By Ramatoulie Jawo
During the consideration stage of the Election Bill, members of the National Assembly voted against the inclusion of diaspora voting, effectively rejecting Clause 14 of the proposed legislation.
Lawmakers were divided in the debate over the clause, with some advocating for granting Gambians abroad the right to vote, while others argued that such provisions conflict with the constitution.
Clause 14 of the bill stipulated the registration of Gambians living abroad, stating:
(1) The Commission shall register a Gambian living outside The Gambia as a voter if he or she satisfies the requirements for registration prescribed under this Act,
(2) The Commission shall, in consultation with the Inter-Party Committee and Cabinet, prescribe detailed Rules for the registration and voting of Gambians living outside The Gambia to vote in Presidential elections, referenda, or any other elections as determined by the Constitution or any other law.
(3) The Rules made by the Commission under subsection (2) shall specify (a) the criteria for the selection of foreign countries where elections are to be conducted and (b) the appointment of election officers and the conduct of elections.”
The National Assembly’s joint committee report on the bill highlighted that Clause 14 aligns with Section 141 of the Elections Decree, detailing the process and procedures the Commission must undertake to register Gambians abroad. The clause also mandated the IEC to formulate rules for implementation in consultation with the Inter-Party Committee and Cabinet.
However, the IEC expressed concerns that subjecting it to consultations with these bodies could undermine its independence. As a result, the committee recommended an amendment, replacing the requirement for consultation with the “Inter-Party Committee and Cabinet” with consultation with the “National Assembly.”
Hon. Sainey Jawara, National Assembly Member (NAM) for Lower Saloum, argued that the Constitution does not currently allow diaspora voting. He emphasized that any inclusion of such a clause would necessitate a constitutional amendment.
On the other hand, Hon. Sulayman Saho, NAM for Central Badibou, strongly opposed this view, accusing Hon. Jawara of misinterpreting the Constitution. He cited Section 39, which grants every Gambian citizen aged 18 and above, with sound mind, the right to vote in presidential and National Assembly elections. He argued that the Constitution does not specify residency as a requirement and stressed that Gambians abroad should be allowed to exercise their right to vote.
“That does not interpret that the person must be a resident of that constituency. These people are bona-fide citizens of the country that should be registered. We have been denying them their right to participate in politics, we must give them an opportunity to be registered,” he emphasized.
Attorney General and Minister of Justice Dawda A. Jallow referenced a Supreme Court ruling in the Bakary Bunja Darboe case, affirming the right of Gambians to be registered to vote. However, he explained that Section 39 is an entrenched clause requiring voter registration within a National Assembly constituency. Since the diaspora is not currently designated as a constituency, an amendment to Section 88 would be required to create such a constituency before diaspora voting could be implemented.
“But the fact of the matter is section 39 (1) is an entrench clause, and it says you should be registered in a National Assembly constituency, this is true, the diaspora is not in a National Assembly constituency. National Assembly constituencies are under section 88, 53 currently, now even if this clause is allowed to pass, IEC will not be able to implement it for the diaspora until they demarcate the diaspora into a constituency and that means section 88 has to be amended to increase the number of national assembly constituencies in order to be able to allow the diaspora to vote. So it’s a situation of the chicken and the egg. Do you give them the authority to demarcate? because again I take the historical context, when this bill was presented there was also a draft constitution in progress, it was believed that the draft constitution would have adequately covered some of these inadequacies that are contained here. So if you give them the authority now to register the diaspora, they still will not be able to do it in light of section 39 unless they demarcate diaspora into a National Assembly constituency, and for that to happen, they have to amend the constitution,” he said.
Minister Jallow further clarified that a 2015 constitutional amendment, which increased the number of National Assembly seats from 48 to 53, introduced the phrase “at least” to allow for future expansion. While additional constituencies could be created without amending Section 88, the demarcation of diaspora voting constituencies would still be required to comply with Section 39 before any registration could take place.
“So it is at least 53, so which mean the number of constituencies can be increased without necessarily amending the 88, but still demarcation have to happen in order to register, so compliance with section 39 is mandatory It has to complain with section 39 diaspora has to be demarcated before any registration can take place.”
Following the heated debate, the Speaker called for a vote. Fourteen members supported maintaining Clause 14, while 25 voted against it. No members abstained, leading to the clause’s rejection.