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The Gambia - Government

Voters in The Gambia decided 05 June 2021 whether to approve a new national constitution as the country’s political transition continues. The Gambia was undergoing a transition to democracy which began in 2017 when Adama Barrow displaced Yahya Jammeh, the dictator who had been in power since 1994. Following the 2017 election, efforts to replace “Jammeh’s constitution” became a national priority. In 2018 Barrow established a commission to review the constitution, which in March 2020 was finalized. However, in September 2020, the Constitution Promulgation Bill was rejected by Barrow’s supporters in the National Assembly primarily because it included a transitional clause that would make the incumbent’s current term count towards his two-term limit. A survey suggests 66% of Gambians supported this provision, yet many of Barrow’s supporters did not. If the 2020 draft constitution did not pass, then Gambians would retain the 1997 constitution through at least the end of 2021, when presidential elections will take place.

A May 2020 nationwide survey of The Gambia by the International Republican Institute’s (IRI) Center for Insights in Survey Research reveals support for a new constitution and satisfaction with the Constitutional Review Commission’s (CRC) performance. The poll also indicates that most citizens would vote in a constitutional referendum, but the lack of voter ID cards could hamper turnout. According to the poll, 87 percent of Gambians agree that the country needs a new constitution. Furthermore, 88 percent of citizens support the inclusion of presidential term limits in the new constitution.

After 200 years of British Colonial rule, The Gambia became independent on 18th February 1965 and 5 years later in April 1970-adopted a republican constitution. The Gambia, a multi-party republic within the Commonwealth, is administered by an Executive President. Under the current constitution general elections through secret ballots are held every five years to elect candidates who constitute the country's House of Parliament.

The Gambia is a multi-party democratic republic within the Commonwealth; independent since 1965; and an Executive Presidency established in 1970. The Gambia's earlier Constitution came into force on 24th April 1970, when the country became a republic. The 1970 constitution, which divided the government into independent executive, legislative, and judicial branches, was suspended after the July 1994 military coup. As part of the transition process, the AFPRC established the Constitution Review Commission (CRC) through decree in March 1995. The new government established the constitutional review commission (CRC) which was charged with the responsibility of reviewing the present constitution in order to make it more responsive to the needs and aspirations of the people of The Gambia.

In accordance with the timetable for the transition to a democratically elected government, the commission drafted a new constitution for The Gambia. A controversial consultation process eventually produced a constitution, which was approved by referendum in August 1996. Thenew constitution provided for a strong presidential government, a unicameral legislature, an independent judiciary, and the protection of human rights.

The Constitution of the Second Republic of The Gambia came into effect on 16 January 1997. Under its terms, the Head of State is the President of the Republic, who is directly elected by universal adult suffrage and holds executive authority.Allowing for multiparty elections, the Presidential term of 5 years with no limit on the number of terms served. However, the main political parties were banned in the run up to the first elections.

The parliament of Gambia is called the National Assembly and is a Unicameral parliament. Legislative authority is vested in the National Assembly, which serves a five-year term and comprises 53 members - 48 of which are directly elected and 5 appointed members.

The President appoints government members, who are responsible both to the Head of State and to the National Assembly. Executive power is vested in the President of State and Commander-in-Chief of the armed forces. Following a constitutional amendment in March 1982, the President is elected by direct universal suffrage, and serves five-year term. The President appoints the vice-president, who is leader of government business in the House of Representatives, and other Cabinet Ministers from members of the House.

The Gambian Armed Forces [GAF] is responsible for external defense and reports to the minister of defense, a position held by the president. Police, under the Ministry of the Interior, are responsible for public security. The Natioanl Intelligence Agency [NIA], which reports directly to the president, is responsible for protecting state security, collecting intelligence, and conducting covert investigations. The law does not authorize the NIA to investigate police abuses, but it often assumed police functions such as detaining and questioning criminal suspects. The Department of Immigration, under the Ministry of the Interior, is responsible for migration and border control.

Suffrage is universal at 18 years of age. The constitution enumerates a full range of provisions and assurances for a multiparty democratic republic. Human rights organizations and opposition parties, however, claimed the government repeatedly took steps to restrict the democratic space. The constitution and law prohibit arbitrary arrest and detention and stipulate that authorities must charge or release any person arrested by police or other security agencies within 72 hours. There were, however, numerous instances of police and other security force members’ arbitrarily arresting and detaining citizens longer than 72 hours without formally charging them.

The constitution and law provide for freedom of speech and press; however, the government restricted these rights. A Freedom in the World 2015 report by Freedom House stated, “The government does not respect freedom of the press. Laws on sedition give authorities discretion in silencing dissent, and independent media outlets and journalists are subject to harassment, arrest, and violence.”

The constitution and law provide the ability of citizens to change their government in free and fair elections; however, citizens were unable to exercise this ability fully in the 2011 presidential election due to government intimidation of voters and ruling party control of the media. The country, however, held generally peaceful national assembly elections in 2012 and local government elections in 2013. The country has an independent electoral commission (IEC), but the president appoints members in consultation with the Judicial Service Commission and the Public Service Commission. The current members of the commission have all exceeded their terms in office.

The Gambia judicial system is similar to the system found in most countries with Common Law Jurisdiction. There is only one system of courts which form a hierarchy. The subordinate courts consist of (a) Khadis (Muslim) Courts, (b) District tribunals, and (c) Magistrates courts. These courts have limited jurisdiction to hear both civil and criminal matters before them.

The constitution provides for an independent judiciary; however, the courts lacked independence and were corrupt. Amnesty International noted the president’s power to remove a judge, nominally in consultation with the Judicial Service Commission, interfered with judicial independence. Judges presiding over “sensitive” cases who made decisions not considered favorable to the government risked dismissal. There was little stability in senior judiciary positions; for example, on 12 May 2015, Chief Justice Ali Nawaz Chohan reportedly resigned his position after the government expressed displeasure over a supreme court decision to acquit former chief of navy staff commodore Sarjo Fofana, who was serving a life sentence. On June 24, the government removed two supreme court judges--Raymond Sock and Gibou Semega Janneh--who were part of the panel that acquitted Commodore Fofana. Frequent delays and missing or unavailable witnesses, judges, and lawyers often impeded trials. Many cases were delayed because of adjournments to allow police or the NIA more time to continue their investigations.

The judicial system also recognizes customary law and sharia (Islamic law). Customary law covers marriage and divorce for non-Muslims, inheritance, land tenure, tribal and clan leadership, and other traditional and social relations. District chiefs preside over local tribunals that administer customary law at the district level. Customary law recognizes the rights of all citizens regardless of age, gender, and religion; however, it requires women to show respect for their husbands and children for their parents. Sharia applies in domestic matters, including Muslim marriage, divorce, and inheritance. Qadi courts and district tribunals do not offer standard legal representation to the parties in a case, since lawyers were not trained in Islamic or customary law.

The Gambian Constitution of 1997 provides the legal framework for the protection of private ownership of property and only provides for compulsory acquisition by the state if this is found to be necessary for defense, public safety, public order, public morality, public health, town and country planning. Both the Constitution and the Compulsory Acquisition Act require the state to affect adequate and prompt compensation. According to local media reports, the provision has generally been respected, although the government has ignored court injunctions and torn down private property in early 2014.

The Gambia's legal system is based on English common law and there is a legal framework for enforcing property and contractual rights in courts. There is a written and consistently applied commercial law, which is found in the Companies Act. Monetary judgments can be made in both the investor's currency and local currency. According to local media sources and legal experts, however, the government is known to interfere in the court system. There is no known historical precedent for the Government of The Gambia to accept the rulings of foreign courts.

For administrative purposes the country is divided into The Capital and Seat of Government together with the adjoining Kombo St. Mary and the provinces are in turn divided into five Divisions (now known as regions), each headed by a Commissioner who is the administrative head. These divisions, are further sub-divided into 35 districts locally administered by Seyfos (chiefs). Each district covers a number of villages and settlements with the Alkalo as the village head.

Local government in The Gambia varies. The capital city, Banjul, and the much larger Kanifing Municipality have elected town and municipal councils. Five rural regions exist, each with a council containing a majority of elected members. Each council has its own treasury and is responsible for local government services. Tribal chiefs retain traditional powers authorized by customary law in some instances.

The 1997 Constitution of the Gambia provided for the involvement of the office of the Chief in the dispensation of justice. Chiefs are largely empowered under this constitution to adjudicate in civil matters relating to marriages, inheritance and land disputes. Since a number of these cases hinge on traditional norms and values, a group of wisemen (Council of Elders) assisted the chiefs in the dispensation of justice. The Gambia being predominantly Muslim and the country’s legal system premised on English common law, local customary, Islamic and modern laws, this group of elders advises the chief during court proceedings and even adjudicates in cases before the district tribunals. District tribunals are higher courts of arbitration. The Council of Elders further plays active role in resolving disputes on such matters as land and marital issues.