Position of the Edward Francis Small Centre for Rights and Justice on the 2024 Draft Constitution

The National Human Rights Commission (NHRC) has convened a ‘National Convergence on the Draft Constitution 2024’ at the Sir Dawda Kairaba Jawara Conference Centre starting today November 26 to which we were invited. According to the invitation letter,
“This activity aims to engage all the key stakeholders to discuss the provisions of the 2024 Draft with the hope of reaching a broad consensus to avoid the same fate that the 2020 Draft suffered at the National Assembly.”

While we applaud the proactive leadership and responsibility demonstrated by NHRC in convening this event. However, we wish to register our rejection of both the content of the 2024 draft constitution and the approach taken to gazette and lay it before the National Assembly. Our rejection of the content and the process is based on the fact that the constitution making process since 2020 has been hijacked by the Executive, the Legislature, and the political parties to the total exclusion of the people of the Gambia.

Our position is rooted in our appreciation of our history and experience as a nation and the purpose of a constitution.

First of all, we recognize that a constitution is not only a legal framework that establishes this country as a republic in which sovereignty resides in the people where the State, and all its organs and agents derive their legitimacy, authority, and power from the people. 

For that matter, the sole purpose of these organs and agents is to respect, protect and fulfil the human rights of the people. Hence the people themselves should write a constitution to determine how they wish to live in their society. It is not the function of the State, either as the Executive or the Legislature or both to write a constitution for a people. Rather, their task is to create the space and facilitate a process for the people to write their own constitution.

We have noted with regret that the Gambia’s first constitution in 1965 was written by the British Colonialists at the total exclusion of the people. 

The 1970 Constitution was also written and approved by the House of Representatives at the exclusion of the people. 

In 1996 a process was taken to enable the people to write their own constitution for the first time through a constitutional review commission. Upon drafting and submission of the draft the military junta led by Dictator Yaya Jammeh altered that draft constitution to serve the interest of the regime from 1997 and until 2017. 

In 2018, another people-centred process was undertaken to write a new constitution. Unfortunately, upon submission of the draft to Pres. Barrow who forwarded it to the Legislature, the 2020 Draft Constitution was hijacked and rejected on the floor of the National Assembly.

It is therefore clear that since Independence, Gambians have never been able to write their own constitution. Since 1965, all constitutions and draft constitutions, except the 2020 Draft Constitution, have been tailored to serve only public officials, politicians and institutions at the total exclusion and detriment of the people.    

Having learnt from our experience, EF Small Centre holds that this is the moment for Gambians to have the right and the opportunity to write their own constitution by themselves.

Therefore, in rejecting the 2024 draft which we consider to be both unconstitutional and illegitimate, and intended to hijack the sovereignty of the people, we propose the following:

1. The Executive and the Legislature to introduce a bill to review the CRC Act 2017 for the following purposes:
a. To insert new provisions to create a new structure and process.
b. That new structure is the Constituent Assembly comprising a cross section of Gambians, with a timeframe.
c. The CRC Commission established under the CRC Act 2017 will be transformed into a Technical Committee of Experts.
d. All provisions in the original CRC Act 2017 will be reviewed to ensure they strengthen the new structure and process proposed.

2. As the new process, the new Act will require the President to hand over the 2020 Draft Constitution to the Constituent Assembly for review with guidance provided by the Technical Committee. This review process shall continue until the Constituent Assembly comes to unanimous consensus over the whole or part of the draft.

3. The Constituent Assembly will be the approving authority of the draft. When they reach consensus on the final approved draft, the Chair of the Constituent Assembly will submit the final document to the President, who in turns submits to the National Assembly untouched, which in turn sends it to the IEC for a referendum.

EF Small Centre is aware of the urgent need for a new constitution which was a key objective of the 2016 Coalition and the Government since 2017, and desired by most Gambians. Notwithstanding, we do not think the country needs to rush to have any kind of constitution even with all the reservations about the 1997 Constitution. Rather we hold that after 60 years in dealing with poor constitutions, the time has come for the nation to tread with caution and clarity with the best interest of the nation at heart to write a fit and proper constitution. 

We hold that the Gambia needs a new constitution that would create a new republic founded on the principles and standards of republicanism and democracy and shrouded with the values and ethos of our people and culture. We look for a constitution that upholds all sovereign rights of our people, puts in place adequate checks and balances to restrain State power and prevent abuse and corruption. We need a constitution which entrenches the separation of powers, the rule of law and strengthens state institutions to perform and deliver.

Our generation should be the generation to fix this country. We therefore call on all stakeholders to ensure that we have a constitution that the nation deserves.

In the Spirit of Edward Francis Small, For The Gambia Our Homeland