 U.S LEXIS).

5 David A. Strauss, “The Relevance of Constitutional Amendments” (2001)

6 Yaniv Roznai, “Unconstitutional Constitutional Amendments: A study on the Nature and Limits of Constitutional Amendment Powers.” (2014).

The Gambia: The state of liberal democracy

Congratulations to Gaye Sowe, Executive Director – Institute for Human Rights and Development in Africa (IHRDA) and member of the Constitutional Review Commission; and Satang Nabaneh, Ph.D in Law Candidate/Founder and Editor, Law Hub Gambia. Their joint chapter on The Gambia was published as part of the I-CONnect-Clough Center 2017 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 second edition of the I·CONnect-Clough Center Global Review of Constitutional Law (ISBN: 978-0-692-15916-3). The 2017 Global Review assembles detailed but relatively brief reports on constitutional developments and cases in 61 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://ssrn.com/abstract=3215613

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Suggested citation

Sowe G and Nabaneh S ‘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) 97-101.

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Overview of the chapter "The Gambia: The state of liberal democracy"

2017 witnessed unprecedented political events in The Gambia that resulted in a transition from a dictatorship to a democracy. The single most important development was that “The Gambia became one of Africa’s newest democracies following 22 years of authoritarian rule by Jammeh, who vowed to rule The Gambia for a billion years. 

“This momentous change led to the dawn of a new political and democratic dispensation and a slow, but gradualist thrust to liberal democracy. ”

— Sowe & Nabaneh

This report looks at various constitutional amendments, promulgation of new laws, constitutional case law and politics including Gambianization of the judiciary and what big questions await The Gambia in 2018 or beyond.

Download The Gambia chapter and the full report here.  

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.

The Gambia's human rights situation in relation to freedom of expression: Achievements and Challenges

(Photo Credit: HRW)

As a member of the United Nations and a party to the United Nations Covenant on Civil and Political Rights (ICCPR), the Gambia has registered both positive and negative developments in guaranteeing the right to freedom of expression. This essay highlights the Gambia’s human rights situation in respect to the right to freedom of expression which over the years has been affected in many ways. It is essential for the government to take giant steps in protecting the fundamental rights and liberties of its citizens. It is also of high importance that Non-Governmental Organizations (NGOs) take a leading role in promoting the rights and liberties of people as may be in line with their mandate.

Developments in relation freedom of expression

It is noteworthy to state that the Gambia had indeed gained a bad reputation on its human rights situation under the former government of Yahya Jammeh. Jammeh’s 22 years of military turned civilian style dictatorship in the Gambia was marked by several unfathomable human rights violations including but not limited to arrests and detentions without giving due regard to the constitution. Such attracted an international attention for 22 years, making the Gambia hell for journalists as well as members of the intellectual fraternity. The media under his administration has suffered regular, systematic and repressive attacks.

In the aftermath of the December polls which saw the ‘surprising’ defeat of Jammeh by an opposition coalition of seven political parties, and his subsequent refusal to step down triggering post-election political crisis, Gambian security agents closed three private radio stations near the capital, Banjul in the names of Teranga FM, Hill Top and Afri radio.

The government under Jammeh was blamed for its failure to abide by the provisions of the ICCPR in respect to guaranteeing fundamental human rights and liberties of its people including freedom of expression. Amnesty International showed its dissatisfaction with the then government when it failed on numerous occasions to submit reports on its human rights situation as a state party to the ICCPR. The government was said to have mounted “systematic attacks on freedom of expression and of the press, harassment of human rights defenders and journalists, long term detention without trial of political detainees…”(Amnesty International)

To muzzle the press, media laws have been passed which restricts media freedom including freedom of expression. Since 2013, the Jammeh administration enacted series of repressive laws that curtail freedom of expression and the media with a new law increasing penalties for “providing false information” and the other criminalizes anyone using the internet to spread “false news” about the government or civil servants. This particular amendment to the Criminal Code increased the prison term from six months to five years and the fine from D500 ($12) to 50,000 ($1,226) for providing “false information” to a public servant which include the president, vice president, cabinet ministers and members of parliament. These according to Human Rights Watch, have restricted the proper functioning of Civil Society Organizations as well the media, serving as threats to freedom of expression.

Under the current dispensation, one may claim some improvements in respect of freedom of expression. Individuals can express their opinions without fear of victimization contrary to how it used to be under Jammeh. On the area of the media, few media houses have emerged adding to the existing ones since the change of government in 2016, including a television station which serves as the country’s second TV station since independence. However, the challenge remains that, some of the laws that hindered the right to freedom of expression under the previous administration are still in place. The Gambia Press Union continues to challenge the law on “false news” in an attempt to decriminalize it. The challenge over the case was first heard during the era of the former government but without any proper legal remedy; nevertheless, the press union continues to challenge it to this date. Even though the current government “conceded on the unconstitutionality of libel, criminal defamation and sedition, but has maintained that false news places “reasonable restriction necessary in a democracy.”

Despite contesting the 2016 election on the promise for a new constitution that would wipe out all bad laws, especially those relating to freedom of expression, such laws are still in place and have attracted public outcry. However, the government through the justice ministry has passed the bill for a constitutional reform that is expected to fundamentally guarantee the right to freedom of expression. ‘Criminal justice sector and media law reform’ are considered to be priorities. According to Human Rights Watch 2017 Report on the Gambia, the government has largely respected media and opposition freedom and also further promised to repeal all laws that restrict the right to freedom of expression, including ‘false news’. Journalists who fled the country during the era of Jammeh after being arrested and tortured have returned while the Barrow administration promised to comply with judgments of the ECOWAS Community Court against The Gambia in relation to the forced disappearance of two journalists, torture of another, to negotiate in compensating the families of the victims.

However, even though the country has registered some positive developments, challenges remain as well as mentioned earlier. In August 2017, opposition leader, Mamma Kandeh was invited for questioning by the police ‘in connection with allegations he made against the coalition government of pocketing loans that it secured from foreign financial institutions.”

Two months later, leader of another opposition party, APRC, the party of the former president was called for questioning by the police in connection to statements he made accusing the coalition government of victimizing certain individuals who are supporters of his party. In late January, the party’s spokesperson, Seedy Njie was also arrested and questioned by the police in relation to a comment he made regarding the release of a party supporter in detention.

In January 2018, a university lecturer was detained and questioned by the police in respect of a newspaper comment he made on the country’s security situation. The arrest and detention of Dr Ismaila Ceesay attracted widespread condemnation both locally and internationally including the Institute for Human Rights and Development in Africa (IHRDA), which subsequently led to his release by the authorities.

Despite gains been made in its human rights situation in relation to freedom of expression, the current government still have more work to do in fully protecting and safeguarding such a fundamental right and freedom.

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References

Edward McAllister, Reuters 8th January 2017, “Gambian Authorities Shut three radio stations amid post-election crisis”
Amnesty International Press release 3rd February 2002, “Gambia: missed opportunity to promote human rights” 
World Report 2017, Human Rights Watch, “Gambia: Events of 2016”
The Standard Newspaper, 23 November 2017, “GPU Continues battle to decriminalize false news”
News24 8th February 2017, “Gambia to boost press freedom in constitution overhaul”
World Report 2018, Human Rights Watch, “Gambia: Events of 2017”
The Daily Observer 11 August 2017, All Africa, “Gambia: Police Question Mamma Kandeh”
World News 1 February 2018 “Institute for Human Rights and Development in Africa Condemns ‘Unlawful’ Arrest of Dr Ceesay”

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About the Author:
Essa holds a BSc in Political Science from the UTG, and serves as a Graduate/Teaching Assistant in the Political Science Unit. He is currently pursuing MPhil in Human Rights and Democratization in Africa at the Centre for Human Right, University of Pretoria, South Africa. He has an interest in promoting the civil and political rights of all people, especially in Africa. His research interest lies in post-conflict democratization in Africa and how different institutional and constitutional designs can be utilized in peacemaking and peace-building processes in the continent.
 

The Gambia and the African human rights system

Synopsis of the Statement by the Gambian Delegate, Aji Adam Ceesay, Ministry of Justice at the 62nd Ordinary Session of the African Commission on Human and Peoples’ Rights. 25 April-9 May 2018, Nouakchott, Mauritania

The Gambia’s state report focused on measures taken to integrate the country into the human rights family. Major strides include the following:

• Promulgation of the National Human Rights Commission (NHRC). Appointment of commissioners and institutional arrangements are underway.
• In their determination to rebuild the nation and lay the foundation for good governance and human rights, Truth, Reparations and Reconciliation Act (TRRC) was enacted.
• The Constitutional Review Commission (CRC) Act was also enacted for the establishment of  a Commission for the drafting and guiding of the process of  promulgating a new Constitution
• Media laws: Ministry has established national committee to review laws. Enhancement of speech and media including issuance of TV licenses.
• In terms of political and civil rights, elections that were considered free and fair took place including, National Assembly and local government.
• Concrete measures are also undertaken to address prison conditions.

Plans by Government

• Formalization of the national procedures for accession to the Convention Against Torture (CAT) and subsequent domestication.
• Commencement of the process of ratifying the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Older Persons.
• Finalization of the Draft Disability Bill as domesticated legislation of the Convention on the Rights of Persons with Disabilities (CRPD).

 Feedback of Chairperson of the African Commission, Hon Commissioner, Soyata Maiga
She expressed delight with the progress that has been made in the normative planes and the establishment of governance institutions. She recalled how for long time, they were reporting excessive human rights violations happening in The Gambia and thus, seen as people that were manipulated by the NGOs. She reiterated that The Gambia can count on the support of Commission, and international community.

Law Hub Gambia’s Take: The Gambia SHOULD fulful its state reporting obligations

One of the most effective means by which the African Commission can ensure the promotion and protection of human and peoples’ rights is through the state reporting procedure.

However, The Gambia’s record of fulfilling its state obligation of submitting reports is extremely poor. At the African regional level, The Gambia submitted its initial report (1986-1992) on the African Charter on Human and Peoples’ Rights (African Charter) in 1992. In accordance with article 62 of the African Charter, states parties are required to submit periodic report every two years. The Gambia’s first periodic report was submitted in 1994 for duration (1992-1994) and no more have been submitted.

Since its ratification of the African Charter on the Rights and Welfare of the Charter (African Children’s Charter) on 14 December 2000 and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol) on 25 May 2005, The Gambia has never submitted any initial or periodic reports to both instruments.

During its statement, The Gambia committed to submitting its state reports after two decades in the next session, we look forward to the inclusion of civil society in the preparation of the report and subsequent submission. 

Resources

S Nabaneh ‘The impact of the African Charter and the Maputo Protocol in The Gambia’ in VO Ayeni (ed) The impact of the African Charter and the Maputo Protocol in selected African states (2016) 75-93. Available at : http://www.pulp.up.ac.za/component/edocman/the-impact-of-the-african-charter-and-the-maputo-protocol-in-selected-african-states

Report of The Gambia in accordance with Article 62 of the African Charter on Human and Peoples’ Rights, http://www.achpr.org/files/sessions/12th/state-reports/1st-1986-1992/staterep1_gambia_1992_eng.pdf

Periodic of report, ACHPR/PR/GAM/XVI http://www.achpr.org/files/sessions/16th/state-reports/1st-1992-1994/staterep1_gambia_1994_eng.pdf (accessed 15 February 2018).

How can young people shape The Gambia's democratic future?

The author gave a similar speech on the theme during the lecture on ‘The Gambia’s constitutional reform process’ organised by the International IDEA:  Institute for Democracy and Electoral Assistance and Faculty of Law, University of The Gambia, 16 March 2018.

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The role of young people in shaping democracy in The Gambia requires a deep historical reflection stretching from the struggles of our forefathers against colonialism and the struggle of young people in the defeat of a 22-year-old dictatorship in 2016. Therefore, the role of young people in shaping democracy today should not be seen as isolated efforts to ensure accountability and resistance to abuse of power, rather it should be seen as a continuity of struggles long conceived even well before the birth of our independence. However, that history will be worthwhile exploration elsewhere. Today I want to address the theme by first looking at the efforts at the regional level that were designed to enhance youth participation in democracy.

At the African regional level, the transformation of the Organisation of African Union (OAU) to the African Union (AU) in 2002 marked a renewed commitment to the promotion of democratic institutions and good governance in Africa. This commitment is premised on the recognition that inclusive participation, good governance and democracy are fundamental pillars of continental development. In 2013 the AU adopted the Solemn Declaration which called on African states to unite and articulate common development aspirations reflective of the continent’s contextual realities. That commitment gave birth to the adoption of Agenda 2063 which articulates Africa’s long-term development vision. Aspiration 6 of Agenda 2063 provides that the continent aspires for an ‘Africa, whose development is people-driven, relying on the potential of African people, especially its women and youth,’ As such, youth are critical to the realisation of Agenda 2063 as over 60% of the continent’s population is estimated to be under the age of 30.

Moreover, in recognition of the role of youth in ensuring democracy, the AU adopted other normative and institutional frameworks that require member states to enhance the participation of young people in democracy, governance and decision-making. These normative frameworks include the Youth Charter adopted in 2006, the African Charter on the Rights and Welfare of the Child (1990), the African Charter on Democracy, Elections and Governance (ACDEG) (2007), the African Charter on Human and Peoples’ Rights (1981), and the Constitutive Act of the AU (2002). All these instruments engender rights, duties and freedoms that enhance the meaningful participation of young people in issues that concern their well-being, aspirations, democracy and governance.

Based on these frameworks, the AU also devoted 2017 as the year of ‘Harnessing the Demographic Dividend through Investments in Youth’. In pursuance of this agenda the African Union Commission designed a roadmap that focuses on four pillars on youth investment. These pillars are Employment and Entrepreneurship, Education and Skills Development, Health and Wellbeing, and Rights, Governance, and Youth Empowerment. The fourth pillar which involves Rights, Governance and Youth Empowerment deals with a commitment to ensure youth participation, representation and inclusion in decision-making processes is guaranteed. The pillar also calls for an inter-generational dialogue that will foster learning for emerging young leaders in the continent.

Drawing from these standards, the AU shows a commitment to enable youth participation in democratic governance. However, the extent to which youth will effectively participate in democratic governance will depend on the level at which these frameworks are translated into realistic commitments and policies at the domestic level. Lack of political will and dictatorial tendencies can create a disjoint between regional standards and national efforts.

The Gambia is a party to many regional instruments and in fulfilment of her obligations have adopted policies and laws to enhance youth participation in democratic processes. Article 89 (1)(b) of the Constitution of the Gambia 1997, sets the minimum age limit to participate in parliamentary elections at 21 years. For presidency, Article 62(1)(b) sets the minimum age at 30 years. Moreover, Article 196 makes it mandatory on every Gambian to undertake national youth services after attaining the age of 18. In addition to the Constitution of the Gambia 1997, the government also adopted the National Youth Policy subsequent to the establishment of the Gambia National Youth council in 2000. The purpose of the NYC council is aimed at enhancing the participation of youth in national development.

The role of youth in shaping democracy in the Gambia was crystallised in the 2016 Presidential Elections when they rallied to elect a new leader that would pave the way for what would be the first democratic change of government in the history of the country since 1965. This change did not only allow the new government of The Gambia to close a dark chapter of bad governance since 1994, but also presents an opportunity for renewed commitment to the respect of human rights and democracy. In light of that change, the new government of President Adama Barrow pledges to embark on a comprehensive constitutional reform to further consolidate democracy and human rights protection in the Gambia.

The engagement and participation of youth in this election was unprecedented and critical. Due to their frustration over the autocratic regime of President Yaya Jammeh, they rallied behind the banners of opposition coalition to usher in democratic and constitutional change of government.

Beyond the 2016 elections, from civil society forums, government platforms and on the streets, young people in the Gambia manifest a strong commitment and ethos to ensure that the new government in Banjul lives up to its commitment to democracy, good governance and respect for human rights.

The change of government ensured by young people has also led to the widening of the democratic space in the Gambia where they are unhindered to hold government accountable through social accountability mechanisms. This has led to the formation of youth organisations that are contributing in the policy processes to proactively advance good governance, human rights and democracy. A-Plus Gambia is an example of a youth organisation that is making efforts to hold the government accountable through public expenditure reviews and monitoring of budget. Thus, through budget monitoring youth groups are able to assess the gaps that exist between policies and government actions to ensure the progressive realisation of socio-economic rights particularly local government service delivery. The significance of such activities by youth groups is not only important in shaping democracy but also engender discussions around alternative policy choices for the realisation of human rights.

Furthermore, youth are also involved in peace building efforts in the Gambia. On 9 and 11 May 2017, Gambian youth in partnership with young leaders from 22 African countries organised and hosted a conference under the theme ‘Youth, Peace building and Regional Solidarity: Lessons from Africa’. The conference was jointly funded by the government of The Gambia, UNESCO, and the African Council for the Development of Social Science Research. This conference provided an opportunity for stakeholders to reflect on the challenges and opportunities for youth in transitional systems. More importantly the young participants highlighted the need for intergenerational interaction and dialogue in sustaining peace and ensuring the durability of democracy. The conference also provoked discussions on gender equality, peace consolidation and youth participation in governance.

Nonetheless, as writers accurately put it that the youth bulge in Africa is a double-edged sword. While it can be a catalyst for economic growth and transformation when well-managed, but it can also spur violent conflict across the continent.

Going forward, our fears and aspirations as young people should dictate the pace of our constitutional making process. According to His Lordship the CJ Honourable Hassan B Jallow, ‘’the 1970 Constitution was a well-crafted constitution indispensable to the proper functioning of government’’ However, written constitutions are not a guarantee for democratic government based on constitutional conventions. He went further to say that ‘’the ultimate guarantee for good governance reposes not in the letter of the law, but in the will, commitment and determination of the people and their leadership to tread the path of justice and fair play.’’ It this commitment and will, we the young people of this country demand from our government. We are not negotiating our future in these trying moments of our times.

It is important to emphasise that democracy in this context is understood as popular governance that has its roots in the enlargement of the public sphere for people to constructively participate in the choice of governance they desire. As such, in this context democracy is not synonymous to western liberal democracy which does not give primacy to group rights as a basis for rights, freedoms and duties. The AU has over the years recognised African values as central to human rights, governance and democracy. Thus, Article 3(b) of the Charter for African Cultural Renaissance endears African states ‘to promote cultural democracy which is in separable from social and political democracy. The charter also calls on African states to strengthen the role of African values in promoting peace, good governance, social cohesion and human development. 

As young people, we look forward to an inclusive constitutional making process that will recognise our concerns and fears.

#Spotlight: Women's Act 2010

                                                         Image: Think Young Women

Human rights are women’s rights, and women’s rights are human rights!

On 8 March, women across the world including in The Gambia celebrate International Women’s Day (IWD). A day to celebrate the achievements of women but also a day to PressForProgress to end gender injustices.

Today and every day, a reminder that it is vital that women know their rights. In line with this goal, Law Hub Gambia provides a summary of the Women’s Act 2010. You can find the Act and subsequent amendment here.

At Law Hub Gambia, we join the movement to combat attitudes and behaviours that condone, tolerate, excuse or ignore women’s rights. There is great need to increase awareness among women and girls regarding their rights.

Do take action in transforming the lives of women and girls and actively continue to #PressforProgress.

In solidarity,

The Law Hub Gambia Team

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