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Momodou



Denmark
9466 Posts

Posted - 15 Nov 2019 :  13:26:50  Show Profile Send Momodou a Private Message  Reply with Quote
The Draft Constitution is here:
https://crc220.org/wp-content/uploads/2015/12/CRC-DRAFT-CONSTITUTION.pdf



A clear concience fears no accusation - proverb from Sierra Leone

Momodou



Denmark
9466 Posts

Posted - 15 Nov 2019 :  18:30:07  Show Profile Send Momodou a Private Message  Reply with Quote
STATEMENT BY THE CHAIRPERSON OF THE CONSTITUTIONAL REVIEW COMMISSION JUSTICE CHERNO SULAYMAN JALLOW, QC (JSC)
ON THE OCCASION OF THE PUBLICATION OF THE PROPOSED DRAFT CONSTITUTION OF THE REPUBLIC OF THE GAMBIA, 2020


Friday, 15th November, 2019
CRC Conference Room
Futurelec Building
Kotu, KSMD


Let me begin by welcoming you, the members of the media, to this historic dialogue with the Constitutional Review Commission (CRC). We have had many interactions during which we updated you on matters concerning the ongoing assignment of the CRC. And you played your part, within the spirit of the partnership we’ve developed from inception, in imparting relevant information to the general public. We remain satisfied with the partnership and assure you of our continued cooperation as we get closer to the finishing line to “perfect” and deliver a new Constitution for the Republic of The Gambia.

2. We at the CRC are fully aware that many, if not all, of our compatriots are waiting in anticipation to see and learn of what the proposed draft Constitution contains and, perhaps even more importantly, whether the draft achieves the goal of addressing their wishes and aspirations. I am pleased to announce, on behalf of my colleague Commissioners and indeed the Secretary and staff of the CRC, that in a matter of minutes from now we will publish the proposed draft Constitution. The purpose of the publication, as we had indicated during our various public consultations, is to continue the inclusive and participatory process of Gambians in the design and development of the new Constitution for The Gambia. The eleven Commissioners are merely leaders in this exercise, but the draft Constitution is effectively the effort of all who have participated and continue to participate in its development.

3. However, I consider it important to take us back a little bit to where the CRC started. The CRC was established by the Constitutional Review Commission Act, 2017 (CRC Act) through the enactment by the National Assembly and the President. This was seen as particularly necessary given the history of the current Constitution which had undergone numerous amendments to the extent that not all were in agreement on the actual number of amendments effected to it in a short span of time. It therefore became necessary to review the current Constitution with a view to ensuring the development of a new one that can stand through thick and thin for generations to come.

4. On June 4th 2018, His Excellency the President of The Republic appointed and swore into office the members of the CRC who immediately went to work commencing on 5th June, 2018. Under the CRC Act, the CRC has 18 months to review, draft and deliver a new Constitution. That journey, though tough on many occasions, turned out to be a very rewarding and satisfying one for all of us. We are indeed grateful that we have together been able to reach this far in the execution of our assignment.

5. Throughout the execution of our assignment, the CRC Act has been our guide, ensuring at all times that we adhere as closely as possible to the terms of the Act. Specifically, section 6 (2) of the Act requires that, in carrying out our functions, we seek public opinion and take those into account as considered appropriate, adhere to national values and ethos, and safeguard and promote the existence of The Gambia as a sovereign independent State, the country’s republican system of governance, including its democratic values and respect for human rights, the separation of powers, national unity, cohesion and peace, the importance of ensuring periodic democratic elections, including term limit for the Office of President, and The Gambia’s continued existence as a secular State in which all faiths are treated equally and encouraged to foster national cohesion and unity. In this process, we were also required to afford Gambians, both at home and abroad, the opportunity to express their opinions and indicate their wishes and aspirations. In addition, we were empowered to invite persons to appear before the CRC to freely express their opinions. In performing all of these functions, the CRC was to remain independent and not subject to any direction or control.

6. Following the development and adoption of various strategic documents and the hiring of necessary support staff, the CRC embarked on various forms of public consultations. We had the face-to-face in-country public consultations and focus group discussions at which we had direct face-to-face dialogue with specific interest groups including Schools; we also undertook and conducted household surveys using The Gambia Bureau of Statistics (GBOS)’ enumeration areas; we rolled out online questionnaires soliciting opinions; we invited written comments and recommendations from the general public and civil society groups; we had the external face-to-face public consultations with Gambians in select jurisdictions; we facilitated in-house consultations at individual and institutional levels; we met with officials of the three organs of government and had good discussions, as we similarly did with the registered political parties; we received a number of other stakeholders outside the country who engaged the CRC on general and specific issues; we also received communication from external international institutions. In addition to all of these initiatives and efforts, we were able to benefit from the expert partnership and guidance of the International Institute for Democracy and Electoral Assistance (International IDEA); I am proud to say that we continue to enjoy that partnership.

7. We believe that the CRC has taken adequate strides to reach out to Gambians at all levels to hear and learn from them and receive proposals for constitutional reform.

8. When the CRC embarked on the process of consulting with the Gambian public and other stakeholders on the review of the 1997 Constitution, we knew expectations were quite high in terms of what the people wanted to see reflected in their new Constitution. These expectations were clearly manifested during the face-to-face dialogue with our people; these were equally manifested in the written submissions we received, including in the other consultation platforms used by the CRC. It was only legitimate that the people had such high expectations. Our job at the CRC, in addition to listening and recording their views and aspirations, was to manage the expectations. We’ve made it very clear in all our public consultations that while we would take into account every opinion canvassed with the CRC, the reality was that not every opinion would likely find its way into the draft new Constitution. We got the impression that generally people understood that.

9. On our part as the CRC, we have found the opinions expressed by the general public, including all of our other stakeholders, very illuminating and referenced real issues. Some were of a constitutional nature; some were of a statutory nature (that is, matters that properly should be left to legislation enacted or to be enacted by the National Assembly); others related to issues of policy and clear failures of implementation of existing laws. Our remit is to deal with constitutional law issues. However, our Report (which will accompany the final draft of the new Constitution) will, where considered appropriate, reference the non-constitutional issues that have been raised so that the authorities concerned become aware of them (if they’re not already) and hopefully take necessary steps to address the people’s concerns.

10. As already noted, one of the guiding principles for the CRC under the CRC Act is to “seek public opinion and take into account such proposals as it considers appropriate”. On the one hand, the CRC is expected to consult with and consider public opinion; on the other hand, it is expected to factor into the draft Constitution such opinions as it considers appropriate. Ordinarily, this is not always the easiest to do. In our case, the burden has been lightened by the multiplicity of excellent ideas we have received from the public.

11. In reviewing the current Constitution, we also have an obligation to consider international treaties that The Gambia is a party to and, consequently, under which it has certain legal obligations. Furthermore, we have to consider what constitutes international best practice in relation to certain specific subject matters. We also have an obligation to “adhere to national values and ethos” as provided in section 6 (2) (c) of the CRC Act. The end result of taking all these elements into account is that what may, in certain cases, constitute public opinion may not necessarily translate into a constitutional text; yet, on the other hand, what constitutes international best practice may not necessarily become a constitutional requirement if, all things considered, it does not represent the “national values and ethos” of The Gambia. I say these things simply to make the point that we have thoroughly considered all the relevant variables in arriving at decisions with respect to the draft Constitution.

12. Our team of statisticians, under the guidance and direction of the former Head of Programmes, has been vigorous in collecting, collating and tabulating all data received to establish the public opinion canvassed. For all the various platforms used to consult with the general public, the team was able to provide the quantitative and qualitative analysis of the collected data to map out the areas in which the strength of opinion lies. The CRC has, in turn, relied on that data to determine the wishes and aspirations of the Gambian people, contrasting that against The Gambia’s treaty obligations and international best practice. Weight has been given to national values and ethos.

What’s new in the draft Constitution?

13. The draft Constitution comprises 20 Chapters (3 Chapters less than what is contained in the current Constitution); it has a total of 315 clauses. And perhaps I should pause here to state that some of our compatriots, particularly those in the diaspora, had expressed the wish for a leaner Constitution. We took note of their wishes and carried out research into comparable jurisdictions. We have come to the conclusion that while a leaner Constitution may be desirable, it ought not to be the yard stick by which we measure the strength and effectiveness of the Constitution. We have taken into account the fact that we have a young democracy with not so strong institutions – one of the things we have attempted to rectify in the draft Constitution – and the need to ensure clarity. Many of the recent constitutions we have considered, especially those in Africa, have chosen the path of strengthening democratic governance with a good measure of clarity. We, therefore, have the option of taking the approach of a leaner Constitution that leaves much to statutory development and legal interpretation or concentrating on teasing out issues that are fundamental to the development of our young democracy, irrespective of the size of the Constitution. We have equally considered the general public opinion canvassed with the CRC, especially by our rural communities, to have a Constitution that is crafted in simple language and easier to read and understand. In this context, we have chosen the latter approach, shying away from the “danger” of leaving too much of too many fundamental issues to interpretation.

13A. Each Chapter of the draft Constitution addresses a different issue, although in some instances certain Chapters have a correlation with provisions contained in other Chapters. Appropriate sectional references and cross references are made where necessary in order to ensure clarity and/or avoid or prevent inconsistencies. These are necessary aspects of drafting. In essence, the draft Constitution we present to the Gambian public today is the embodiment, as we have been able to discern from the opinions canvassed with the CRC, of the people of The Gambia. We have crafted them in a manner that we consider best represents constitutionalism in our young democracy as we look forward into the future.

14. The draft Constitution has a Preamble which revises the Preamble of the current Constitution to embody elements considered fundamental to the Constitution, including placing emphasis on respect for the rule of law and fundamental rights and freedoms. It also places emphasis on good governance, separation of powers, sustainable environment and equitable distribution and use of resources, and equality before the law.

15. In terms of what is new in the draft Constitution (and I’m sure that’s an area many will be interested in), the following may be noted though not comprehensive in themselves:

(1) In the first Chapter dealing with the Republic and sovereignty of the people, specific provision is made to declare The Gambia as a multi-party democratic State that is founded on respect for the rule of law and the national values and principles of governance enshrined in the Constitution. In addition, it identifies the three organs of government (Executive, Legislature and Judiciary) to whom the sovereign power of the people is delegated and on whose behalf that power must be exercised for the welfare and prosperity of the people. We also take account the emphasis placed by the people on empowering local government authorities and the importance of devolution of government;

(2) Chapter II clarifies that a treaty The Gambia has entered into does not automatically become law unless it is transposed into domestic legislation. The courts are empowered to have due regard to international human rights treaties that The Gambia is a party to where that is considered necessary to aid the interpretation or application of a provision of this Constitution with respect to any right or freedom;

(3) The core area of public opinion, however, centred on issues relative to the values of Gambians as a people and concerns for good governance. In that regard, we found it necessary and have created a new Chapter II on National Values and Principles of Governance and a new Chapter V on Leadership and Integrity, which bind all State organs, Local Government Authorities, public officers and all other persons, whether holding elective office or otherwise or merely having some form of relationship with government. Specific provision is made outlining the duties and obligations of citizens, including the duty to protect and preserve public property, and to expose or engage in any lawful act to prevent the misuse and waste of public funds and property. Accordingly, any person who is engaged in that endeavour is protected against any form of prosecution.

(4) Chapter IV deals with Citizenship. In addition to preserving the existing citizenship of Gambians, provision is made to remove the distinction between Gambians born within and outside the country – that is, citizenship by birth and by descent. The Commission sees no value in this artificial distinction when in reality they enjoy the same status and privilege as citizens. In this vein, any person born of parents one of whom is a citizen of The Gambia is to be treated as having the status of a citizen by birth.

In equal measure, a child of not more than eight years found in The Gambia with unknown parents is to be presumed to be a citizen by birth.

In relation to non-Gambians who have lived in the country for fifteen years or upwards and wish to naturalise, they no longer have to give up their original citizenship if, based on the laws of their country of origin, a Gambian can naturalise without giving up his or her Gambian citizenship – this applies the principle of reciprocity.

A non-Gambian (man or woman) who is married to a citizen of The Gambia and had, since the marriage, been ordinarily resident in the country, is entitled to be registered as a citizen of The Gambia upon application.

A non-Gambian child who is adopted by a Gambian parent is entitled, on application, to be registered as a citizen of The Gambia.

Generally, Gambians were of the opinion that a child born in The Gambia of non-Gambian parents should be accorded automatic citizenship. The Commission considered the resource implications of such a measure which requires further in-depth research and assessment, which the Commission could not do having regard to the tight timeframe within which it has to deliver on its mandate. It, however, giving due regard to the public’s views on the subject, empowers the National Assembly to consider registration as a citizen of The Gambia of a person who, on or before 15th November, 2019, was born in The Gambia of non-Gambian parents, if the person had, since his or her birth, lived in The Gambia. This will allow sufficient time to carry out the necessary research and assessment on the resource implications to take an informed decision. The Commission further formed the considered view that in order not to open the floodgates to citizenship without a thorough consideration of the resource implications, this process should be limited to children born in The Gambia to non-Gambian parents as at today’s date. The National Assembly is further empowered to enact legislation, where it considers it necessary, to enable other persons to acquire citizenship of The Gambia if they are not eligible to become citizens under the draft Constitution. This may include persons who fall within the category of Descendants of African Slaves, who made strong submissions to the CRC to be considered for some form of “fast track” citizenship;

(5) In Chapter V on Leadership and Integrity, provision is made to the effect that a gift to a public officer (which includes any person occupying elective office) on a public or official occasion or on account of the office he or she holds, is a gift or donation to the State or the institution he or she represents and shall be handed to the State or the institution concerned;

(6) Chapter VI provides general principles relative to respect for fundamental human rights and freedoms and incorporates economic and social rights, including provisions on the rights of the elderly, right of access to information, right to a clean environment, right to fair labour practices, rights of the youth, right to development, consumer protection rights, rights of the sick, and duty to ensure gender balance and fair representation. The right to education is elaborated on to provide such right to extend to free education up to secondary school level. The right to free tertiary education, including university level, is provided for but to be attained progressively. The rights relating to communication and the media are now made part of the Chapter on fundamental rights and freedoms and elaborated on. All these rights are in addition to the fundamental rights and freedoms enshrined in the current Constitution and may be described as justiciable. Consequently, the Commission has dispensed with the Chapter in the current Constitution on the Directive Principles of State Policy;

(7) Chapter VII relates to the Representation of the People and outlines general principles of the electoral system and makes further provision requiring a continuous voter registration system of eligible voters, and eligibility to contest election as an independent candidate. The current Independent Electoral Commission (IEC) is being transformed into the Independent Boundaries and Electoral Commission (IBEC) and given the constitutional authority for the delineation of electoral boundaries. The IBEC’s functions are outlined, including the method of boundaries delineation.

The obligation of political parties to declare to the public their revenues and assets, and the sources of those revenues and assets is provided. This is in addition to publishing to the public annually their audited accounts within six months of the end of the financial year, failing which the Independent Boundaries and Electoral Commission may deregister a defaulting political party. Only citizens of The Gambia may make contributions or donations to a political party registered in the country.

The candidates of each political party contesting National Assembly elections must be made up of at least ten percent youths;

(8) The Executive is provided for in Chapter VIII and makes the following new provisions:

(a) Where the President takes a decision or issues a directive in the performance of any function under this Constitution or an Act of the National Assembly, the decision or directive must be in writing, and must bear the seal and signature of the President;

(b) Where the signature of the President is required on any instrument, the signature must be confirmed by the Public Seal;

(c) Where a person acts or purports to act on a decision made or a directive given by the President which does not comply with these two requirements, the person will be personally liable if any loss or other harm results to the State as a consequence of his or her action;

(d) Election to the Office of President is to be held three weeks before the end of the term of the incumbent President, and the winner of the election to the Office of President assumes office on the day after the date of expiry of the incumbent President’s term of office

(e) All candidates for election to the Office of President and National Assembly Member are required to declare their assets to the Anti-Corruption Commission at least twenty-one days before the election;

(f) The Independent Boundaries and Electoral Commission is required, as soon as possible, but in any case not beyond seventy-two hours, after the polls are closed to declare the result of the Presidential election and the winner thereof;

(g) Amongst other required qualifications for election to the Office of President, a candidate must hold a minimum of an undergraduate degree plus five years’ work experience after the date of attaining that degree, or
hold a minimum of a senior secondary school certificate or its equivalent plus twelve years’ work experience after the date of attaining that certificate;

(h) A candidate for election to the Office of President is elected if the candidate has received more than half of all the votes validly cast in the election (that is the absolute majority or 50% + 1 vote);

(i) The President cannot hold office for more than two terms of five years each, whether or not the terms are consecutive;

(j) The President is to declare his or her assets within three months of assuming office and must similarly declare those of his or her spouse; the same process is repeated within three months of demitting office in respect of the assets acquired since assuming the Presidency. The Vice President and Cabinet Ministers will be bound by the same requirements;

(k) The President is prohibited from establishing, or advocating for, participating in or promoting the establishment, or in any other way engaging in the establishment, directly or indirectly, of any organisation or institution of a civic, charitable or other nature;

(l) Considering the importance of the Office of President and as a way of ensuring dignity to the Office and office holder after demitting office, benefits are outlined for the President when he or she demits office;;

(m) The number of Cabinet Ministers a President can appoint is capped at fifteen, excluding the Attorney General and Minister of Justice;

(n) The offices of Cabinet Secretary, Chief of Staff to the President and Solicitor General and Legal Secretary are established;

(9) The National Assembly is constitutionally established and the following new provisions are made:

(a) Only elected members shall constitute the National Assembly;

(i) 53 elected from single member constituencies;
(ii) 14 elected women, two from each Administrative Area; and
(iii) 2 persons, elected by persons with disabilities from amongst the members of the federation representing such persons;

(b) There is no residency requirement to be eligible for National Assembly election, although a candidate must satisfy the other qualifications outlined in the Constitution;

(c) The method for initiating a recall of an elected member of the National Assembly is provided for;

(d) Considering the increased size of the National Assembly, provision is made to enable the Assembly to elect two Deputy Speakers;

(e) The positions of Majority Leader and Minority Leader of the National Assembly are established;

(f) The business of the National Assembly is to be conducted in the English language or in any other language indigenous to The Gambia, and the Assembly is required to encourage and facilitate the progressive realisation of the use of languages indigenous to The Gambia in the conduct of the business of the Assembly within five years of the coming into force of the draft Constitution;

(g) Provision is made to enable members of the public to petition the National Assembly on any matter within the authority of the Assembly; and

(h) The National Assembly Service Commission is established to deal with staff matters relative to the Assembly;

(10) In respect of the Judiciary, the following new provisions have been created:

(a) Provision is made outlining the principles of justice;

(b) The Chief Justice and all other judges of the superior courts must be Gambians; however, provision is made allowing for the recruitment and appointment of non-Gambians in circumstances where a sufficient number of Gambians are not available for appointment to a particular judicial office;

(c) The Supreme Court is given supervisory jurisdiction over all other superior courts, while the High Court and Shari’ah High Court have such jurisdiction over the subordinate courts under them;

(d) The Shari’ah High Court is established, with jurisdiction to hear and determine Shari’ah causes or matters relating to adoption, marriage, divorce, burial, inheritance, or endowment (waqf); the Cadi Courts are to be transformed into Shari’ah Courts;

(e) In view of the restrictions placed on a judge who has retired from office, provision is made for benefits, provided the judge has served for a specified number of years;

(f) The composition of the Judicial Service Commission has been streamlined to make the institution more democratic;

(11) In response to the overwhelming public opinion to empower local government authorities, a new Chapter has been created on Local Government and Decentralisation. Included in this, is provision for the election of Seyfo; the office of Alkalo remains to be dealt with in accordance with traditional lines of inheritance. In order to restore the tradition that abounds the offices of Seyfo and Alkalo, a person in such office serves for a life time unless removed (on specified grounds) or the office holder resigns. Both Seyfos and Alkalos are prohibited from taking part in partisan politics as they are traditionally the nucleus of community unity, peace and stability;

(12) A new Chapter XII is created on Independent Institutions and Offices. Included under this Chapter are the National Human Rights Commission, Anti-Corruption Commission, Ombudsperson, Auditor-General, and Central Bank of The Gambia. These institutions and offices are considered pivotal to good governance and are constitutionally protected with appropriate checks and balances. Although established under a separate Chapter, the Independent Boundaries and Electoral Commission is governed by some of the provisions contained in this Chapter. Commissions of inquiry are also placed under this Chapter, essentially retaining the features of the current Constitution;

(13) Chapter XIII deals with Public Finance. It makes specific provision for financial support to local government authorities and the need for public consultation on matters relating to the imposition of taxes to enable members of the public to express their views on tax proposals.

(14) A new Development Fund has been created for purposes of providing basic services including water, roads, health facilities and electricity to marginalised groups and disadvantaged areas to the extent necessary to bring the quality of services with respect to those groups and areas to the level generally enjoyed by the rest of the nation, so far as possible. Specific provision has been made in relation to public procurement;

(15) A new Chapter XIV has been created on Land, Environment and Natural Resources. Provisions are made on land ownership by Gambians and non-Gambians, including the establishment of the Land, Environment and Natural Resources Commission;

(16) Chapter XV deals with the Public Service and, in addition to the Public Service Commission, three new service commissions have been established, namely (under this Chapter) the Teachers Service Commission and Health Service Commission and (under Chapter XVI) the National Security Service Commission. The Office of Secretary General has now been specifically established to be the Head of the Civil Service and to function purely on professional matters pertaining to the public service. In addition, the Office of Permanent Secretary is established;

(17) The security service sector is dealt with under Chapter XVI, with the establishment of the National Security Service Commission having defined functions.

(18) Chapters XVII and XVIII respectively deal with National Youth Development and the National Council for Civic Education.

(19) Chapter XIX deals with Amendments to the draft Constitution, outlining the entrenched and non-entrenched clauses. Specific provision is made prohibiting the National Assembly from amending the Constitution to extend the term of the President beyond what has been constitutionally mandated;

(20) Chapter XX considers and establishes Miscellaneous matters considered relevant to the proper interpretation and construction of the provisions of the draft Constitution. Specific provision is made to the effect that no power exercised, or an order given, on the basis of an executive directive issued by any person or authority shall be inconsistent with the draft Constitution or any other law, and any directive issued in that regard is not to be acted upon by any person if the directive is so inconsistent; and

(21) The draft Constitution concludes with three Schedules. The first relates to identifying the Administrative Areas of the country; the second outlines the constituencies in respect of which elections may be held; and the third Schedule deals with matters pertaining to transitioning from the current Constitution to the draft new Constitution. Under the third Schedule the current term of the incumbent President is considered in the context of the term of office of a person who is elected to the Office of President. Having carefully researched and considered this subject, the Commission has come to the decision that the current term of the current President of the Republic is to count in computing the maximum term one can serve in the Office of President – that is a maximum of ten years as provided in the draft Constitution.

16. This is just a summarized rundown of the new elements contained in the draft Constitution. We urge the general public to carefully review the provisions and provide the CRC with their considered and constructive opinions to assist the timely finalisation of the draft Constitution. We do not by any means suggest that this is a perfect draft, but together we can produce a final draft that hopefully will serve The Gambia going into the long future.

17. What is left to be said now is for me to express words of appreciation: First to the Government and the National Assembly, for seeing the wisdom in the need to review the current Constitution which had undergone numerous amendments and to draft a new one that is people-centred.

18. Second to His Excellency the President of the Republic, for appointing all eleven Commissioners on the strength of the belief and confidence that we can discharge the functions given to us to review the current Constitution. We can only hope that we are on the right path to vindicating that belief and confidence.

19. Third to the Hon. Attorney General and Minister of Justice (under whom this project falls), for his outstanding support and encouragement to the CRC and to me personally. He has throughout this journey (which is yet to reach its destination) been relentless in his support and even took the opportunity to visit the CRC Office to see the environment for himself and see how he could assist to make our work even more conducive. Yet in all this process, neither he nor any other person in Government has ever interfered with our work.

20. Fourth to the Office of the President, for their support in facilitating all of our public consultations, especially in relation to providing needed transportation to carry out our assignments.

21. Fifth to the Minister of Finance and his Ministry, for the timeous provision of funding to the CRC to ensure that we operated within the terms of our mandate without undue delay.

22. Sixth to the Ministry of Foreign Affairs, for facilitating all of our external consultations and, in particular, to their Permanent Secretary, Mrs. Salimatta Touray, and our Ambassadors, High Commissioners, Consul Generals and all their support staff in the countries we visited for wonderful arrangements to guide our work.

23. Seventh to the people of The Gambia and all other stakeholders, including civil society organisations, for taking their invaluable time to attend our public consultations, participate in our surveys and questionnaires and providing written recommendations. We appreciate every single thought that has gone into their efforts, for it is those efforts that have lightened our work at the CRC.

24. Eighth to our wonderful partners – the UNDP, International IDEA and ECOWAS – with whom we interacted regularly and who either provided direct financial support or technical advice and strength or simply stood with us as we journeyed to this date.

25. Ninth to members of our various Technical Committees in the areas of public finance management; media, public education and communication; land, environment and natural resources; constitutional law; and Constitution Drafting and Report Writing. They all have acquitted themselves creditably and served their country well. I say thank you on behalf of all at the CRC. To our two external consultants, Prof. Dr. Albert Fiadjoe of Ghana and Justice Willy Mutunga of Kenya, we at the CRC are truly proud of your support and sterling work in assisting us with our assignment. You both, from inception, adopted and renewed your commitment to The Gambia. For that, we are enormously grateful.

26. I end up with the last, only because it was and has always been the first: the members of the media. You started this journey with us and you’re still here and you’ve vowed to continue that partnership right to the end when we submit the final draft Constitution. You’ve done well not only for the CRC, but even more for your country. You should each be proud of yourselves for the hard work and dedication to this national course and we at the CRC remain forever grateful for your kindness and candour.

27. Finally and on a personal note, I would like to recognise the staff of the CRC, both past and present. You have been very supportive to the cause of the CRC. I know you have been quite patient with my many demands and those of my colleague Commissioners and I thank you for being quiet with them to allow us to get on with it.

28. Finally (Finally), to my most able and hardworking Commissioners. You have been my anchor in this project. I have relied on your expertise, patience and guidance to help me steer with you this constitutional review process. I know we still have some way to go, but I believe that with the continued commitment to professionalism we can get to the end successfully together. I want to recognise and thank you for your very kind efforts.

29. I conclude by, once again, commending this proposed draft Constitution to the Gambian people and our other stakeholders inviting their constructive comments and suggestions to enable the CRC to prepare a final draft to submit to HE The President for further attention.

30. I am now pleased to announce that the CRC draft Constitution of the Republic of The Gambia is published, both online and in hard copies. I thank you all! And may the Almighty God who knows better and has power over all else and all things continue to guide and protect our constitutional review and development process. Amen.

A clear concience fears no accusation - proverb from Sierra Leone
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Momodou



Denmark
9466 Posts

Posted - 16 Nov 2019 :  07:08:12  Show Profile Send Momodou a Private Message  Reply with Quote
EXPLANATORY MEMORANDUM TO THE PROPOSED DRAFT CONSTITUTION

https://crc220.org/wp-content/uploads/2015/12/EXPLANATORY-MEMORANDUM.pdf

CHAPTER 1 – THE REPUBLIC AND THE SOVEREIGNTY OF THE PEOPLE
This Chapter in sections 1 to 5 recognizes that The Gambia is a Sovereign Republic and a multiparty Democratic State. All sovereign power belongs to the people of The Gambia and is exercised in accordance with the Constitution. This Chapter, unlike the 1997 Constitution, provides a framework for the definition of the territory of The Gambia, its national days and further establishes the two levels of government: the national government and the local governments. Devolution of government is important because it ensures that decisions are made closer to the local people and communities they affect. The recognition of the need for devolution of Government in the first Chapter is a key development.

CHAPTER II – THE CONSTITUTION AND THE LAWS
This Chapter in sections 6 to 9 installs the Constitution as the supreme law of The Gambia and stipulates the other laws of The Gambia. It further contains provisions on how to enforce provisions of the Constitution. This Chapter introduces broader rules on locus standi (standing) in enforcing the provisions of the Constitution. These rules effectively enable a person to initiate legal action by virtue of being a member, or in the interest, of a group of persons, or to act in the public interest, or an association to act in the interest of one or more of its members. This Chapter for the first time makes it clear that treaties to which The Gambia becomes a party form part of the laws of The Gambia after they have been ratified and domesticated.

CHAPTER III – NATIONAL VALUES AND PRINCIPLES
This Chapter is new and provides for national values and principles of governance which are meant to bind all State organs, Local Government Authorities, public officers and all other persons in sections 10 to 12.
It recognizes culture as the foundation of the nation and as the cumulative civilization of the Gambian people and nation. It further outlines the duties of all Gambian citizens, which include the duty to promote and protect the prestige and good reputation of The Gambia, the duty to foster national unity, cohesion and live harmoniously with others, the duty to protect and conserve the environment, and the duty to be loyal to The Gambia and contribute to its defence when necessary. These values and duties are important for nation-building in that they encourage orderliness, credibility, tolerance, hard work, patriotism and the equitable distribution of resources.

CHAPTER IV – CITIZENSHIP
This Chapter contains sections 13 to 21 and defines who a citizen of The Gambia is and how to acquire Gambian citizenship.
The Chapter preserves the citizenship of persons who were citizens of The Gambia before the coming into force of the draft Constitution. A distinction is no longer made between citizens by birth or citizens by descent. Children of 8 years or under who are found in The Gambia and whose parents are unknown are presumed to be Gambian citizens. It also provides for citizenship by registration to persons who marry Gambian citizens and continue to be ordinarily resident in The Gambia for a period of 5 years (reduced from 7 years). Citizenship by
naturalization is also provided for but naturalized persons are no longer required to renounce their original nationality if their country of origin does not require Gambians who wish to naturalise to renounce their Gambian nationality. Non-Gambian children adopted by Gambian parents can apply to register as Gambian citizens. Dual citizenship, restoration of citizenship and deprivation of citizenship are also provided for. The National Assembly is further empowered to make a provision for registration of persons born in The Gambia to nonGambian parents on or before 15th November 2019 and for registration of persons who are not eligible for Gambian citizenship under this Chapter.

CHAPTER V – LEADERSHIP AND INTEGRITY
This new Chapter is in sections 22 to 29 and deals with leadership and integrity, which are significant attributes in a genuine democracy. It covers areas such as responsibilities of citizenship, conduct and oath of public officers, financial probity of public officers, restrictions on the activities of public officers and obligations of persons dealing with public officers in the service of the State. The Chapter further provides that persons contravening its provisions commit the offence of violating the Constitution and may be subject to disciplinary process or termination of contractual relationships.

CHAPTER VI – FUNDAMENTAL HUMAN RIGHTS AND FREEDOMS
The protection of fundamental rights and freedoms is a key feature of any democracy. This Chapter provides for fundamental human rights and freedoms in sections 30 to 79 with notable new provisions (listed below). The Chapter provides for the enforcement of civil and political rights as well as economic, social and cultural rights. It is divided into two Parts.

Part I – General provisions on fundamental human rights and freedoms This Part provides for the objectives of human rights, the enforcement and implementation of rights guaranteed in the Chapter and the authority of the courts in dealing with rights and limitation of rights. Unlike the 1997 Constitution, this Chapter introduces a new provision imposing a positive obligation on the State to respect and uphold the rights guaranteed in the Constitution.

Part II – SPECIFIC RIGHTS AND FREEDOMS This Part provides for specific rights and freedoms which include civil and political rights, economic, social and cultural rights and group rights. In particular, economic, social and cultural rights that are currently provided for in the 1997 Constitution as directive principles of state policy are now made justiciable in this Chapter. The right to access to information is also introduced. Instead of maintaining the current Chapter in the 1997 Constitution on the media, this Part makes rights relating to the media and media freedom enforceable as fundamental rights. Rights of the youth, the elderly and the sick and consumer protection rights are also introduced for the first time. The right to a clean environment and the right to development are also provided for the first time in this Chapter. In applying economic, social and cultural rights, this Chapter for the first time imposes an obligation on the State to show, where it claims that resources are not available, that it has given priority to ensuring the widest possible enjoyment of these rights having regard to the prevailing circumstances. A general clause on limitation of rights is also introduced. This Chapter further provides for non-derogable rights during a period of national public emergency and also contains more progressive rules on locus standi (standing) in enforcing human rights provisions in the Constitution.

CHAPTER VII – REPRESENTATION OF THE PEOPLE
This Chapter contains sections 72 to 82 and provides for the Franchise, establishment of the Independent Electoral and Boundaries Commission (renamed from Independent Electoral Commission) and Political Parties in three Parts.

Part I – FRANCHISE This Part contains a novel provision on general principles for the electoral system, guarantees the right to register and to vote and makes general provisions on the franchise.

Part II – THE INDEPENDENT BOUNDARIES AND ELECTORAL COMMISSION This Part establishes the Independent Boundaries and Electoral Commission (IBEC), its composition and functions. The name change from the Independent Electoral Commission has been necessitated by the fact that the IBEC is now constitutionally mandated to demarcate electoral boundaries.

Part III – POLITICAL PARTIES This Part deals with political parties. The Part, unlike the 1997 Constitution, requires political parties to respect the rights of all persons to participate in the political process, including women, youth, persons with disabilities, and other marginalised groups. Each political party is required to ensure that at least ten percent of candidates for election to the National Assembly are youth.

CHAPTER VIII – EXECUTIVE
This Chapter provides for the Executive in sections 83 to 131. It has 5 Parts.
PART I – GUIDING PRINCIPLES OF EXECUTIVE AUTHORITY
This Part provides that Executive authority is derived from the people of The Gambia and that such authority is vested in the President who shall exercise the authority in a manner that accords with the rule of law. It further provides that the Executive comprises the President, Vice President and members of the Cabinet and that the Executive shall reflect the diversity of the Gambian people.

PART II – OFFICE OF PRESIDENT, POWERS AND DUTIES
This Part establishes the Office of President. The President shall be the Head of State and of Government and the Commander in Chief of the Armed Forces of The Gambia. The Part further requires the President to uphold the law at all times, to safeguard the sovereignty of The
Gambia, to uphold, promote and enhance the unity of Gambians and to uphold and promote respect for the diversity of the people of The Gambia. The powers of the President are also defined and he or she is required to address the National Assembly on matters concerning the state of the nation at least once a year. Decisions or directives issued by the President are required to be in writing, a novel provision, and must also bear the seal and signature of the President and whoever acts contrary to these requirements resulting in loss or injury to the State shall be personally liable. Where an inquiry into the President’s mental or physical capacity is initiated, he or she is required to step down temporarily until the inquiry is completed and when this happens, the Vice President shall assume and perform the functions of the Office of President. This is new. Where the Vice President is unable to assume office, the Speaker shall assume and perform the functions of President.

PART III – ELECTION TO THE OFFICE OF PRESIDENT
This Part provides that the election of the President in a national election is to be held three weeks before the end of the term of the incumbent President. It outlines the qualifications and disqualifications for election as President. The nomination of candidates for election to the Office of President is also provided for and candidates are required to satisfy the conditions and procedures laid down in this Part. This Part further requires the Independent Boundaries and Electoral Commission to declare a candidate elected as President if the candidate has received more than half of the votes cast at the election. If no candidate is elected at the first election, the Commission shall hold a fresh election within fourteen days where the two candidates who received the most votes would be the only contestants. This is a departure from the simple majority rule in the 1997 Constitution. The Independent Boundaries and Electoral Commission is required to declare the results and the winner of the election within seventy-two hours and to deliver a written notification of the result to the Chief Justice. This is also a novel provision. Where the President-elect dies before assumption of office and before a Speaker is elected to assume office, the Chief Justice is sworn as acting President until a Speaker is elected. The Independent Boundaries and Electoral Commission is then required to conduct a fresh presidential election within ninety days. This is also new. This Part further provides that a person declared as winner of a presidential election shall assume office on the day after the expiry of the incumbent President’s tenure. The winner of the election shall then subscribe to the prescribed oath to be publicly administered by the Chief Justice and if the Chief Justice is not available, the most senior judge of the Supreme Court. These are new provisions. A registered political party or an independent candidate who has participated in a presidential election may apply to the Supreme Court challenging the validity of the election. If the presidential election is declared invalid, the Independent Boundaries and Electoral Commission shall conduct a fresh election within ninety days.

PART IV – TERMS AND CONDITIONS OF OFFICE OF PRESIDENT
This Part provides that the term of office of President is five years and bars any person from holding office as President for more than two terms of five years. This is a novel provision meant to prevent self-perpetuation in office. The President is required, within three months of assuming office, to disclose all his or her liabilities, business interests and assets to the AntiCorruption Commission. The President is further required to disclose all his or her liabilities, business interests and assets to the Anti-Corruption Commission within three months after leaving office. These requirements are similarly applicable to the spouse of the President. This Part bars a sitting President from holding any other public or private office or to engage in the establishment of any organization or charitable institution. It provides for the immunity of the President from civil and criminal proceedings, but only while in office. The immunity does not extend to acts, omissions or offences committed while in office. Both provisions are new. This Part further provides that where the Office of President for any reason becomes vacant, the Vice President or, if the Vice President is unable to assume office, the Speaker, shall assume office as acting President. If the Speaker is unable to assume office, the Chief Justice shall assume office as acting President. The procedure to be followed where the President is found incapable of performing the functions of Office of President by reason of his or her mental and physical capacity is provided. The procedure to be followed where the President is to be removed by impeachment is prescribed. The grounds for impeachment are abuse of office, failure to adhere to the oath of office of President, violations of provisions of the Constitution, obstruction of justice and misconduct.

PART V –OFFICES IN THE EXECUTIVE (i) Vice President and Ministers
This sub-Part establishes the Office of Vice President who is appointed by the President within thirty days of assuming office. The National Assembly confirms the appointment of the Vice President. It prescribes the qualifications and disqualifications for the Office of Vice President and the functions and vacancy in that Office. The Office of Vice President shall become vacant on the death or resignation of the holder of that Office, on the revocation of the appointment of that person or if the holder of that Office assumes the Office of President. The appointment of Ministers including the Attorney General is provided for in this sub-Part. This sub-Part further prescribes the qualifications and disqualifications of Ministers. It also specifies when the Office of Minister becomes vacant. The Vice President and Ministers shall be responsible for such ministries and departments the President may assign to them. The Vice President and Ministers are required to declare their assets, liabilities and business interests within three months before they leave office and within three months after they leave office. The holder of the position of Vice President or Minister is barred from holding any other public or private office during his or her tenure, use his or her office for personal gain, establish or advocate for or participate in or promote the establishment of a charitable organization or institution. These are improvements on the 1997 Constitution. An obligation is further imposed on the Vice President and Ministers to report to the National Assembly whenever required to do so. The National Assembly by a resolution supported by not less than two-thirds of all members can pass a vote of censure against the Vice President or a Minister.
ii. The Cabinet This sub-Part establishes the Cabinet and further prescribes its composition and functions. The office of Secretary to the Cabinet is provided for in the Constitution. It is provided that The Gambia Government shall not enter into an agreement which would make The Gambia lose its sovereignty. It is further provided that treaties signed by the President shall be ratified by the National Assembly. Committees on Prerogative of Mercy Committee and an Honours and Awards Committee are also provided for and their compositions spelt out.

iii. Other Public Offices This sub-Part establishes the Office of Chief of Staff to the President and his or her responsibilities. This is new. The Office of the Director of Public Prosecutions is also established independent of the Office of Attorney General. This is also new. CHAPTER IX- LEGISLATURE Chapter IX is divided into eight Parts and deals with the Legislature which is an organ of State and is responsible for enacting laws, providing oversight on the Executive and approving financial expenditures of the Government among other functions . The principles that guide its functions and members are necessary for the effective performance of their roles.

PART I – PRINCIPLES OF PARLIAMENTARY GOVERNANCE

This Part deals with the principles of parliamentary governance and the relationship between members of the National Assembly and the citizens. It is important that to pursue and promote democratic governance both the citizens and the National Assembly are able to hold the Executive accountable and ensure good leadership that fosters national cohesion, unity and peace. This Part is new and considered fundamental to democratic governance. It reinforces the National Assembly’s accountability to the people of The Gambia.


PART II – ESTABLISHMENT AND COMPOSITION OF THE NATIONAL ASSEMBLY Under this Part, the CRC in its deliberations and consultations with the citizens recognized, and took on board the views expressed by the citizenry on the vulnerable status of the youth, women, and persons with disabilities and the need to encourage them to actively participate in politics. The strong opinion that cannot be ignored was to prescribe a procedure that would enable this group to be adequately represented in the National Assembly. Thus the provision of the present composition of the National Assembly to include a number of women and persons with disabilities, in addition to those who may be elected from single member constituencies.

The Part as proposed also establishes the National Assembly as an organ of State, prescribes the qualification and disqualification of its membership, election of members and gives opportunity to citizens to be able to recall their members.

PART III – LEADERS OF THE NATIONAL ASSEMBLY This Part establishes the offices of the leaders of the National Assembly, their order of precedence, their roles and functions as well as providing for their remuneration. This is important for the orderly execution of the mandate of members of the Assembly. The leaders are the Speaker, Deputy Speaker, Majority and Minority Leaders. The Part further provides for their election.

PART IV- SESSIONS AND SITTINGS OF THE NATIONAL ASSEMBLY The National Assembly is to sit in sessions and requires a quorum before it can sit. There is an obligation for members to attend sittings, unless they are otherwise excused, in order to effectively represent their constituents.

The Part makes provision for the first session of the National Assembly after every general election to be fixed by the Clerk and announced in the Gazette by way of a Proclamation. The time for other sessions is to be determined by members of the National Assembly although the President may request the Speaker to summon a session in the event of a declaration of war or a state of emergency.

PART V- LEGISLATIVE AND OTHER POWERS OF THE NATIONAL ASSEMBLY This Part makes provision for the exercise of legislative power by the Assembly. It prescribes how Bills and motions are to be introduced and passed. This is an important regulation of a fundamental procedure to be followed by the Assembly. The same Part prohibits the Assembly from passing a Bill that would establish a one party state, state religion or alter the decision or judgment of a court in any proceedings or retroactively deprive a person of a vested or acquired right.


PART VI- PROCEDURE IN THE NATIONAL ASSEMBLY This Part sets out the procedure to be followed when the National Assembly is sitting. It also provides for the language to be used in the Assembly, which includes facilitating the use of local languages. The Part further provides for how decisions are reached, and spells out the required quorum for each sitting.

PART VII- NATIONAL ASSEMBLY SERVICE COMMISSION This Part establishes a National Assembly Service, and a National Assembly Service Commission, for the National Assembly to deal with administrative and staff matters of the Assembly.

PART VIII- RESPONSIBILITIES, PRIVILEGES AND IMMUNITIES

In the performance of their functions, members of the Assembly are to be responsible to their constituents and above all act in the best interest of the country. This Part recognizes and makes provision for immunity to be given to members for whatever they may say during deliberations at the Assembly and offers privileges to witnesses who appear before the Assembly.

CHAPTER X- JUDICIARY

This Chapter is divided into six parts and deals with the Judiciary as an organ of State, and provides for matters relating to the administration of Justice.

PART I- PRINCIPLES GOVERNING THE ADMINISTRATION OF JUSTICE This Part lays down the governing principles for the administration of justice. It seeks to promote the Rule of Law and to ensure that the law is administered fairly without regard to the status of anyone. It also makes provision for reasonable compensation to be paid to a victim. It ensures and reinforces judicial independence. Judicial authority is vested in the courts, which cannot be taken away. This Part is new.


PART II -OFFICE OF THE CHIEF JUSTICE AND JUDICIAL SYSTEM This Part establishes the Office of the Chief Justice. It also addresses the overwhelming views of Gambians that the Chief Justice must be a Citizen of The Gambia. It also outlines the different courts in The Gambia.

PART III- SUPERIOR COURTS AND JURISDICTION This Part establishes the superior courts, prescribes their respective jurisdiction and composition. It provides for the very first time for the establishment of the Sharia’h High Court, to hear appeals from the Sharia’h Court. It also provides for appeals from the Shariah High Court to the Court of Appeal and onwards to the Supreme Court. This is new.

PART IV- THE JUDGES This Part deals with the appointment of judges, the qualification for appointment, tenure of office and their remuneration and retirement benefits.

PART V- ADMINISTRATION OF THE COURTS Under this Part, the office of Judicial Secretary is established and provisions are made for administrative and financial matters of the judiciary.

PART VI- THE JUDICIAL SERVICE COMMISSION The appointment of judicial officers and judiciary staff is regulated under this Part. The Judicial Service Commission is established to be responsible for matters of appointment and other related staff matters and to assist in the general administration of the judiciary.


CHAPTER XI-LOCAL GOVERNMENT AND DECENTRALISATION This Chapter recognizes the importance and relevance of local government and effective devolution of power for the overall development of The Gambia. It reinforces the participation of people at grass root level to participate in the development of their communities. It also seeks to empower Local Government Authority to enable them carry out their functions effectively.

PART I- PRINCIPLES OF DECENTRALISED LOCAL GOVERNMENT

This Part deals with local government administration and devolution of power. It lays down the principles of decentralization to be observed by the Government and Local Government Authorities and prescribes the systems of local government.


PART III - ESTABLISHMENT AND COMPOSITION OF LOCAL GOVERNMENT AUTHORITES Under this Part, the Local Government Authorities are established, their powers and functions defined to ensure their autonomy and independence in the dispensation of their functions. The participation of people in grassroots politics and development of their communities as well as preservation of the natural resources, the environment and cultural values of each local government area is a key objective of this Part.


PART III- ELECTION AND TERMS AND CONDITIONS OF APPOINTMENTS OF LOCAL GOVERNMENT AUTHORITIES This Part provides for election of members of Local Government Authorities and their term of office. Provision is also made for the financial autonomy and accountability of Local Government Authorities.

PART IV-OTHER OFFICES OF LOCAL GOVERNMENT AUTHORITIES (SEYFOS AND ALKALOS) In this Part, the institution of Seyfos and Alkalos as traditional rulers is recognized. Provision is made for the appointment of Alkalos in accordance with traditional lines, and election of Seyfos on a non-partisan basis. This is in accordance with the strong views and submissions received from the public consultation. The tenure of office, qualifications and disqualification of holders of these two offices is prescribed under this Part. Once they assume office Seyfos and Alkalos serve for life unless the office becomes vacant in accordance with the terms of the Constitution.

It is recognized that the traditional role of the Seyfos and Alkalos is to foster harmony within their communities and to that extent they are prohibited from open participation in partisan politics when executing their functions of office.

CHAPTER XII- INDEPENDENT INSTITUTIONS This Chapter, which is divided into seven Parts, is novel and it recognizes and caters for certain institutions that are vital to public administration and the economic development of The Gambia. The rationale being to build strong institutions for an enduring democracy. It seeks to ensure independence and security of tenure of the governing bodies of these institutions. This ensures effectiveness and prevents executive interference. The National Human Rights Commission and the Anti-Corruption Commission are provided for in the Constitution, for the very first time.

PART 1- ESTABLISHMENT OF INDEPENDENT INSTITUTIONS AND OFFICES

Under this Part independent institutions are established and their objects, funding, finances and reporting obligations clearly stated. Provision is made for appointment and qualification of office holders.

PART II- NATIONAL HUMAN RIGHTS COMMISSION This Part provides for the composition, functions and powers of the Commission which is established as an independent institution.

PART III- ANTI CORRUPTION COMMISSSION This Part provides for the Commission’s composition, functions and powers.

PART IV- THE OMBUDSPERSON This Part provides for composition, functions and powers of the office.

PART V- THE AUDITOR- GENERAL AND NATIONAL AUDIT OFFICE Under this Part, the Auditor General is to be appointed and his or her powers and functions are prescribed. One crucial role of the Auditor –General is to audit the accounts of the Government, state organs as well as the Local Governments Authorities among others.

PART VI- CENTRAL BANK OF THE GAMBIA This Part establishes the Central Bank as banker to the Government and makes provision for its functions which includes supervising, regulating and directing monetary policy, the currency system and banking sector.

PART VII- COMMISSION OF INQUIRY This Part gives the President the power to establish commissions of inquiry and sets out the powers and functions of a commission of inquiry.

CHAPTER XII- PUBLIC FINANCE This Chapter is divided into six parts and deals with Public finance which is important for proper management of public funds, good financial governance, which are vital for peace, stability, development and good democratic governance. The Chapter deals with taxation, public funds, loans, grants, the budget and public procurement. PART I- PRINCIPLES OF PUBLIC FINANCE This Part makes provision for the principles that would direct public finance in the country.


PART II- TAXATION Under this Part, provision is made for the raising of taxes and how taxation is to be administered in the country. It controls waiver and variation of taxes and prescribes the procedure to be followed for imposition, waiver or variation of taxes.

PART III-PUBLIC FUNDS


The public funds are created and provision is made for the administration of each fund which requires transparency and accountability. Some protective mechanisms have been put in place to prevent misuse of public funds.

PART IV- LOANS, GRANTS, GOVERNMENT GUARANTEES AND PUBLIC DEBT This Part regulates how loans are to be contracted and the management of the public debt among others. It recognizes the oversight role of the National Assembly regarding the public debt.

PART V- BUDGET Under this Part provision is made for the Annual Estimates of Government which are to be laid before the National Assembly for approval. The procedure to be followed for passing an Appropriation Bill or a Supplementary Appropriation Bill is prescribed.

PART VI- PUBLIC PROCUREMENT This Part provides a framework for the regulation of public procurement and requires transparency in all procurements to prevent corruption.

CHAPTER XIV- LAND, NATURAL RESOURCES AND THE ENVIRONMENT This Chapter has three Parts and recognises and reinforces the importance of land, natural resources and the environment. It is being provided for the very first time in the Constitution. It incorporates the views generated during the public consultations relating to ownership of land by citizens and non-citizens, dwindling of natural resources and the emerging environmental challenges. PART I -PRINCIPLES OF EQUITABLE USE OF LAND, ENVIRONMENT AND NATURAL RESOURCES The principles governing the equitable use, management and protection of land, environment and natural resources are set out in this Part as a guide.

PART II- LAND, ENVIRONMENT AND NATURAL RESOURCES COMMISSION This Part establishes an independent Commission with powers and functions that are geared towards proper administration of land and equitable use of natural resources and the environment.

PART III- GENERAL PROVISIONS This Part regulates land ownership by citizens and non-citizens. It limits the land ownership rights of non-citizens and recognizes the different types of land tenure.

CHAPTER XV-THE PUBLIC SERVICE This Chapter has four Parts and deals with the Public Services of The Gambia. It is a response to the demands of the public to create separate service commissions for Teachers, Health Service Providers and the traditional Civil Service. Thus, the Teachers Service Commission and the Health Service Commission are created for the very first time in the Constitution. It also makes provisions for State Owned Enterprises. State Owned Enterprises are entrusted with responsibility for the management of vital sectors of the economy of The Gambia. It provides for the security of tenure of the Chief Executive Officers and members of their Governing Boards, so as to protect them from executive interference. PART I- THE PUBLIC SERVICES OF THE GAMBIA Under this Part the public services of The Gambia are created and appointments, removals, retirement as well as qualification for appointment of office holders are set out. Restriction is placed on political activities by public officers.

PART II– SERVICE COMMISSIONS (i) General provisions This sub-Part establishes three service commissions for the Civil Service which are the Public Service Commission, Teachers Service Commission and the Health Service Commission to be responsible for appointment of officers, their disciplinary control, removal from office of such officers under their control. A secretariat is established to provide support, guidance and proper streamlining of the work of the service commissions.

(ii) Public Service Commission This Commission is to ensure that the public service is efficient and effective and to provide for development of human resources while affording adequate and equal opportunities to everyone. The jurisdiction of the Public Service Commission does not extend to the National Assembly, the Judiciary, the Security Services and a service in the Local Government.

(iii) Teachers Service Commission This Commission is responsible for appointment of teachers, assigning them to schools and reviewing the standards of education and training needs of those entering the teaching service, among others.

(iv) Health Service Commission This Commission is responsible for appointments into the field of health and health care delivery system and for the development of human resources within the health care system. It is to ensure that there is an efficient and effective health care delivery system.


PART III- GENERAL PROVISIONS ON SERVICE COMMISSIONS Provision is made for the qualifications, tenure of office as well as the independence of the service commissions under this Part.

PART IV- STATE OWNED ENTERPRISES This Part regulates the appointment, qualification and disqualification of board members and the Chief Executive of a State Owned Enterprise. It makes provision for a body to monitor the operations of State Owned Enterprises. The said Enterprises are to submit their annual report to the National Assembly.

CHAPTER XVI- NATIONAL SECURITY This Chapter has four Parts and deals with national security. It expands the membership of the National Security Council and provides for the establishment of the National Security Service Commission, a novel provision.

PART I- THE SECURITY SERVICES AND NATIONAL SECURITY COUNCIL The Security Services and National Security Council are created under this Part with their functions clearly defined.

PART II- ARMED FORCES The Gambia Armed Forces are defined and regulation is made for appointments in the Armed Forces.

PART III- THE POLICE FORCE The Gambia Police Force is established and provision is made for its objects and functions in addition to the appointment of its head.

PART IV-NATIONAL SECURITY SERVICE COMMISSION This is a Commission to regulate appointments and other matters relating to employment of persons within the security service.

CHAPTER XVII – NATIONAL YOUTH DEVELOPMENT This Chapter lays down the principles of youth development which should guide the State in matters relating to the youth.

CHAPTER XVIII- THE NATIONAL COUNCIL FOR CIVIC EDUCATION This Chapter establishes the Council, sets out its functions and the qualification and disqualification of its members.

CHAPTER XIX –AMENDMENT OF THE CONSTITUTION This Chapter makes provision on how the Constitution is to be amended. It also makes specific provision prohibiting the National Assembly from amending the Constitution to increase the term of the President contrary to the prescribed term. This is new.

CHAPTER XX-MISCELLANEOUS This Chapter has Parts providing for miscellaneous matters.

PART I- APPOINTMENT, RESIGNATIONS, ETC This Part regulates appointments and resignations of public officers and prescribes other duties and powers such as the duty not to act on an unlawful directive.

PART II- GENERAL

This Part provides for the Interpretation of the Constitution, construction of various powers and makes transitional and consequential provisions. It also repeals the existing Constitution.

SCHEDULES The draft Constitution provides three Schedules. The first relates to the administrative areas of The Gambia; the second outlines the constituencies for the National Assembly elections; and the third creates transitional and consequential provisions.

The third Schedule establishes the Constitution Implementation Commission with responsibility for the implementation of the Constitution. In addition, the Schedule clarifies that the term of office of the incumbent President shall count in computing the maximum term that can be served in office.

A clear concience fears no accusation - proverb from Sierra Leone
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Momodou



Denmark
9466 Posts

Posted - 17 Nov 2019 :  14:39:44  Show Profile Send Momodou a Private Message  Reply with Quote
What’s new in the draft Constitution?


Excerpt from Justice Cherno Sulayman Jallow Statement at the unveiling of the draft Constitution for The Gambia!

'The draft Constitution comprises 20 Chapter (3 Chapters less than what is contained in the current Constitution); it has a total of 315 clauses.

The draft Constitution has a Preamble which revised the Preamble of the current Constitution to embody elements considered fundamental to the Constitution, including placing emphasis on respect for the rule of law and fundamental rights and freedoms.
Specific provision is made outlining the duties and obligations of citizens, including the duty to protect and preserve public property, and to expose or engage in any lawful act to prevent the misuse and waste of public funds and property.

Generally, Gambians were of the opinion that a child born in The Gambia of non-Gambian parents should be accorded automatic citizenship. The Commission considered the resource implications of such a measure which requires further in-depth research and assessment,which the Commission could not do having regard to the tight timeframe within which it has to deliver on its mandate. It, however, giving due regard to the public’s views on the subject, empowers the National Assembly to consider registration as a citizen of The Gambia of a person who, on or before 15th November, 2019, was born in The Gambia of non-Gambian parents, if the person had, since his or her birth, lived in The Gambia.

The current Independent Electoral Commission (IEC) is being transformed into the Independent Boundaries and Electoral Commission (IBEC) and given the constitutional authority for the delineation of electoral boundaries.

The number of Cabinet Ministers a President can appoint is capped at fifteen, excluding the Attorney General and Minister of Justice

Only elected members shall constitute the National Assembly;

(i) 53 elected from single member constituencies;
(ii) 14 elected women, two from each Administrative Area; and

(iii) 2 persons, elected by persons with disabilities from amongst the members of the federation representing such persons.

A new Development Fund has been created for purposes of providing basic services including water, roads, health facilities and electricity to marginalised groups and disadvantaged areas.

A new Chapter XIV has been created on Land, Environment and Natural Resources. Provisions are made on land ownership by Gambians and non-Gambians, including the establishment of the Land, Environment and Natural Resources

Chapter XIX deals with Amendments to the draft Constitution, outlining the entrenched and non-entrenched clauses. Specific provision is made prohibiting the National Assembly from amending the Constitution to extend the term of the President
Beyond what has been constitutionally mandated.

Under the third Schedule the current term of the incumbent President is considered in the context of the term of office of a person who is elected to the Office of President. Having carefully researched and considered this subject, the Commission has come to the decision that the current term of the current President of the Republic is to count in computing the maximum term one can serve in the Office of President – that is a maximum of ten years as provided in the draft Constitution

This is just a summarized rundown of the new elements contained in the draft Constitution. We urge the general public to carefully review the provisions and provide the CRC with their considered and constructive opinions to assist the timely finalisation of the draft Constitution'


By CRC

A clear concience fears no accusation - proverb from Sierra Leone
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Alhassan

Sweden
812 Posts

Posted - 19 Nov 2019 :  10:53:52  Show Profile Send Alhassan a Private Message  Reply with Quote
quote:
Originally posted by Momodou

What’s new in the draft Constitution?


Excerpt from Justice Cherno Sulayman Jallow Statement at the unveiling of the draft Constitution for The Gambia!

'The draft Constitution comprises 20 Chapter (3 Chapters less than what is contained in the current Constitution); it has a total of 315 clauses.

The draft Constitution has a Preamble which revised the Preamble of the current Constitution to embody elements considered fundamental to the Constitution, including placing emphasis on respect for the rule of law and fundamental rights and freedoms.
Specific provision is made outlining the duties and obligations of citizens, including the duty to protect and preserve public property, and to expose or engage in any lawful act to prevent the misuse and waste of public funds and property.

Generally, Gambians were of the opinion that a child born in The Gambia of non-Gambian parents should be accorded automatic citizenship. The Commission considered the resource implications of such a measure which requires further in-depth research and assessment,which the Commission could not do having regard to the tight timeframe within which it has to deliver on its mandate. It, however, giving due regard to the public’s views on the subject, empowers the National Assembly to consider registration as a citizen of The Gambia of a person who, on or before 15th November, 2019, was born in The Gambia of non-Gambian parents, if the person had, since his or her birth, lived in The Gambia.

The current Independent Electoral Commission (IEC) is being transformed into the Independent Boundaries and Electoral Commission (IBEC) and given the constitutional authority for the delineation of electoral boundaries.

The number of Cabinet Ministers a President can appoint is capped at fifteen, excluding the Attorney General and Minister of Justice

Only elected members shall constitute the National Assembly;

(i) 53 elected from single member constituencies;
(ii) 14 elected women, two from each Administrative Area; and

(iii) 2 persons, elected by persons with disabilities from amongst the members of the federation representing such persons.

A new Development Fund has been created for purposes of providing basic services including water, roads, health facilities and electricity to marginalised groups and disadvantaged areas.

A new Chapter XIV has been created on Land, Environment and Natural Resources. Provisions are made on land ownership by Gambians and non-Gambians, including the establishment of the Land, Environment and Natural Resources

Chapter XIX deals with Amendments to the draft Constitution, outlining the entrenched and non-entrenched clauses. Specific provision is made prohibiting the National Assembly from amending the Constitution to extend the term of the President
Beyond what has been constitutionally mandated.

Under the third Schedule the current term of the incumbent President is considered in the context of the term of office of a person who is elected to the Office of President. Having carefully researched and considered this subject, the Commission has come to the decision that the current term of the current President of the Republic is to count in computing the maximum term one can serve in the Office of President – that is a maximum of ten years as provided in the draft Constitution

This is just a summarized rundown of the new elements contained in the draft Constitution. We urge the general public to carefully review the provisions and provide the CRC with their considered and constructive opinions to assist the timely finalisation of the draft Constitution'


By CRC


A very intresting manifest of the CRC. I am suprised that after all they spent on the journey in the diaspora has not gven any benifit to the Gambians abroad.I hope now that the draft Constitution is out,those of us who whish to be included Gambians (living abroad)should start to make our voices to be heard. We must see to it that we are included in the voterslist and given the oppoturnity to vote during elections. This is not a party politics but a chance to change the gambia we do argue about. One can read all kinds of political arguments and even insults, but now what has become of the out come. This is simple in black and white and i suggest we should make a move. Thoes of us who belong to political parties should start putting our agenda on the CRCs draft Constitution.to their members to vote no if there is no change about the inclusion of the Gambians living abroad, to take part during Gambian general elections. A lobby group from party representatives living abroad should start making pressure towards this. I think this is one of the biggist challanges we have come across as people from a country living abroad. Time to show who we are
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Momodou



Denmark
9466 Posts

Posted - 20 Nov 2019 :  15:22:24  Show Profile Send Momodou a Private Message  Reply with Quote
I think the question of Gambians voting abroad is under the Electoral reform and is nothing to be included in the Constitution. See page 38 of the draft constitution.
quote:

"Electoral laws
77. (1) Subject to the provisions of this Constitution, an Act of the National Assembly shall make provision for giving effect to the provisions of this Chapter.
(2) Without prejudice to the generality of subsection (1), an Act of the National Assembly shall provide for.............

(f) the progressive registration of citizens outside The Gambia, and the progressive realisation of their right to vote;



A clear concience fears no accusation - proverb from Sierra Leone
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Momodou



Denmark
9466 Posts

Posted - 21 Nov 2019 :  22:14:44  Show Profile Send Momodou a Private Message  Reply with Quote
CRC Explains Controversial Absence Of Secularism In the Draft Constitution!

The chairperson of the Constitutional Review Commission, Justice Cherno Sulayman Jallow (JSC) QC has explained the commission’s decision not to include ‘secularism’ in the new draft constitution which has sparked a huge controversy, especially on social media.
Justice Jallow said ‘secularism’ has never been included in any of Gambia’s previous constitutions.

“This is not a religious issue. This is not about Islam vs Christianity or Christianity vs Islam. This is about ensuring that we maintain the peace, cohesion and harmony amongst our people. If you look at the 1970 constitution, section (1) clearly spelt out that The Gambia is a Sovereign Republic. Period. That’s what it said and the 1997 constitution, the original draft which was eventually adopted at a referendum stipulated the same provision in section (1). No issues were raised,” he observed.

He said in 2001 an attempt was made and that an amendment was taken by the then Attorney General to the National Assembly to insert the word ‘secular’ “so that section (1) will read: The Gambia is a Sovereign Secular State”.

“But that provision is an entrenched clause in the 1997 constitution. What that means is once it goes through the National Assembly it must be subjected to a referendum. That was never done. It was challenged by Kemesseng Jammeh before the Supreme Court and the Supreme Court stroke out the amendment as unconstitutional, because it had not followed the constitutional process right to its logical conclusion. So, effectively what that means in legal terms is that that amendment never forms part of the laws of this country”.

Jallow said although the provision on secularism is printed in the 1997 constitution, as a draft person, he feels baffled because “when the revision of the laws was carried out in 2009 it should have been removed because the Supreme Court had declared it unconstitutional. What is not law you dispense with. You only reproduce what is law. So, I say this to make the point that the word secular has never ever constitutionally been part of any of our constitutions. So, we don’t understand why it has been an issue at this stage”.

“The other thing I find most unfortunate is that so much emphasis is being placed on clause 1 but there is for me an even more important clause in the context of what is being debated at the moment which is clause 151 of the draft constitution. It makes it very clear that the National Assembly cannot pass any bill to declare or to establish any religion as a state religion whether it is Islam, Christian or whatever it is. The National Assembly is barred from doing anything like that and effectively that is what you find in the current constitution in section 102 (b). That is a characteristic of a secular state. But you don’t have to say it,” he said.

He added: “People are obviously entitled to their opinion and we definitely respect that, but it will be most unfortunate if this is blown out of proportion along religious lines because that could potentially bring religious tensions in this country which we don’t need. I will definitely plead with that section of our community that feels aggrieved by the non-use of the word to look at the totality of the draft constitution and not fan this whole subject on the platform of religion. I think that would be very unfortunate because our communities have always lived in harmony together”.

Source: CRC

A clear concience fears no accusation - proverb from Sierra Leone
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Momodou



Denmark
9466 Posts

Posted - 27 Nov 2019 :  12:36:57  Show Profile Send Momodou a Private Message  Reply with Quote
Press Release
For Immediate Release

Date: 27th November, 2019


CRC Calls for Submission of Comments on the Draft Constitution

The Constitutional Review Commission (CRC) wishes to inform the public that those who wish to make comments and submissions on the recently published Draft Constitution can do so by submitting written comments to our Secretariat at the Futurelec Builing, Kotu or send them through email: crcgambia@gmail.com or info@crc220.org. Alternatively, members of the public can also send their comments to our Facebook (Constitutional Review Commission, The Gambia) and Twitter (@CRCGambia.
The deadline for submission of contributions is on the 15th December, 2019.
In a similar development, the Commission will begin a nationwide tour in Banjul on Saturday, 30th November, 2019. The week-long exercise is aimed at presenting the draft Constitution to the Gambian people and soliciting their comments and contributions on the Constitutional provisions.

Issued by the CRC Communications Department
For more information, Contact:
Mr. Sainey MK Marenah
Head of Communications
+220248419
4460475
Email: S.marenah@crc220.org

A clear concience fears no accusation - proverb from Sierra Leone
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Momodou



Denmark
9466 Posts

Posted - 27 Nov 2019 :  13:59:15  Show Profile Send Momodou a Private Message  Reply with Quote
CRC SECOND PHASE OF PUBLIC CONSULTATIONS SCHEDULE

MEETING DATES VENUES TIME

Saturday 30/11/2019


Banjul Arch 22
11:00 a.m

Monday 02/12/2019

Essau Senior Secondary School, North Bank Region (NBR)
11:00 a.m

Tuesday 03/12/2019

Kerewan, NBR
11:00 a.m

Wednesday 04/12/2019

Kaur, Central River Region, North

11:00 a.m


Thursday 05/12/2019

Diabugu, Upper River Region ( URR)

11:00 a.m

Saturday 07/12/2019

Basse, URR


11:00 a.m

Sunday 08/12/2019

Janjanbureh, CRR
11:00 a.m

Monday 9/12/2019

Jareng, CRR, South


11:00 a.m

Tuesday 10/12/2019

Soma, Lower River Region (LRR)
11:00 a.m

Wednesday 11/12/2019

Kwinella, LRR
11:00 a.m

Thursday 12/12/2019

Bwiam, West Coast Region(WCR)
11:00 a.m

Saturday 14/12/2019

Brikama, WCR
11:00 a.m

Monday 16/12/2019

KMC

11:00 a.m

A clear concience fears no accusation - proverb from Sierra Leone
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