Gambia’s Impending Constitution Subjects Ministerial Appointments to NA Confirmation
The final draft Constitution submitted to the presidency Monday has restricted the president’s power to appoint his cabinet ministers without subjecting it to any confirmation of the national assembly.
In a virtual press conference Tuesday, Justice Cherno Sulayman Jallow also informed the public about several other amendments from the in-use 1997 Constitution including the removal of restrictions on the freedom of expression and the expiry term of incumbency after the presidential election.
“The president is given a free hand to nominate and appoint his or her Vice President. However, ministerial appointments are subjected to national assembly confirmation which must be carried out within fourteen days after.”
However, Jallow states that to ensure that the confirmation process is not politicised to frustrate a presidential nominee, Chapter 9 of the legislature has been modified to require confirmation to be made within a prescribed period of fourteen days.
“Where it decides not to confirm a candidate, it is obligated [on the legislature] to provide its reasons to the president in writing within three days of that decision. Any failure in that regard shall deem a candidate to be approved.”
CRC Chairman further states that the national assembly is to be guided by a certain established principle in such exercise, which include respecting the qualifications and disqualifications of candidates as contained in the Constitution as well as respecting the guiding principles in respect to the office from which confirmation is required.
“…exercising good judgment without concentrating on differences of ideology, belief or political affiliation and treating candidates for confirmation with respect. In essence, the role of the national assembly in any confirmation is to aid and assist the president without impeding the president.”
Meanwhile, Chapter I of the draft which comprises six sections and it recognizes that The Gambia is a sovereign republic and a multi-party democratic state.
A new provision has also been added to declare that The Gambia comprises the people of different faiths and each faith is to be respected and treated fairly without any discrimination. It also prohibits the national assembly from enacting any law, establishing any religion in the country as a state’s religion.
Fundamental human rights
Jallow said the fundamental human rights have also been protected by the draft constitution.
“On the freedom of expression, the previous provision that effectively removes from protection the uttering of abusive or threatening speech or writing causing feeling of ill-will, disaffection or hostility has been removed.”
He justified the commission’s belief that it was not necessary to curtail the freedom of expression in that regard.
Fair administrative actions
“In addition, a new provision has been included on the right to fair administrative actions. This amongst other things, declares that a person has the right to be given reason in writing with regard to any action to be taken against him or her irrespective of whether it’s in public service or in the private sector.
Expiry date for incumbency
With respect to the election of president under Chapter 8, the period within which the presidential election is to be held before the term of the incumbent president expires has also been increased from three weeks to six weeks. According to him, the CRC considers that some element of flexibility was necessary to allow for anticipated eventualities.
“In Chapter 13, public finance management, a new provision is made prohibiting the imposition of taxation by giving it a retroactive effect. Every tax imposed must have a prospective effect not otherwise.”
Although the new Constitution does not indicate specifically the enfranchisement of diaspora community, it states that every Gambian has a constitutional right irrespective of wherever one is to vote.
“In terms of diaspora, what we have recommended is that the diaspora voting should be limited to the presidential elections because they are costly.”
However, he said the matter can be looked into by the relevant statutes of the land.
The draft Constitution has 319 sections divided into 20 chapters and several parts, according to Jallow. He said the draft legal document represents the generality and the wishes and aspirations of Gambian people.
How the draft Constitution was made
“The draft constitution we are publishing today is an embodiment of hopes and aspirations of the people of The Gambia,” he said.
“Our role as commissioners was to facilitate public opinions, play the roles of devil advocate by ensuring the full coverage of all angles to an issue, and make an assessment of what was essential or fundamental for inclusion in the draft constitution and ensure and properly and effectively drafted a constitution that left little to no room for interpretation or uncertainty. Personal beliefs were eschewed and kept out during the decision-making process,” he said.
During the drafting processes, the commission employed various platforms such as face to face and focus group discussions, written submissions on various issues, online surveys, households’ surveys, engagements with government ministries, department and agencies, civil society organisations, faith-based organisations, specific interest groups, associations and individuals and the media as part of consultation.
Jallow described their model of consultations as the ‘first of their type and magnitude in the history of constitutional development in the country.’
“It has provided an unprecedented opportunity for the citizens and other stakeholders to directly participate in the building of their new Constitution to replace the 1997 Constitution.”
The draft Constitution was submitted to President Adama Barrow on Monday. It awaits a referendum to be either accepted or rejected by Gambian citizens. If rejected, the 1997 Constitution will be maintained, according to the review commission’s chairman.