By Yusef Taylor, @FlexDan_YT
Chief Justice Highlights Shortfalls of Constitution
According to The Point Newspaper, Chief Justice Hassan B. Jallow highlighted a shortfall of the constitution, calling for “legislation [to]be enacted to incorporate international law obligations undertaking by the country and Section seven (7) of the 1997 Constitution does not include international law as part of the sources of law in the country.”
This was disclosed at a two day refresher organized by the Institute for Human Rights and Development in Africa (IHRDA) in collaboration with the Gambian Judicial Training Institute in January 2018. After reviewing the aforementioned section I realized that this section could be an impediment to bringing Jammeh and Co to face Justice in The Gambia.
What laws are included and excluded?
“In addition to this Constitution, the laws of The Gambia consist of;
(a) Acts of the National Assembly made under this Constitution and subsidiary legislation made under such Acts;
(b) Any orders, Rules, Regulations or other subsidiary legislation made by a person or authority under a power conferred by this Constitution or any other law;
(c) The existing laws including all decrees passed by the Armed Forces Provisional Ruling Council;
(d) The common law and principles of equity
(e) Customary law so far as concerns members of the communities to which it applies;
(f) The sharia as regards matters of marriage, divorce and inheritance among members of the communities to which it applies.”
Constitution of The Republic of The Gambian, 1997: Provision 7 – The Laws Of the Gambia
What does this mean?
- Even though the Gambia is a signatory to international human rights laws, such laws are not considered in the constitution which remains the supreme law of The Gambia. As mentioned by the Chief Justice an act is needed “to incorporate international law obligations.” So who should enact this legislation? The National Assembly maybe?
- If provision 7 is an entrenched clause then it can only be changed via a referendum, however, if it isn’t an entrenched clause then sub section (c) giving special preference to the Armed Forces Provisional Ruling Council needs to be repealed to loosen the previous regimes immunity powers and decrees currently compelling the judiciary to rule in their favour.
What next to bring Jammeh and Co to Justice?
- Some of the laws in the constitution begs the question if the Armed Forces Provisional Ruling Council and appointees can ever be brought to justice in The Gambia with such punitive laws still in place? Consider Schedule 2 (13) in the Constitution which legislates special impunitive privileges for the previous regime and any of its appointees.
“No member of the Armed Forces Provisional Ruling Council, any person appointed minister by the Armed Forces Provisional Ruling council or other appointees of the Armed Forces Provisional Ruling Council shall be held liable or answerable before a Court or authority or under this Constitution or any other law, either jointly or severally, for an act or omission in the performance of his or her official duties.”
Constitution of The Republic of The Gambian, 1997: Schedule 2 (13) (1)
- Can the National Assembly consider a repeal of all bad laws in the Constitution, especially those granting Jammeh and co impunity?
If the above clause in provision 7 (c) and schedule 2 13 are not entrenched clauses then the National Assembly can file a motion that they be removed to pave the way for members of the Armed Forces Provisional Ruling Council to be brought to justice.
In my layman understanding one repeal act could be tabled to remove all bad laws in the Gambia which any National Assembly Member can list for the National Assembly’s consideration and debated before being enacted. This can be presented via a private members bill or a group of National Assembly Members.