Constitutional Law at Gambia
Constitutional Law of The Gambia
The Constitution of The Gambia serves as the supreme law of the country, providing the legal framework for the governance of the state and the protection of fundamental rights and freedoms of individuals. The Gambia has a unitary presidential republic system of government, and the Constitution defines the structure of government, the separation of powers, and the relationship between the state and its citizens. The Constitution also includes provisions for the protection of human rights, the functioning of public institutions, and the organization of the judiciary.
1. Historical Context of the Constitution of The Gambia
The current Constitution of The Gambia was adopted in 1997 following the country’s return to civilian rule after years of military dictatorship. Prior to that, the country was under military rule from 1994 to 1997, led by Yahya Jammeh after a coup ousted the democratically elected government of Dawda Kairaba Jawara.
The Constitution was drafted with the objective of providing a framework for democracy, securing human rights, and ensuring a separation of powers to prevent any return to military dictatorship.
2. Key Features of The Gambia's Constitution (1997)
The Gambia's Constitution contains several important features, which include provisions for the structure of the state, the powers of the president, the protection of rights, and the judicial system.
a. Supremacy of the Constitution (Section 4)
Supremacy of the Constitution: The Constitution is the supreme law of the land. Any law or act of the government that is inconsistent with the provisions of the Constitution is considered void to the extent of the inconsistency.
The Constitution establishes that it is the highest authority in the country and that all laws, policies, and actions of the government must be consistent with it.
b. The Republic of The Gambia (Section 1)
The Gambia is a unitary republic with a presidential system of government.
The Constitution defines The Gambia as a sovereign, democratic state that operates based on the principles of rule of law and separation of powers.
c. Separation of Powers
The Constitution enshrines the separation of powers between the Executive, Legislature, and Judiciary to ensure a system of checks and balances.
Executive: The President is the head of state and government. The President is elected for a 5-year term and is both the head of the executive branch and the commander-in-chief of the armed forces. The President appoints the Cabinet and is responsible for the administration of government.
Legislature: The National Assembly consists of 58 members, with a mix of elected and appointed members. The National Assembly is responsible for making laws, approving the budget, and holding the executive accountable.
Judiciary: The judiciary is independent and has the power to interpret the laws and ensure justice is done. The judiciary includes the Supreme Court, the Court of Appeal, and other lower courts. The judiciary is empowered to review the constitutionality of laws and executive actions.
d. Bill of Rights
Fundamental Rights: The Constitution contains an extensive Bill of Rights (Chapter IV) that guarantees the protection of civil and political rights, economic and social rights, and cultural rights. Some of these rights include:
Right to life (Section 18)
Freedom from torture and inhuman treatment (Section 19)
Freedom of speech and expression (Section 25)
Freedom of association (Section 26)
Equality before the law (Section 27)
Right to a fair trial (Section 24)
Protection from arbitrary arrest and detention (Section 19)
The Bill of Rights aims to ensure the protection of individual freedoms and liberties while balancing the interests of the state.
e. The President
The President is both the head of state and head of government. The President has significant executive powers, including the ability to:
Appoint government ministers.
Veto laws passed by the legislature.
Issue decrees and regulations.
Grant pardons or reprieves.
Conduct foreign relations and sign treaties.
However, the Constitution also imposes certain limits on the President's powers, such as the need for National Assembly approval for certain actions, including budget approval and appointment of judges.
f. The National Assembly
The National Assembly is the legislative body of The Gambia. It is a bicameral legislature consisting of:
The National Assembly (House of Representatives): Comprised of 53 elected members representing constituencies across the country.
The Senate: Comprised of 7 members appointed by the President.
The National Assembly is responsible for:
Making and amending laws.
Approving the national budget.
Holding the executive branch accountable through questioning and investigations.
g. The Judiciary
The judiciary is independent of the executive and legislature, as guaranteed by the Constitution.
It is tasked with interpreting laws and ensuring that the actions of the executive and legislature are in accordance with the Constitution.
The Supreme Court is the highest court in The Gambia and is the final authority on matters of law. The Court of Appeal is the second-highest court and handles appeals from lower courts.
3. Amendments to the Constitution
The Constitution of The Gambia can be amended, but the process is rigorous and requires:
Approval by the National Assembly: A constitutional amendment must pass with the support of two-thirds of the members of the National Assembly.
Approval by the President: After the National Assembly's approval, the amendment must be signed by the President into law.
Referendum: In some cases, constitutional amendments must be approved by the people in a national referendum, especially when amendments affect fundamental rights or other essential provisions of the Constitution.
4. Notable Provisions and Constitutional Safeguards
a. Protection of Human Rights
The Constitution provides a Bill of Rights that guarantees fundamental freedoms, including:
Equality before the law and protection from discrimination (Section 27).
Freedom of expression, including the press (Section 25).
Right to assembly and association (Section 26).
Protection from arbitrary arrest and detention (Section 19).
These rights serve as a safeguard against the abuse of state power, and the Constitution includes provisions to protect citizens from government overreach.
b. Emergency Powers (Section 34)
In times of national emergency, the President is granted special powers to take action in the interest of national security. However, these powers are limited, and the Constitution provides safeguards to prevent the abuse of such powers, including the right to challenge emergency measures in court.
5. Recent Developments in Gambia's Constitutional Law
After the end of the Jammeh dictatorship in 2017, The Gambia embarked on a process of constitutional reform to further democratize the political system. One of the most significant initiatives has been the reform of electoral laws and the establishment of transitional justice mechanisms to address past human rights abuses.
The Constitutional Review Commission (CRC) was tasked with drafting a new constitution to replace the 1997 Constitution. The CRC’s draft aimed to strengthen democratic institutions, promote human rights, and create safeguards against the abuse of power.
However, despite the proposed reforms, the draft constitution was rejected by the National Assembly in 2020, leading to debates about the political challenges involved in bringing about constitutional changes. Nonetheless, the reform process continues as the country navigates its post-dictatorship transition.
6. Conclusion
The Constitution of The Gambia is the foundational legal document that governs the country’s political and legal systems. It provides a framework for democracy, ensures human rights protection, and maintains the separation of powers among the branches of government. Despite challenges in its implementation and the ongoing debate over constitutional reforms, the Constitution has played a critical role in ensuring stability, good governance, and the protection of citizens' rights.
RELATED Blog
comments