FOROYAA's REVIEW OF THE DRAFT CONSTITUTION OF THE SECOND REPUBLIC
Book One
--Continued from the last mail--
HOW IS A MEMBER OF THE COMMISSION REMOVED FROM OFFICE?
Section 42 (6) of the draft Constitution states:
"The Chief justice may remove a member of the Commission from office-
"(a) for inability to perform the functions of his or her office whether from
infirmity of mind or body or from any other cause;
"(b) if any circumstances arise which would have disqualified him or her from
appointment to the Commission; or
"(c) for misconduct,
"but, before removing a member, the Chief Justice shall appoint a tribunal of
three judges of a superior court to enquire into the matter and report on the
facts. A member of the Commission shall be entitled to appear and be legally
represented before the tribunal."
THE MODE OF OPERATION OF THE COMMISSION
Section 42 (7) states:
"Three members of the Commission including the Chairman shall form a quorum:
"Provided that any decision of the Commission shall require the concurrence of
a majority of the members.
"(8) The Commission may by regulation or otherwise regulate its own procedure.
"(9) The Commission shall make an annual report on its activities to the
National Assembly.
"(10) Before assuming the functions of his or her office, a member of the
Commission shall take and subscribe the prescribed oaths."
HOW IS THE COMMISSION TO BE FINANCED?
Section 44 of the draft Constitution states:
The Independent Electoral Commission shall submit its estimates of
expenditure to the President for presentation to the National Assembly in
accordance with this Constitution. The President shall cause the estimates to
be placed before the National Assembly without amendment, but may attach the
them his comments and observations."
Are you opposed to the Independent preparation of the budget of the Commission?
ELECTIONS
The draft Constitution has established different types of elections, that is,
presidential election, National Assembly election and local government and
traditional rulers election.
ON PRESIDENTIAL ELECTIONS
Section 46 of the draft Constitution states:
"There shall be an election for the office of President in the three months
before the expiration of the term of the incumbent President. The dates for
the nomination of candidates and for holding the election shall be determined
by the Independent Electoral Commission."
Section 47 states:
"A Candidate for election to the office of President shall, on or before
nomination day -
"(a) satisfy the Commission that his or her nomination is supported by not less
than five thousand registered voters consisting of not less than two hundred
from each administrative area, as signified by their signatures or otherwise;
"(b) deposit with the Commission such sum as may be prescribed by the Elections
Decree, which shall be returned if he or she receives not less than forty per
cent of the valid votes cast at the election.
"48. (1) Subject to subsection (4), a poll shall be taken on the day, or days,
appointed for the election of a President notwithstanding that there may be
only one candidate nominated for election.
"(2) Where a nominated candidate dies between nomination day and polling day,
the Independent Electoral Commission shall appoint a new nomination day and, if
necessary, a new day or days for the election.
"(3) No person shall be elected as President on a first ballot unless the votes
cast in his or her favour at the election are more than fifty per cent of the
total number of votes validly cast at that election.
"(4) If, on a first ballot, there was only one candidate and he or she fails to
obtain the percentage of the votes validly cast as stipulated in subsection
(3), new nomination and election days shall be appointed. If, at the close of
nominations for a second ballot,
"(a) there is only one candidate nominated, he or she shall be declared to have
been duly elected President;
"(b) there are more than one candidate nominated, a second ballot shall be
held.
"(5) If, on the first ballot, there were two or more candidates, a second
ballot shall be held within fourteen days between the two candidates who
received the highest number of votes validly cast at the first ballot. In the
event that more than two candidates received equally the highest number or
second highest number of votes, all of them shall participate in the second
ballot.
"(6) On a second ballot, the candidate who receives the highest number of votes
shall be declared to have been duly elected President."
"49. Any registered political party which has participated in the
Presidential election may apply to the Supreme Court to determine the validity
of the election of a President by filing a petition within ten days of the
declaration of the result of the election."
NATIONAL ASSEMBLY ELECTIONS
"51. (1) The Independent Electoral Commission shall, by the same Proclamation,
appoint the nomination day and the election day for an election and shall give
not less than thirty days notice of nomination day.
"(2) Except where the vacancy occurs within nine months of the anticipated
dissolution of the National Assembly, the Commission shall appoint an election
day for a by-election for a member to represent a single member constituency
not later than ninety days after the seat became vacant.
"52. A candidate for election in a single member constituency, shall on or
before nomination day-
"(a) deliver to the Independent Electoral Commission:
(i) a nomination paper signed by himself or herself;
"(ii) a sworn declaration of his or her assets and a certificate that he or she
has paid all taxes due from him or her;
"(b) satisfy the Commission that his or her nomination is supported by not less
than three hundred voters registered in the constituency, as signified by their
signatures or otherwise;
"(c) deposit with the Commission such sums as may be prescribed by an Act of
the National Assembly which shall be returned if he or she receives not less
than twenty per cent of the valid votes cast in that constituency at that
election."
"53. A registered voter shall only cast one vote in the constituency in which
he or she is registered.
"54. In elections for a member to represent a single member constituency, the
candidate who obtains the greatest number of valid votes cast shall be the
elected member of the National Assembly for that constituency at that election.
"55. An Act of the National Assembly may make provision for the registered
political parties and candidates to apply to the Supreme Court to determine any
question whether any person was validly elected to the National Assembly or has
vacated his or her seat in the National Assembly, and such provision may
prescribe the circumstances, conditions and manner in which such applications
may be made."
LOCAL GOVERNMENT AND TRADITIONAL RULERS ELECTIONS
"56. in determining the boundaries of any local government authority, the
Independent Electoral Commission shall disregard any consideration of the
ethnic origin of the inhabitants."
"57. (1) The Independent Electoral Commission shall be responsible for
superintending the registration of voters for elections to local government
authorities and for the conduct of such elections in accordance with the
provisions of an Act of the National Assembly for such purposes.
"(2) The Act of the National Assembly shall provide that a candidate for local
government elections shall -
"(a) make a declaration of his or her assets to the Commission; and
"(b) be required to produce a certificate, certifying that he or she has paid
all taxes due from him or her.
"58. (1) Subject to the provisions of this Constitution and any Act of the
National Assembly, the Independent Electoral Commission shall be responsible
for the conduct and supervision of elections to the office of District Chief.
(2) All persons who are ordinarily resident within the chieftaincy district in
which an election is to be held for the office of District Chief and who are
registered as voters for National Assembly elections within the constituency in
which such chieftaincy district or any part of it is situated shall be entitled
to vote in an election of the District Chief.
"(3) The election of the District Chief shall be by secret ballot.
"(4) A candidate for election as District Chief shall be nominated by not less
than one hundred and fifty registered voters.
"(5) An election to fill a vacancy in the office of District Chief shall be
held within one hundred and twenty days of the date the vacancy occurred.
"59. (1) Where the office of Alkalo is to be filled by election, the election
shall be conducted by or under the supervision of the Independent Electoral
Commission in accordance with this Constitution and any Act of the National
Assembly for the regulation of such election.
"(2) All persons who are ordinarily resident within the village in which an
election is to be held for the office of Alkalo and who are registered as
voters for National Assembly elections within the constituency in which such
village or any part of it is situated shall be entitled to vote in an election
of an Alkalo.
"(3) The election of an Alkalo shall be by secret ballot.
"(4) A candidate for election as an Alkalo shall require to be nominated in
such manner as the Commission may prescribe."
ON CONSTITUENCY ELECTION BOUNDARIES
"50(l) The Independent Electoral Commission shall demarcate the constituencies
for the purpose of elections to the National Assembly. The number of
constituencies shall correspond to the number of elected members of the
National Assembly.
"(2) All constituencies shall contain as nearly equal numbers of inhabitants as
appears to the Commission to be reasonably practical, but the Commission may
depart from this principle to such extent as it considers expedient in order to
take account of the following factors, namely -
"(a) the density of population and, in particular, the need to ensure the
adequate representation of sparsely populated areas;
(b) the means of communication;
(c) geographical features; and
(d) the boundaries of existing administrative areas.
"(3) The Commission shall review the constituencies and their respective
boundaries -
(a) whenever a census has been taken of the population;
"(b) whenever an Act of the National Assembly alters the numbers of members who
are to represent single member constituencies;
"(c) not less than eight years or more than ten years after the boundaries of
the constituencies were last reviewed.
"( 4) Where as a result of its review, the Commission considers it necessary to
revise the constituencies or alter their respective boundaries, it shall make
an order to that effect; and if the order is approved by resolution of the
National Assembly, it shall be immediately published in the Gazette and shall
come into force on the date the Commission gives notice of nomination day for
the next general election.
"(5) The powers conferred on the Commission under this section shall be subject
to the approval of the National Assembly."
THE RIGHT TO POLITICAL ASSOCIATION
Those who are to stand for elections may belong to political parties.
Section 25 (1) (e) of the draft Constitution sates:
"Every person shall have the right to -
"freedom of association, which shall include freedom to form and join
associations and unions, including political parties and trade unions;"
Section 26 (a) reads:
"Every citizen of The Gambia of full age and capacity shall have the right,
without unreasonable restrictions -
"(a) to take part in the conduct of public affairs, directly or throug freely
chosen representatives;"
Section 60 reads:
"(1) Subject to the provisions of this section, political parties may be
established to participate in the shaping of the political will of the people,
to disseminate information of political ideas and on political, economic and
social programmes of a national character, and to sponsor candidates for public
elections.
"(2) Subject to the provisions of this section, an Act of the National Assembly
may make provision for the registration and cancelling of registration by the
Independent Electoral Commission, and the functioning and the operation, of
political parties, including the prescription of penalties for the failure to
register by associations which carry out the functions of political parties or
the carrying out of such functions by associations which have been refused
registration or the registration of which has been cancelled.
"(3) The number of political parties shall not be limited by law and every
citizen of The Gambia shall have the right freely to choose whether or not he
or she will become a member of a political party and which party he or she will
support.
"(4) No association shall be registered, or remain registered, as a political
party if -
"(a) it is formed or organized on an ethnic, sectional, religious or regional
basis;
"(b) its internal organization does not conform to democratic principles; or
"(c) its purpose is to subvert this Constitution or the rule of law.
"(5) Every association seeking to be registered as a political party shall
submit to the Independent Electoral Commission -
"(a) a copy of the association's constitution;
"(b) the association's name and full address and the names and addresses of all
its officers;
"(c) the full address of its secretariat; and
"(d) the party's emblem, colour, motto or symbol.
"(6) A registered political party shall be required -
"(a) at the time of its application for registration, to deliver to the
Commission a written commitment to encourage the spirit of tolerance and
multiculturalism amongst the inhabitants of The Gambia and to provide its
members with opportunities to benefit from any government programme of civic
education;
"(b) as occasion may require, to declare to the Commission and the public its
revenue and assets and the source of its revenue and assets;
"(c) to publish annually its audited accounts and to lodge a copy with the
Commission.
"(7) A registered political party shall not receive any contribution or
donation to its expenses or otherwise from any person who is not a citizen of
The Gambia, or from any corporate or unincorporated body.
"(8) Any registered political party that intends to contest any election shall
deliver to the Commission on or before nomination day a copy of its manifesto
containing, among other matters, a clear explanation of the party's programme
for national development."
THE OFFICE OF PRESIDENT
Chapter 6 establishes the executive branch of government Section 61 (1) reads:
"There shall be a President of The Gambia who shall be the Head of State and of
Government and Commander-in-Chief of the Armed Forces."
WHO IS QUALIFIED TO BE ELECTED AS PRESIDENT?
Section 61 of the draft Constitution reads:
"(1) A person shall be qualified for election as President if -
"(a) he or she is a citizen of The Gambia by birth or descent;
"(b) he or she has attained the age of thirty years;
"(c) he or she has been ordinarily resident in The Gambia for at least the five
years immediately preceding the election;
"(d) he or she has completed senior secondary school education; and
"(e) he or she is qualified to be elected as a member of the National Assembly.
WHO IS NOT QUALIFIED TO BE ELECTED AS PRESIDENT?
Section 62 reads:
"(2) A person who holds the citizenship or nationality of a country other than
The Gambia, shall not be qualified for election as President.
"(3) A person who, while holding public office in The Gambia has been -
"(a) compulsorily retired, terminated or dismissed from such office; or
"(b) has been found guilty of any criminal offence by any court or tribunal
established by law; or
"(c) has been found liable for misconduct, negligence, corruption or improper
behaviour by any commission or committee of inquiry established by law
"shall not be qualified for election as President."
Could compulsory retirement, termination or dismissal of public officers not be
used by future presidents to eradicate those considered to be political
threats? Should the retirement, termination and dismissal not be linked to
corruption?
Of course, it is clear that the draft Constitution is not to come into force
until after the first President is sworn in. Notwithstanding, it is good to
learn from the past to prevent future mistakes. There are examples of public
servants being compulsorily retired, terminated or dismissed from their offices
because of the July, 1981 incident or for standing elections without resigning.
It would be ridiculous to deprive such people the right to stand in future
elections as President. This is why a future President should not be provided
with loopholes to impose a self perpetuating rule through seemingly legal
technicalities.
Should being found guilty of traffic offence such as parking offences and other
minor crimes or misdemeanour be sufficient reason to deprive a person of being
a presidential candidate? Should this not be linked to crimes associated with
corruption or major crimes or felony?
THE NATIONAL ASSEMBLY
Section 87 states that:
"There shall be a National Assembly."
WHO IS QUALIFIED TO BE A MEMBER OF THE
NATIONAL ASSEMBLY?
Section 89 states:
"A person shall be qualified for election to the National Assembly or included
in the electoral list of a registered political party as provided in section
51, if he or she -
"(a) is a citizen of The Gambia;
"(b) has attained the age of twenty-one years;
"(c) has been ordinarily resident in that constituency for a period of at least
one year prior to nomination day;
"(d) is able to speak the English language with a degree of proficiency
sufficient to enable him or her to take in the proceedings of the National
Assembly;
"(e) has made such declaration of his or her assets to the Independent
Electoral Commission as required in accordance with section 43.
WHO IS NOT QUALIFIED TO BE A MEMBER OF THE NATIONAL ASSEMBLY?
Section 90 of the Constitution states:
"(a) No person shall be qualified for election as a member of the National
Assembly or in such an electoral list if he or she -
"(a) holds a citizenship or nationality of a country other than The Gambia;
"(b) is adjudged under any law of The Gambia to be found to be of unsound mind;
"(c) is under under sentence of death imposed on him or her by any court, or is
serving a sentence of imprisonment for a term exceeding six months imposed on
or her by a court or substituted by competent authority some other sentence
imposed on him or her by a court, and has not received a free pardon;
"(d) has been found guilty of any abuse of office, corruption or any offence
connected with public elections by a court;
"(e) has been found by the report of a commission or committee of inquiry (the
proceedings of which have been held and published in accordance with the
relevant law) to be incompetent to hold public office by reason of having
acquired assets unlawfully or defrauded the State or misused or abused his or
her office, or wilfully acted in a manner prejudicial to the interests of the
State, and the findings have not been, set aside on appeal or judicial review.
"(f) within the three years preceding nomination day, holds or acts in any
office prescribed by an Act of the national Assembly the functions of which
involve responsibility for, or in connection with the conduct of elections to
the National Assembly or the compilation of any register of voters for the
purpose of such an election;
"(g) unless granted leave of absence in accordance with section 167, holds a
public office or an office in the public service;
"(h) holds or acts in any office or appointment that may be prescribed by an
Act of the National Assembly;
"(i) is a member of a disciplined force;
"(j) is an elected member of a local government authority;
"(k) is a District Chief or Alkalo;
"(i) is adjudged or otherwise declared a bankrupt under any law of The Gambia
and has not been discharged."
CAN THERE BE 'CROSS CARPET' OR CHANGE OF POLITICAL ALLEGIANCE IN THE NATIONAL
ASSEMBLY?
Section 91 (1) states:
"A member of the National Assembly shall vacate his or her seat in the National
Assembly -
"(d) if he or she ceases to be a member of the political party of which he or
she was a member at the time of his or her election;
"Provided that nothing in this paragraph shall apply on a merger of political
parties at the national level where such merger is authorised by the
constitution of the parties concerned;
"(e) if, having been elected a member as an independent candidate, he or she
joins a political party;"
SEE BOOK TWO FOR MORE LESSONS
Order the rest of the copies from FOROYAA at:
FOROYAA,
P.O.Box 2360,
Serrekunda.
The Gambia
email: [log in to unmask]
Telephone: (220) 393177,
Fax: (220) 393177
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