By: Moro Gaye
President Adama Barrow has been making promises in the past months to hold a referendum for the new constitution before the end of 2024. Yet, the chance of realizing this dream is now becoming a distant possibility. The current proceedings at the National Assembly will soon end and the proposed Constitutional Promulgation Bill 2020 is not included in the 2nd session’s agenda. However, the next ordinary session will be held in September 2024, three months before the end of the year after the normal summer holidays of the MPs.
It is now four years since the draft constitution bill was rejected at the House. With time running short, it would be impossible to promulgate the new bill and have it gazette before the second reading. It could be recalled that the bill was suspended for failing to meet the required number of votes after the House recess dashing the hopes of many Gambians to have the old 1997 Constitution replaced. This existential threat to our constitutional democracy can only be solved by the enigmatic Adama Barrow.
It is a national disgrace to hear ECOWAS expressing serious concerns about the long-delayed bill and reminding the president to urgently put it into force as soon as possible. Unlike many other African countries, Gambia has had a remarkable constitutional history since the time of colonialism. Constitutional development in the Gambia begun in 1765 granting churchmen, military personnels and merchants a forum on how to administer the colony. In 1821, a new constitution came into force separating the colony from the rest of the country called the Protectorate and placing the country under the jurisdiction of the Governor of Sierra Leone.
According to historical records, there were more constitutional changes made in 1883, 1893, 1915, 1921 and 1945 when the Gambia was given Parliamentary status. This was revised in 1951 resulting in the introduction of the ministerial system of government. Further changes were made in 1953 through a consultative committee and a revised constitution came into force in 1954. Following consultation with leaders of political parties and representation of the Protectorate another constitution was adopted in 1960.
This was however amended in 1962 when elections were held and Sir Dawda Jawara won decisively to become Premier. Further consultations followed and in 1963 the position of Premier was changed to Prime Minister with full internal self-government. The constitutional conference held in London; England provided the setting up the Gambia Independence Act and another constitution came into effect the date of Independence, 18th February 1965.
Historical records further indicated that after independence, Gambia had three other constitutional changes namely the 1965 Constitution, the 1970 Republican Constitution which was suspended following the overthrow of the democratically elected government of President Jawara in 1994. That AFPRC military coup was led by Yahya Jammeh then lieutenant who was ruling the country by Decree.
Following a series of consultations from concerned citizens and international development partners, a two-year transition programme was prepared to return the country to civilian rule which saw the creation of a Constitutional Review Commission to prepare a new constitution that was later adopted in 1997.
Regrettably, after seven years in power, Adama Barrow still refused to change the 1997 constitution which was prepared 27 years ago during military dictatorship and had its original provisions changed more than 50 times without following due process. Most of the provisions in this document are unsuitable for use in a democratic governance. Without a revised constitution, our court systems, legislature and the executive branch of Government are still being guided by the flawed 1997 constitution with its significantly outdated provisions.
Why the Gambia Bar Association, an association of the brightest legal minds in the country, is mute and indifferent about the dilly-dallying of the executive and some lawmakers to delay the passing of the draft constitution? Before coming out to defend the renumerations and retirement benefits of Judges whose numerous allowances include utilities (electricity and water bills), telephone, domestic maid, house rent and robing allowances; it seems the only allowance our judges are not being paid is ‘reading-glasses’ allowance.
The GBA should have been in the forefront leading the fight to revive the dying draft constitution. Their continued silence and that of other stakeholders made some of us with limited legal background to take the initiative and champion the fight against all the wrongs prevailing in this government including the immediate revival of the new constitution that is suspended.
Following the 2016 presidential elections which brought Adama Barrow to power, two very important bills were passed in the National Assembly- the TRRC Act and the Constitutional Review Act. The TRRC has since completed its work with the necessary reports submitted to the Government and, based on those reports, a White Paper was issued for the implementation of the recommendations contained therein which is now on course.
With regards to the Constitutional Promulgation Act, a Constitutional Review Committee (CRC) was established to carry out the work of building a new constitution. Extensive consultations with civil societies, religious bodies, political parties and even Barrow and his cabinet were carried out. That process was very thorough, transparent and all-inclusive, the team had to travel both inside and outside the country to meet Gambians in the diaspora and capture their views and opinions on the document. The whole process cost over D100million of donor funds causing many people to be disappointed when the draft bill was killed and could not go pass the second reading at the House.
The lawmakers who conspired to reject the bill were all members of Barrow’s NPP political party leading many people to believe that the new constitution did not favor the sitting president as it stipulated that the counting of term limits should begin from the first term of his rule. With 23 members voting against the proposed bill, it fell short of the three-quarters required to put it to a referendum. The rejection of the bill violated the basic structure doctrine of constitutional building process.
Every amendment or substitution of existing constitutions are determined by the wishes and desires of the people. it is the people, not those elected political class, who give lives to a self-sustaining constitution. What the president and the lawmakers have done to ordinary Gambians, denying them the opportunity to express their wishes and desires in the 2020 draft constitution through a referendum, are unconstitutional. The 1997 constitution have been amended more than 50 times in a period spanning from 2001 to 2017 without a referendum as required by law.
One of the deficiencies observed in our superior courts is the lack of a dedicated constitutional court with the mandate to adjudicate on matters of strictly constitutional nature. As we observed in the recent political turmoil that gripped our neighboring Senegal, it was the decisions of the ‘Conseil Constitutionel’ that prevented our neighbors from descending into a state of anarchy when the former president decided to set his own timeframe for the presidential election.
The immunity of our lawmakers and even the president should have been set aside on matters of purely constitutional nature if the desires and wishes of the people are affected. In a constitutional democracy power belongs to the people. The elected politicians have unfair advantage over the ordinary people by virtue of their elected offices, those offices did not give them power to block the passage of the people’s bills or to manipulate the provisions of the constitution in order to circumvent the term limits and overstay in power.
The 2020 Constitution Promulgation Bill was dead on arrival. The rejection of the bill by the National Assembly left many Gambians in anger and disappointment. However, there is a glimmer of hope that as we are heading to the 2026 presidential elections, Adama Barrow may fulfill his promise to hold the referendum before the end of the year effectively replacing the 27-year-old 1997 constitution.
Meantime, we implore the president to pay close attention to the concerns raised by ECOWAS, the regional body that facilitated his ascension to power in 2016 when former president Jammeh rescinded his decision to accept the results and refused to hand over power. Without the military intervention of the regional bloc in 2016, Barrow would not have been made president today and no ECOMIG forces would have been providing all-round security for the presidency.
The question is: Will Barrow answer to the call of ECOWAS and let the voices of the Gambian people be heard in a plebiscite before the end of 2024? only time will tell. But time is now our only enemy as we match towards the path of achieving a genuine constitutional democracy.
Adopting a new constitution must be made a priority!
