By Buba Gagigo
Lawyer Aziz Bensouda has revealed significant amendments and removals in the 2024 draft constitution. Among the most notable is the complete removal of Chapter 5, which focuses on good leadership and integrity. Bensouda shared that this entire chapter has been deleted in the new draft.
Additionally, the draft has reverted to the 72-hour detention period after arrest, which was previously reduced to 48 hours in the 2020 draft by the Constitutional Review Commission (CRC).“There has always been discussion around for how long someone can be detained when arrested. Currently, the law is 72 hours. The 2020 Draft, after consultation with people, they decided to reduce the time to 48 hours. The 2024 draft has canceled the 48 hours to 72 hours,” Bensouda told Kerr Fatou.
He further explained that Chapter 5, entitled “Leadership and Integrity,” emphasized that sovereign authority stems from the people, stressing that public office should be regarded as a privilege and exercised with respect for the Constitution, the people, and the rule of law. Its removal raised concerns for Bensouda.
“The title of chapter five is leadership and integrity. Section 24(1) (of the 2020 draft), is cognizant of the fact that all sovereign authority emanates from the people. So it’s basically saying power is in the people. This constitution recognizes that any responsibility given to a public officer comes from the people. Therefore, that authority should be considered a privilege and public trust and must be exercised in a manner that is consistent with the principles of the Constitution, demonstrates respect for the people and the rule of law, brings honor to the nation and dignity to your office, and promotes confidence, respect, and integrity of the office vested in the public officer. Why is that removed?” Bensouda asked.
He provided an example, stating that there was a section in the same chapter that dealt with the conduct of public officers.
“A public officer shall behave, whether in private or public life, in or in association with any person, in a manner that avoids conflict of interest, in a manner that compromises the public duty or personal interest, or brings their office into disrepute, they have removed that. Basically, the 2020 draft had this section to prevent conflict of interest, but that has been removed,” he explained.
Bensouda also mentioned a section on the financial probity of officers, which required transparency in finances.
“The section says a gift or donation to a public officer or a public official shall be donated to the state through the Anti-Corruption Commission; this was to prevent people giving gifts and donations, but that has been removed,” he said.
Regarding restrictions on public officers, the 2020 draft stated that full-time public officers should not engage in other gainful employment unless allowed by an act of the National Assembly or an express agreement of the government. This section has also been removed.
“Section 28, for people who are dealing with public officials or an organ of the state. The 2020 draft imposed a duty to act honestly and transparently, to respect the people and the rule of law, to maintain and uphold confidence, and the rule of law is also removed,” he said.
Changes have also been made to the right to assembly. Previously, any person had the right to assemble, protest, and petition a public official. In the new draft, while the right to protest remains, the right to petition public officials has been restricted, and assemblies must now adhere to national security and other regulations.
“So in the current draft, they’ve changed the language. You can mobilize and protest, not violently, but you cannot present a petition to a public official, and your assembly is subject to national security. Other rules, and so on,” Lawyer Bensouda explains.
The 2024 draft also alters the right to education. While the 2020 draft guaranteed free and compulsory education for both primary and secondary levels, the current draft limits this to basic education, excluding secondary schooling. Bensouda questioned the rationale behind this change.
“They have made a small change. Under the 2020 draft, basic and secondary education is free, compulsory, and available to all primary and secondary. Under this draft, they have removed secondary, so only basic education will be free and compulsory. So, again, I think the government has to explain why they believe this is essential to remove,” the lawyer said.
Regarding local governance, the new draft makes significant revisions by removing the entire chapter on decentralization. It eliminates the financial autonomy of local councils and the roles of Alkalo and Seyfo. It places local governments under central authority, removing the decentralization envisioned in previous drafts.
“The Constitution does maintain our system of decentralization. It’s an issue of enforcing the law and its implementation. So in 1997, we had autonomy of local government decentralization. In the 2020 draft, the CRC did not change that. In the draft of 2024, they have deleted our whole system of local government. The whole chapter dealing with the local government is amended. So they have deleted the word decentralization.
“They have deleted the autonomy, financial autonomy of Councils, all the sections relating to the local government. They have deleted the establishments of Alkalo and Seyfo. They just have a short section that says there will be an act of the National Assembly that will now provide for the election of mayors. But basically, they’re going to put local governments under the central government and now remove the whole idea or expectation of all rights to autonomy and decentralization,” he explains.
Bensouda also highlighted the deletion of a section on consumer protection that aimed to ensure the right to goods and services of reasonable quality. He expressed concern that Gambians’ expectations for constitutional protection of consumer rights had been disregarded.
“I think people wanted the constitution to protect their rights as consumers because we go through this on a daily basis. You’re buying or paying for goods and services that are of inferior quality, etc. And I think the expectation was that the Gambians wanted protection at the constitutional level of these things that I’ve listed. That is also deleted,” he said.
The lawyer further noted that the new draft eliminates the Supreme Court’s power to oversee the declaration of a public emergency. It also requires the judiciary to submit its budget to the executive rather than the National Assembly.
Other changes include the removal of political party funding regulations, which required parties to report their finances during nomination. Additionally, the new draft revises the provisions for handling a presidential vacancy, allowing a member of the president’s team to complete the remainder of the term, rather than holding elections within three months, as was proposed in the 2020 draft.