By Bubacarr Drammeh
The Gambia is operating under a unitary government. Under this system, all government powers are concentrated in the central or national government as the only source of authority from which power emanates. Other levels of government therefore derived their validity and relevance from the national or the central government. Thus all powers are concentrated in a simple central government.
Since the Gambia is operating a unitary system of government, it is therefore correct to say it has also adopted a unitary constitution. The constitution of The Gambia is written and rigid. It has a cumbersome or long amendment procedure.
Procedure for amending any provision of the 1997 Constitution of The Gambia that is not entrenched
To amend a non-entrenched provision of the 1997 Constitution of the Gambia, the bill of amendment must be published in at least two issues of the Gazette before the first reading. The latest publication must be not less than three months after the first and must be introduced into the National Assemble not earlier than 10 days after the latest publication. The bill of amendment must also be supported by the votes of not less than three quarters of all members of the National Assembly. Section 226(2) of the constitution provides:
Subject to subsection (4), a bill for an Act of the National Assembly under this section shall not passed by the National Assembly or presented to the President for assent unless-
- (a) before the first reading of the Bill in the National assembly, the Bill is published in at least two issues of the Gazette, the latest publication being not less than three months after the first, and the Bill is introduced into the National Assembly not earlier than ten days after the latest publication; and
- (b) the Bill is supported on the second and third readings by the votes of not less than three quarters of all the members of the National assembly.
This is the procedure required for the amendment of a non-entrenched provision of the 1997 Constitution.
Procedure for amending an entrenched provision of the 1997 Constitution of The Gambia
The 1997 constitution of the Gambia specifically stated the sections that cannot be amended by the National Assemble. To amend them a referendum must be conducted. Section 226(4) of the constitution provides that:
(4) A Bill for an act of the National Assembly altering any of the provisions referred to in subsection (7) shall not be passed by the National Assembly or presented to the President for assent unless-
- (a) the Bill is published and introduced in the manner required by paragraph (a) of subsection (2);
- (b) The Bill is supported on the second and third readings by the votes of not less than three quarters of all the members of the National Assembly;
- (c) The Bill has been referred by the Speaker to the Independent Electoral Commission and the Commission has, within six months of uch reference, held a referendum on the Bill; and
(d) At least fifty per cent of the persons entitled to vote in the referendum have taken part in the referendum and the Bill is supported in the referendum by at least seventy five per cent of those who voted.
Thus, to amend an entrenched provision of the 1997 constitution, parliament must follow the procedures set out in section 226(2)(a) and section 226(4). The entrenched provisions of the constitution are ss. 1, 79(2), 4, 5(1), 6(2), 8, 13(4), 39(1), 42(1), 47(3), 63(1), the first sentence of s. 71(2), the whole of chapter IV, 85 (4), 160 (7), 87,100,120(1) (a), (2), and (3), 121(1), 123, 126, 127, 128, 130, 132, 133, 135(1) and (2), 136, 138(1),(4),(5) and (6), 149(1),151(1),193(1) and 226 – see section 226(7).
From the above it is clear that the procedure for amending the constitution of the 1997 constitution of The Gambia is different from the procedure for enacting and amending ordinary laws.
The National Assembly of The Gambia has amended provision of the 1997 Constitution 49 times in the past 20years. A bulk of the amendments occurred in 2001. Below is a table that shows sections that are amended and the year the amendments were made. You will see that 37 amendments were made in 2001, 3 amendments in 2003, I in 2004, 6 amendments in 2006 and 1 in 2007 and 2009
|
AMENDED SECTIONS |
YEAR AMENDED |
| Section 1(1) | 2001 |
| Section 9 | 2001 |
| Section 12A | 2001 |
| Section 48(3) | 2003 |
| Section 48(4) | 2003 |
| Section 48(5) | 2003 |
| Section 50(3) | 2001 |
| Sections 51-57 | 2001 |
| Section 58(2) | 2001 |
| Section 59(2) | 2001 |
| Section 60(3) | 2001 |
| Section 63(2) | 2001 and 2006 |
| Section 68(4)(c) | 2006 |
| Section 71(1) | 2009 |
| Section 72(4)(c) | 2006 |
| Section 88(1)(b) | 2001 |
| Section 96(1) | 2006 |
| Section 96(2) | 2006 |
| Section 98(1)(b) | 2001 |
| Section 125(1)(c) | 2001 |
| Section 129 (1)(c) | 2001 |
| Section 131(2) | 2001 |
| Section 134(3) | 2001 |
| Section 137(1)(b) | 2001 |
| Section 137(5) | 2001 |
| Section 137A(5)(b) | 2006 |
| Section 137A(7) | 2001 |
| Section 139(1) | 2001 |
| Section 141(4) | 2001 |
| Section 143(3) | 2001 |
| Section 145(1)(f) | 2001 |
| Section 152(1) | 2001 |
| Section 152(1A) | 2001 |
| Section 152(2) | 2001 |
| Section 152(3A) | 2001 |
| Section 178(2) | 2001 |
| Section 178(4) | 2001 |
| Section 179 | 2001 |
| Section 180 | 2001 |
| Section 181 | 2001 |
| Section 182(2) | 2001 |
| Section 184 | 2001 |
| Section 192 | 2001 |
| Section 194(g) | 2007 |
| Section 195 | 2001 |
| Section 198 | 2001 |
| Section 210 | 2004 |
| Section 6(4) Second Schedule | 2001 |
| Section 13(1) Second Schedule | 2001 |
The National Assembly amended section 1(1) without following the procedures laid down in section 226 of the constitution. The amendment was challenged by Kemeseng Jammeh in the Supreme Court of The Gambia on the basis that the National Assembly has no authority to do so therefore the amendment is unconstitutional. The Supreme Court held that the National Assembly acted beyond its powers. Therefore the amendment is unconstitutional thus null and void.
