Makes an attempt at constitutional reform in The Gambia: Whither the Draft Structure?
Posted: 26 October, 2020
Creator: Satang Nabaneh
Put up-doctoral Fellow, Centre for Human Rights, College of Pretoria
The Gambia’s constitution-drafting course of, geared toward ushering in a 3rd Republic, has reached an unlucky dead-end. Greater than two years after the constitutional evaluate course of started, and after a extremely acrimonious and polarised debate within the Nationwide Meeting, Parliament, one week in the past (on 22 September 2020), rejected the proposed Structure Promulgation Invoice, 2020 (‘the Invoice’). The Invoice would have enabled the eventual promulgation the Structure of the Gambia, 2020 (‘Draft Structure’) and the repeal of the Structure of the Republic of The Gambia, 1997 (‘1997 Structure’). Twenty-three lawmakers within the Nationwide Meeting voted in opposition to the Invoice, whereas thirty-one supported it. This was, nevertheless, not a sufficiently big majority to satisfy the brink requirement of three-quarters of members wanted to impact constitutional change. The Draft Structure may, subsequently, not be put to a referendum.
The motion for a brand new Structure
In December 2016, after twenty-two years of authoritarian rule, Yahya Jammeh was lastly voted out of workplace, and opposition chief, Adama Barrow, voted in. Though Jammeh at first accepted the outcomes, he modified his thoughts every week later – triggering a political disaster within the nation. The Financial Group of West African States (ECOWAS) mobilised troops with a mandate to enter the nation and forcefully oust the previous President ought to diplomatic missions fail. On 21 January 2017, nevertheless, Jammeh left The Gambia for Equatorial Guinea. This unprecedented political occasion kickstarted a transition from dictatorship to democracy. But, ending the dictatorship was simply step one. The imaginative and prescient for The Gambia, in transitioning from an authoritarian rule to a democratic state, included drafting a brand new structure and measures to make sure accountability for previous human rights violations. This included the institution of a Fact, Reconciliation and Reparations Fee (TRRC), to inquire into human rights violations dedicated July 1994 to January 2017.
Constitutional change and a rebuilding of the foundations for good governance and democracy had been a marketing campaign promise of the ruling coalition. Consequently, a key pillar of the brand new ‘Nationwide Transitional Justice Programme’ turned the formulation of a brand new structure. Main, in December 2017, to the institution of the Constitutional Assessment Fee (CRC). The formal means of reviewing the 1997 Structure and drafting a brand new one began in June 2018 with the appointment of 11 members (5 of whom are girls, one in all which was the Vice Chairperson) as Commissioners of the CRC.
The CRC had a two-fold mandate, first, evaluate the 1997 Structure and draft a brand new one, and second, put together a report on the draft structure. The CRC used a participatory and consultative method to solicit the views and opinions of Gambians about constitutional points they wished to see addressed of their new structure.
The CRC kicked-off the evaluate of the 1997 Structure by making ready a complete record of 369 questions and points on which public opinion was sought. The Fee undertook an preliminary nationwide tour, which started in November 2018, adopted by additional consultations in early 2019 in addition to further family and on-line surveys. It additionally engaged in dialogue with varied actors together with political events, central and native authorities establishments and civil society organisations. As well as, the CRC consulted with Gambians within the diaspora in Europe, United States, United Kingdom, Saudi Arabia and different African nations.
Following these consultations in addition to some in-depth analysis, the Fee produced a draft structure, revealed on 15 November 2019. The CRC then launched into a second and remaining nationwide, public session tour, this time to make folks conscious of and to solicit suggestions on the 2019 model of the draft structure. On 30 March 2020, the CRC submitted the ‘Remaining Draft Structure and Report’ to the President. In step with necessities within the 1997 Structure, the Invoice was twice revealed within the Authorities Gazette (first on 28 Could after which on 28 August 2020), whereafter it was launched within the Nationwide Meeting (part 226). The Invoice was tabled earlier than the Nationwide Meeting on 14 September 2020.
The Draft Structure launched a number of measures geared toward enhancing and strengthening democracy. This features a presidential time period restrict, limits on government energy, measures to make sure better political inclusion of marginalised teams (together with girls, youth and individuals with disabilities) and a complete Invoice of Rights chapter, compliant with worldwide and regional human rights requirements. The general public had excessive hopes for important constitutional change. The personalised politics of the latest previous, the undemocratic provisions in, and frequent modification of, the 1997 Structure and a whole disregard of the rule of legislation by the previous President left Gambians with a need for change. Sadly, nevertheless, these hopes have been dashed when the Invoice didn’t obtain the requisite majority vote in Parliament.
Why did the Invoice not go?
A method of making an attempt to find out why the Invoice didn’t go is to take a look at who voted in opposition to it within the Nationwide Meeting. From this it’s attainable to take a position what their primary considerations have been. A evaluate of the parliamentary debates means that the most important considerations have been these of the ruling authorities. Concern had been taken with the restrictions to the scope of government energy the Draft Structure would implement and with the truth that the presidential time period restrict would function retroactively. This later provision would guarantee the present time period of President Barrow shall be counted in the direction of his time period restrict.
The rejection of the Invoice on its deserves signifies that Gambians wouldn’t get to see this model of the 2020 Draft Structure in a future referendum. So, what now? Because the Authorities has not but shared any plans we’re left to take a position, I contemplate two prospects right here.
One possibility is to amend the 1997 Structure to incorporate a number of the extra progressive provisions within the 2020 Draft Structure. The issue with modification is that it must comply with the identical course of as for the promulgation of a brand new structure (part 226 (2)(b) and (4) of the 1997 Structure). In different phrases, it could require approval of three-quarters of all of the members of the Nationwide Meeting on the second and third readings and would additionally need to be handed in a nationwide referendum (requiring 50% turnout and 75% approval).
A possible second possibility is to return to the drafting board – have the Constitutional Assessment Fee restart the drafting course of afresh, aiming to resolve contentious points which might be stopping consensus. Nevertheless, this too can be difficult. Particularly, it could be troublesome to get buy-in and political legitimacy. Nearly all of parliamentarians that did help the Invoice and subsequently the 2020 Draft Structure will view a brand new course of with suspicion. Given the assertive citizenry and engaged and revitalised civil society we now have seen in latest instances, the general public can be unlikely to purchase into any course of that produces a watered-down model. Moreover, such a course of may also make it troublesome to garner the help of improvement companions. And, even when going again to the drafting board is possible, success is clearly not assured.
Although the constitution-drafting course of has not ended within the adoption of a brand new structure, there are some necessary insights to be gleaned from this expertise. For one factor, The Gambia’s expertise demonstrates how political elites can function hindrances when proposed constitutional change threatens their political energy. It’s subsequently necessary for structure drafters and teachers alike to use their minds to how this could be averted in different constitution-making processes.
Whereas this has been a pricey train, it was value it, as a result of Gambians have grappled with some necessary constitutional concepts, and reached insights that shall be useful in the long term. Given its nice quest for change and the broad consensus that there can’t be any significant break with the political previous with out true and full reform, I’m assured that The Gambia will finally give itself a brand new structure.
This text was initially revealed on the IACL-AIDC Weblog
Advised quotation: Satang Nabaneh, ‘Makes an attempt at Constitutional Reform in The Gambia: Whither the Draft Structure?’ IACL-AIDC Weblog (29 September 2020) https://blog-iacl-aidc.org/2020-posts/2020/9/29/attempts-at-constitutional-reform-in-the-gambia-whither-the-draft-constitution
Concerning the Creator:
Satang Nabaneh is a Put up-doctoral Fellow on the Centre for Human Rights, School of Legislation, College of Pretoria. She is the Programme Supervisor of the LLM/MPhil in Sexual and Reproductive Rights in Africa (SRRA) on the Centre. Satang holds the levels LLD and LLM in Human Rights and Democratisation in Africa from the College of Pretoria and an LLB from the College of The Gambia. Her analysis pursuits embrace a broad vary of points associated to worldwide human rights, girls’s rights, democracy, and constitutionalism.