The constitution-drafting process aimed at ushering in The Gambia’s third republic has reached an unfortunate dead-end. More than two years after the process began, and after a highly acrimonious and polarised parliamentary debate, the proposed Constitution Promulgation Bill, 2020 was recently rejected in the national assembly.
This bill would have brought in a new constitution to replace the 1997 one. But with 23 lawmakers voting against, the backing of 31 fell short of the three-quarters required to put it to a referendum.
The failure to adopt the new constitution is a hurdle in efforts to put the country firmly on the road to democracy. This began when former president President Yahya Jammeh was voted out of office in December 2016, ending his 22 years of dictatorship. His efforts to cling to power failed after the Economic Community of West African States intervened militarily, forcing him to make way for the winner, Adama Barrow.
A new vision for The Gambia included a new constitution and accountability for past human rights violations. A Truth, Reconciliation and Reparations Commission was established to probe human rights violations committed between July 1994 to January 2017.
While this has been a costly exercise, it was worth it. Gambians have grappled with some important constitutional ideas, and reached insights that will be helpful in the long run. Given its great quest for change and the broad consensus that there cannot be any meaningful break with the political past without true and complete reform, I am confident that The Gambia will eventually give itself a new constitution.
Constitutional change and a rebuilding of the foundations for good governance and democracy were a campaign promise of the ruling coalition. The formal process of reviewing the 1997 constitution and drafting a new one started in June 2018 with the appointment of an 11-member commission.
The commission had a two-fold mandate. The first was to review the 1997 constitution and draft a new one. The second was to prepare a report on the draft constitution. The commission solicited the views and opinions of Gambians about issues they wished to see addressed in their new constitution.
The commission began the review by preparing a list of 369 questions and issues on which public opinion was sought. It toured the country, had further consultations and conducted additional household and online surveys.
It held dialogues with various actors, including political parties, central and local government institutions and civil society organisations. In addition, it consulted with Gambians in the diaspora.
Following these consultations as well as some in-depth research, the commission produced a draft constitution, published on 15 November 2019. It then toured the country again to make people aware of the draft and to solicit feedback.
On 30 March 2020, the commission submitted the “Final Draft Constitution and Report” to the President Barrow. In line with requirements in the 1997 constitution, the bill was twice published in the Government Gazette, then introduced in the national assembly on 14 September 2020.
The draft constitution introduced several measures aimed at enhancing and strengthening democracy. They included a presidential term limit, limits on executive power and greater political inclusion of marginalised groups (including women, youth and people with disabilities). The Bill of Rights chapter complied with international and regional human rights standards.
The public had high hopes for significant constitutional change. The personalised politics of the recent past, the undemocratic provisions in the frequently amended 1997 constitution and a complete disregard of the rule of law by the former president left Gambians with a desire for change.
Sadly, these hopes were dashed when the bill did not receive the requisite majority vote in parliament.
One way of trying to determine why it did not pass is to look at who voted against it. From this it is possible to speculate what their main concerns were.
A review of the parliamentary debates suggests that the major concerns were those of the governing party. It took issue with the limitations to the scope of executive power. It also did not like the fact that the presidential term limit would operate retroactively. This provision would ensure the current term of President Barrow would be counted towards his term limit.
The rejection of the bill on its merits means that Gambians will not get to see this version of the 2020 draft constitution in a future referendum. So, what now? The executive has not yet shared any plans, so we are left to speculate.
I foresee two possibilities here. One option is to amend the 1997 constitution to include some of the more progressive provisions in the 2020 draft. The problem with amendment is that it would have to follow the same process as for the promulgation of a new constitution.
In other words, it would require approval of three-quarters of all the members of the national assembly on the second and third readings and would also have to be passed in a national referendum. This further requires a minimum 50% voter turnout with 75% approving.
A second option is to go back to the drawing board. Under this scenario, the Constitutional Review Commission Act would be amended. The commission could either restart the drafting process afresh, or amend the draft to resolve obstacles to a consensus. But this too would be challenging.
The majority of parliamentarians who did support the bill would view a new process with suspicion. On the other hand, given the assertive citizenry and engaged and revitalised civil society seen in recent times, the public is also not likely to buy into any process that produces a watered-down version.
Even if going back to the drawing board was feasible, success is clearly not guaranteed.
An earlier version of this article was published by International Association of Constitutional Law.