Marr Nyang, Executive Director Gambia Participates
By Marr Nyang Executive Director Gambia Participates
Background
In the 1997 Constitution of The Gambia, section 39 provides that every Gambian of 18 years of age or older shall be entitled to register as a voter and vote in public elections and referenda. By virtue of this constitutional provision, Gambians who are eligible to vote should be registered in the voter roll, regardless of their residency.
In April 2021, the Supreme Court, through a court order directed the Independent Electoral Commission (IEC) to comply with section 39 of the 1997 Constitution in registering eligible Gambians in the diaspora to vote in public elections.
In compliance with this order, the IEC in its electoral reform process through the Elections Bill, 2021 clause 14, provided for the registration and voting of Gambians in the diaspora in public elections. In addition to this clause, the Bill proposes powers for the IEC to draw rules and regulations, in consultation with the Inter-party Committee (IPC) and the executive, in setting the criteria for selection of countries where Gambians in the diaspora can vote during public elections and the appointment of election oQicials to conduct elections in these selected countries.
The Bill has passed the first and second reading stages, went through consultation at the committee stage and it is now before parliament at the consideration stage, where each clause of the Bill is being reviewed. At the consideration stage, Parliament can amend, insert or delete a clause through voting. The threshold of votes is simple majority.
Parliament Pulled the Plug
On March 4, 2025, during the First Ordinary Session of the National Assembly in the 2025 Legislative year, Members of the National Assembly commenced the consideration of clauses in the Elections Bill, 2021.
In a vote of 14 in support and 25 against, the National Assembly voted to delete clause 14 of the Elections Bill which deals with the registration and voting of Gambians in the diaspora.
It is worth reasoning that the definition of Gambians in the diaspora encompasses those in the western world. They also include Gambians living in our immediate neighboring countries.
The deletion of this section means that, for Gambians in the diaspora to vote in public elections, they must travel back and forth The Gambia at least four times in the electoral cycle to get their voices heard through the ballot. This is an expensive undertaken that many Gambians living abroad cannot afford. The principle of free and fair election also means that voters will not be expected to spend exorbitant amount of their income just to be registered and vote in public elections. It is the role of the state and the election management body to facilitate and bring registration centers closer to Gambians, wherever they may be. To start with, the government and IEC could use existing consular and embassy structures as registration center.
Indeed, the legislative intent of section 39 of the 1997 constitution is to franchise Gambians wherever they are to vote in public elections and not otherwise, thus it’s entrenched nature.
Diaspora can vote in the Diaspora if…
Technically, as it stands, eligible Gambians in the diaspora can be registered and vote in public elections, but they must travel to The Gambia in order to be registered. As discussed above, this is unreasonable, expensive and it defeats the purpose of section 39 of the constitution.
What is established in section 39 of the 1997 constitution and the 2021 Supreme Court ruling is, eligible Gambians whether residing in The Gambia or outside the country should be registered and vote in elections.
However, section 88 of the 1997 constitution only recognizes 53 National Assembly constituencies and it is in these constituencies that voter registration and elections are being held since the constitutional amendment of section 88 in 2015.
So, who is responsible for the delimitation of electoral boundaries under the constitution? The powers to demarcate electoral boundaries lies with the Boundaries Commission which is required to be establish by an Act of Parliament, as stated in section 50(1) of the 1997 Constitution. In a situation where the Boundaries Commission is not established by an Act of Parliament, which is the case, the delimitation of electoral boundaries rest with the IEC.
Reading section 50(3) of the 1997 Constitution which states:
“Until the National Assembly establishes a Boundaries Commission under subsection (1), the constituencies as prescribed in Part II of Schedule I to the Elections Decree, 1996 and any additional constituencies, required for the purposes of section 88 (1)(a), demarcated by the Independent Electoral Commission in consultation with the appropriate Department of State shall be deemed to be constituencies for the purpose of returning members of the National Assembly under that section.”
In 2015, section 88 of the 1997 Constitution had to be amended to increase National Assembly constituencies from 48 to 53.
Given the provision of section 50(3) of the constitution, the technical and legal question for constitutional experts is, whether a constitutional amendment of section 88 of the 1997 Constitution is required for IEC to create new constituencies?
Since 1996, there has been legislative intent for Gambians in the diaspora to vote, thought this is limited to Presidential elections only. Section 41 of the Elections Decree 1996 allows the IEC to make rules that will cater for Gambians in foreign countries to vote in a Presidential election. Since election results are announced at constituency level and there currently exists no diaspora constituency, could the IEC use the powers given to it by section 50(3) of the 1997 Constitution to create additional constituencies without subjecting the process to constitutional reform?
Concerted Constitutional Reform Efforts
While the actions of the National Assembly in deleting clause 14 of the Elections Bill, 2021 is condemned by many, it is a commonition for political and constitutional stakeholders to cooperate in achieving the much-needed constitutional reform.
On this specific matter, Schedule 4(a) of the 2024 Draft Constitution could be amended by increasing the number of constituencies from 53 to a reasonable number of seats, proportionate to Gambians residing in different parts of the global continents, or leave the matter entirely with an Act of the National Assembly.