By Yusef Taylor with input from Kalipha MM Mbye
This is a feature publication on The Gambia’s Constitution which features answers by Kalipha MM Mbye, the Deputy Clerk (Legal and Procedural Matters) at the National Assembly of The Gambia. In Gainako’s continuous quest to contribute towards the Constitution building process, our latest publication aims at defining a constitution in The Gambian context and how it can be amended. This article highlights how many Constitutions The Gambia has had and how many times the current one has been amended.
What is a Constitution?
A constitution is simply defined as the ‘Supreme Law of the Land, the rule book for a state, and to which every citizen is subjected.’ It sets out the fundamental principles by which the state is governed and any other law that comes in contrary to any of its provisions shall deemed to be void, this is referred to as the supremacy of the Constitution. See Section 4 of the 1997 Constitution of The Constitution.
Chapter II of the 1997 Constitution – The Constitution and the Laws
4. Supremacy of the Constitution – This constitution is the supreme law of The Gambia and any other law found to be inconsistent with any provision of this Constitution shall, to the extent of the inconsistency, be void.
A constitution further sets out the functions of the institutions of the State and defines the relationship between its different arms, such as the Executive, Legislature, and Judiciary, and the terms according to which they must perform their respective roles. It seeks to control and limit the exercise of power and presses on the rights and duties of citizens.
Constitutions can be codified or uncodified. They can also be amended. In The Gambia, amending the Constitution involves a threshold, the approval of the two-thirds majority in the legislature, in some cases a referendum, or sometimes both, see Section 226 of the 1997 Constitution. In other cases, making changes to the constitution can be done by the courts via interpretation or re-interpretation of the constitutional text.
According to the Constitutional Review Commission (CRC) Final Report on the Draft Constitution “The 1997 Constitution under section 226 outlines how the provisions of the Constitution may be altered or amended. Section 226 (1) and (2) dealing with the amendment of non-entrenched clauses, provide that non-entrenched provisions of the Constitution can only be amended after a Bill for the amendment is published in at least 2 issues of the Gazette, the latest publication being not less than 3 months after the first and the Bill is introduced into the National Assembly not earlier than 10 days after the publication. The Bill must be supported by not less than three-quarters of the members of the National Assembly and assented to by the President”.
In addition to this “Section 226 (4), provides for the amendment of entrenched clauses of the Constitution. These are the provisions of the Constitution that have to be taken through a special procedure if they are intended to be amended; the provisions are listed in section 226 (6). In addition to the procedure spelt out in section 226 (1) and (2), it is mandatory for there to be a referendum before an entrenched clause of the Constitution can be amended. Section 226 (4) requires that at least 50% of registered voters must take part in the referendum and the proposed amendment should be supported by at least 75% of voters who took part in the referendum”.
The 1997 Constitution of the Gambia expressively guarantees the participatory rule of the people that reflects their choices. In its Preamble, Section 1(2) manifests that The Sovereignty of The Gambia resides in the people of The Gambia from whom all organs of government derive their authority and, in whose name, and for whose welfare and prosperity the powers of government are to be exercised in accordance with this Constitution.
The introduction of the 1997 Constitution, clearly describes that the Constitution is an attestation of the people’s devotion to freedom, justice, probity, and accountability. It further asserts the basis that all power originates from the supreme will of the people, outlining that the fundamental rights and freedoms preserved in it assure respect and observance of human rights and fundamental freedoms for all, without distinction as to ethnic considerations, gender, language, or religion.
According to Elliot Bumer (2014), modern democratic constitutionalism is based on two principles, specifically a representative government that allows citizens to partake in public affairs and hold their government to account, and secondly, the protection of rights – such as the due process of law, freedom of speech and religious tolerance, through which shields the citizens from abuse of power.
How many Constitutions has The Gambia had?
The Gambia has had three Constitutions.
- Independence Constitution of 1965
- Republican Constitution of 1970
- The 1997 Constitution
How many Amendments have been made to the current 1997 Constitution?
According to Salieu Taal and Siddharth Sijoria (Gambia Constitutional Building Process – A Second Bite at that Cherry), the Constitution of the Gambia has been amended over fifty-two (52) times.
There were about 37 amendments made in 2001, alone.
There were 4 amendments to the Constitution from 2017 to July 2023. There is currently a Constitution (Amendment) Bill 2023 at the National Assembly, which would increase the number of amendments from 2017 to date from 4 to 5.
This publication was scheduled to be part of the Gambia Parliamentary Newsletter edition on the Draft Constitution launched on 12th September 2023. Below is a link to the publication announcement for the GPN Edition which can be downloaded in this link.