The latest draft constitution and amendments made to the 2020 CRC draft constitution not only undermine the progress made in recent years towards strengthening democratic institutions but also pose serious threats to the future of governance in The Gambia.
The process of constitution building is a critical exercise in establishing the foundational legal framework for a nation. It is an opportunity to address the historical, social, and political challenges of a country and to lay the groundwork for a future based on democratic principles, the rule of law, and respect for human rights. According to the guidelines provided by the International Institute for Democracy and Electoral Assistance (IDEA), several essential aspects must be taken into consideration during the constitution-building process to ensure that the resulting constitution reflects the aspirations of the people and supports a stable and just society.
Numerous stakehoIders have raised concerns about the new draft, and these concerns deserve serious attention. Here are some of the most pressing issues in my opinion.
- Erosion of Accountability and Integrity in Leadership:
The removal of the chapter on "Leadership and Integrity" is perhaps the most glaring regression in the 2024 draft. This chapter was designed to ensure that public officials understood their role as custodians of public trust, with clear standards to prevent conflicts of interest and ensure transparency. By eliminating these provisions, the government has effectively lowered the ethical bar for public office, opening the door to unchecked corruption and abuse of power. This undermines the very foundation of democratic governance, which relies on the accountability of leaders to the people they serve. The constitution should ensure that the powers of the executive, legislative, and judicial branches are clearly defined and balanced. This includes providing the judiciary with the independence necessary to act as a check on the other branches of government, particularly in matters of constitutional interpretation and the protection of fundamental rights.
I strongly recommend that the members of Parliament to reinstate the Chapter on Leadership and Integrity in order to align with international standards of good governance. This would ensure that public officials are held to the highest ethical standards and that mechanisms are in place to prevent corruption. International bodies such as Transparency International emphasize the importance of strong ethical frameworks to combat corruption and promote public trust.
2.Weakening of Civil Liberties:
The reversion to a 72-hour detention period following arrest, as opposed to the 48-hour limit proposed in the 2020 draft, is a clear step backward in protecting individual rights. Extended detention without charge increases the risk of arbitrary detention and abuse by law enforcement. This change signals a troubling willingness to compromise on civil liberties, which are essential to the functioning of a democracy that respects the dignity and rights of its citizens.
The protection of fundamental human rights and civil liberties is a cornerstone of any democratic constitution. The constitution should guarantee civil, political, economic, social, and cultural rights for all citizens, with mechanisms in place to ensure their enforcement.
The Gambian constitution should include robust protections for civil liberties, as outlined in international human rights treaties to which The Gambia is a party. These rights should be non-negotiable and should include the right to life, freedom of expression, freedom of assembly, and the right to a fair trial, among others.
So I would recommend that the elected members of parliament to reconsider the reversion to a 72-hour detention period. The United Nations Human Rights Committee recommends that detention periods should be as short as possible, with prompt judicial oversight, to prevent arbitrary detention. Reinstating the 48-hour limit would better protect citizens' rights and align with international human rights norms.
3.Restriction on the Right to Petition and Assembly:
The amendments that restrict the right to petition public officials and impose additional regulations on assemblies are alarming. These rights are critical tools for citizens to express their grievances, hold their leaders accountable, and participate in the democratic process. By curbing these freedoms, the government is stifling dissent and weakening the mechanisms through which the people can influence governance. Such restrictions are contrary to the principles of an open and participatory democracy and could lead to a more repressive political environment.
The right to petition and the freedom of assembly are cornerstones of democracy and should be protected, not restricted. The parliament should revise the language of the 2024 draft to ensure that these rights are fully guaranteed. International standards, such as those outlined by the International Covenant on Civil and Political Rights (ICCPR), emphasize the importance of these rights in maintaining a healthy democracy.
4.Diminishing Educational Rights:
The reduction of guaranteed free education from both primary and secondary levels to only basic education is a regressive move that threatens the long-term development of the nation. Education is a fundamental right and a key driver of social and economic progress. Limiting access to education undermines the aspirations of Gambians for a more equitable society where every individual has the opportunity to succeed. This change reflects a short-sighted approach that prioritizes immediate fiscal considerations over the nation's future.
The guarantee of free and compulsory secondary education should be restored by the members of parliament. Education is a fundamental right recognized in international agreements such as the Universal Declaration of Human Rights and the Convention on the Rights of the Child. Ensuring access to education at all levels is critical for the social and economic development of The Gambia.
5.Centralization of Power and Undermining Local Governance:
The removal of the chapter on decentralization and the reduction of financial autonomy for local governments are deeply concerning. Decentralization is crucial for ensuring that governance is responsive to local needs and that power is not concentrated in the hands of a few. By centralizing authority, the government is moving away from inclusive governance and reducing the effectiveness of local administrations. This shift could lead to increased bureaucratic inefficiencies and a disconnect between the government and the people it serves. The Parliament should restore the provisions on decentralization and financial autonomy for local governments. Decentralization is widely recognized as a means of enhancing democratic governance by bringing decision-making closer to the people. The World Bank and other international organizations advocate for decentralization as a way to improve service delivery and increase government accountability at the local level.
The constitution-building process is a critical moment in a nation’s history, shaping the future of governance and the relationship between the state and its citizens. For The Gambia, this process offers an opportunity to create a constitution that reflects the democratic aspirations of its people and provides a foundation for sustainable governance and development.
The changes introduced in the 2024 draft constitution are not merely technical adjustments; they represent a significant shift away from the principles of democracy, good governance, and the rule of law. If left unaddressed, these changes could erode the democratic gains The Gambia has made and weaken the country's institutions. The constitution-building process itself must be re-evaluated to ensure it is inclusive, transparent, and reflective of the people's will. By adhering to the principles of inclusivity involving a wide range of stakeholders from all segments of society including political parties, civil society organizations, women, and the general public, transparency, national ownership, contextual relevance, protection of fundamental rights, separation of powers, and flexibility, The Gambia can ensure that its constitution serves as a true reflection of the will of the people and a guarantor of their rights and freedoms for generations to come. The government must recognize the aspirations of the Gambian people for a more just, equitable, and democratic society and take steps to align the constitution with international standards of governance and human rights. By doing so, The Gambia can continue on its path towards a brighter and more democratic future.
Momodou Malcolm Jallow
Gambian-born Swedish Member of Parliament
