Explainer: How the 2024 Draft Constitution Varies from the 2020 Draft

By Yusef Taylor, @FlexDan_YT

The Gambia Government Gazetted the 2024 Draft Constitution on 14th August 2024 after the 2020 Draft Constitution was rejected in September 2020 by members of the Fifth Legislature.

After the 2024 Draft was Gazetted, the leading opposition, the United Democratic Party (UDP) and civil society leaders from The Association of Non-Governmental Organisations (TANGO), Gambia Bar Association and others raised concerns on the lack of consultation prior to promulgating the 2024 Draft compared to the 2020 Draft that was developed by the Constitutional Review Commission (CRC).

This explainer publication looks at some of the differences and similarities between the 2024 and 2020 Draft constitutions, focusing on some of the major changes. While the 2020 Draft had 316 Clauses and 4 Schedules, the 2024 Draft has 293 Clauses and 5 Schedules.

This means that the new 2024 Draft has 23 clauses less and an additional schedule. Another difference is in the number of chapters in both documents. The 2020 Draft had 20 Chapters which has now been reduced to 19 in the 2024 Draft, with the missing chapter being, Chapter V on Leadership and Integrity.

Leadership Chapter Removed in 2024 Draft

The Government released it’s Explanatory Notes highlighting reasons for some of the changes from the 2020 Draft compared to the 2024 Draft which includes the reasons for removing chapter V on Leadership.

The Executive recognizes that “while the chapter on Leadership and Integrity in the 2020 draft constitution may be well-intentioned and necessary for promoting good governance, such provisions may also be too detailed and prescriptive for inclusion in a national constitution”.

In their view the Chapter on Leadership is best included in a subsidiary legislation but no suggestion was advanced recommending which legislation would be more ideal for its inclusion.

Interestingly, the Executive argues that “the consequences outlined in clause 29 of the 2020 Draft for contraventions of the provisions are quite severe, with lifetime disqualification for public officers and terminations. The severity of these punishments is disproportionate”.

Term Limit
One of the most contentious clauses which caused members aligned to the President to reject the 2020 Draft was the retroactivity of the two-term limit. This retroactivity would have counted the President’s first term, limiting him to one more term. The 2024 Draft includes a two-term limit for the office of the President in clause 92 (2), however, the retroactivity clause included in Clause 5 of Schedule 4 in the 2020 Draft has now been removed. This means after the Draft Constitution is passed into law, any sitting President may serve a further two terms.

50 Plus One (second ballot system)

Another very important clause is the 50 plus one requirement for the role of Office of the President. According to the 1997 Constitution, the winner of the Presidential Elections must have just one more vote than the second placed candidate. This was changed to 50% plus one more vote in the 2020 Draft and remains the case for the 2024 Draft. According to clause 87 of the 2024 Draft, if a candidate cannot win more than half of the votes validly cast, then a second round of elections will be held within 14 days by the Independent Boundaries Electoral Commission (IBEC) which shall feature only two of the top placed candidates in the first round of the elections.

Separation of Powers

The principle of Separation of Powers means that there are checks and balances between the various arms of government with each arm of government capable of carrying out their functions independently without undue influence from the other. Currently, the 1997 Constitution provides for the President to nominate up to 5 National Assembly Members, however, the 2020 Draft aimed to change this by removing nominated members and only providing for elected members. However, this change has been reversed in Schedule 4 of the 2024 Draft to empower the President to nominate 5 members including the Speaker and the Deputy Speaker which will give the President a degree of control of Parliament.

To cement Executive control of the National Assembly, the 2024 Draft has included an entirely new Clause 133 (2) that empowers the President to recall nominated members before the expiry of their term. The current President Adama Barrow, attempted to remove a nominated member in Hon. Yakumba Jaiteh during the term of the Fifth Legislature but after the member took legal action she was reinstated. If the 2024 Draft is passed in it’s current form, it would give the President significant control of Parliament via the Speaker and Deputy Speaker which he can hire and fire at will.

Presidential Appointments and Parliamentary Approval

One of the most controversial aspects of the changes from the 2020 Draft to the 2024 Draft is the issue of Presidential Appointments. In the 2020 Draft, the President was empowered to appoint numerous positions such as the Chairperson of the Independent Boundaries Electoral Commission (IBEC), Cabinet Ministers and Commissioners of Independent Commissions subject to approval of the National Assembly. However, this has now been reversed to remove Parliamentary Approval from Presidential Appointments.

This goes against the National Human Rights Commission’s “Advisory Note on the Elections Act vis-à-vis the 1997 Constitution and the 2020 Draft Constitution”. According to the advisory note “the appointment and dismissal of Commission Officials and safeguarding of security tenure. The IBEC and any other electoral governing body must be able to function with full independence and without favor of retribution”.

According to the Government’s Explanatory Note their reason for removing this is to avoid “the bureaucracy of confirmation by the National Assembly” which they view as “undue bottlenecks in providing prompt and quality electoral administration due to delay in appointing members of the IBEC”.

Right to Education Curtailed to Basic Education

Another one of the most well-known changes is the Executive’s decision to curtail the “Right to Education” which was guaranteed up to Secondary level in the 2020 Draft.

This has now been amended to only guarantee citizens rights to basic education. According to the Government’s Explanatory Notes they claim that they are constrained “by the resources at the disposal of the Government” but acknowledge that they “must aspire to guarantee that every child completes the most critical years of schooling by using available resources to realise that aspiration”.

This article was first published by FactCheckGambia.org in the link. https://factcheckgambia.org/explainer-how-the-2024-draft-constitution-varies-from-the-2020-draft/