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.