Response to CRC’s Possible Areas for Constitutional Reform

By Foday Samateh

Issues identified by the Constitutional Review Commission and my responses.

1. Citizenship

• It is expected that existing rights and entitlements to Gambian citizenship will be preserved. These are the rights and entitlements that have been acquired prior to the coming into force of the new Constitution. Do you have any issue with this? If so, please outline your reason(s).

RESPONSE: No. No issues with this.

(ii) Should a person who wishes to acquire Gambian citizenship be required to renounce any other citizenship he/she may have, when a Gambian can hold dual nationality?

RESPONSE: No.

(iii) Is the prescribed period of 7 years ordinary residence in The Gambia by a foreign person married to a Gambian before such foreign person can acquire Gambian citizenship reasonable?

RESPONSE: No.

(iv) If the answer to paragraph (iii) is in the negative (No), what should be the lesser prescribed period?

RESPONSE: 5 years. But should such prescribed periods not be specified in the statute, which can be amended more easily when the need arises, instead of in the Constitution?

(v) Naturalization: the law requires 15 years ordinary residence in The Gambia before a foreign person can apply for citizenship by naturalization. Is this period too long, short or just right? If the period is not just right, what period would be reasonable?

RESPONSE: 10 years. Again, should such prescribed periods not be specified in the statute instead of in the Constitution?

(vi) Should a child one of whose grandparents was born in The Gambia be entitled to Gambian citizenship as of right?

RESPONSE: No.

(vii) Should a registered or naturalized Gambian exercising rights in a foreign country accorded to citizens of that country be deprived of his/her Gambian citizenship (the position under the 1997 Constitution)?

RESPONSE: No.

(viii) There are a number of non-Gambians who migrated to The Gambia and have lived in and had children born and raised in and went through the school system in The Gambia. Neither the parents nor the children have been naturalized or registered as citizens of The Gambia. Should this class of children be considered in the review process with a view to addressing their status in the draft Constitution (such as by granting them citizenship under and by virtue of the new Constitution)? What about their parents?

RESPONSE: Yes, for the children born in The Gambia. The parents and others who migrated to the country should apply to regularize their status in accordance with the statute.

(ix) If this latter class of non-Gambians is to be accorded constitutional recognition to Gambian citizenship, should there be a cut-off period (date) for the application of such recognition (meaning that persons falling outside of that period (date) will have to formally apply to be registered or naturalized if they wish to become Gambian citizens)?

RESPONSE: Yes.

(x) If that latter class is not to be accorded constitutional recognition to Gambian citizenship, is the current statutory arrangement for registration/naturalization sufficient to adequately deal with the number of “illegal” immigrants in The Gambia and how should we ensure that the country’s long term residents with the non-Gambian status comply with the laws to fully integrate into Gambian society?

RESPONSE: The Legislature should determine the matter by either passing a special statute or reforming the current one to accommodate the needs of the present circumstance.

(xi) [Are there human rights implications for denial of constitutional recognition of citizenship to these categories of persons? If so, what are they and how can they be properly dealt with?]

RESPONSE: The human rights implications apply to only the children who found themselves in The Gambia through no choice of their own. As for the parents, who are in the country on their own volition, the country owes them no human rights obligations strictly on the fact of their stay. Their status needs to be addressed primarily out of humanitarian concern. 

(xii) Persons found within the country whose parents are unknown: should they be presumed to be citizens of The Gambia?

RESPONSE: No. Each case should be determined by its own additional facts and circumstances. Therefore, the matter should be left to the statute or the Courts to determine.

(xiii) What are The Gambia’s international obligations with regard to citizenship and is the country currently in full compliance with those obligations? If not, how should the country comply?

RESPONSE: These questions should be left to the political and judicial processes to determine the country’s compliance with treaty obligations. They fall outside the scope of the Constitutional Review Commission’s (CRC) responsibility.

(xiv) [The issue of refugees who have resided in The Gambia for a stated period: should they be permitted to apply to naturalize or register as citizens of The Gambia? Consider applicable international instruments (UN 1951 Refugee Convention and AU 1969 Convention Governing the Specific Aspects of Refugee Problems in Africa).]

RESPONSE: Yes. But statute, not the Constitution, should set out a process for refugees to naturalize or register as citizens of The Gambia. The reason for this is a statute can be more easily amended when the situation demands it, whereas the Constitution should only be amended in rare and special circumstances that are few and far between. Moreover, a tragic or conflict situation in neighboring countries may compel The Gambia to host as many as a half million refugees for years. Should such a large number be entitled to a constitutional right to citizenship for so small a country?

(xv) [Is section 14 of the Constitution correct in so far as it makes reference to a former “citizen of The Gambia”?]

RESPONSE:  The whole section 14 is problematic. The Constitution not only allows dual citizenship, but also it bars the State from depriving anyone of their citizenship by birth or descent. If a person renounces their citizenship to become a citizen of another country which doesn’t allow dual citizenship, or the person does so for any other reason of their own choosing, that is entirely that person’s own freewill. That is fair and square. However, while we must focus on citizenship as primarily a right, we must not lose sight of the fact that it carries certain obligations, including taxation and jurisdictional claims which do not fall on a noncitizen, especially one outside the country. The more fundamental point is, citizenship is a right as long as one chooses to remain a citizen. Once a person chooses to renounce their citizenship, they lose their right to it. And by implication, the State has no claim on them as citizens. So, to preserve a constitutional right to a person who freely gives up their citizenship to reclaim their citizenship anytime they choose to do so simply cheapens citizenship to a mere lifestyle choice of convenience.

(xvi) [The issue of right to nationality: is this a citizenship issue proper or is it merely a rights issue to be dealt with under the Fundamental Rights and Freedoms Chapter?]

RESPONSE: Either section should confer the same constitutional force and substance. But for the sake of style of how the Constitution is structured, it should be dealt with under the Fundamental Rights and Freedoms.

(xvii) Citizenship of non-Gambian adopted children: the current Constitution is silent on this subject, although technically such children may be registered or naturalized as citizens of The Gambia upon application. Should the new Constitution specifically consider adopted children to qualify as citizens or simply to be eligible to apply to be registered or naturalized as citizens of The Gambia?

RESPONSE: They should be registered or naturalized through a process set out by the statute.

(xviii) [Should the subject of honorary citizenship be dealt with or provided under the Constitution instead of being left to an Act of Parliament?]

RESPONSE: It should be left to the Legislature.

2. Fundamental Rights and Freedoms

• Do the fundamental rights and freedoms provisions in the 1997 Constitution adequately embody the rights and freedoms enshrined in international treaties to which The Gambia is a party?

RESPONSE: Yes. That, however, shouldn’t be the real measure. The ultimate goal ought to be what is necessary and proper for The Gambia. International treaties are well and good. But, despite The Gambia being a party to many, we don’t need them to have a vibrant democracy based on the rule of law. They are at best supplementary. In The Gambia, a sovereign Republic, the supreme law is and must always be the Constitution. Not some international declaration, charter or treaty, however well-meaning such instruments might be.

(ii) If the answer to paragraph (i) is in the negative (No), which treaty provisions have been left out or are not adequately covered?

(iii) In relation to the right to protection of right to life, the current Constitution appears to recognize the imposition of the death penalty by a court of competent jurisdiction. Should this continue to be a feature of the Constitution or should there be specific provision that abolishes the death penalty?

RESPONSE: The Constitution should reserve it for treason and other exceptional crimes involving heinous violence and depraved indifference to human life. The Constitution must, however, impose strict and high standards of facts and evidence on the State before it can charge the death penalty.

(iv) Should the Constitution provide a framework to enable the National Assembly to enact legislation permitting prisoners to be paroled as a rehabilitative measure to achieve better ‘prisoner’ integration back into public life upon being discharged?

RESPONSE: No. Such matters should be left to the Legislature’s law-making power and the Executive branch’s policy-making authority.

(v) The current Constitution protects children under the age of 16 years from economic exploitation, hazardous employment or interference with their education and health (in compliance with established international standards). Should that age be raised (to say under 18 years)?

RESPONSE: No.

(vi) [Should there be a default provision that specifically allows the courts to rely on international treaties to which The Gambia is a party in interpreting the fundamental rights and freedoms contained in the Constitution?]

RESPONSE: No. International treaties must be subsidiary to the Constitution, thanks to the supremacy clause of the Constitution — the supreme law of the land.

(vii) Are the protections accorded to the rights and freedoms of the press and other information media sufficient to guarantee their independence while preserving the rights and freedoms of others?

RESPONSE: Yes.

(viii) If the answer to paragraph (vii) is in the negative (No), what is deficient and how would you propose to deal with the deficiency?

(ix) Where a public broadcasting station is established, should it be subject to State censorship or be under the direction and control of any authority (such as the Executive, for example)?

RESPONSE: No.

(x) If a public broadcasting station is not to be subjected to State censorship or be under the direction or control of any authority, how should it be made accountable?

RESPONSE: Its operations should be overseen by an independent board of directors like, say, the BBC. But the Constitution shouldn’t require the State to have a public broadcaster. Only that, should the State chooses to have one, its operations must be entrusted to an independent management confirmed by the Legislature for a fixed term of office.

(xi) Should specific provision be made in the new Constitution outlining the right to health care service and decent housing, in a similar manner as the current Constitution provides in relation to education?

RESPONSE: No. No such thing, especially for housing. The Constitution must stay clear of lofty pronouncements that smack of feel-good promises. Political party manifestos will do plenty of that. The current Constitution requires that basic education must be free, compulsory and available. In theory, nothing can be more high-minded. But the reality is, despite the best efforts, this pledge is honored more in the breach than observance. The Constitution must only oblige the State to do things that are inherent functions and fundamental duties of the State, and which the State must provide in good or hard times. Given the recurring budget deficits, soaring national debt, and the dismal fiscal landscape with no horizon, should a penurious country like ours contemplate such propositions? As for a constitutional guarantee to decent housing, we might as well declare The Gambia — in the light of its present condition of impoverishment that will last for the foreseeable future — a Communist State. We are not talking about a small percentage of the population that are indigent as the case is in the most advanced/prosperous countries. We are referring to well over half the nation to be bestowed with new rights as wards of the State. For the Constitution to command something the State cannot deliver is to reduce itself from a sacrosanct law of the nation to a mere suggestion.

(xii) Should the right to free education extend beyond providing basic secondary education?

RESPONSE: No. If the record on the current right to free basic secondary education is any indication, these aspirations should be inspired by policies and not demanded by constitutional provisions. God knows, irrespective of who’s running the government, there is little to zero chance these aspirations can be fulfilled under the foreseeable circumstances. Even the provision on free education should be done away with. The government has been in violation of it since 1997 and will be in violation of it for as long as anyone can tell. So why maintain a farce?

(xiii) Are the current constitutional provisions relating to the rights of ‘marginalized groups’ of Gambian society, in particular the youth and physically challenged persons, considered to be adequate?

RESPONSE: Though well-intentioned, the question is superfluous as far as the Constitution is concerned. Firstly, the youths are not a ‘marginalized’ group. They are a large section of the population and they are not denied anything or discriminated against in any shape or form for being youths. Secondly and more importantly, they are full-fledged citizens of the country who, like the physically challenged persons or any other category of citizens, are entitled to the same constitutional rights and freedoms as everyone else. The Constitution’s equality and equal treatment clauses and other fundamental rights and freedom provisions cover everyone as citizens entitled to uniform rights and freedoms.

(xiv) If the answer to paragraph (xiii) is in the negative (No), what additional measures would you recommend for inclusion in the new Constitution?

(xv) Are women sufficiently empowered, protected and accorded equality to exercise and enjoy their full rights as citizens?

RESPONSE: The same well-intentioned but superfluous concern arises here. Women are citizens like men. They are entitled to the same rights and freedoms. They should therefore be treated no more or less as some special category in the Constitution.

(xvi) If the answer to paragraph (xv) is in the negative (No), what would you recommend as necessary measures to ensure the exercise and enjoyment of those rights?

(xvii) Should specific provision be made in the Constitution on the right to clean air and a clean environment?

RESPONSE: Such matters should be addressed in statutes that can be amended or reformed through the Legislative process whenever prevailing circumstances require such actions.

(xviii) If the answer to paragraph (viii) is in the affirmative (Yes), what should the right to clean air and a clean environment entail?

(xix) Are there any other fundamental rights and freedoms provisions in the current Constitution that are not clear or adequate in protecting the rights and freedoms of citizens and other persons residing in The Gambia?

RESPONSE: No.

(xx) If the answer to paragraph (xi) is in the affirmative (Yes), which rights and freedoms require reform?

3. Elections – Independent Electoral Commission

Independent Electoral Commission

• Should the role of the Independent Electoral Commission include boundary delineation/delimitation?

RESPONSE: Yes.

(ii) If the answer to paragraph (i) is in the affirmative (Yes), should the name of the Commission be changed to “Independent Electoral and Boundaries Commission” or some other name (identify or suggest a name)? OR

(iii) Should a separate Constituency (and District/Ward) Boundaries Commission be established)?

RESPONSE: Neither a name change, nor a separate commission is necessary. Independent Electoral Commission is unmistakably self-explanatory. And since district/ward boundaries are primarily for electoral purposes, the mandate to draw them is readily presumed in the functions of the IEC. Besides, boundaries may be drawn only once every ten years following a census. To assign a different commission with such a task that is likely to be performed substantively once every decade is not only redundant but wasteful of resources as well.

(iv) Should members of the Commission be appointed by the President, acting on the advice of the Judicial Service Commission (JSC), instead of after consultation with the JSC and the Public Service Commission (as is the case under the current Constitution)? [Explanation: When the President acts on the advice of the JSC, he or she is effectively obliged to accept the advice of the JSC and effect the appointments; on the other hand, if the President is empowered to appoint after consulting with the JSC and PSC, he need only consult them before effecting appointments. This latter process has variously been interpreted. One interpretation is that the President and the JSC must work together to achieve a consensus; the other interpretation is that the President is not bound by whatever advice the JSC and/or PSC might give and can therefore take his/her own decision after consulting.]

RESPONSE: Either way — the President acting on the advice of or consulting with the Judicial/Public Service Commission for appointments — is flawed and needs to be scrapped. At best, it’s a mere pretension (as in in the case of consultation) that the President doesn’t have a unilateral power to make crucial appointments. At worst, it reduces the President to a mere figurehead in such appointments (as in the case of acting on the advice of JSC/PSC). The latter scenario is an exercise in wordplay. If the President is bound by the choices of the JSC/PSC, then the “advice” to act on is an innocent-sounding euphemism for order. And that’s unacceptable. The President must not act on any command save by the Legislature or the Courts. Nor must the President be compelled to seek consensus on a decision with sub-bodies like JSC/PSC. It goes against the overall institutional structure and power dynamics of the Constitution and democracy itself. The Executive power of the government flows from the President downward. Nothing in the Constitution should reverse that arrangement. But the President shouldn’t possess unilateral power over crucial appointments, either. The only tenable solution is the President should have the discretion to nominate all such appointees subject to Legislative confirmation. 

(v) Who should have responsibility for nominating members of the Commission for consideration for appointment?

RESPONSE: The President. But the nominations must be subject to Legislative confirmation.

(vi) Should qualifications for Commission membership be identified and specified (only disqualifications are set out in the current Constitution)?

RESPONSE: No. Such one-size-fits-all qualifications tend to be generic and biased toward academic achievement. They are not always the best barometer to measure individual merits, skill set, moral fortitude, personal integrity, drive, initiative, and commitment to public service. A Legislative confirmation process is a better way to evaluate nominees’ qualifications for various offices on a case by case basis.

(vii) If qualifications should be identified and specified, what should those qualifications be (bearing in mind the importance of integrity and independence)?

(viii) Security of tenure – should the President have the power to remove a commissioner or should this be aligned to the procedure available for the removal of judges?

RESPONSE: No. The President should have no power to remove a commissioner except in the event of violation of the law such as bribery, corruption, other criminal acts; or inability to perform the job for health reasons. No more “and for any other reason” as stipulated in the current Constitution.

(ix) Should the Commission Chairman’s removal be aligned to the procedure used for removal of the Chief Justice?

RESPONSE: No. Judges must be removed only by Legislative impeachment to protect the sanctity of separation of powers. The Commission Chairman can be removed by the President but only for a cause involving violation of the law such as bribery, corruption another criminal acts; or for inability to perform the job on health grounds.

(x) Should the qualifications of the Commission’s Chairman be specified in the Constitution? If so, what should those qualifications be?

RESPONSE: No. For reasons given in sub-section (vi).

(xi) Currently the Constitution provides a term limit of 7 years for Commission members which is renewable for another term of 7 years. Should this be maintained or be revised? If it is to be revised, what period or periods should be stipulated?

RESPONSE: The term limit should be reduced to 5 years which is renewable for another 5 years only.

(xii) Should members of the Commission (including the Chairman) be required to publicly declare their assets as a condition for appointment to the office of member of IEC?

RESPONSE: Yes. But this should be in the statute rather than in the Constitution.

(xiii) Should members of the Commission (including the Chairman) be similarly required to publicly declare their assets within a specified period (for example 3 or 4 months) upon demitting office?

RESPONSE: Yes. But again, this should be in the statute rather than in the Constitution.

(xiv) If members of the Commission are to be required to make declarations, should those declarations be made to the Commission or some independent body (please specify if some other independent body – for example, the Anti-corruption Commission)?

RESPONSE: Yes. But that body ought to be the Ombudsman. Though the idea of an Anti-corruption Commission is appealing, there’s no need for it as will be argued later.

Prisoners

(xv) Should prisoners be allowed to vote?

RESPONSE: No. But only for the duration of their imprisonment.

(xvi) If the answer to paragraph (xv) is in the negative (No), what would be a

reasonable justification for excluding prisoners from voting?

RESPONSE: The same reason prisoners are excluded from exercising most individual, civic and political rights while they serve the term of their sentence. 

Diaspora Gambians

(xvii) Gambians in the Diaspora are citizens of The Gambia and therefore have a right to vote. Should there be specific provision in the Constitution that obligates the Government to make necessary arrangements to provide opportunity for Gambians in the Diaspora to cast their votes in elections?

RESPONSE: No. There should be no specific provision in the Constitution. The Constitution already guarantees that every citizen at the age of 18 or over has the right to vote. This universal provision, as broad and concise as it can be, applies to all citizens at home and in the Diaspora. The process to provide access to the ballot to all citizens irrespective of geographic location under the prevailing circumstances should be covered in the Election Act, which, unlike the Constitution, can always be amended or reformed by the Legislature. As a general principle, the Constitution must shy away from classifying people into categories and conferring special rights, privileges or powers on them along those lines.

(xviii) If the answer to paragraph(xvii) is in the affirmative(Yes), should this be restricted to Presidential elections only, or Presidential and Parliamentary elections only? And should it be extended to local government elections?

Elections

(xix) Should there be introduced a continuing voter registration system (thus eliminating the current arrangement on general registration and supplementary registration)?

RESPONSE: Yes.

(xx) Should the closing period for the registration of voters in advance of an election be specified in the Constitution? If so, what period should be prescribed?

RESPONSE: No. It should be specified in the Election Act. When there’s a compelling need to change the date, the statute can be amended by the Legislature, a less onerous process than a constitutional amendment, which must now require a referendum in all cases.

(xxi) Should a system of advance voting be introduced to enable the elderly, infirm, election officers and security officers to be placed on election duty on election day, to cast their vote?

RESPONSE: This, too, should be covered in the Election Act, not in the Constitution.

(xxii) If the system of advance voting is to be introduced, is this sufficiently relevant to be prescribed in the Constitution or should it be dealt with under the election laws?

RESPONSE: It should be dealt with under the Election Act.

(xxiii) Should The Gambia adopt the ballot system (paper form) or continue with the token system in the conduct of elections?

RESPONSE: The method of voting should be determined by the most efficient, reliable, and cost effective technology available at any given time, something the Constitution cannot anticipate. The matter should, therefore, be left to the Election Act, which can be reformed with the needs of the time.

(xxiv) In either case under paragraph (xxiii), should this be specified in the Constitution or be left to be determined under the election laws?

RESPONSE: It should be determined under the election laws.

(xxv) Should there be a restriction on Parliament’s or other authority’s power to amend, revise or in any other way change the laws or any provision thereof on elections within a specified period before elections are due? If so, what should the period be?

RESPONSE: While the concern here may be about the potential for abuse of power, and is not unjustified, there might arise an unforeseen but genuine need for an eleventh hour reform to the election process. In the event that any authority takes advantage of their power to manipulate the process for corrupt ends, the injured party can sue for redress in the Courts.  

(xxvi) Should there be specific provision prohibiting the postponement of Presidential elections? Should this be extended to Parliamentary elections?

RESPONSE: The date of election for President and the Legislature should be enshrined in the Constitution, say, within the first week of a particular month of an election year.

(xxvii) If the postponement of elections is to be prohibited, how should we deal with the issue of public emergencies when they arise at a time that affect or are likely to affect the conduct of elections (for instance, should the Supreme Court be the only authority empowered to sanction the postponement of elections to a specified date on the ground that the exercise of an emergency power to warrant the postponement of the elections is justified in all the circumstances)?

RESPONSE: Only the Independent Electoral Commission should file for postponement of election to the Supreme Court on the ground that an exigent circumstance constitutes a public emergency that will unduly impact the results. If the Court agrees, the rescheduled vote should take place within two weeks.

(xxviii) The current Constitution provides that the Commission “shall be part of the public service”. Should this continue or should the Commission (consistent with its name) be an institution independent of the public service (even though it is to be funded by monies voted by the National Assembly)?

RESPONSE: Yes. The Electoral Commission should be independent of the Public Service.

(xxix) Should the President be given the power to determine the date when the general election of members of the National Assembly shall take place (as currently provided in section 96 (2) of the Constitution)?

RESPONSE: No. The President should neither determine the date of the Legislative election nor determine the time and place of the Opening Session of the Legislature. Such powers, however benign and ceremonial they may seem, are contrary to the principle of separation of powers regarding the Executive and the Legislature. As already suggested earlier, the date of election for the President and the Legislature should be specified in the Constitution.

(xxx) If the answer to paragraph (xxix) is in the negative (No), should the date for the holding of such general elections be determined and fixed in the Constitution? Or should it be specified in the election laws?

RESPONSE: They should be fixed in the Constitution to prevent any temptation on the part of the President and the Legislature to interfere with the timetable since they have vested interests in the process.

(xxxi) If the answer to paragraph (xxx) is in the affirmative (Yes) and considering a situation where the holding of general elections on the fixed date becomes impossible or ill-advised, who should be given the power to reschedule the general elections? And what checks (if any) should be applied to the granting of such a power?

RESPONSE: The Independent Electoral Commission should file for a postponement at the Supreme Court that a grave public emergency will unduly undermine the outcome of the election, and the Court should enjoin the Commission to reschedule the vote within two weeks. Neither the President nor the Legislature should have a say in the matter given the conflict of interest their involvement invites.

5. Political Parties

• Should certain basic requirements for forming and maintaining a political party be prescribed in the Constitution (as opposed to being in the election laws)?

RESPONSE: No. The requirements should be in the election laws.

(ii) If so, what should those basic requirements be (for example, having national character, upholding and promoting national unity, respecting objects and principles of the Constitution, upholding and promoting

democratic values, etc.)?

(iii) Should the Constitution prescribe minimum standards (such as air time, accounts and audit, establishment and management of political party funds, etc.) which an Act of Parliament relative to political parties must contain/address?

RESPONSE: No. All those should be the province of election laws.

(iv) Should there be restrictions on private funding of political parties and/or elections? If so, should this be restricted to external funding?

RESPONSE: Yes. But those, too, should be in the election laws.

(v) In terms of funding of a political party by Gambians or Gambian entities, should there be a requirement for disclosure by a political party of the source of funding?

RESPONSE: Yes. But again, the disclosure should be required by the election laws rather than the Constitution.

(vi) If the answer to paragraph (v) is in the affirmative (Yes), should the disclosure be required only if it exceeds a specified threshold (in money and/or in money’s value)? If so, what should that specified threshold be?

RESPONSE: Yes. But once again, the disclosure should be required by the election laws.

(vii) Should political parties be required to provide the IEC, within a specified period of the end of the political parties’ financial year (say 6 months), with copies of their audited financial statements for the preceding year?

RESPONSE: Yes. But this should be specified in either the IEC Act or the election laws.

(viii) If the answer to paragraph (vii) is in the affirmative (Yes), should the IEC be empowered to grant an extension or extensions for the submission of audited financial statements to take exceptional circumstances into account? If so, should an extension period or periods be capped to a specified period (say no more than 6 or 9 months in aggregate)?

RESPONSE: Yes. But the requirement should also be in the statute.

(ix) Where a political party fails to provide its audited financial statement within the prescribed period (and, if granted an extension, within the period of extension), should provision be made for the automatic deregistration (by operation of law) of the political party? If so, should the automatic deregistration be permanent?

RESPONSE: Yes. The deregistration should be automatic for a length of time  (specified by statute and not the Constitution) before it becomes permanent.

(x) Should provision be made requiring political parties to disclose to the IEC any financial irregularity discovered? If so, should the IEC be empowered to order an independent audit of the finances of the political party concerned?

RESPONSE: Yes. But the requirement should be by statute and not the Constitution.

(xi) In circumstances where the IEC refuses to register or deregisters/cancels the registration of a political party on the grounds established under the Elections Act (that is, violation of election laws, including failure to notify change of name, emblem, motto, etc.), should the aggrieved political party be permitted to pursue its appeal beyond the Court of Appeal to the Supreme Court (currently the Court of Appeal is the final Court that decides on refusal to register or deregistration/cancellation of registration of a political party)?

RESPONSE: Yes. Political parties should have the right to take their case to the Supreme Court. The Elections Act should therefore be amended accordingly.

(xii) [What issues in paragraphs (i) – (xi) do you think should be dealt with or retained in an Act of Parliament, with the Constitution merely providing the framework?]

RESPONSE: All the issues. Regarding political parties, the Constitution needs only to guarantee that every citizen has the right to form/belong/support a political party of their own choice, and that no political party must be established based on tribe, religion, region or any discriminatory character/identity/practice.

6. Local Government

General

(i) Are the current local government structures established under the 1997 Constitution adequate for purposes of ensuring effective governance?

(ii) If the answer to paragraph (i) is in the negative (No), what measures would you recommend to ensure an efficient and effective local government structure that delivers well for the benefit of the people of The Gambia?

(iii) Are the powers devolved to the local government bodies (Area Councils, Municipalities, etc.) sufficient to ensure proper administration and the development of the various regions in The Gambia?

(iv) If the answer to paragraph (iii) is in the negative (No), what would you identify as the deficiencies and how would you suggest to address the deficiencies?

RESPONSE: (i) — (iv) The Constitution should only provide for Local Governments for the various administrative regions and enjoin the Legislature to determine through legislation their administrative structures, functions and elections. This will ensure that the Local Governments are Constitutional institutions and that they be filled by election rather than by presidential appointments. At the same time, it will allow reforms of Local Governments by the Legislature when the occasion arises without any need for constitutional amendments.

A counter-argument may be that the Constitution should stipulate everything regarding the establishment of Local Governments to prevent the National Government from encroaching on their functions or grabbing power from them. The argument against the counter-argument is manifold. First: a Constitution that tries to list every preemptive solution to every conceivable problem runs the risk of overcorrections. Second: ideas that may seem wise and workable at the time of drafting may prove the contrary at the time of implementing them. When this involves a regular legislation, the Legislature can pass another legislation to remedy the defect or repeal the law for a better one. But when it involves the Constitution, no easy fix is available. Nothing short of a constitutional amendment can solve the problem. Third: in situations where the Legislature shows unwillingness or inability (due to partisan gridlock) to provide a legislative fix to a flawed legislation, the Courts can always strike down the law as unconstitutional. But when the flaw, intended or not, is in the Constitution, it is still constitutional. Fourth: much of governing and serving the public are exercises in experiments. If the Constitution is too specific about what must be done in too many instances it is more likely to stifle reforms and innovations. And fifth: since well-decentralized Local Governments are a work in progress that’s far from where they should be, many of the inevitable reforms in the future might be proposed by the local authorities themselves or the electorates for better services. The Legislature can pass the needed reforms without a resort to amending the Constitution every time such moments come.

Seyfos and Alkalos

(v) Should Seyfos (Chiefs) continue to be appointed by the President in consultation with the Local Government Minister (current position) or be directly elected by their districts or be selected according to traditional lines of inheritance?

(vi) If they are to be elected, should such election be apolitical and on the basis of independence of candidates (no political party affiliation whatsoever)?

(vii) What should be the term of office of an elected Seyfo or should the term be for the lifetime of the elected Seyfo?

(viii) Should the power to create Seyfo districts vest in the National Assembly on the recommendation of the Local Government Minister after consulting with a relevant regional Governor (current position)? OR

(ix) Should the power to create Seyfo districts vest in the Independent Electoral Commission (or other body with responsibility for boundary demarcation), whether exercised directly or as a recommendation to the National Assembly?

(x) Should the appointment of Alkalos vest in the Local Government Minister acting in consultation with regional Governors and Seyfos or Chairperson of KMC (current position) or should it be elective or selected on the basis of traditional lines of inheritance? OR

(xi) Should the appointment of Alkalos be based on village consensus as a first step, failing which (as a second step) the village should elect their Alkalo (to be conducted by the IEC)?

(xii) What protections (if any) should be accorded to the Offices of Seyfo and Alkalo (such as security of tenure where the position is apolitical)?

(xiii) If the positions of Seyfo and Alkalo are to be apolitical (meaning no political affiliation), should the new Constitution make provision specifically prohibiting Seyfos and Alkalos from engaging in partisan politics?

RESPONSE: (v) — (xiii) Since Seyfos and Alkalos are part of the Local Governments, their status should be a matter for the Local Governments Act. There is no compelling reason to keep them as Constitutional offices any longer given their diminished roles in governing. During the colonial times and through the first three decades of independence, Seyfos and Alkalos were revered local authorities and prominent traditional institutions in their respective localities. They were, along with Divisional Commissioners (now Regional Governors) vital in establishing law and order and settling disputes as quasi-adjudicators. Those days are more or less over, if not long gone. If Alkalos at least still have residual purpose as village heads, the growing role of the Local Governments and the increasing direct interactions between the National Government and the public render Seyfos functionally redundant if not irrelevant. They are now essentially partisan apparatchiks of whoever is the President. The same must be said of the Governors, who — though this falls outside the purview of the Constitutional Review Commission — should be phased out for the elected Chairpersons of the Area Councils to take their place as the ranking administrator of the respective regions. But even mentioning Seyfos and Alkalos, and by extension the Local Government Minister, these three titles will remain Constitutional offices for no indispensable reason only to complicate needed reforms later. Just like Seyfos and the presidentially-appointed Governors, there may soon be no need for a Local Government Minister thanks to the emerging vibrancy of the Local Governments. Therefore, the Local Government Minister’s role should be limited to the statute for the time being. And speaking generally, particular ministers shouldn’t be mentioned in the Constitution to avoid making them constitutional offices. Presidents should have the discretion to reform Ministries based on the needs of the time and with the consent of the Legislature without having to meet the burden of a constitutional amendment. 

7. The Executive & Service Commissions

(a) System of Government

General (see also paragraph (g) (i) below)

(i) What system of government is preferred:

• A Presidential system, where the President is elected directly by the people and his/her Cabinet members are selected outside of the National Assembly?

(b) A Parliamentary system, where the President is chosen on the basis of the majority of elected members of the National Assembly who support him/her?

(c) A Hybrid system, where the President is elected directly by the people but his/her Cabinet members are selected from amongst the members of the National Assembly.

RESPONSE: A Presidential system as we currently have.

(b) Office of President

Qualifications

• Should the current status quo contained in the 1997 Constitution regarding educational qualification be maintained?

RESPONSE: Yes.

(ii) If the answer to paragraph (i) is in the negative (No), what educational qualifications should be specified for eligibility to run for the Office of President?

(iii) Depending on the response to paragraph (i) above, how is it proposed to address current scenarios in which incumbents and heads of political parties do not meet the educational qualifications outlined in relation to paragraph ((ii)?

RESPONSE: That should be no concern of the Constitution.

(iv) Should the current position in the Constitution whereby there is no upper age limit for the Presidency be maintained? OR

(v) Should age limit – minimum & maximum – be prescribed for the Office of President (the current Constitution prescribes a minimum age limit of 35 to be eligible to run for the Office of President)?

RESPONSE: Yes for minimum age, but No for maximum age limit. The current status quo of a minimum age of 35 years and no maximum age limit should be maintained.

(vi) If the answer to paragraph (v) is in the affirmative (Yes), what would be considered appropriate age limits (both minimum and maximum)?

(vii) Should there be qualifications additional to those in the current Constitution with respect to the Office of President? If so, what additional qualifications would you suggest?

RESPONSE: No additional qualifications should be imposed.

Disqualifications

(viii) Should holding dual nationality disqualify a Gambian from running for the Office of President?

RESPONSE: Yes. As a small country with little pull and influence by way of international standing, our President shouldn’t, as a citizen of another country, too, be subject to the laws and jurisdiction of that country while in Office to serve our supreme interest. A dual citizen who wants to run for Office must renounce their citizenship of the other country. That’s not too much of a sacrifice for anyone who wants to serve in the highest office in the land to make.

(ix) Should failure of not being ordinarily resident in The Gambia for a prescribed period (currently 5 years) be a disqualification?

RESPONSE: Yes.

(x) If the response to paragraph (ix) is in the affirmative (Yes), is the current prescribed period of 5 years ordinary residence appropriate or too high? If it is inappropriate or too high, what period would be considered reasonable?

RESPONSE: The current prescribed period of 5 years is appropriate.

(xi) Should compulsory retirement, or termination or dismissal from public office (not related to criminality), be a disqualification for election to the Office of President (these are disqualifications under the current Constitution)?

RESPONSE: No. Those disqualifications under the current Constitution, and anything unrelated to criminality or corruption or debilitating health should be done away with.

(xii) Should an adverse finding by a commission of inquiry, which has not translated into prosecution and conviction by a court of competent jurisdiction, be a disqualification for election to the Office of President (this is a disqualification under the current Constitution)?

RESPONSE: No. A commission of inquiry may have the powers of a court of law, but it’s still not a court of law. Especially one set up by a President may be politically motivated. If a commission of inquiry finds someone liable for a criminal conduct, the State has a duty to prosecute the individual. Only a conviction in a Court of Law, where the accused is accorded all the rights of the accused, should disqualify a run for President in relation to criminality.

(xiii) Are there other justifiable disqualifications that can or should be added to those in the current Constitution? If so, please specify.

(c) Election and term limit of President

Term Limit and Assumption of Office of President

• Should a term limit be prescribed for the Office of President (the current Constitution does not prescribe a term limit)?

RESPONSE: Yes.

(ii) If a term limit is to be prescribed, what should the term limit be?

RESPONSE: Two 5-year terms.

(iii) Should term limits be applied only to consecutive terms?

RESPONSE: No. No person should serve more than two 5-year terms, consecutively or not. A Vice President who assumes the Presidency in the event of a vacancy to complete the second half of the former President’s term should have the right to run for two full terms. But a Vice President who assumes the Presidency in the event of a vacancy to complete more than half of the former President’s term should have the right to run for only one full term.

(iv) President X completes one term in office, but fails to win the next election to attain a consecutive two terms limit. Should President (c) Election and term limit of President X be able to contest another election and serve for a consecutive term if elected to office?

RESPONSE: Having lost reelection, President X may run for a non-consecutive second term only, but not for another (a third) term.

(v) [If the current President were to decide to contest the next Presidential race after the expiry of the current term, how and when should his term limit be prescribed to commence (that is, should the current term being served be counted towards his eligible terms or should his term be reckoned to commence from the next term after the new Constitution has come into force)?]

RESPONSE: The Constitution should stipulate that anyone who served as President for 5 years prior to the coming into force of this Constitution may serve for no more than another 5 years, and anyone who served more than ten years must never serve again as President. That will take care of the current President and his predecessors. Without such an explicit language in the Constitution, nothing will prevent the current President from seeking two full terms in addition to his current term. And the previous President will also reserve the right to run again despite having already served four 5-years terms.

(vi) President X is elected as President at age 72. The Constitution, for example, prescribes an upper age limit of 75. Should President X be permitted to continue in office to complete his/her term?

RESPONSE: Yes. A No will effectively make the upper age limit to become President 70, and not 75. In any case, there should be no upper age limit. The electorate should be trusted to make informed decision about a candidate’s fitness for office based on how aged the candidate may seem.

(vii) Should the President’s term in office expire at the same time as that of Parliament (especially where candidates for Ministerial positions have to be subjected to confirmation by the National Assembly)?

RESPONSE: Yes. But the Legislature’s new term can start two weeks to a month before the President takes the Oath of Office to allow for a transition period from one administration to another. That way the Legislature will be in session to confirm the new President’s Cabinet and other appointees across the Public Service.

(viii) When should a President-elect assume office (the current prescribed period is 60 days after his/her election)?

RESPONSE: It should be 30 days. This will be enough for Court challenges of the election results and smooth transition from one administration to another.

Declaration of Assets

(ix) Should a person be required under the Constitution to declare his/her assets to the Independent Electoral Commission (or the Anti-corruption Commission) before being eligible for nomination for election to the Office of President?

RESPONSE: Yes. The declaration should be made to the Independent Electoral Commission which should make it available to the media.

(x) Should the President be required to declare his/her assets to the same Commission within a specified period after demitting office?

RESPONSE: Yes.

(xi) If the answer to paragraph (x) is in the affirmative (Yes), what should be the specified period?

RESPONSE: 3 – 6 months after leaving office.

Succession to the Office of President

(xii) Where the Speaker assumes the Office of President as a result of a vacancy in that Office and in the permanent absence of the Vice President (for whatever reason), should the assumption of office by the Speaker be for the residue of the term of the former President or for a prescribed period to enable fresh election to the Office (taking into account the fact that the Speaker is not elected by the public)?

RESPONSE: It should be for the residue of the term of the former President so that elections will always take place at a fixed sequence to make the democratic process more predictable and therefore more stable.

(xiii) If, in relation to paragraph (xii), the Speaker is to serve for a prescribed period in a caretaker capacity, what should that period be?

RESPONSE: The prescribed period, to repeat the previous point, should be for the remainder of the former President’s term.

(xiv) In the unlikely scenario where the Speaker is not available or is unable (for whatever reason) to assume the Office of President, what arrangement should be introduced to ensure succession to the Office of President?

RESPONSE: The line of succession beyond the Vice President and the Speaker should be determined by an Act of the Legislature. Otherwise, any other officials mentioned will thus become constitutional offices as well.

Election to the Office of President

(xv) First-past-the-post versus 50+1 %: in a Presidential election, should a candidate be declared winner after securing a majority of the votes cast and counted or should a candidate be declared winner only after attaining 51% of the total votes cast and counted?

RESPONSE: Only after attaining at least 50.1%, and not “51%.”

(xvi) Use of ballot papers versus Use of tokens: should The Gambia continue with the use of marbles/tokens in casting votes or should this be amended to paper ballots?

RESPONSE: The method of voting should be determined by the most reliable and cost-effective technology available at any given time, and should therefore to be left to statute upon the recommendation of the IEC.

Removal of President from Office

(xvii) Where the National Assembly passes a no-confidence motion to remove a President from office, should that no-confidence motion be final or should it be subjected to endorsement or rejection at a referendum (as is provided in the current Constitution)?

RESPONSE: As I argued in my essay “A Case for Two Legislative Chambers” and I will argue later in this Issues Document, that the whole framework of the 1997 Constitution for removing a President from Office for either moral or medical reasons is deeply flawed. Assuming the new Constitution also operates on a Presidential system, no President should be removed based on their unpopularity, which is what a no-confidence vote really is. It’s a parliamentary system that allows the ruling party to ditch one prime minister for a new one without going through a general election. A parliament can call for a no-confidence vote because it’s the parliament that elects the Prime Minister. In our case, the electorate elect the President. Advocates of the current process will point out that the legislators are the people’s direct representatives and that their no-confidence vote is subject to a referendum. On the surface, this argument appears plausible. But a closer look reveals an irreconcilable contradiction in terms. Why would the people’s representatives not be trusted to remove a President on the merit of their no-confidence vote alone? Because, for very good reasons, politicians and public officials in general cannot be trusted to always act on anything other than the public good. Hence, a referendum — a costly stand-in for a general election — for the electorate to weigh in on the judiciousness or necessity of the no-confidence vote. In a system of separation of powers like ours, the President and the Legislature are forced into a marriage of conflicts and compromises. If one side dominates, as it has been the case to the benefit of three successive Presidents so far, too bad for the other side. The two sides  don’t have to like each, as is too often the case everywhere, but they have to make the marriage work for the sake of the children — the nation. That’s why a no-confidence vote has no place in a presidential system. It’s not fair to give one side a say over whether they want to stay married to the other, especially without an exigent cause for divorce. Legislature’s no-confidence vote is nothing more than saying they don’t like the President. They shouldn’t have that power. Even when that power is subject to the approval of the electorate it’s bad. When it isn’t, that power is too dangerous for any democracy.

(xviii) Where a medical board is appointed to inquire into the health of the President and recommends that the President is incapable of discharging the functions of his/her office, should that recommendation be sufficient for the President to cease to hold office or should the recommendation be subject to a vote of the National Assembly to secure a two-third majority of parliamentarians present and voting (as currently provided in the 1997 Constitution)?

RESPONSE: As much as I disagree with the process provided in the 1997 Constitution, it’s much more preferable than the suggested alternative. For a number of factors, including the removal of a President, our system is designed for two Legislative Chambers. That’s what we need to have as will be discussed later in the section dealing with the Legislature.

(xix) Where a tribunal is appointed to investigate the alleged misconduct or other alleged misbehaviour of the President and finds that the allegation has been substantiated, should that finding be sufficient for the President to cease to hold office or should the removal of the President in relation to the finding be subject to a vote of the National Assembly to secure a two-third majority of all parliamentarians (as currently provided in the 1997 Constitution)?

RESPONSE: Again, as much as I disagree with the process provided in the 1997 Constitution, it’s much more preferable than the suggested alternative. For a number of factors, including the removal of a President, our system is designed for two Legislative Chambers. That’s what we need to have as will be discussed later in the section dealing with the Legislature.

Benefits

(xx) Should there be constitutional provision permitting the President to retire (at the end of his/her term in office) on his/her salary as a measure of maintaining the integrity of the Office of President and the holder thereof and preventing self-perpetuation in office?

RESPONSE: Self-perpetuation in office will no longer be an issue once term limit is enshrined in the Constitution. Presidents should, however, be entitled to a retirement pension and other benefits as already provided for in the statute. Should the Constitution mention pension for former Presidents who leave office in dignity but without specifying an amount? Yes. 

(d) Proceedings against serving and ex-President

• Should the President be immune from criminal prosecution for conduct relative to his/her period of service as President?

RESPONSE: Yes.

(ii) If the answer to paragraph (i) is in the affirmative (Yes), should that immunity extend to the period after the President has demitted office?

RESPONSE: No.

(iii) If not, should any restriction be placed to such prosecution, as is the case under section 69 (3) (b) of the current Constitution?

RESPONSE: Only if the criminal complaint is related to the President’s official conduct.

(iv) If the President is to be immune generally, should he/she nevertheless be made liable, whilst in office, for any act of obstruction of justice?

RESPONSE: Evidence or proof of the President obstructing justice should be referred to the Legislature for impeachment. Another reason to have two Legislative Chambers. One Chamber to impeach, the other to try and convict the President, Vice President as well as Judges for any criminal conduct.

(v) If the President is found liable for obstruction of justice, should conviction lead to automatic vacation of office or subject him/her to formal impeachment by the National Assembly?

RESPONSE: No. The same reason a President cannot be tried for other criminal conducts should extend to obstruction of justice. Any independent investigation that finds evidence or proof of any criminal act on the part of the President, including obstruction of justice, should refer such findings to the Legislature to institute impeachment hearings against the President. We shouldn’t have a President who is convicted of obstruction of justice and continues serving in Office. Nor should we have a President vacating Office on some questionable conviction based on a questionable charge of obstruction of justice.

(e) Prohibitions

• Should the President, while serving as such, be prohibited from accepting gifts personal to him/her or if the value of a gift to be received by him/her equals to or is more than a specified amount in dalasis?

RESPONSE: Yes.

(ii) If the answer to paragraph (i) is in the negative (No), should the President be required to declare the gift he/she receives? OR

(iii) Should the President be able to receive a personal gift, but with the approval of the National Assembly if the gift exceeds a specified amount or its value in dalasis?

RESPONSE: No. The President must not receive personal gifts of anything more than symbolic value with or without the approval of the National Assembly. And any gift must be made public, including the identity of the person who gives it.

(iv) Should the President be prevented from forming or tacitly supporting, or in any other way being associated with, a charitable/civic body whilst in office or establishing or associating with a body which has the potential to cause a conflict with his/her role as President?

RESPONSE: Yes.

(v) If the answer to paragraph (iv) is in the affirmative (Yes), should that prohibition be extended to the President’s immediate family members (spouse and children) or should it be extended more widely? If the prohibition is to be extended more widely, what would be the reasonable justification(s) for doing so?

RESPONSE: Yes. The prohibition should be extended to the President’s family ( spouses and children) and siblings and other immediate relations (including parents, brothers, sisters, uncles, aunts and cousins). The justification is Presidents may set up front charitable foundations in the name of their family members or relations as bribery schemes to sell access to the Office of the President or exploit their unique influence to award government contracts to undeserving applicants for kickbacks through such fronts.

(vi) Are there other reasonable restrictions that should be applied in relation to the holder of the Office of President?

RESPONSE: A general provision prohibiting the President from engaging in anything involving conflicts of interest or self-dealing.

(f) Office of Secretary General (see also sub-paragraph (j) (vi) below)

• Should the Office of Secretary General be specifically established under the Constitution and made Head of the Civil Service with responsibility for ensuring a professional Civil Service?

RESPONSE: No. Secretary General shouldn’t be established under the Constitution. Furthermore, while there is need for the Head of Civil Service with the responsibility for ensuring a professional Civil Service, there is no need for a Secretary General. The Head of Civil Service should be relocated from the Office Of the President to the Public Service Commission to be functionally apolitical. The Secretary General should be replaced with a Chief of Staff to the President to help the President run the State House and the broader administration. Rather than perpetuate the pretense of being an apolitical civil servant like the Secretary General, a Chief of Staff will be a political appointee. No one can be this close to the President and not be immersed in the President’s political activities and dealings. While such reforms fall outside the concern of the Constitution Review Commission, the Commission shouldn’t make a bad situation worse by making the Secretary General a constitutional office. It will only make reform harder from amending the statute to amending the Constitution.

(ii) If the answer to paragraph (i) is in the affirmative (Yes), should the appointment of the Secretary General be apolitical and the appointee to that Office be governed by Civil Service Rules?

(g) Vice President and Ministerial portfolios

• Should the Vice President (VP) and Ministers of Government be elected members of the National Assembly – Westminster System versus the Presidential System; or should there be a hybrid and, if so, what should that hybrid be?

 

RESPONSE: No. The Presidential system should be maintained. The separation of powers has so many advantages over the other options. One of which is allowing the President to pick Cabinet Members from the national pool of talents instead of being limited to only the very small number of Legislators who might lack the needed qualifications to run various ministries.

(ii) Should the VP be on the Presidential ticket when a person is contesting to be elected President?

RESPONSE: Yes.

(iii) If the VP is not to be on the Presidential ticket, should the nominee for VP position be subject to confirmation hearing by a select committee of, and approval by, the National Assembly?

RESPONSE: Yes. Anyone the President nominates to be the Vice President immediately after a Presidential election or to fill a vacancy should be subject a Legislative confirmation. The same goes for Ministers and other presidential appointees, save the President’s immediate staff in the Office of the President.

(iv) Should dual nationality be a disqualification for appointment to the office of Minister of Government?

RESPONSE: No.

(v) Is the post qualification experience of 5 years to qualify for appointment as Attorney General sufficient and, if not, what period should be prescribed?

RESPONSE: No. Such qualifications shouldn’t be specified in the Constitution. Besides, they are not reliable indicators of telling whether the appointee will be an effective Attorney General. Presidents should be left to their own discretion to nominate who they believe will do the job well and for the Legislature to determine if the nominee deserves confirmation.

(vi) Should qualifications be identified and specified for appointment to the Office of Minister (only disqualifications are outlined in the current Constitution)?

RESPONSE: No. Presidents should be left to their own discretion to decide who they believe will do the job well and for the Legislature to determine if the nominee deserves confirmation. That’s why we need Legislative confirmation of presidential appointees, including ambassadors, heads of security services, and heads of government agencies and public enterprises. Confirmation process will be more reliable than resumes on paper.

(vii) If qualifications should be identified and specified for appointment to the Office of Minister, what should those qualifications be?

(viii) Considering the representativeness of Cabinet, should the new Constitution make specific provision regarding the composition of Cabinet in a manner that ensures that marginalised groups (such as women, youths and physically challenged persons) are accorded Cabinet portfolios and/or properly represented in Cabinet?

RESPONSE: No. While the intention here is irreproachably good, the Constitution shouldn’t pick the Cabinet in the form of quotas. Such constitutional pedantries would not just render Presidents hamstrung, but also they would, to all intents and purposes, effectively conscript the multiparty democracy into a regimented one-party State. Presidents should be entitled to the Cabinet they want as long as their appointees are subject to confirmation by the Legislature. The prevailing politics will ensure that the so-called marginalized groups are considered for presidential appointments. Yes, there will be varying degrees of commitment to forming an Administration that resembles the nation from one President to another. But that concern should be the business of opposition parties, the media and civic organizations. The Constitution shouldn’t be turned into a do-gooder’s panacea or a social justice warrior’s manifesto. It should always regard the nation as a Republic of citizens and not categories. Once we begin introducing categories, which is always the easy part, where does it end?

Suppose the Constitution requires Presidents to allocate half the Cabinet posts to women, how many of the women, for example, should be youths; how many of the adult women should be physically challenged; and how many of the youth women should be physically challenged? How many of the posts for the youths should be female and of those females how many should be physically challenged? How many of the posts for the physically challenged should go to women and how many of them should be youths. Since we are talking about the “marginalized” groups, why should we stop at gender, age and physical status and not go full steam on religion, region and tribe?

These observations shouldn’t be misconstrued as a devil’s advocate’s attempt to make light of high-minded concerns crying for solutions. The point is to only point out that the Constitution is not a statute. Nor is it a document about statistics, but citizens. The more it speaks for the whole as a whole and less on the differences of the differences the longer it will endure as the supreme law that treats all citizens as equals without regard to distinctions. The equality and equal treatment clauses of the Constitution are there precisely to rein in the inequalities that exist. Those, rather than arbitrary quotas, are the best remedies for the injustices and unfairness that create disadvantages for so many. 

(ix) If the answer to paragraph (viii) is in the affirmative (Yes), what would you suggest as a proper composition for Cabinet?

(x) Should it be a condition for assumption of office that the VP and Ministers of Government must declare their assets (either publicly or privately with a specified public functionary – such as the Anti- corruption Commission)?

RESPONSE: Yes. They should declare their assets to the Office of Ombudsman. Since we have the Ombudsman and the Auditor General, both of which can investigate any office or official and report any criminal or corrupt conducts to the Inspector General or the Attorney General, we don’t need an Anti-corruption Commission. It will be a duplication of the same functions and waste of resources. And for additional reinforcement, we have The Gambia Revenue Authority, to boot.

(xi) Should it also be a condition that the VP and Ministers of Government must declare their assets within a specified period after demitting office?

RESPONSE: Yes.

(xii) If the answer to paragraph (xi) is in the affirmative (Yes), what should that specified period be?

RESPONSE: 3 months.

(xiii) Should the Constitution specify the maximum number of Ministers of Government that can be appointed (the current Constitution does not have any after a constitutional amendment removed the maximum of 15)?

RESPONSE: Though the number should be the minimum required, the Constitution shouldn’t stipulate any arbitrary figure. The only other option to prevent unnecessary expansion of the Executive branch is to require Presidents to secure Legislative approval before they can establish any new Ministry, Department or Agency.

(xiv) Should there be positions of Deputy Ministers with each Ministry having only one Deputy who (amongst other things) assists the Minister and oversees the Ministry in the absence of the Minister?

RESPONSE: No.

(xv) Should Deputy Ministers have the same qualifications as Ministers in order to be appointed as such?

(xvi) Should provision be made for the position of Cabinet Secretary in the Constitution?

RESPONSE: No. Though a Cabinet Secretary, unlike the Secretary General, will always be needed, the office shouldn’t be a constitutional one.

(xvii) [Should collective Cabinet responsibility include the President (the current Constitution excludes the President)?]

RESPONSE: No. Furthermore, there shouldn’t be anything like collective Cabinet responsibility, because there is no such thing like collective Cabinet responsibility in our Presidential system. The Executive power and authority are vested in the President alone who delegates that power and authority to advisers, including Cabinet Members. Unlike a Prime Minister, the President doesn’t need Cabinet vote or approval to make any decision.

(h) Foreign affairs/International treaties

(i) [Should the Constitution prescribe the manner in which an international treaty/agreement (as opposed to a bilateral agreement) forms part of Gambian law or becomes binding and therefore enforceable?] OR

(ii) [Should this be left to be dealt with by an Act of the National Assembly?]

RESPONSE: No to (i) and Yes to (ii).

(iii) Should the new Constitution make specific provision prohibiting the President and/or the executive branch of government from withdrawing The Gambia from an international treaty or from membership of an international organization without the approval of the National Assembly?

RESPONSE: Yes.

(iv) Should the new Constitution prescribe any other matter relative to Gambia’s foreign affairs and/or international treaties The Gambia is a member of?

(i) Honors and Awards

• Should the President’s power to confer honors and awards be prescribed in the Constitution (current provision) or should it be left to be dealt with by an Act of the National Assembly?

RESPONSE: The power should be prescribed in the Constitution as it currently is.

(ii) Should the committee established under the current Constitution to advise the President on the exercise of his/her powers in conferring honors be similarly dealt with through an Act of the National Assembly?

RESPONSE: There should be no standing committee established under the Constitution or in an Act of the National Assembly. It’s a discretionary power and Presidents should have the freedom to exercise it in their own way.

(j) Prerogative of Mercy Committee

(i) Should the President be empowered to substitute a less severe penalty than that imposed by the courts? OR

(ii) Should the President’s power to exercise mercy be restricted to granting a pardon, respite and remission of sentence only?

RESPONSE: Yes to (i).

(iii) Is the current composition of the Committee considered to be adequate and certain?

(iv) If not, should the membership be better defined with specified qualifications?

(v) Should there be a term limit for membership of the Committee?

(vi) If the answer to paragraph (iv) is in the affirmative (Yes), what should that term limit be?

RESPONSE: There should be no standing committee established under the Constitution or in an Act of the National Assembly. It’s a discretionary power and Presidents should have the freedom to exercise it in their own way. Any public fallout for any poor judgment in granting mercy to any convict will be theirs and theirs alone.

(k) Public Service

The Public Service

• Should the President’s role in relation to public enterprises be restricted to the appointment of boards and removal of members of the boards?

RESPONSE: The President’s role should be limited to nominating the Board and the managing director/chief executive for the Legislature to confirm them for a term. The President shouldn’t be involved in the management of public enterprises.

(ii) Is there a need to better define the distinction (if any) between offices in the Civil Service (mainstream government) and offices in the Public Service (inclusive of parastatals and other public bodies)?

RESPONSE: That should be done in a statute.

(iii) What powers should be exercisable by the President in relation to the Civil Service and the Public Service?

RESPONSE: That should be done in a statute.

(iv) What checks and balances should be introduced to ensure the efficient and effective functioning of the Civil Service and the Public Service?

RESPONSE: That should be done in a statute.

Public Service Commission

(v) Should the Public Service Commission (PSC) be restricted to dealing with mainstream Civil Service appointments and related matters only?

RESPONSE: That should be a matter for statutes

(vi) Should the position of Secretary General as Head of the Civil Service be apolitical based on confirmation by the National Assembly and appointment by the President?

RESPONSE: Secretary General should not be a constitutional office. It should be eliminated altogether. Head of Civil Service should be apolitical, nominated by the President and confirmed by the Legislature, and relocated from the State House.

(vii) Should all Permanent Secretaries’ appointments as administrative heads of Ministries of Government be subject to approval by the President?

RESPONSE: They should be presidential appointees confirmed by the Legislature.

(viii) [Should details regarding the PSC, save composition and terms and conditions of service of members, be dealt with in an Act of the National Assembly, instead of in the Constitution?]

RESPONSE: All aspects of PSC, including composition and terms and conditions of service of members, should be dealt with in a statute. The Constitution should only require its establishment and independence.

(ix) Should members of the PSC serve only for a specified term limit? If so, what should that term limit be (the 1997 Constitution provides a term limit of 2 years which may be renewed each time the term expires)?

RESPONSE: That should be determined by statute.

(x) What security of tenure (if any) should be accorded to members of the PSC to ensure the diligent and independent performance of their duties (for example, should they have the same security of tenure as members of the Independent Electoral Commission, Human Rights Commission and Anti-corruption Commission)?

RESPONSE: Yes. The PSC should be accorded the same security of tenure as the IEC. But the idea of a Human Rights Commission and an Anti-corruption Commission as government agencies, though appealing in theory, should be reconsidered. In practice, they will be more or less like what the Media Commission was turned into. A Commission conceived to protect media freedom became a Commission to police the media. The appeal of a Human Rights Commission and an Anti-corruption Commission is the good they could serve as public institution watchdogs on the State. On the flip side, irrespective of their constitutionally or statutorily stated independence, no one should lose sight of the real possibility that the State may use every influence over them to bring to heel private enterprises or individuals perceived as political enemies or opposition loyalists. The sad story of the Media Commission in the current Constitution comes to mind again.

(xi) Should the office of PSC members be full time (as currently provided in the Constitution) or should it be part time?

RESPONSE: That should be set by statute.

(xii) If it is to be part time, is the current Personnel Management Office adequately or can it be adequately restructured and resourced to deal with all administrative matters relative to the employment, termination of employment and general conditions of service of public officers?

RESPONSE: The PMO’s needs and functions should be a matter for the statute. The less the Constitution says about these administrative matters, the easier for reforms that may be needed in the future.

(xiii) Should the qualifications of membership of the PSC be better defined on academic and experience grounds, in addition to the current general terms of “high integrity and good character” provided in section 172 (2) of the 1997 Constitution?

RESPONSE: No. Such qualifications are never good indicators of a person’s competence and dedication. Moreover, they turn the elites into a protected enclave of privilege and prestige. Presidents should reserve the right to nominate those they think are best qualified for the jobs and the Legislature should reserve the right to confirm or to not confirm the nominees based on their individual merits and skill set. 

(xiv) Are the disqualifications for PSC membership as currently provided in section 172 (3) of the Constitution sufficient?

RESPONSE: They are too much and too many. Why should PSC membership be equated with membership to the National Assembly, including residence requirement?

(l) Teaching Service Commission??

• Considering the size of the teaching profession in The Gambia, is it time that a teaching service commission (TSC) is established to properly and professionally steer the profession and improve school education?

RESPONSE: No. This a terrible idea on three scores. First: we already have two Ministries of Education, which should be rejoined as one anyway. Second: all these Commissions that are established or being proposed are becoming pretexts to take actual governing out of the hands of elected officials and entrust it with unelected bureaucrats/technocrats. Besides the amount of resources that will be allocated to the running costs of these Commissions, including personnel, offices and transports, they will more often stand in the way of change rather than bring about change. People who run for office on a set of policy proposals will come into office only to find out they can only do so much because of so many Commissions inside the Executive branch, all constitutionally red-taped with the words “Independent Commission.” The ghosts of the past should not haunt us running down the valley of overcorrection. The emerging democratic culture will prove to be as much of a deterrent on government overreach as any good law on books. Bad laws are more likely to prevent good people from doing good than to prevent bad people from doing bad. And third:  mundane matters like a Teaching Service Commission should not be a subject of the Constitution.

(ii) If the answer to paragraph (i) is in the affirmative (Yes), should details regarding the TSC, save composition and terms and conditions of service of members, be dealt with in an Act of the National Assembly, instead of in the Constitution?

(iii) [Should the provisions relative to the Office of PSC have equal application in relation to the Office of TSC? If not, what provisions should not apply?]

(m) Health Services Commission??

• Considering the size of the health service profession in The Gambia, is it time that a health service commission (HSC) is established to properly and professionally steer the profession and improve the delivery of health service?

RESPONSE: No. This is another terrible idea for the same reasons given in opposing a Teaching Service Commission. Furthermore, if these two commissions, teaching and health services, are established as separate entities, what will be left of the Civil Service and PSC?

(ii) If the answer to paragraph (i) is in the affirmative (Yes), should details regarding the HSC, save composition and terms and conditions of service of members, be dealt with in an Act of the National Assembly, instead of in the Constitution?

(iii) [Should the provisions relative to the Office of PSC have equal application in relation to the Office of HSC? If not, what provisions should not apply?]

(n) National Security Council

• Is the current composition of the National Security Council right and sufficient?

RESPONSE: All matters relating to the National Security Council should be dealt with in the statute.

(ii)  If the answer to paragraph (i) is in the negative (No), who else should be included or who should be excluded?

(iii)  Are there any further issues relating to the National Security Council that the new Constitution should embrace? If so, what are those issues?

(o) National Security Service Commission (covering Police, Military, SIS, Prison, NDEA & Fire and Rescue)??

• Should there be a separate but combined national security service commission properly resourced by professionals to assist with appointments and related matters concerning the security services comprising the Armed Forces, Police, Prison, State Security Service, National Drug Enforcement Agency, and Fire and Rescue Service?

RESPONSE: Another mundane matter that should be beneath the consideration of the Constitution. If there is going to be one, let it be provided for in the statute. But it needs to be repeated that this will be one more Commission that will turn the government into a sprawling cottage industry of Commissions run by “professionals” and “elites” instead of elected officials.

(ii) If the answer to paragraph (i) is in the affirmative (Yes), who should be identified as members of such national security service commission?

(iii) Considering the nature, function and discipline of the Armed Forces, should the Armed Forces be dealt with separately outside any joint security service commission?

RESPONSE: Another Commission?!

(iv) If the answer to paragraph (iii) is in the affirmative (Yes), what are the justifiable reasons for such a separation?

(v) What should be prescribed as the qualifications and disqualifications of members of a joint security service commission?

(vi) Should constitutional provisions be restricted to merely establishing the various service institutions, leaving details (excluding membership and functions of the combined Security Service Commission) thereof to be dealt with by Acts of Parliament?

RESPONSE: Notwithstanding my fervent opposition to the proposed constellation of Commissions, paragraph (vi) should be the preferred constitutional method of going about stuff like that.

(p) Office of Attorney General as Chief Legal Adviser to Government (Cross check Paragraph 10 (xxxiv) below)

(i) Should the current system whereby the Office of Attorney General and Minister of Justice constitutes a single office be maintained? OR

(ii) Should the Office of Attorney General be divorced from the position of Minister of Justice to which political appointment may be made?

RESPONSE: No divorce required. The Attorney General is all what’s needed. The Justice Minister part should be junked.

(iii) If the answer to paragraph (ii) is in the affirmative (Yes), should the Office of Attorney General be a permanent civil service post and ranked top of the ladder (above or same level as Secretary General)?

RESPONSE: No. Though the Attorney General should be accorded special independence as opposed to other Cabinet officials, the Office should still be a Cabinet post filled by Presidential appointment but subject to Legislative confirmation.

(iv) If the answer to paragraph (ii) is in the affirmative (Yes), should the Minister of Justice have legal qualifications?

RESPONSE: The Attorney General should be the head of the Ministry of Justice. No need for a Justice Minister.

(v) What functions should the Minister of Justice be able to perform?

RESPONSE: Nothing. Whatever the Minister of Justice is supposed to perform can be divided between the Attorney General as the head of the Ministry of Justice (or whatever name it may go by) and the Interior Minister who is responsible for the police, prisons and other matters relating to law and order.

(vii) What should be the qualifications and experience for appointment as Attorney General (note that it’s currently 5 years of legal practice)?

RESPONSE: 5 years isn’t such a big deal. But such requirements are not a good way of determining a person’s competence and dedication to the job. A confirmation process will be far more effective to tell if the nominee has the goods.

(viii) Security of tenure – should the Office of Attorney General receive the same level of security of tenure as that of judges?

RESPONSE: No. It should be a Cabinet position with special independence, but still a Cabinet position. Presidents should reserve the right to hire and fire whoever they want as Attorney General with or without cause. The need to confirm the next Attorney General by the Legislature and the media’s growing vigilance, however, will restrain Presidents from firing the Office holder for corrupt motives.

(ix) If the independent Office of Attorney General is to be established, should provision be made in the new Constitution for the Attorney General to serve as an ex officio member of Cabinet?

RESPONSE: The Attorney General should remain a Cabinet position, irrespective of the independence the Office is accorded.

(x) [Should the position of Solicitor General and Legal Secretary be established under the Constitution (for consistency with the constitutional references to Permanent Secretary and Judicial Secretary)?]

RESPONSE: No. They, along with Judicial Secretary, shouldn’t get a mention in the Constitution. They should be statutory positions.

(xi) [If the answer to paragraph (x) is in the affirmative (Yes), what qualifications and disqualifications should be outlined for the position of Solicitor General and Legal Secretary?]

(q) Independent Office of Director of Public Prosecutions (Cross check Paragraph 10 (xxxiv) below)

• Should an independent Office of Director of Public Prosecutions be established?

RESPONSE: No. The logic of the Attorney General’s independence is to run the Ministry of Justice without political interference. That’s good and  necessary. But if the DPP is in turn an independent Office from the Attorney General then who is really the boss at the Ministry? Someone has to be in charge and be ultimately responsible for decisions at the Ministry, and that should rightly be the Attorney General. Therefore, the DPP must take orders from the AG.

(ii) What should be the qualifications and experience for appointment as Director of Public Prosecutions?

(iii) Security of tenure – should the Office of Director of Public Prosecutions receive the same level of security of tenure as that of judges?

RESPONSE: No. Just like the AG, the DPP is in the Executive branch. It should not be equated to a Judge in terms of independence and job security since no separation of powers is at stake here. While the fear of political interference may tempt us to protect all these officials from getting fired, we should also bear in mind the flip-side. There is always the potential for officials to exploit their job security for personal gains or to play favoritism at the expense of public interest.

(iv) Should the Director of Public Prosecutions be a Gambian or is there a case for this being made flexible whereby a non-Gambian can be appointed to that Office?

RESPONSE: A citizen. Period! All senior and critical posts in the government must be held by citizens.

8. Legislature – National Assembly

• [There is a need to specifically establish the National Assembly within the Constitution.]

RESPONSE: That goes without saying it.

(ii) Composition of the National Assembly: it’s currently made up of 53 elected members and 5 other members nominated by the President. Should the National Assembly comprise purely of elected members or should space still be allowed for nominated membership?

RESPONSE: No. No more nominated Members. This vestige of colonial rule gives undue influence to the President in the Legislature. It’s not just antithetical to the doctrine of separation of powers, it’s also undemocratic since Legislators should comprise elected Representatives of the people to provide checks and balances on the President’s power. It’s past time the practice of nominated Members is done away with altogether.

As for the number of Legislators, if consideration is given to a Second Chamber (as I will support the idea later), the Constitution should allot 25-30 Members to the Upper Chamber and 50-60 Members to the Lower Chamber. But if the single Chamber is maintained, the Constitution should stipulate that the Legislature shall not exceed 100 Members. This will, on the one hand, take into account future population growth and, on the other hand, prevent opened-ended increase in the number of Legislators. The proposed number is crucial in another sense: even when the population becomes much larger and the workload of the Legislature becomes much broader and more complex, the 100 elected Members (the number could be less at given anytime but never more) would be adequate to represent their constituencies in the National Assembly and attend to all other matters, including, passing legislations, serving on the various select Committees, holding hearings, confirming the President’s nominees, conducting oversights and investigations. This will not only be great in itself. The institutional capacity that will be available to the Legislative branch to do so much on so many fronts will also bring under control the needless expansion of the Executive branch with too many “independent” Commissions that are bestowed with fanciful names like the Anti-corruption Commission and the Human Rights Commission but have little potential to live up to expectation.

(iii) If nominated membership of the National Assembly is to be maintained, should that power still vest in the President or is there another mechanism that should be employed?

RESPONSE: No. Neither the President nor other mechanism should be vested with the power to appoint nominated Members in the Legislature. The people’s elected representative must solely be the people’s elected representatives.

(iv) If another mechanism for nominated membership is to be employed, what is that mechanism and how is it envisaged to work in a democratic fashion?

RESPONSE: If the President who is elected by the entire country must be stripped off the power of appointing nominated Members why should any unelected body be vested with such a consequential decision? The desire to give voice to “marginalized” groups cannot be enough justification to dilute the outcome of elections. Entrusting an unelected body or bodies with having a say over membership to the body of elected officials is the undemocratic of undemocratic acts. Besides, it will create special interest groups over the issue for no good reason, as well as corollaries to pay-to-play schemes in the long run.

Qualification for Membership

(v) Should residence in a constituency or district for a specified period continue to be a valid qualification for election or should being a Gambian be a sufficient qualification?

RESPONSE: Being a citizen should be sufficient.

(vi) If residence is to be maintained as a valid qualification criterion, is the current period of residency requirement of 1 year reasonable or high? If it is high, what period is considered appropriate?

RESPONSE: 3 months.

(vii) Should the Constitution be specific on academic qualification as a criterion for eligibility as a candidate to contest election to the National Assembly (current requirement is ability to speak English with a degree of proficiency)?

RESPONSE: The current requirement of a degree of proficiency in English is enough. Academic qualification shouldn’t be required.

(viii) If the answer to paragraph (vii) is in the affirmative, what should the academic qualification be?

(ix) Should there be other qualifications and, if so, what should those be?

RESPONSE: Age requirement of 21 years should be maintained.

Disqualification for Membership

(x) Should dual nationality be a bar to being elected as a Member of the National Assembly?

RESPONSE: Yes.

(xi) Should an independent Member or elected Member lose his/her membership of the National Assembly on account of joining a political party (as an Independent) or a different political party?

RESPONSE: To prevent a ruling party from luring away elected Members from the opposition side, as in the cross-carpeting cases during the PPP rule, if an independent Member or a Member elected under a political party banner joins another party the Member should lose their seat.

(xii) Should a Member of the National Assembly elected on a political party basis who is subsequently expelled from the political party be permitted to join another political party or to declare himself/herself as an independent Member of the National Assembly?

RESPONSE: To prevent parties from threatening their Members into total compliance with their agenda, if a Member is kicked out of a party, as in the cases of APRC using the constitutional loophole to force irritant/undesirable Members out of the National Assembly, or if a Member resigns from their party, they should automatically retain their seat as independent in the Legislature.

(xiii) Should Members of the National Assembly be empowered to expel from the National Assembly one of their members if found to be in contempt of the House (current provision) or should this power reside with the Speaker? OR

(xiv) Should they simply be empowered to suspend a Member for a specified period (considering that the Member is elected by the people of his/her constituency)?

RESPONSE: The Speaker should have no such power. It will turn the Speaker into a petty dictatorship in the Legislature. No Member should be expelled from the Legislature for being in contempt of the House. A suspension should suffice. However, if a Member is found by a credible investigation to have engaged in a criminal or immoral conduct that brings disrepute to the House, the other Members should have the power to expel that Member.

(xv) Should there be an upper age limit for membership of the National Assembly?

RESPONSE: No.

(xvi) Should there be other qualifications and/or disqualifications and,

if so, what should those be?

Recall of Members of the National Assembly

(xvii) Should the Constitution make specific provisions empowering the electorates of a constituency to recall their elected representative, instead of leaving the matter to be dealt with by an Act of the National Assembly?

RESPONSE: No. The Constitution should make no recall provisions. While the intended purpose of such provisions is to empower the electorates to replace their ineffectual Member in the Legislature before a general election, the downside outweighs the upside. Legislators will more likely be scared off taking unpopular but principled stand on behalf of a minority in either their constituency or the nation at large. In democratic elections, the majority will must always decide the outcome. But in governing or legislating, especially in a democracy, certain matters that bear fundamental consequences for the minority’s rights and freedoms must defy or take precedence over the majority’s intolerant desire or prejudice. 

(xviii) If the answer to paragraph (xvii) is in the affirmative (Yes), what events should trigger the recall of an elected Member of the National Assembly?

Election of Speaker and Deputy Speaker

(xix) Should the Speaker of the National Assembly be elected from amongst the elected Members or should the Speaker be an elected private citizen irrespective of political party affiliation? OR

(xx) If the Speaker is to be an elected private citizen, should there be a requirement that the Speaker is a non-political party affiliate (that is, not belonging to any political party)?

RESPONSE: The Speaker, like all other Members, should be an elected Member of the Legislature. No one who is not elected should belong in the Chamber.

(xxi) Should the Deputy Speaker of the National Assembly be elected from amongst the elected Members or should the Deputy Speaker be an elected private citizen irrespective of political party affiliation?

RESPONSE: An elected Member.

General Election of Members

(xxii) Should general elections for National Assembly membership be held at the same time as the election of President or should the current system (as currently provided in the 1997 Constitution), whereby general elections are held at different times from that of President, be maintained?

RESPONSE: They should be held at the same time.

(xxiii) Should the President be empowered (as is the current position under section 96 of the 1997 Constitution) to declare general election to membership of the National Assembly to be held at a time different from what is provided in the Constitution in the public interest, or should this power vest in a different public functionary (the Supreme Court, for instance, to allow for a better determination of what constitutes the ‘public interest’)?

RESPONSE: The Constitution should state the election schedule. Say the first or last week of a certain month of an election year. And in the event of a public emergency that may undermine the outcome of the general election, the IEC should file for a postponement lasting not more than two weeks from the Supreme Court.

Representation of Marginalized Groups (Women, Youth and Physically Challenged Persons)

(xxiv) Should marginalized groups – women, youths and physically challenged persons – be provided with separate and specific opportunities to attain appropriate representation in the National Assembly?

RESPONSE: No. The Constitution should see the nation as citizens of equal rights. Equality before the law must mean equality before the law whether in a Courtroom or in the exercise of other rights of a citizen. The Constitution cannot both confer special rights and quotas based on gender, age, ethnicity and other social or physical criteria in one section, only to stipulate in another section — say, in the fundamental rights and freedoms chapter — that no citizen must be treated with favor, affection or ill will based on gender, ethnicity, religion or other social or physical attributes. The Constitution’s duty is to guarantee equal opportunity (and not equal outcomes) for all irrespective of social or physical status. How to achieve that should be the business of policy and politics. 

(xxv) If the answer to paragraph (xxiv) is in the affirmative (Yes), what specific opportunities would you recommend?

(xxvi) If the answer to paragraph (xxiv) is in the affirmative (Yes) and as an example, should a specific number of seats be prescribed to enable only persons of the marginalized group to contest at large on the basis of proportional representation?

(xxvii) If the answer to paragraph (xxvi) is in the affirmative (Yes), what number of seats should be prescribed? OR

(xxviii)As an alternative, should the new Constitution make provision requiring all political parties to field a percentage of candidates (of the total number they are fielding) from the marginalized group (ensuring a balance in the representation of the group)?

RESPONSE: No. Political parties should have the discretion to field the best candidates they can recruit. It should not be the job of the Constitution to dictate what they should or shouldn’t do. The electorates should be trusted as wise enough to vote, in their own best interest, for the candidate of their choice.

(xxix) If the answer to paragraph (xxviii) is in the affirmative (Yes), what percentage should political parties be required to field?

Term of the National Assembly

(xxx) [In relation to the power of the President to appoint a place (and date) for convening the first session of the National Assembly, should the Constitution prescribe a period within which the first session has to be convened after the holding of general elections?]

RESPONSE: The President should have no such power. It’s goes against the doctrine of separation of power, however ceremonial the power may seem. The Constitution should set the time, say, ten days, after the election.

(xxxi) [If the answer to paragraph (xxvii) is in the affirmative (Yes), what period should be prescribed?]

(xxxii) Should more pronounced roles be accorded to the Leaders in the National Assembly representing the Majority and the Minority?

RESPONSE: No. The Majority and Minority leaders shouldn’t have any defined roles. The Constitution already empowers the Legislature to set their own rules. That’s all what’s required.

(xxxiii) If the answer to paragraph (xxx) is in the affirmative, what should those roles be?

Language of the National Assembly

(xxxiv) Should the Constitution make provision to enable Members of the National Assembly to participate in the proceedings of the National Assembly in any of the local languages (the current Constitution leaves this to be done by an Act of the National Assembly and has never been acted upon)?

RESPONSE: As much as one is tempted to say Yes out of national pride in our languages, what real purpose will this serve? Had we have only one or two national languages, the matter would have been a no-brainer. But we have at least five major national languages. Will such a law not turn a blessing into a curse? Will it not, by extension, also mean that all official business of the State may be conducted in any of these languages? Furthermore, what are the implications for tribalism? The Constitution should stay silent on the matter.

Miscellaneous

(xxxv) Are the powers of the National Assembly adequate for its roles in representing the people and having proper and efficient oversight responsibilities?

RESPONSE: All presidential appointments, save the President’s closest staff in the Office of the President, should be subject to Legislative confirmation. More than anything else, this will defang the imperial presidency. Also, it will be the best assurance that Presidents will nominate qualified people to positions. The chances of appointments based on personal favoritism, tribalism and nepotism will be checked.

9. Legislature – Second Chamber of the National Assembly?

• Should consideration be given to establishing a Second Chamber of the National Assembly for effective balance in the enactment of legislation and conduct of other affairs of the Legislature and of the country and thus ensuring a balanced check on the Executive?

RESPONSE: Yes! Yes! Yes! I wrote a whole essay on this titled: A Case for Second Legislative Chamber

(ii) If the answer to paragraph (xxxiii) is in the affirmative (Yes), what should be the composition of the Second Chamber and how should it be referred to as?

RESPONSE: The Upper Chamber could comprise 25-30 Members and the Lower Chamber could be 50-60 Members. They should all be elected. There should be no more nominated Members of any sort in any Legislative Chamber. The Upper Chamber could be referred to as the Senate; the Lower Chamber as the House or the Assembly; and the two Chambers together could be called the Parliament, the Congress or the Legislature.

(iii) Should representation in the Second Chamber of the National Assembly be based on equality of numbers from each Administrative Area (for example, 3-4 from each Administrative Area)?

RESPONSE: That’s one way of doing it. But this method is less democratic. Since an Administrative Area like Banjul will have the same representation as KMC.

(iv) Should representation be based on proportional representation (according to the population size of each Administrative Area)?

RESPONSE: That’s another way of going about it. And it’s more democratic.

(v) What should be the qualifications of persons to be elected to membership of the Second Chamber of the National Assembly (for example, tertiary education)?

RESPONSE: There should be no academic qualification required. Only a degree of proficiency in English as it’s currently the case for the National Assembly.

(vi) What should be the disqualifications that should be applied for election to membership of the Second Chamber of the National Assembly?

RESPONSE: The same as it’s currently the case for the National Assembly.

(vii) Should there be a minimum age restriction to be able to be nominated to contest election into the Second Chamber of the National Assembly?

RESPONSE: Yes. It should be 30 years.

(viii) Should there be a maximum age limit for membership of the Second Chamber of the National Assembly?

RESPONSE: No.

(ix) What should be the functions of the Second Chamber vis-à-vis the National Assembly (for example confirmation of Ministerial and specific senior public service appointments, independent origination of legislation, confirmation of legislation from the first legislative chamber, impeachment of the President, censor of Ministers and heads of statutory bodies, etc.)?

RESPONSE: (A) LEGISLATION — Both Chambers will share responsibility for all legislations. Each Chamber may reserve the right to write their own bill, but the two versions must be reconciled into an identical bill before the President signs it into law. This bicameral process is more likely to ensure that legislations are not passed on the passion or the politics of the moment. Presidents or Ministers or even Members of the Legislature who want to pass a bill or repeal a law would have to justify the intent and object of their case to not just one Chamber but two. The great advantage of this process is that more often than not bad laws are harder to pass, and good laws are harder to repeal. The disadvantage is it slows down the law-making process. Even that is a good thing in a democracy. It allows momentary passions to subside for cooler heads to prevail.

(B) BUDGET — The Lower Chamber should be given the authority to originate all bills pertaining to budget. The Lower Chamber could also be responsible for overseeing the administration and operations of the Local Governments. This will curtail the Executive branch intrusions into the Local Governments in line with the intended devolution of power to the local authorities, and eliminate the need for a Local Government Minister.

(C) APPOINTMENTS — All Presidential appointments that are required for Legislative confirmation should be the preserve of the Upper Chamber. No more questionable involvement of Public Service Commission in the appointment of heads of agencies like IEC, or the involvement of Judicial Service Commission in the appointment of Judges. Presidents nominate appointees at their own discretion, and the Upper Chamber weighs in through a confirmation process.

(D) INVESTIGATIONS AND OVERSIGHTS — Both Chambers should have the power, through their respective Committees, to carry out investigations and oversights separately or jointly on any matter that falls under the purview of the Legislature.

(E) IMPEACHMENTS — No more need for the Chief Justice to appoint medical boards or tribunals to inquire into the President’s medical or moral fitness for Office. And no more need for the President to consult with JSC before removing a Judge. The removal of the President, Vice President and Judges for corruption or other criminal conducts will go through a two-step process. The Lower Chamber impeaches them on a simple majority vote and the Upper Chamber tries them and votes to convict on a two-third majority. As for CENSORS, both Chambers should vote to censor cabinet ministers and heads of statutory bodies.

(F) TREATIES — Both Chambers should vote to ratify any treaties by two-third majorities.

(G) CHECKS AND BALANCES — This is the ultimate reason for a democratic system of separation of powers. The three branches of government are designed to be independent centers of power. The Legislature makes the laws among other things. The Judiciary interprets the laws. The Executive executes the laws. But each branch will have some autonomous power over the other two. The President can veto legislation passed by the Legislature, which can override the veto if it can whip the requisite number of votes. The Judiciary can rule the Executive branch’s actions or decisions as unconstitutional. It can also rule laws passed by the Legislature as unconstitutional. The Legislature, however, arguably commands the greatest power of the three branches. It can impeach the President and remove Judges. And through its budgetary power, it can deny Judges pay raises and underfund the Judiciary. It can do the same for the Executive by voting down the President’s spending priorities.

Given the above, the system of checks and balances must empower each branch and rein them in at the same time for the separation of powers to withstand the inevitable inter-institutional clashes and turf wars. It is natural that as our democracy evolves, these branches, especially the Executive and the Legislature, will compete in an endless power struggle to be the predominant first among equals. Whenever the Executive prevails for any length of time, as it has been the case since Independence, that period will be an imperial Presidency. In other words, an uncrowned king. On the other hand, when the Legislature learns to marshal all the powers at its disposal for lawmaking, oversights, investigations, confirmation of Presidential nominees,  impeachment and censors, the Presidential system will be effectively turned into a Parliamentary-style democracy. Both outcomes are undesirable. To put an end to a predominant Presidency and prevent a predominant Legislature, we need two Legislative Chambers. Here are two of the foremost reasons. First: the two Chambers will reinforce each other in unified institutional power and prestige as a necessary bulwark to check and balance the ever-sprawling Executive branch. And second: even as they co-operate in forming a formidable institutional counter-weight to the Executive, the two Chambers will compete in intra-institutional rivalries of their own, thus checking and balancing each other; and, therefore, preventing the Legislature from wielding two much power over the Executive and the Judiciary.

(x) Are there any other matters in relation to National Assembly membership that should be considered as part of the constitutional review process?

10. Judiciary

Special Criminal Court

• Should the Special Criminal Court continue to be a specific feature within the Constitution?

RESPONSE: No. The other three Superior Courts, namely: the Supreme Court, the Court of Appeal, and the High Court, are adequate.

(ii) If the Special Criminal Court is to remain as a feature of the Constitution, should the members of the Special Criminal Court be appointed by the President in consultation with the Judicial Service Commission or acting on the advice or recommendation of the Commission?

RESPONSE: No. They should be nominated by the President and confirmed by the Legislature.

Court Martial

(iii) The current Constitution does not establish a court martial as one of the courts in The Gambia, but reference is made to a court martial in relation to a decision of that court being appealable to the Court of Appeal. Should specific reference be made to a court martial to be established by an Act of the National Assembly to be conferred with specific functions and powers, with reserve powers to the Chief Justice? If so, what powers should be reserved to the Chief Justice?

District Tribunals

(iv) The District Tribunals form part of the court system in so far as the performance of their judicial function is concerned; however, their members are appointed by the Executive arm of Government. Is this an anomaly, particularly in the context of judicial independence?

RESPONSE: Yes.

(v) If the answer to paragraph (v) is in the affirmative (Yes), should members of District Tribunals (other than the President who is normally the Chief of the district) be appointed by the Chief Justice acting on the advice of the Judicial Service Commission?

RESPONSE: Yes. The members of the District Tribunals should be appointed by the Chief Justice on the recommendation of the Judicial Service Commission in the interest of separation of powers and Judicial independence.

(vi) In view of the establishment of Cadis’ Courts, should District Tribunals continue to have jurisdiction to hear Sharia-related matters?

RESPONSE: Yes. The Plaintiffs should have the choice of filing their suits in a Cadi Court or in a District Tribunal, which shall also determine whether to hear the case or refer it to a Cadi Court.

Cadi Court & Cadi Appeals Selection Committee

(vii) Is there a need for the continued existence of the Cadi Appeals Selection Committee or should members thereof be co-opted into the Judicial Service Commission either ‘permanently’ or whenever a matter is to be decided in relation to the Cadi Court or a Cadi is to be appointed/removed/disciplined?

(viii) In any case, is the current composition of the Cadi Appeals Selection Committee considered to be professionally representative and balanced? If not, what should the composition look like?

(ix) Currently appeals from a Cadi’s decision are heard by the Cadi Appeals Panel where the appeal terminates. Should provision be made to enable a further appeal to the Supreme Court?

RESPONSE: Yes

(x) Should the power granted to the High Court pursuant to section 133 be reformulated so that the power does not extend to decisions of a Cadi Court and a Court Martial, appeal from which should go directly to the Court of Appeal?

RESPONSE: Yes.

(xi) Is the five years post-qualification experience for appointment as Chairman of the Cadi Appeals Panel not too short (same for appointment of Court of Appeal and High Court judges)?

RESPONSE: No.

Election Petitions

(xii) Should the Supreme Court be given power to hear all election petitions or should the current status quo whereby the Supreme Court hears only petitions arising from Presidential and Parliamentary elections be maintained?

RESPONSE: The current status quo should be maintained.

(xiii) If the current status quo on dealing with election petitions is to be maintained, should the Chief Justice still be required to sit and hear as a Judge of the High Court all election petitions arising from local government elections? If not, how is it preferred that this subject be dealt with?

RESPONSE: The Chief Justice should not be a presiding judge on the High Court. As the head of the Judiciary, the Chief Justice’s influence casts itself over the entire third branch. With that in mind, will the Court of Appeal agree to hear an appeal of Chief Justice’s ruling at the High Court? How about the Supreme Court? Better still, will the Chief Justice recuse him or herself when (an unlikely event) a ruling of his or hers at the High Court is heard by the Supreme Court? And will the Supreme Court be more likely to defer to the Chief Justice’s rulings at the High Court than overturn them?

Power to commit for contempt

(xiv) Should the power to commit for contempt be constitutionally reserved for the superior courts only (as the current Constitution appears to provide)?

RESPONSE: Yes.

Appeals

(xv) Should an appeal to the Supreme Court from a Court of Appeal decision requiring leave be restricted to the Court of Appeal or should there be provision enabling an application for leave to be made to the Supreme Court – either as an option or after a Court of Appeal decision on such an application?

RESPONSE: Yes. There should be provision enabling an application to be made to the Supreme Court after a Court of Appeal decision on such an application.

(xvi) There is currently provision effectively making an appeal from a High Court as of right. However, in relation to any other court, leave has to be sought from the Court of Appeal. Should this distinction be allowed to continue?

RESPONSE: No. All appeals should be made as of a right.

(xvii) Should provision be made in the Constitution specifically making an appeal from a criminal matter as of right (as opposed to making reference to the court of origin of the case to determine whether leave is required)?

RESPONSE: Yes. As of right.

(xviii) Should provision be made in the Constitution enabling an appeal from a decision of a Court Martial to be appealed as of right to the Court of Appeal?

RESPONSE: Yes.

(xix) Consideration: Should the right to appeal generally be as of right, without being circumscribed by a requirement to obtain leave?

RESPONSE: Yes.

(xx) In relation to section 24 (9) of the current Constitution which permits a person to elect to be tried by a jury, should this provision be removed in the light of the fact that no election had ever been made for jury trial?***

(xxi) Should an appeal at the instance of the AG (DPP) bar the Supreme Court from reversing an acquittal by a court of first instance or reversing a Court of Appeal judgment allowing an appeal against conviction (proviso to section 128 (4))?

RESPONSE: No.

Chief Justice and other Judges – Appointment, Qualification, Disqualification, tenure, etc.

(xxii) Should the appointment of the Chief Justice by the President be in consultation with the Judicial Service Commission (current) or be in accordance with the advice of the Commission?

RESPONSE: Neither. The President should nominate at his own discretion and the Legislature confirms.

(xxiii) Should the Constitution maintain a provision (section 139 (1)) allowing the appointment of a non-Gambian as Chief Justice? If not, should specific provision be made that only a Gambian citizen (other than an honorary citizen) should be appointed as Chief Justice?

RESPONSE: No. Only a citizen (other than an honorary citizen) should be appointed as Chief Justice (and any other Judge.)

(xxiv) Who should nominate the Chief Justice? How should the Chief Justice be appointed to ensure that a qualified independent judge assumes the office of Chief Justice (for example, through confirmation by the National Assembly)?

RESPONSE: Presidents should reserve the discretion to seek advice from anyone they want (including the JSC) in nominating the Chief Justice (and any other Judge), but the nominee must be subject to Legislative confirmation.

(xxv) Considering the qualifications set out in section 139 of the current Constitution for appointment as a Supreme Court, Court of Appeal and High Court, judge, is there a case for amending any of the qualifications set out thereunder? If so, what qualifications should be amended and why?

(xxvi) Should the Constitution specifically outline disqualifications for a person being appointed as a judge? If so, what should those disqualifications be?

(xxvii) Should the appointment of other judges of the superior court be made by the President acting on the advice of the Judicial Service Commission or on the recommendation of the Judicial Service Commission (as provided in the current Constitution)?

RESPONSE: Presidents should reserve the discretion to seek advice from anyone they want (including the JSC) in nominating Judges, but the nominees must be subject to Legislative confirmation.

(xxviii) Is the five years post-qualification experience for appointment as Court of Appeal or High Court judge not too short (same for Chairman of Cadi Appeals Panel)?

RESPONSE: No. The requirement should be removed altogether. The confirmation process should determine if the nominees are qualified based on their individual competence and merits and other personal qualities like character and temperament.

(xxix) Should judges be required to vacate office after a specified age (currently 75) or should they be permitted to continue serving so long as they are medically fit if so certified?

RESPONSE: Judges shouldn’t have life-term appointments. They should be confirmed for a term of 15 or 18 years with the option of voluntary retirement after the age of 65 years before their term expires.

(xxx) Should judges be permitted to retire on their salary (to constitute their pension), as is the case in some countries, as a measure of preserving the integrity of judges and judicial service whereby retired judges may not be justified in seeking other employment?

RESPONSE: Yes.

(xxxi) Should the President continue to exercise the power of terminating the appointment of a judge after consultation with the Judicial Service Commission or should termination be on the recommendation of the Commission after an adverse finding by an independently constituted tribunal of a specified number of judges (with possibly a lay person)?

RESPONSE: No. The President’s involvement in the termination of a Judge’s appointment is the single biggest threat to Judicial independence. It undermines both the logic and doctrine of separation of powers. In the event of a wrongdoing on the part of a Judge and the Judge refuses to resign, the Legislature should act. The Lower Chamber impeaches and the Upper Chamber tries and votes to convict.

 (xxxii) In any case, should the National Assembly have any say with regard to the termination of appointment of a judge (separation of powers) as is currently provided in the Constitution?

RESPONSE: Yes. Just as I argued in the previous response and elsewhere in this Issues Document, the Legislature should assume the sole responsibility of removing Judges. (In the event that there isn’t a Second Chamber, only the National Assembly should have the power under Section 141 (5), (6) and (7) to remove a Judge.) The President should have no role in the removal of a Judge for any reason with or without the advice/recommendation of the Judicial Service Commission.

 (xxxiii) Should the proceedings of a tribunal duly constituted to investigate and determine the culpability or otherwise of a judge be held in camera (current) or public?

RESPONSE: If only there is one Legislative Chamber and the National Assembly is applying section 141 (5), (6) and (7), then, Yes. But with two Chambers, there will be no need for a tribunal.

Judicial Service Commission

(xxxiv) Should the mandate of the Judicial Service Commission be expanded to include the appointment, removal and discipline of persons in positions that require legal qualifications (being the body with the requisite skills to make such determinations)? This will extend to all legal staff positions in the AGC&MOJ, Legal Aid, Law Reform Commission, etc.

RESPONSE: No. The JSC should play no role in the appointment and dismissal of Judges beyond providing expert advice, which should be nonbonding. Their mandate should be assisting the Chief Justice in the appointment of the Judiciary staff and the administration of the Judicial branch. For reasons of separation of powers, JSC should not be involved in the affairs of legal bodies outside the Judiciary. Those legal bodies should fall under the authority and mandate of the AGC&MOJ.

(xxxv) If the answer to paragraph (xxxiv) is in the affirmative (Yes), should the name be changed to Judicial and Legal Service Commission or other name?

(xxxvi) Is the composition of the Judicial Service Commission as currently provided in the Constitution sufficient and balanced?

RESPONSE: No.

(xxxvii)If the answer to question (xxxvi) is in the negative (No), what should the composition look like?

RESPONSE: In the interest of separation of powers and Judicial independence, both the President and the Legislature should not make appointments to the JSC (as in some countries.) Nor should the Solicitor General be a member. JSC should comprise members of the Judiciary and legal practitioners and scholars who do not work for either the Executive or Legislative branch.

(xxxviii) The current Constitution provides for the renewal of appointment of members of the Judicial Service Commission after the end of tenure of their office (3 years). Should there be a cap on the number of terms a person can serve as member of the Judicial Service Commission?

(xxxix) Should the National Assembly be involved in confirming the appointments and removal of Judicial Service Commission members by the President (as is currently the case)?

RESPONSE: To reiterate the earlier point, neither the President nor the Legislature should make appointments to the JSC. Another way to put it is: the Judiciary doesn’t pick who works for the Executive and the Legislative branches. Therefore, to be faithful to the principle of separation of powers, these two branches shouldn’t in turn, besides appointing Judges, decide who makes decisions in the Judiciary.

Currently, the President’s imperial hand wields too much sway over the Judiciary. The President appoints Judges (supposedly) after consultation with or on the recommendation of the Judicial Service Commission (JSC). The President may, in consultation with the JSC, terminate the service of a Judge. The President appoints the Judicial Secretary on the advice of the JSC. And of the six members of the JSC, the President has a direct or indirect hand in the appointment of all but one. The President appoints the Chief Justice, a member of the JSC, after consultation with the JSC. The President appoints the Judge of a Superior Court who is a member of the JSC on the recommendation of the JSC. The President appoints the Solicitor General, a member of the JSC. The President appoints the Attorney General who nominates the fourth member of the JSC in consultation with the Gambia Bar Association. The President appoints the fifth member of the JSC on his or her own volition. The only member of JSC the President plays no role in appointing is the National Assembly nominee. Given the Judicial Service Commission’s crucial role in the staffing and administration of the Judiciary, and the President’s predominant role in selecting the members of that same Commission, how can this situation be deemed Judicial independence by anyone’s definition? Can anyone say it passed the sniff test of separation of powers?  

Miscellaneous

(xl) [Should the Constitution continue to embody provision setting periods within which judicial decisions must be rendered (section 124), considering that in practice (especially with the Supreme Court sitting in sessions) various factors could make timely delivery of decisions impractical (notwithstanding the safeguard regarding the validity of judicial decisions in section 124 (3))?]

(xli) [With the Supreme Court now fully established, there’s need to amend the language of section 125 (1) of the Constitution?]

RESPONSE: No. That got without saying it.

(xlii) [In relation to the specific jurisdiction of the Court of Appeal, should specific provision be made extending the jurisdiction to include adverse findings by a commission of inquiry (notwithstanding that section 204 permits one to appeal to the Court of Appeal against an adverse finding)?]

(xliii) Should the qualifications for appointment as Judicial Secretary be specified in the Constitution and, if so, what should make up those qualifications?

RESPONSE: No. That should be in the Judicial Act. But the Judicial Secretary should be appointed by the JSC or the Chief Justice, and not the President.

(xliv) [Would you agree that provisions of the Constitution that relate to judicial procedure should be dealt with through Rules of Court to allow for greater flexibility to effect necessary reforms from time to time?]

RESPONSE: Yes. The same should apply to so many other provisions in various sections of the Constitution to make the Constitution endure the test of time with minimal amendments. The less detailed the Constitution is, the less need there will be for amendments or difficulties in making common sense reforms in the course of governing.

11. Public Finance

Taxes and Budget Estimates

• In relation to the waiver of taxes, where an enactment empowers a public functionary to impose or waive taxes by way of an Order, Regulations or otherwise, should provision be made that such Order, Regulations or other subsidiary legislation be subject to the approval of the National Assembly?

RESPONSE: No. But the Legislature should reserve the power to revoke such a decision.

(ii) Is 14 days (as provided in the current Constitution) not too short for the National Assembly to properly and effectively consider the annual estimates laid before it?

RESPONSE: Yes.

(iii) If 14 days is too short, what should be the appropriate period (if any) to allow proper and effective debate?

RESPONSE: 30 days.

(iv) Is 7 days (as provided in the current Constitution) not too short to require the National Assembly to consider and pass an Appropriation Bill, after the Bill has been introduced?

RESPONSE: Yes.

(v) If 7 days is too short, what time frame (if any) should be prescribed?

RESPONSE 14 days

(vi) Should the Government be allowed to grant loans from public funds (as currently provided in the Constitution)?

RESPONSE: Yes, as long as the Legislature gives its blessing.

Office of Auditor General and Audit

(vii) Are current security of tenure provisions for the Auditor General sufficient – is there a case for the same security of tenure as is available with regard to judges?

RESPONSE: The security of tenure for the Auditor General shouldn’t be elevated to the same level as a Judge. However, the President should only remove the Auditor General for strictly medical reason or criminal conduct.

(viii) Are there additional measures required to ensure greater transparency in audit exercise and publication of audit reports?

(ix) The National Assembly is required to debate audit reports – are the current provisions adequate and clear on such an obligation?

(x) Should the qualifications/disqualifications and experience of the Auditor General be specified in the Constitution in defined (rather than general) terms?

RESPONSE: No.

(xi) Should the appointment of the Auditor General by the President not be in accordance with the advice of the Public Service Commission, instead of after the President consulting the Commission? What appropriate checks and balances should be put in place?

RESPONSE: The President should nominate the Auditor General and the Legislature should confirm the nomination for a term of five years and renewable only once.

(xii) Should the salary/allowance guarantees accorded to superior court judges whereby such salary/allowance cannot be altered without consent of the office holder be extended to other offices (such as Auditor General, Ombudsman, Director of Public Prosecutions, Attorney General, Chief of Defense Staff, Inspector General of Police, Director General State Intelligence Service, Chairman IEC and Chairman HRC)?

RESPONSE: No. As the top brass of the Judiciary, Judges, as a whole, are somewhat co-equal to both the President and the Legislature on the separation of powers scale. These other officials, however, as much as their independence needs to be ensured, should not rise to that same level of constitutional protection. If the fiscal realities of the country require pay cuts, these officials shouldn’t be exempted, unlike the Judges, who may be barred by judicial rules from engaging in any number of other income-earning activities to augment their bottom-lines. The real reason for income security for Judges is to prevent both the President and the Legislature to punish them for adverse rulings that may find the President’s action or decision unconstitutional, or a legislation passed by the Legislature unconstitutional. These other public officials, though they may be mindful of the consequences of stirring the President’s ire, do not have the same concern from the Legislature which passes the budget.

(xiii) Should the National Assembly be empowered in the Constitution to enact legislation to protect persons in the public service, including those within the private sector, who report financial wrongdoings?

RESPONSE: The National Assembly clearly retains that right in the Legislature’s general and implicit powers.

(xiv) What other measures are necessary and justified to prevent the abuse and misuse of public funds that should be considered in the new Constitution?

Central Bank of The Gambia

(xv) Should the Board of the Central Bank of The Gambia be appointed by the President in consultation with the Public Service Commission (as is currently provided in the Constitution) or should the President effect the appointment acting on the advice of the Public Service Commission or other independent institution?

RESPONSE: The President should nominate the Board and the Legislature should confirm them for a certain term that’s renewal not more than twice.

(xvi) In any case, should the appointment of the Governor of the Central Bank be subject to National Assembly approval?

RESPONSE: Yes. And the same standard should apply to the entire Board for that matter.

(xvii) Should the Constitution make specific provision with regard to the qualifications and disqualifications of the Governor of the Central Bank?

RESPONSE: No. The statute should determine that.

(xviii) Should the Constitution make specific provision with regard to the qualifications and disqualifications of the other directors of the Board of the Central Bank?

RESPONSE: No. The statute should determine that.

(xix) Should the security of tenure of the Governor of the Central Bank be specified in the Constitution to be akin to the security of tenure outlined for judges, for instance?

RESPONSE: No. The statute should determine that.

(xx) Should the other members of the Board of the Central Bank be similarly protected for their term in office akin to other superior court judges?

RESPONSE: No. Though it should be an independent entity, the Central Bank is part of the larger Executive branch, and not a co-equal branch to it like the Judiciary.

(xxi) The current Constitution appears to permit a director of the Board of the Central Bank (other than the Governor) to conduct business with the Central Bank provided that the director declares his/her interest and abstains from participating in the meeting at which the interest is a subject of discussion. Does this provision accord with good governance, considering the potential for conflict of interest?

RESPONSE: No.

(xxii) If the answer to paragraph (vii) is in the negative (No), what would you suggest as a measure of good governance that should be adopted?

RESPONSE: They should refrain from doing business with the Bank

12. Land and the Environment

Land Commission

• Should the Constitution be more explicit in establishing the Land Commission (section 192 merely states that there “shall be established a Land Commission whose composition, functions and powers shall be prescribed by an Act of the National Assembly”)?

RESPONSE: No. No such Commission should be in the Constitution. One of Ministries should be tasked with the responsibilities. As argued earlier, we can’t have a government run essentially by Commissions.

(ii) Should this Chapter of the Constitution be more expansive to include identifying the composition, functions and powers of the Commission?

RESPONSE: No.

(iii) If the answer to paragraph (ii) is in the affirmative (Yes), how should the Commission be composed and what should constitute its functions and powers?

(iv) What security of tenure should be accorded to members of the Land Commission to ensure their independence?

(v) Should the role of the Land Commission be expanded to include oversight with respect to integrated land, natural resources and environment preservation to ensure systemic and responsible management and protection?

RESPONSE: Where does it stop? What will the left for elected officials to do by way of policy?

Land, Environment and Natural Resources

(vi) Should specific provision be made in relation to land ownership in The Gambia as between citizens and non-citizens?

RESPONSE: No. Such matters are too mundane for the Constitution. That should be the concern of statute.

(vii) If the answer to paragraph (v) is in the affirmative (Yes), what would you like to see in relation to land ownership in The Gambia?

(viii) What measures should be considered as a mechanism for the adequate protection, conservation, management and sustainable use of The Gambia’s natural resources?

RESPONSE: The Legislative and Executive branches should address these matters in the normal course of governing.

(ix) What specific provisions would you recommend as adequate measures to protect and preserve The Gambia’s environment and ensure clean air?

RESPONSE: Nothing. Such measures will reduce the Constitution to the status of statute.

(x) What other measures do you consider to be sufficiently important to warrant inclusion in the new Constitution in relation to the Land Commission, land ownership and use, and the protection and preservation of The Gambia’s environment and natural resources?

13. Ombudsman, Anti-corruption Commission and Human Rights Commission

• Should the Office of Ombudsman be established under the Constitution and thus accorded constitutional status, instead of having it established through an Act of Parliament (as is currently the case)?

RESPONSE: The Office of Ombudsman is enshrined in the Constitution. That’s all what’s required at the constitutional level. The details should be left to statute as the current Constitution provided.

(ii) Should the appointment of the Ombudsman be prescribed in the Constitution?

RESPONSE: That’s clearly implicit in the current Constitution. It should be maintained as it is.

(iii) If the answer to paragraph (ii) is in the affirmative, should the qualifications and disqualifications of the Ombudsman be prescribed in the Constitution? If so, what should those qualifications and disqualifications be?

(iv) Should the Human Rights Commission function with a panel of qualified and competent individuals whose appointment is prescribed in the Constitution?

RESPONSE: There should be no Human Rights Commission. In spite of its appealing name, a government-appointed/run HRC, independent or not, is ironically more likely to pose threats to the freedoms and liberties of private citizens. The citizens have fundamental human, civil and political rights enshrined in the Constitution. We have the Legislative and Judicial branches to restrain the Executive branch, which is usually the biggest threat to freedoms, liberties and rights of citizens. No other government or public institution can command the same force of authority or bring to bear the same level of power as these two institutional pillars of our democracy and Republic.

(v) If the answer to paragraph (iv) is in the affirmative (Yes), what should be the number of panelists that should be appointed and what qualifications and disqualifications should be prescribed in their case?

(vi) The 1997 Constitution empowers the President to appoint the Ombudsman and his or her deputies in consultation with the Public Service Commission, subject to confirmation by the National Assembly. Does this provide an adequate check and balance to ensure the independence of the Office of Ombudsman? Please provide reasons for your answer?

RESPONSE: No. The running commentary of my response to this Issues Document is all presidential appointments, save the President’s close staff inside the State House, should be confirmed by the Legislature. The President should nominate, and the Legislature votes up or down the nominees. It’s the best, if not the only, way to restrain the President’s imperial sway over the sprawling Executive branch — the Civil and Public Services included. The President consulting with the PSC/JSC is either a joke, when their advice is non-binding, or undermining the authority of the President, when their advice is binding. One is a mere window-dressing while the other is subordinating a higher power to a lower power. The President’s decisions and powers, as the head of the Executive branch, should only be approved or disapproved by a co-equal power, which in this case is the Legislative branch. Therefore, the PSC and JSC should be removed from all constitutional equations concerned with President’s appointment authority.

(vii) While the National Assembly can reject the President’s first nominee for the Office of Ombudsman, it cannot reject the President’s second nominee. Is this a reasonable constraint on the National Assembly’s power to confirm a suitable candidate for the Office of Ombudsman?

RESPONSE: No. It’s a draconian provision that undercuts the Legislature to fully exercise its right to hold Presidents accountable for their choices. President X, for instances, can have two puppets who will be terrible in the Office of the Ombudsman. All the President has to do is submit one as the first nominee. When the Legislature rejects that nomination, the President would now have the other confirmed automatically as his second nominee. There should be no such provision in the Constitution constraining the Legislature’s power to vote down any number of the President’s nominees, Ombudsman or not.

(viii) If the answer to paragraph (vii) is in the negative (No), what would you suggest may be a fair balance to ensure that the Office of Ombudsman is occupied by a suitably qualified person?

RESPONSE: The Legislature’s absolute power to reject any candidate it deems unfit for this or any other office. This will compel Presidents to nominate candidates who are demonstrably qualified. Presidents shouldn’t be  empowered under any circumstance with constitutional loopholes to appoint cronies and puppets to institutions that ought to operate with independence and competence.

(ix) Should there be a term limit for occupying the Office of Ombudsman, panel member of the Human Rights Commission and Chief Executive of the Anti-corruption Commission (for example, maximum of two five year terms)?

RESPONSE: Yes. All Presidential appointments to independent agencies should have term limits.

(x) Should the functions of the Ombudsman, Human Rights Commission and Anti-corruption Commission be prescribed fully in the Constitution (by, for example, transposing the additional functions contained in the Ombudsman Act and Human Rights Commission Act [and any new Anti-corruption Act] into the Constitution)?

RESPONSE: A general provision in the Constitution should state that any Commission, temporary or permeant, established by an Act of the Legislature must function as an independent entity from any administrative or political interference.

(xi) Should the function of the Ombudsman extend to investigating corruption and human rights issues (as currently provided) or should this authority be reposed in an independent Anti-corruption Commission and Human Rights Commission respectively?

RESPONSE: As argued earlier, we don’t need HRC or Anti-corruption Commission. The Office of the Ombudsman already has the required power as the internal agency for accountability in the Executive branch. The Auditor General, the Gambia Revenue Authority (GRA), the Police, the SIS, and the Ministry of Justice will complement on the anti-corruption front. The rest of what an HRC or Anti-corruption can hope to do falls to the Legislature and the Judiciary.

(xii) If the answer to paragraph (xi) is in the affirmative (Yes), should the Anti-corruption Commission and Human Rights Commission be established under the Constitution and provided with all the necessary constitutional protections to function efficiently and effectively?

RESPONSE: No. Enough with these fiefdoms of Commissions. The resources that will have to be allocated to their operations are better invested elsewhere.

(xiii) Should the Office of the Ombudsman have jurisdiction in relation to the security service?

RESPONSE: No. Especially the Armed Forces that is governed by military rules and laws.

(xiv) Furthermore, should the function of the Ombudsman be restricted to matters of maladministration in Government?

RESPONSE: Yes.

(xv) Should the exercise of powers by the Ombudsman be restricted to undertaking investigations and making recommendations to the relevant Government authorities to address?

RESPONSE: Yes. Such reports should be submitted the Legislature, too, for proper oversight.

(xvi) Should the Human Rights Commission be accorded quasi-judicial powers? If so, what should those powers be?

RESPONSE: No. We already have the Courts. And the Judiciary costs a lot of money to maintain. So why create a separate body to carry out a lesser version of their functions?

National Youth Service

• In the light of the manner in which the National Youth Service Scheme operates compared to how it was envisaged under the 1997 Constitution, should National Youth Service be a feature of the new Constitution?

RESPONSE: No.

(ii) If National Youth Service should be a feature of the new Constitution, should it be made compulsory (as currently provided)?

RESPONSE: No. Such a law is anti-freedom

(iii) Should there be evidence of service in the national youth scheme as a condition of employment in the public service (as currently provided)?

RESPONSE: No.

15.  National Council for Civic Education

• Should the National Council for Civic Education (NCCE) be specifically established in the Constitution?

RESPONSE: No. A government run/sponsored Civic Education — though it has a nice ring to it, as these things usually have — will never serve the intended purpose. Rather than actually enlightening the public about their rights as citizens, the body will be completely useless by conducting meaningless “sensitization” programs, or it will be totally counterproductive by engaging in brainwashing propaganda for the State. A well-designed civic education curriculum for schools and a free media are all a nation that hopes to be free and informed needs.

(ii) Is the NCCE adequately empowered under the current Constitution to perform its functions in an efficient and effective manner?

(iii)If the answer to paragraph (ii) is in the negative (No), what measures would you suggest should be adopted to ensure that the NCCE plays a more effective functional role in creating awareness of constitutional matters amongst the wider Gambian society, thus ensuring citizens’ ownership and defence of the Constitution?

(iv)Are there any additional measures that are considered relevant and necessary in relation to the NCCE for inclusion in the new Constitution?

16. Public Enterprises

(i) Should the President be the authority to appoint the chief executive of a public enterprise (as is currently the case under section 175 (3) of the 1997 Constitution, but after consultation with the Board of Directors)? OR

(ii) Should such an appointment power be reserved for the Board of Directors only?

RESPONSE: In terms of appointments, chief executives of public enterprises shouldn’t be treated differently than their counterparts in other public institutions. The President should nominate, the Legislature confirms.

(iii) If appointment of the chief executive of a public enterprise is to be carried out by the Board of Directors, should specific provision be made requiring a vacancy in the Office of a Chief Executive to be advertised publicly to secure the service of a suitably qualified candidate?

RESPONSE:  Public enterprises should not be treated like private enterprises. Their Chief Executives should be appointed by elected public officials — namely the President (by nomination) and the Legislature (by confirmation)

(iv) Should the Public Service Commission have any jurisdiction to provide a public enterprise with guidelines on personnel matters (as is the case under the current Constitution) or should this be left to the public enterprise to determine?

RESPONSE: Yes. The PSC should have the jurisdiction to provide guidelines.

(v) Should chief executive officers of public enterprises be subject to confirmation by the National Assembly (through a Select Committee, for example) before they can be appointed to assume office?

RESPONSE: Yes. The President should nominate, and the Legislature confirms. The President should reserve the discretion of consulting with the Board of Directors or not.

(vi) If the response to paragraph (v) above is in the affirmative (Yes) and considering that the Board of Directors of the public enterprise is appointed by the President, should the Constitution provide security of tenure for chief executive officers of such public enterprises?

RESPONSE: All such appointments should enjoy job security conditional on term limits.

(vii) As a measure of good governance, should public enterprises be required, in addition to preparing and providing an annual report to the National Assembly, to publish their audited accounts in the Gazette and on their website on an annual basis, providing a breakdown on income and expenditure?

RESPONSE: Yes. But the Constitution should only require them to publish the reports for public access, not the specific manner like publishing in the Gazette or a website, since new information platforms that are more widely accessible and cost-effective may be invented in the future.

(viii) Should specific provision be made in the Constitution that the Chief Executive of a public enterprise shall automatically stand dismissed if there is a failure, within a specified period (say 6 months) of the end of each financial year, to provide the National Assembly with the annual report, or to publish the accounts, of the public enterprise, unless the failure to do so is determined to lie with the Board of Directors?

RESPONSE: No. Such matters are too mundane for the Constitution. That’s what statutes, rules and regulations are for. They are easier to amend or repeal when they prove to fall short or defeat their intended purpose.

(ix) Should specific provision be made in the Constitution that the Board of Directors of a public enterprise shall automatically stand dismissed if there is a failure, within a specified period (say 6 months) of the end of each financial year, to provide the National Assembly with the annual report, or to publish the accounts, of the public enterprise, unless the failure to do so is determined to lie with the Chief Executive not providing the Board with the audited accounts?

RESPONSE: No. For the same reason given above.

(x) Are there other measures by which public enterprises can be held accountable to ensure good governance and the good administration of public property?

RESPONSE: Statutes, statutes, leave those to statutes.

17. Reasons for Adverse Decisions

• As part of the process of promoting good governance and good government, should the new Constitution make specific provision requiring persons and authorities with the power to take adverse decisions against public officers to formally state their reason or reasons for the adverse decision to the person against whom such decision is made? 

RESPONSE: No. Statutes, statutes, leave those to statutes.

TOTAL ISSUES FORMULATED = 369

18. Preamble [To be determined during the drafting of the new Constitution]
19. Sovereignty [To be determined during the drafting of the new Constitution]
20. Entrenchment [To be determined upon the drafting of the new Constitution]

RESPONSE: While it is wise to wait how amendments are to be carried out, we should avoid the current Constitution’s method of entrenching certain provisions as too important, and leave the rest to the mercy of the Legislature and the President to amend on their own. Everything in the Constitution should be deemed too important. Otherwise, they should not meet the criteria of the supreme law of the land. They should be left out for the statutes. Since the Legislature and President have no power or authority to bring the Constitution into force, they should have no power or authority to amend any provision of the Constitution. Only the people’s will in a referendum breathe life into the Constitution as the supreme law of the land. The people should, therefore, have the final say on any amendment either through a referendum or a ballot measure during an election. Which means, the entire Constitution should be entrenched. That’s the only way to prevent future Legislatures and Presidents from diluting or doing away with un-entrenched provisions that limit their powers. In other words, they shouldn’t have the power to weaken or remove restrictions on their powers or arrogate to themselves new powers without seeking the expressed consent of the people.

The concern here is neither idle nor hypothetical. No one should forget the sad experience of the nation under an authoritarian President who ordered an oleaginous Legislature several times to amend the Constitution for no other reason but to consolidate more power for himself. And lest we forget, the current President has also pushed for selective amendments not to remedy the defects of the Constitution, but to serve his own immediate political convenience. The lesson of these two examples is clear. Nothing can be more instrumental in shielding the Constitution from the self-aggrandizing machinations and monarchical ambitions of those entrusted the most with its protection and defense than the procedure by which it is amended. Never again can we say we were never warned. The past is the evidence-in-chief.

 

21. Transitional Provisions [To be determined upon the drafting of the new Constitution]