By Bubacarr Drammeh
The Gambia gained its independent from Great Britain on the 18th February 1965. It was not until 1970 that it became a Republic. The first constitution of the country was the 1970 Constitution. The said constitution ceased to exist on 22 July 1994 when the constitutionally elected government was overthrown via a military coup. That led to the suspension of the 1970 Constitution. That marks the end of the First Republic and the 1970 Constitution.
The Gambia was governed by the AFPRC for 2yrs and the laws that were in existence were called military decrees. During that period a constitutional committee was setup to come up with a draft constitution that will be presented to the Gambian people in a referendum. The committee drafted the 1997 constitution and a referendum was conducted in 1996. The AFPRC regime at the time did not want the people of The Gambia to vote yes for the constitution because if the NO votes outweighed the YES, it means the committee will have to work on another constitution which will be presented again for another referendum. This will allow the AFPRC regime to continue ruling the country with their decrees. The people who were eligible to vote at the time voted yes, thus the birth of the 1997 Constitution of The Gambia and the Second Republic.
The preamble of the 1997 Constitution has succinctly affirmed that the 1997 Constitution is the will of the people of The Gambia . It states that
We the people of The Gambia have accomplished a great and historic task. We have had our say on how we should be governed. For this Constitution contains our will and resolve for good governance and a just, secure and prosperous society.
This Constitution provides for us a fundamental Law, which affirms our commitment to freedom, justice, probity and accountability. It also affirms the principle that all power emanate from the sovereign will of the people.
…This Constitution guarantees participatory democracy that reflects the undiluted choice of the people. The functions of the arms of government have been clearly defined, their independence amply secured with adequate checks and balances to ensure that they all work harmoniously together toward our common good.
As we usher in the Second Republic and beyond we give ourselves and generations of Gambians yet unborn this Constitution as a beacon of hope for peace and stability in our society and the good governance of The Gambia for all time…
In addition to the above statement of the preamble, section 1(2) of the 1997 Constitution also stated emphatically that the 1997 constitution is the expressed will of the people on how they should be governed. The said section provides that
The Sovereignty of The Gambia resides in the people of The Gambia from whom all organs of government derive their authority and in whose name and for whose welfare and prosperity the powers of government are to be exercised in accordance with this Constitution
From the above, it is clear that the 1997 Constitution of The Gambia is Gambia’s constitution not Jammeh’s constitution. That is why the 1997 Constitution (see section 5) gives the legal standing to any person (I will interpret this to include anyone resident in The Gambia and not necessarily limited to being a Gambian) who feels that the act of any person (including the President) or authority (including the National Assemble) is inconsistence or contravenes the constitution to file an action before a court of competent jurisdiction. Section 5 of the 1997 Constitution provides that:
A person who alleges that-
(a) any Act of the National Assembly or any thing done under the authority of an Act of the National Assembly, or
(1) any act or omission of any person or authority, is inconsistent with; or is in contravention of a provision of this constitution, may bring an action in a court of competent jurisdiction for a declaration to that effect.
- (2) The court may make orders and give directions as it may considered appropriate for given, to such a declaration and any person to whom any order or direction is addressed shall duly obey and carry out the terms of the order or direction.
- (3) The failure to obey or carry out any order made or direction given under subsection (2) shall constitute the offence of violating the Constitution and
- (a) shall, in the case of the President or Vice President, constitute a ground for his or her removal from office in accordance with section 67; and
- (b) any other person who is convicted of that office shall be liable to the penalty prescribed by an Act of the National Assembly.
This provision (i.e. Section 5) has been adhered to by Gambians in the past. In 1998, Lawyer Darboe and others filed a case against the government of Yaya Jammeh for violating the constitution. The case is called A N M Ousainu Darboe & Anor v Inspector General of Police & Anor. In that case, the first applicant (Lawyer Darboe) who was the leader and secretary general of UDP commenced proceedings in the High Court of The Gambia invoking the powers of the court under section 5 and section 37 of the Constitution. Darboe and others were seeking a declaration that the refusal of the respondents (the government especially IGP) to grant them permits to hold political meetings or to use loud speakers, without giving reasons, was inconsistent with section 17(2) of the Constitution and the constitutional rights to freedom of speech and expression (section 25(a)), freedom of assembly and association (section 25(d) and (e)) and freedom from discrimination on the grounds of political opinion (section 33(3)).
The High Court at first dismissed the application stating that it lacks jurisdiction to preside over the matter. The decision of the High Court was appealed by plaintiffs (Darboe and others) to the Court of Appeal. On appeal, the Court of Appeal held that the High Court has the jurisdiction to preside over the case since the action was commenced under section 5(1) and that the appellants’ allegations are related to the fundamental human rights entrenched in sections 18 to 33 of the Constitution. The case was accordingly referred back to the High court.
The High Court in its judgment held that The respondents’ (the government especially IGP) refusal to issue permits to the applicants to hold political meetings without giving any reason justifiable under the Act (or any other existing laws) is an infringement of the applicants’ rights under sections 17(2), 25 and 33(3).
See also the case of Ousman Sabally v. IGP & 2 ors
The constitution has also given us the right and duty to defend it. Section 6(2) of the constitution provides that:
- All citizens of The Gambia have the right and the duty at all times to defend this Constitution and, in particular, to resist, to the extent reasonably justifiable in the circumstances, any person or group of persons seeking or attempting by any violent or unlawful means to suspend, overthrow or abrogate this Constitution or any part of it.
The constitution further provides that a person who resists the overthrow, suspension and abrogation of the constitution did not commit any offence.
- A person who resists the suspension, overthrow or abrogation of this Constitution as provided in subsection (2), commits no offence.
The above provisions have indicated one vital thing, which is that this constitution is the will of the Gambian people. The provisions of the 1997 Constitution must be adhered to by every person irrespective of your status, political belief, religious belief etc. There is no indication in any provision of the 1997 Constitution that it is Yaya Jammeh’s constitution. This constitution belongs to us and we must defend it at all times.
For the past 22yrs our constitution suffered abuses in the Jammeh regime. In some instances the regime was challenged (as indicated above) and many a times it was not. I acknowledged the fact that Yaya Jammeh’s regime was the worst era in the history of the Gambia. Due to his brutality, he was termed as one of the most brutal dictator to have ever lived in the surface of the planet. On human rights, Jammeh is accused of ensuring that there was no freedom of expression, association, liberty etc. he used the law enforcement agencies to eliminate anyone he perceived as a threat to his regime. Gambians were killed, tortured, imprisoned, forced to leave the country (exiled), and some disappeared. Jammeh will go on to terrorize Gambians. He put fear in the psyche of the average Gambian. He attacked people based on their religion practice, ethnicity and political affiliation. He is also accused of raping and molesting women and girls. He harassed people in public and once threatened to kill mandinkas.
Everything aforementioned is inconsistent with the 1997 Constitution of the Gambia, thus a grave violation of the 1997 Constitution. These amongst other reasons let to the movement or revolution or whatever you want to call it, that ousted Jammeh. Everything we did in ensuring Jammeh leaves office was done under the name of the 1997 Constitutions. From the nomination process, campaigns period, elections, announcement of results, resistance to Jammeh’s U-turn, ECOMIG and the swearing in ceremony of barrow. During this period we not claimed that the constitution is Jammeh’s constitution. In fact Jammeh was condemned by Gambians, non Gambians and institutions (such as UN, EU, AU, ECOWAS etc) for violating the 1997 constitution of the Gambia (when he refused to step down).
It is therefore wrong to say the 1997 Constitution of the Gambia is Jammeh’s Constitution. The 1997 Constitution is the Constitution of the Gambia and the will of the Gambian people.
I understand that the constitution has undergone several amendments (48 amendments to be specific). In my next article I will discuss the amendments and whether they are good or Bad.