By Yusef Taylor and Biran Gaye
Looking Back: Selected Debates on Failed Draft Constitution
Back on 22nd September 2020, The Gambia’s Fifth Legislature voted against passing the Draft Constitution which would have ushered in the Third Republic if Gambians voted for it in an eventual referendum. However, as faith would have it, the people’s representatives voted against passing the Draft Constitution on its Second Reading which would have laid the foundation for the raft of reforms promised back in 2016 when President Adama Barrow defeated former President Jammeh.
A divided National Assembly with one-half affiliated with the incumbent’s National Peoples Party and the opposition led by the United Democratic Party couldn’t manage to get the 42 votes required for the Draft Constitution to face the Consideration Stage. On this occasion, 31 members voted in favor of the Draft Constitution while 23 members voted against the Draft Constitution.
One of the most intriguing points is the two-term limit which the President himself openly endorses, however, he raised concerns about the retroactivity of the implementation of the term limits in the interpretation section of the Draft Constitution. On day one of the debate on the Draft Constitution which took place on 16th September 2020, term limits were one of the hotly debated points.
Our reporter gained access to the Hansard report of the first Parliamentary proceedings on the Draft Constitution as written by Parliament’s Hansard Research Department. Together with work done in the past, our reporters highlight some of the arguments raised and how members of the Fifth Legislature voted for or against the Draft Constitution.
Draft Constitution Term Limits Clauses
Clause 102 of the Draft Constitution is on the Term of office of the President which states that: “(1) the President shall hold office for a term of five years” and most importantly, “(2) No person shall hold office as President for more than two terms of five years each”.
In addition to this Schedule 4 of the Draft Constitution includes some relevant clauses on “Transitional and Consequential Provisions” with Clause 5 focusing on the “Term of office of incumbent President”. Clause 5, subsection 2 further states that “the term of office of the person holding the Office of President as at the effective date shall be construed to include the existing term and the person may contest election for the Presidency for only one more term as provided in this Constitution after the expiry of the existing term”.
Leading the proceedings was Speaker of the House Hon Mariam Jack Denton who was nominated by the current President Adama Barrow. She proceeded to give members the floor to debate on the general merits and principles of the Draft Constitution.
Hon Bakary Camara for Kiang Central supported the Bill on the floor and voted for the Draft Constitution. He opined that “it is important that we have what is called a presidential term limit because this is a measure to protect the people and to put an end to dictatorship as well as corruption because what I have realized is that, when you stay more in power, the probability of you being corrupt is very high.” He added that the Gambia should adopt a term limit as an entrenched provision to avoid it being amended to allow a third term.
“The Gambia is one of the few countries in the entire sub-region that does not have a presidential term limit. We must not stop at only having presidential term limit but also try to entrench this particular provision in the Constitution to an extent that nobody will be able to amend it to go for a third term,” said Hon Camara. Hon Bakary Camara voted in favour of the Draft Constitution.
Hon Saikou Marong for Latrikunda Sabiji expressed his endorsement of the two-term limit: “Nobody will tell you that they are not in support of the two-term limit of the president, nobody is saying that. What we are saying here or what I am saying here is that, I am not going to support any retroactive law, mark my words this is what I said. I am not saying that I will not support the two-term limit of the President because I know that this is very important and we need to know this”. However, Hon Saikou Marong voted against the Draft Constitution.
Hon Halifa Sallah of Serrekunda supported the inclusion of term limits when he noted that the Draft Constitution tabled “mentions the separation of powers, national unity, cohesion and peace, the importance of ensuring periodic democratic elections based on Universal Adult Suffrage including the introduction of term limit for serving in the office of the president. We instructed them, it is an instruction”. Hon Halifa Sallah voted in favour of the Draft Constitution.
The member for Bundung-ka Kunda, Hon. Bakary Njie also pledged his support for the introduction of a two-term limit for the president’s office. He opined that the current President Adama Barrow should lead by example by serving for only two terms. “With all fairness, I think if we want to advocate for 2 terms, I think the best thing is for us to start with a good example. I am surprised to hear some of our colleagues saying that the incumbent who is in office before the Constitution comes into law, the term that he served before should not be counted in the Constitution. Yes! it could be for that is obvious but if that is what we are advocating for, I think it is in fact better for that person to start with a good example to show that he/she really means what has been said”.
According to Hon Bakary “oftentimes in Africa, this is how it would start at the beginning and if you are not very much attentive, some will remain in power forever”. Hon Bakary Njie voted in favour of the Draft Constitution.
Hon Muhamed Magassy for Base argued against the retroactive nature of the term limits when he stated that the “Presidential term limit is two terms which I really appreciate because a 5-year term for two occasions and then you leave the place for somebody else to come is a good thing to do. When will that begin remains to be seen and what will bring that is when the room is created in this Constitution. If this Bill becomes a constitution, that is the time a new era will begin for The Gambia and that is the time a new language has been created for The Gambia”.
Hon Magassy argued that “when the Constitution is in force” is when the Constitution should commence taking effect. “But having a step forward and having another step backwards means you are moving but not advancing”, he urged the Minister for Justice to provide more explanation on this. Hon Muhamed Magassy voted against the Draft Constitution.
The member for Niamina East, Hon Omar Ceesay also took the floor to deliberate on term limits. He noted that other members have spoken on the issue however, he believed that members “must understand the rationale behind this, we are advocating for two-term limits, of course, that is what we are advocating others who are saying whether the incumbent’s current term should be inclusive or not is questionable and debatable”. In his view if members “understand what we are really advocating, then you will begin to understand or accept the rationale behind this. We are advocating for two terms whether this term is inclusive or not, but as long as an individual serves for two terms, whether this president or the coming president, that should be enough, that is what we are talking about”.
He reminded members that the CRC drafted the Constitution after significant consultation with the Gambian people and did not write the document on their own accord. “It is from the entire Gambian people who recommended that this current term of the incumbent president should be inclusive”. Hon Omar Ceesay voted in favor of the Draft Constitution.
Hon Muhammed Ndow for Banjul Central appeared to support the Draft Constitution and the term limits when he said: “Many Gambians have been yearning for a new Constitution and we have a draft here for us to debate on. I can see that there are many provisions that many Gambians were happy for example, the term limit [two terms]. It is good for a term limit to be in our Constitution because we Africans have the attitude of overstaying and Presidents like to stay more than 15 – 20 years which does not favour our country or our continent at large. So, coming up with a provision in the draft Constitution, I will be very glad to support provisions like that one”. However, Hon Muhammed Ndow voted against the Draft Constitution.
Hon Alfusainey Ceesay for Sami also supported term limits when he said “So, I think even youth representation is also indicated as the other speakers said and also the issue of term limit. We all know where we are from and we do not want somebody to overstay here for  years as those days are gone”. Hon Alfusainey Ceesay voted in favor of the Draft Constitution.
However, nominated member Hon Majanku Samusa expressed discontent with the Draft Constitution in its entirety, calling on fellow lawmakers not to pass the draft without citing specific loopholes. Hon Manjanku Sambusa voted against the Draft Constitution.
Hon Amadou Camara of Nianija was clearly not in support of the retroactive nature of the two-term limits for the current President Adama Barrow. He called for “the Hon mover of the Motion to also help me clarify as to whether that particular provision that has to do with this current term of the incumbent is to be counted as its first term if this is enacted. So, Hon Speaker, Hon Minister Mover of the Motion, on that note too, can you please enlighten us and explain to us better and what is best? What I understand from my view is that the 1997 Constitution is what the current President was elected on. So, now if we are to have a new Constitution, having a saving clause capturing the current term of the incumbent as his first term, how do you see that? So, if it is better explained, then I can better make my position”. Hon Amadou Camara voted against the Draft Constitution.
Hon Ousman Sillah of Banjul North supported the Draft Constitution and two-term limits when he took the floor to state his position on the matter. “We are coming to a point where we have had an experience and want to go to another stage which we call the third Republic, if this Bill passes. I believe this document is well placed to usher in the third Republic, of course, if the concerns that we have raised here are captured and factored in where they could. Other than that, we are going to continue with this, having a perpetual presidency without any term limit”. Hon Ousman Sillah voted in favor of the Draft Constitution.
Hon Alhagie S Darbo of Brikama North supported the Draft Constitution and two-term limits. He asserted that the Draft “Constitution is addressing the office and the CRC did express that the constitution is meant for the Executive not to perpetuate itself to power and we all agree that what has been strongly advocated as a result of change is this issue of the two-term limit that is the bottom line of the change”. Hon Alhagie S Darbo voted in favor of the Draft Constitution.