NOTE: The following is the table of contents and chapters I to IV of the Draft Text of the Constitution of The Gambia that was adopted in that country’s national referendum of 7 August 1996. This extract is taken with permission from the complete text, reproduced and issued on September 1997 in volume VII of Constitutions of the Countries of the World (Permanent Ed., 1971), edited by A.P. Blaustein & G.H. Flanz, all rights reserved.
©Copyright 1995 by Oceana Publications, Inc.
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A DRAFT OF A CONSTITUTION FOR THE SECOND REPUBLIC OF THE GAMBIA
ARRANGEMENT OF SECTIONS
- The Republic
- Public Seal
- National flag and anthem
THE CONSTITUTION AND THE LAWS
- Supremacy of the Constitution
- Enforcement of the Constitution
- Defence of the Constitution
- The laws of The Gambia
- Citizens on the commencement of the Constitution
- Citizens by birth
- Citizens by descent
- Marriage to a citizen
- Naturalisation as a citizen
- Deprivation of citizenship
- Restoration of citizenship
- Acts of the National Assembly
- Interpretation of Chapter III
PROTECTION OF FUNDAMENTAL RIGHTS AND FREEDOMS
- Fundamental rights and freedoms
- Protection of right to life
- Protection of right to personal liberty
- Protection from slavery and forced labour
- Protection from inhuman treatment
- Protection from deprivation of property
- Provision to secure protection of the law and fair trial
- Freedom of speech, conscience, assembly, association and movement
- Political rights
- Right to marry
- Rights of women
- Rights of children
- Rights to Education
- Rights of the disabled
- Protection from discrimination
- Declaration of state of public emergency
- Derogations from fundamental rights under emergency powers
- Persons detained under emergency powers
- Enforcement of protective provisions
- Interpretation of Chapter IV
REPRESENTATION OF THE PEOPLE
PART 1: THE FRANCHISE
- The right to vote and be registered
- Secret ballot
- Electoral laws
PART 2: THE INDEPENDENT ELECTORAL COMMISSION
- The Commission
- The functions of the Commission
- Electoral Laws
PART 3: PRESIDENTIAL ELECTIONS
- Election of a President
- Nomination of candidates
- Poll on an election
- Challenge to election of a President
- Delimitation of constituencies
PART 5: NATIONAL ASSEMBLY ELECTIONS
- National Assembly elections
- Nomination of candidates
- Voting at elections
- Constituency voting
- Questions as to membership of the National Assembly
PART 6: LOCAL GOVERNMENT AND TRADITIONAL RULERS ELECTIONS
- Local government boundaries
- Elections to local government authorities
- Elections for District Chiefs
- Elections for an Alkalo
PART 7: POLITICAL PARTIES
- Political parties
PART 1: THE PRESIDENT
- Office of President
- Qualifications for election of President
- Tenure of office of President
- Temporary exercise of President’s functions
- Vacancy in the office of President
- Mental or physical incapacity
- Misconduct by President
- Salary and allowances
- Immunity from civil and criminal proceedings
PART 2: CABINET
- The Vice-President
- Secretaries of State
- Functions and Incidents of office
- Responsibility of Cabinet and Secretaries of State
- Vote of censure
PART 3: EXECUTIVE POWERS
- The Executive power
- The Executive power and the National Assembly
- National Security Council
- Foreign Affairs
- Constitution of Public Offices
- Administration of Ministries
- Prerogative of Mercy
- Honours and titles
PART 4: PROSECUTIONS
- Director of Public Prosecutions
- Control of prosecutions
- Private prosecutions
THE NATIONAL ASSEMBLY AND LEGISLATION
PART 1: ESTABLISHMENT OF THE NATIONAL ASSEMBLY AND MEMBERS
- Establishment of the National Assembly
- Members of the National Assembly
- Qualifications for membership of the National Assembly
- Disqualifications for membership of the National Assembly
- Tenure of seats of members of the National Assembly
- Recall of members of the National Assembly
- The Speaker and the Deputy Speaker
- Clerk of the National Assembly
- Remuneration and allowances
PART 2: THE MEETING AND DISSOLUTION OF THE NATIONAL ASSEMBLY
- General Election
- Sessions of the National Assembly
- Sittings of the National Assembly
- Term of the National Assembly
PART 3: LEGISLATION AND OTHER POWERS OF THE NATIONAL ASSEMBLY
- The legislative power
- Introduction of bills and motions
- Additional functions of the National Assembly
PART 4: PROCEDURE IN THE NATIONAL ASSEMBLY
- Presiding in the National Assembly
- Vacancy and quorum
- Language in the National Assembly
- Voting in the National Assembly
- Unqualified person sitting or voting
- Regulation of procedure in the National Assembly
- Committees of the National Assembly
- Contempt of the National Assembly
- The National Assembly Service
PART 5: RESPONSIBILITIES, PRIVILEGES AND IMMUNITIES
- Responsibilities of members
- Freedom of speech and debate
- Privilege of the National Assembly
- Immunity from service of process and arrest
- Immunity from witness summons
- Immunity from jury service
- Immunity for publication of proceedings
- Privileges of witnesses
PART 1: THE COURTS OF THE GAMBIA
- The Courts and the judicial power
- The Chief Justice
- The Superior Courts
- Immunity from suit
- Courts to give timely decisions
PART 2: THE SUPERIOR COURTS
A: The Supreme Court
- Composition of the Supreme Court
- Jurisdiction of Supreme Court
- Original jurisdiction
- Appellate jurisdiction
B: The Court of Appeal
- Composition of Court of Appeal
- Jurisdiction of Court of Appeal
C: The High Court
- Composition of High Court
- Jurisdiction of High Court
- Supervisory jurisdiction
D: Special Criminal Court
- Special Criminal Court
- National Assembly to make further provision
PART 3: THE CADI COURT
- The Cadi Court
PART 4: THE JUDGES
- Appointment of judges
- Qualifications of judges
- Vacancy in office of the Chief Justice
- Tenure of office of judges
- Remuneration of judges
PART 5: ADMINISTRATION OF THE COURTS
- Administrative provisions
PART 6: THE JUDICIAL SERVICE COMMISSION
- The Judicial Service Commission
- Appointment of Judicial officers and court staff
- Other functions of Commission
- Operation and procedure
PART 1: PUBLIC FINANCE
- Consolidated Fund
- Withdrawals from Consolidated and other funds
- Annual estates and Appropriation Bill
- Supplementary appropriation
- Contingencies Fund
- Salaries, etc., charged on Consolidated Fund
- The Public Debt
PART 2: THE AUDITOR-GENERAL AND THE NATIONAL AUDIT OFFICE
- The Auditor-General
- National Audit Office
- Functions of Auditor-General
PART 3: THE CENTRAL BANK
- Establishment of Central Bank
- The Board of the Central Bank
- The National Assembly to establish office of Ombudsman
- Appointment and tenure of office of ombudsman
- Independence of Ombudsman
THE PUBLIC SERVICES
PART 1: OFFICES IN THE PUBLIC SERVICE
- The Public Service
- Appointment to and removal from offices in the public service
- Head of the Civil Service
- Protection of public servants
- Restriction on political activities of public servants
- Retirement age
PART 2: THE PUBLIC SERVICE COMMISSION
- Establishment of Commission
- Powers of appointment
- Other powers of Commission
PART 3: PUBLIC ENTERPRISES
- Public Enterprises
PART 4: PENSIONS
- Protection of pension rights
- Public service pensions to be free of tax
THE POLICE FORCE AND THE PRISON SERVICE
PART 1: THE POLICE FORCE
- The Gambia Police Force
- Control of Police Force
- Police Council
- Appointments in Police Force
PART 2: THE PRISON SERVICE
- The Gambia Prison Service
- Control of Prison Service
- Prison Service Council
- Appointments in Prison Service
THE ARMED FORCES AND THE NATIONAL INTELLIGENCE AGENCY
- The Gambia Armed Forces
- Control of the Armed Forces
- Armed Forces Council
- Appointments in Armed Forces
PART 2: NATIONAL INTELLIGENCE AGENCY
- National Intelligence Agency
- LAND COMMISSION
LOCAL GOVERNMENT AND TRADITIONAL RULERS
- System of local government
- Local government authorities
THE NATIONAL YOUTH SERVICE
- The National Assembly to establish National Youth Service
- Participation in the Service
- National Youth Service Board
THE NATIONAL COUNCIL FOR CIVIC EDUCATION
- The National Assembly to establish National Council for Civic – Education
- Functions of the Council
COMMISSIONS OF INQUIRY
- Commission of Inquiry
- Presiding Commissioner
- Function and power of Commission
- Publication of report
- Adverse findings
- Immunities of witnesses
- The National Assembly to make further provision
- Freedom and responsibility of the Media
- Responsibility of State owned media
- Limitations on rights and freedoms
- National Media Commission
DIRECTIVE PRINCIPLES OF STATE POLICY
- Application of the Directive Principles of State Policy
- National Integration and Unity
- National Sovereignty and Independence
- Political Objectives
- Economic Objectives
- Social Objectives
- Educational Objectives
- Cultural Objectives
- Foreign Relations
- Duties of a Citizen
CODE OF CONDUCT FOR PUBLIC OFFICERS
- Application of Code of Conduct
- The Code of Conduct
- Declaration of assets
- Ombudsman to report contravention of Code of Conduct
- Payment of taxes
AMENDMENT OF THE CONSTITUTION
- Alteration of the Constitution
PART 1: APPOINTMENTS AND RESIGNATIONS
- Acting appointments
- Re-appointments and concurrent appointments
PART 2: GENERAL
- Construction of various powers
- Transitional and consequential
THE NATIONAL FLAG
TRANSITIONAL AND CONSEQUENTIAL PROVISIONS
– In the name of God, the Almighty,
We the people of the Gambia have accomplished a great and historic task. We have had our say on how we should be governed. For this Constitution contains our will and resolve for good governance and a just, secure and prosperous society.
Our hopes and aspirations as a people were reflected in the enthusiasm and zeal with which we embarked on the task of nation building on the attainment of independence. The self-perpetuating rule of the recent past, however, soon gave rise to the abuse of office and related vices which negated the total welfare of the Gambian people. The sovereign people of The Gambia therefore endorsed the change of government on 22nd July 1994 to rectify such evils.
This Constitution provides for us a fundamental law, which affirms our commitment to freedom, justice, probity and accountability. It also affirms the principle that all power emanate from the sovereign will of the people.
The fundamental rights and freedoms enshrined in this Constitution will ensure for all time respect for and observances of human rights and fundamental freedoms for all, without distinction as to ethnic considerations, gender, language or religion. In acknowledging our fundamental rights we also affirm our duties and responsibilities as citizens of this country.
This Constitution guarantees participatory democracy that reflects the undiluted choice of the people. The functions of the arms of government have been clearly defined, their independence amply secured with adequate checks and balances to ensure that they all work harmoniously together toward our common good.
As we usher in the second Republic and beyond we give ourselves and generations of Gambians yet unborn this Constitution as a beacon of hope for peace and stability in our society and the good governance of The Gambia for all time.
In this spirit, we continue to pledge our firm allegiance to our beloved Country and pray that the Great God of Nations will keep us all ever true to The Gambia.
1. – (1) – The Gambia is a Sovereign Republic.
– (2) – The Sovereignty of The Gambia resides in the people of The Gambia from whom all organs of government derive their authority and in whose name and for whose welfare and prosperity the powers of government are to be exercised in accordance with this Constitution.
2. – (1) – The Public Seal shall be the seal in existence immediately before this Constitution comes into force or such other seal as may be prescribed by an Act of the National Assembly.
– (2) – The Public Seal shall be used exclusively for authenticating letters of state and no person or organisation, other than the Government of The Gambia and those persons who may be authorised in accordance with an Act of the National Assembly. may use the design of the seal or any design resembling it as such person’s or organisation’s emblem.
3. – (l) – The National Flag shall be a flag of the design set out in schedule 1.
– (2) – The National Anthem shall be the anthem in use immediately before this Constitution comes into force.
THE CONSTITUTION AND THE LAWS
4. This Constitution is the supreme law of The Gambia and any other law found to be inconsistent with any provision of this Constitution shall, to the extent of the inconsistency, be void.
5. – (1) – A person who alleges that-
- any Act of the National Assembly or anything done under the authority of an Act of the National Assembly; or
- any act or omission of any person or authority is inconsistent with or is in contravention of a provision of this Constitution, may bring an action in a court of competent jurisdiction for a declaration to that effect.
– (2) – The court may make orders and give directions as it may consider appropriate for giving effect, or enabling effect to be given, to such a declaration and any person to whom any order or direction is addressed shall duly obey and carry out the terms of the order or direction.
– (3) – The failure to obey or carry out any order made or direction given under subsection (2) shall constitute the offence of violating the Constitution and –
- (a) – shall, in the case of the President or Vice President, constitute a ground for his or her removal from office in accordance with section 67; and
- any other persons who is convicted of that offence shall be liable to the penalty prescribed by an Act of the National Assembly.
6. – (1) – Any person who-
- by himself or herself or in concert with others by any violence or other unlawful means, sUspends or overthrows or abrogates this Constitution or any part of it, or attempts to do any such act; or
- aids and abets in any manner any person referred to in paragraph (a),
commits the offence of treason and shall, on conviction, be liable to the penalty prescribed by an Act of the Rational Assembly for that offence.
– (2) – All citizens of The Gambia have the right and the duty at all times to defend this Constitution and, in particular, to resist, to the extent reasonably justifiable in the circumstances, any person or group of persons seeking or attempting by any violence or unlawful means to suspend, overthrow or abrogate this constitution or any part of it .
– (3) – A person who resists the suspension, overthrow or abrogation of this Constitution as provided in subsection (2) commits no offence.
7. – In addition to this Constitution, the laws of The Gambia consist of-
- Acts of the National Assembly made under this Constitution and subsidiary legislation made under such acts;
- 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;
- the existing laws including all decrees passed by the Armed Forces Provisional Ruling Council;
- the common law and principles of equity;
- customary law so far as it concerns members of the communities to which it applies;
- the Sharia as it regards matters of marriage, divorce and inheritance among members of the communities to which it applies.
8. – Every person who, immediately before the coming into force of this Constitution, is a citizen of The Gambia, shall, subject to this Constitution-
- continue to be a citizen of The Gambia;
- retain the same status as a citizen by birth, by descent, by registration or by naturalisation, as the case may be, as he or she enjoyed immediately before the coming into force of this Constitution.
9. – (1) – Every person born in The Gambia after the coming into force of this Constitution shall become a citizen of The Gambia at the date of his or her birth if, at the time of his or her birth, one or both of his or her parents is a citizen of The Gambia.
– (2) – A child of not more than seven years of age found in The Gambia whose parents are not known shall be presumed to be a citizen of The Gambia by birth.
10. – A person born outside The Gambia after the coming into force of this Constitution shall be a citizen of The Gambia by descent if at the time of his or her birth either of his or her parents is a citizen of The Gambia otherwise than by virtue of this section or any comparable provision of any earlier constitution.
11. – (1) – Any person who
- is married to a citizen of The Gambia and, since the marriage, has been ordinarily resident in The Gambia for a period of not 1ess than seven years; or
- has been married to another who was, during the subsistence of the marriage, a citizen of The Gambia and, since the end of the marriage (whether by annulment, divorce or death), has been ordinarily resident in The Gambia for a period of not less than seven years,
shall be entitled, upon making application in such manner as may be prescribed by an Act of the National Assembly, to be registered as a citizen of The Gambia.
(2) – The annulment of a marriage of a person who has been registered as a citizen of The Gambia under this section, or under the provisions of any earlier law for the registration as a citizen of The Gambia of a person on account of marriage, shall not affect that person’s status as a citizen of The Gambia.
12. – (1) – Any person who has been ordinarily resident in The Gambia for a continuous period of not less than fifteen years and who satisfies the conditions set out in subsection (2) may apply in such manner as may be prescribed by or under an Act of the National Assembly, to be naturalised as a citizen of The Gambia.
– (2) – The conditions referred to in subsection (1) are that the applicant-
- is of full age and capacity;
- is of good character;
- has clearly shown that, if naturalised, he or she intends to continue permanently to reside in The Gambia;
- is capable of supporting himself or herse1f and his or her dependents.
– (3) – The Secretary of State shall give reasons for any refusal of an application made under this section.
– (4) – No person shall be naturalized until he or she has renounced any other citizenship he or she may have and taken an oath of allegiance to The Gambia.
13. – (1) – The Secretary of State may apply to the High Court for an order depriving a person who has been registered or naturalised as a citizen of The Gambia of his or her citizenship on the grounds that he or she-
- has acquired by registration, naturalisation or any other voluntary or formal act (other than marriage) the citizenship of any other country;
- has acquired the citizenship of Gambia by means of fraud, false representation or the concealment of any material fact;
- has, at any time since acquiring citizenship of The Gambia, voluntarily claimed and exercised in a country other than The Gambia any rights available to him or her under the laws of that country, being rights accorded exclusively to its citizens;
- has within seven years after being registered or naturalised been convicted in any country of an offence involving fraud, dishonesty or moral turpitude.
And, in the cases referred to in paragraphs (c) and (d), it is not conducive to the public good that he or she should continue to be a citizen of The Gambia.
– (2) – Before making any application for an order under this section, the Secretary of State shall give notice in writing to the person concerned of the grounds for the application and of his or her right to be heard and to be legally represented at the hearing of the application before the Court.
– (3) – If the High Curt is satisfied that the Secretary of State has established that the person concerned has acted in a manner described in subsection (2) and notified to that person, and, in a case referred to in paragraph (c) or (d) that it is not conducive to the public good that the person concerned should continue to be a citizen of The Gambia, it shall make an order depriving that person of his or her citizenship of The Gambia.
– (4) – Nothing in this or any other provision of this Constitution or any other law shall be construed as depriving, or authorising any person or authority to deprive, any citizen of The Gambia by birth or descent of his or her citizenship of The Gambia whether on account of such citizen’s holding the citizenship or nationality of some other country or for any other cause.
14. – A citizen of The Gambia who loses his or her citizenship of The Gambia as a result of the acquisition or possession of the citizenship of some other country shall, on the renunciation of the citizenship of that other country, be entitled to be registered, or if he or she was formerly a citizen by birth or descent, to be officially recognized, as a citizen of The Gambia.
15. – An Act of the National Assembly may make provision for-
- the acquisition of the citizenship of The Gambia by persons who are not eligible to become citizens under the provisions of this chapter;
- the renunciation by any person of his or her citizenship in The Gambia;
- generally to give effect to the provisions of this Chapter.
16. – (1) – In this Chapter, “Secretary of State”means the Secretary of State for the time being responsible for citizenship matters.
– (2) – For the purposes of this Chapter, a person born aboard a registered ship or aircraft, or aboard an unregistered ship or aircraft of the government of any country, shall be deemed to have been born in the place in which the ship or aircraft is registered or, as the case may be,’ be, in that country.
– (3) – Any reference in this Chapter to the citizenship of a parent of a person at the time of that person’s birth, shall, in relation to a person born after the death of that parent, be construed as a reference to that parent’s citizenship at the time of death.
PROTECTION OF FUNDAMENTAL RIGHTS AND FREEDOMS
17. – (l) – The fundamental human rights and freedoms enshrined in this Chapter shall be respected and upheld by all organs of the Executive and its agencies, the Legislature and, where applicable to them, by all natural and legal persons in The Gambia, and shall be enforceable by the Courts in accordance with this Constitution.
– (2) – Every person in The Gambia, whatever, his or her, race, colour, gender, language, religion, political or other opinion, national or social origin, property, birth or other status, shall be entitled to the fundamental human rights and freedoms of the individual contained in this Chapter, but subject to respect for the rights and freedoms of others and for the public interest.
18. – (1) – No person shall be deprived of his or her life intentionally except in the execution of a sentence of death imposed in a court of competent jurisdiction in respect of a criminal offence for which the penalty is death under the laws of The Gambia as they have effect in accordance with subsection (2) and of which he or she has been lawfully convicted.
– (2) – As from the coming into force of this constitution, no court in The Gambia shall be competent to impose a sentence of death for any offence unless the sentence is prescribed by law and the offence involves violence, or the administration of any toxic substance, resulting in the death of another person.
– (3) – The National Assembly shall within ten years from the date of the calling into force of this Constitution review the desirability or otherwise of the total abolition of the death penalty in The Gambia.
(4) – Without prejudice to any liability for a contravention of any other law with respect to the use of force in such cases are hereinafter mentioned, a person shall not be regarded as having been deprived of his or her life in contravention of this section if he or she dies as a result of the use of force to such extent as is reasonably justifiable in the circumstances of the case, that is to say-
- for the defence of any person from unlawful violence or for the defence of property;
- in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
- for the purpose of suppressing a riot, insurrection or mutiny;
- in order to prevent the commission by that person of a criminal offence, or
- if he or she dies as a result of a lawful act of war.
19. – (1) – Every person shall have the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his or her liberty except on such grounds and in accordance with such procedures as are established by law.
– (2) – Any person who is arrested or detained shall be informed as soon as is reasonably practicable and in any case within three hours, in a language that he or she understands, of the reasons for his or her arrest or detention and of his or her right to consult a legal practitioner.
– (3) – Any person who is arrested or detained-
- for the purpose of bringing him or her before a court in execution of the order of a court; or
- upon reasonable suspicion of his or her having committed or being about to commit a criminal offence under the law of The Gambia,
and who is not released, shall be brought without undue delay before a court and, in any event, within seventy-two hours.
– (4) – Where any person is brought before a court in execution of the order of a court in any proceedings or upon suspicion of his or her having committed or being about to commit an offence, he or she shall not thereafter be further held in custody in connection with those proceedings or that offence save upon the order of a court.
– (5) – If any persons arrested or detained as mentioned in subsection (3)(b) is not tried within a reasonable time, then without prejudice to any further proceedings which may be brought against him or her, he or she shall be released either unconditionally or upon reasonable conditions, including, in particular, such conditions as are reasonable necessary to ensure that he or she appears at a later date for trial or proceedings preliminary to trial.
– (6) – Any person who is unlawfully arrested or detained by any other persons shall be entitled to compensation from that other persons or from any other person or authority on whose behalf that other person was acting.
20. – (1) – No person shall be held in slavery or servitude.
– (2) – No person shall be required to perform forced labour.
– (3) – For the purposes of this section, the expression “forced labour”does not include-
- any labour required in consequence of a sentence or order of a court;
- labour required of any person while he or she is lawfully detained that, though not required in consequence of the sentence or order of the court, is reasonable necessary in the interests of hygiene for the maintenance of the place in which he or she is detained;
- any labour required of a member of a defence force in pursuance of his or her duties as such or, in the case of a person who has conscientious objections to service as a member of any naval, military or air force, any labour which that person is required by law to perform in place of such service;
- any labour required during a period of public emergency or in the event of any other emergency or calamity which threatens the life or well-being of the community, to the extent that the requiring of such labour is reasonably justifiable in the circumstances of any situation arising or existing during that period or as a result of that other emergency or calamity, for the purposes of dealing with that situation; or
- any labour reasonably required as part of reasonable and normal communal or other civic obligations.
21. – No person shall be subject to torture or inhuman or degrading punishment or other treatment.
22. – (1) – No property of any description shall be taken possession of compulsorily, and no right over or interest in any such property shall be acquired compulsorily in any part of The Gambia, except where the following conditions are satisfied-
- the taking possession or acquisition is necessary in the interest of defence, public safety, public order, public morality, public health, town and country planning, or the development or utilisation of any property in such manner as to promote the public benefit; and
- the necessity therefor is such as to afford reasonable justification of the causing of any hardship that may result to any person having any interest in or right over the property; and
- provision is made by law applicable to that taking of possession or acquisition-
- for the prompt payment of adequate compensation; and
- securing to any person having an interest in or right over the property, a right of access to a court or other impartial and independent authority for the determination of his or her interest or right, the legality of the taking of possession or acquisition of the property, interest or right, and the amount of any
– (3) – Nothing in this section shall be construed as-
- in satisfaction of any tax, rate or due;
- by way of penalty for breach of law, whether under civil process or after conviction of a criminal offence;
- as an incident of a lease, tenancy, mortgage, charge, bill of sale, pledge or contract;
- by way of the vesting or administration of trust property, enemy property, bona vacantia, or the property of persons adjudges or otherwise declared bankrupt or insolvent, persons of unsound mind;
- in the execution of judgements or orders of courts;
– (6) – Where any such property as is referred to in subsection (5) is not used in the public interest or for the public purpose for which it was taken or acquired, the person who was the owner immediately before the compulsory taking or acquisition, as the case may be, shall be given the first option of acquiring that property, in which event he or she shall be required to refund the whole or such part of the compensation as may be agreed upon between the parties thereto; and in the absence of any such agreement such amount as shall be determined by the High Court.
23. – (1) – No person shall be subject to interference with the privacy of his or her home, correspondence or communications save as is in accordance with law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the protection of health or morals, for the prevention of disorder or crime or for the protection of the rights and freedoms of others.
– (2) – Searches of the person or the home of individuals shall only be justified-
- where these are authorised by a competent judicial authority;
- in cases where delay in obtaining such judicial authroity carries with it the danger of prejudicing the objects of the search or the public interest and such procedures as are prescribed by an Act of the National Assembly to preclude abuse are properly satisfied.
24. – (1) – Any court or other adjudicating authority established by law for the determination of any criminal trial or matter, or for the determination of the existence or extent of any civil right or obligation, shall be independent and impartial; and-
- if any person is charged with a criminal offence, then, unless the charge is withdrawn; or
- where proceedings are commenced for the determination or the existence of any civil right or obligation,
the case shall be afforded a fair hearing within a reasonable time.
– (2) – All proceedings of every court and proceedings relating to the determination of the existence or extent of civil rights of obligations before any other authority, including the announcement of the decision of the court or other authority, shall be held in public.
– (3) – Every person who is charged with a criminal offence-
- shall be presumed innocent until he or she is proved, or has pleaded, guilty;
- shall be informed at the time he or she is charged, in a language which he or she understands and in detail, of the nature of the offence charged;
- shall be given adequate time and facilities for the preparation of his or her defence;
- shall be permitted to defend himself or herself before the court in person or, at his or her own expense, by a legal representative of his or her own choice;
provided that where a person is charged with an offence which carries a punishment of death or imprisonment for life, that person shall be entitled to legal aid at the expense of the State.
- shall be afforded facilities to examine in person or by his or her legal representative the witnesses called by the prosecution before the court and to obtain the attendance and carry out the examination of witnesses to testify on his or her behalf before the court on the same conditions as those applying to witnesses called by the prosecution; and
- shall be permitted to have without payment the assistance of an interpreter if he or she cannot understand the language used at the trial of the charge;
and, except with his or her own consent, the trial shall not take place in his or her absence unless he or she so conducts himself or herself as to render the continuance of the proceedings in his or her presence impractical and the court has ordered him or her to be removed and the trial to proceed in his or her absence.
– (4) – When a person is tried for any criminal offence, the accused person or any person authorised by him or her in that behalf shall, if he or she requires and subject to the payment of such reasonable fee as may be prescribed by law, be given within a reasonable time, and in any event within thirty days after the end of the trial, a copy for the use of the accused person of any record of the proceedings made by or on behalf of the court.
– (5) – No person shall be charged with or held to be guilty of a criminal offence on account of any act or omission which did not at the time it took place constitute such an offence, and no penalty shall be imposed for any criminal offfence which is more severe in degree or description than the maximum penalty which might have been imposed for that offence at the time when it was committed.
– (6) – No person who shows that he or she has been tried by any competent court for a criminal offence and either convicted or acquitted shall again be tried for that offence or for any other offence of which he or she could have been convicted at the trial for that offence save upon the order of a superior court made in the course of appeal or revision proceedings relating to the conviction or acquittal;
Provided that nothing in any law shall be held to be inconsistent with or in contravention of this subsection by reason only that it authorised any court to try a member of a defence force for a criminal offence notwithstanding any trial or conviction of the member under service law; but any court so trying such a member and convicting him or her shall, in sentencing him or her to any punishment, take into account any punishment awarded him or her under service law.
– (7) – No person shall be tried for a criminal offence if he or she shows he or she has been pardoned for that offence.
– (8) – No person charged with a criminal offence shall be compelled to give evidence at the trial.
– (9) – A person charged with a criminal offence in the High Court shall have the right to elect to be tried by a jury.
– (10) – nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of-
- subsection (3)(a), to the extent that the law in question imposes upon any person charged with a criminal offence the burden of proving particular facts;
- subsection (3)(e), to the extent that the law in question imposes reasonable conditions that must be satisfied if witnesses called to testify on behalf of an accused person are to be paid their expenses out of public funds.
25. – (1) – Every person shall have the right to-
- freedom of speech and expression, which shall include freedom of the press and other media;
- freedom of thought, conscience and belief, which shall included academic freedom;
- freedom to practise any religion and to manifest such practice;
- freedom to assemble and demonstrate peaceably and without arms;
- freedom of association, which shall include freedom to form and join associations and unions, including political parties and trade unions;
- freedom to petition the Executive for redress of grievances and to resort to the Courts for the protection of his or her rights;
– (2) – Every person lawfully within The Gambia shall have the right to move freely throughout The Gambia, to choose his or her own place of residence within The Gambia, and to leave The Gambia.
– (3) – Every citizen of The Gambia shall have the right to return to The Gambia.
– (4) – The freedoms referred to in subsections (1) and (2) shall be exercised subject to the law of The Gambia in so far as that law imposes reasonable restrictions on the exercise of the rights freedoms thereby conferred, which are necessary in a democratic society and are required in the interests of the sovereignty and integrity of The Gambia, national security, public order, decency or morality, or in relation to contempt of court.
26. Every citizen of The Gambia of full age and capacity shall have the right, without unreasonable restrictions-
- to take part in the conduct of public affairs, directly or through freely chosen representatives;
- to vote and stand for public office, which elections shall be by universal and equal suffrage and be held by secret ballot;
- to have access, on general terms of equality, to public service in The Gambia.
27. – (1) – Men and women of full age and capacity shall have the right to marry and found a family.
– (2) – Marriage shall be based on the free and full consent of the intended parties.
28. – (1) – Women shall be accorded full and equal dignity of the person with men.
– (2) – Women shall have the right to equal treatment with men, including equal opportunities in political, economic and social activities.
29. – (1) – Children shall have the right form birth to a name, the right to acquire a nationality and, subject to legislation enacted in the best interest of children, to know and be cared for by their parents.
– (2) – Children under the age of sixteen years are entitled to be protected from economic exploitation and shall not be employed in or required to perform work that is likely to hazardous or to interfere with their education or be harmful to their health or physical, mental, spiritual, moral or social development.
– (3) – A juvenile offender who is kept in lawful custody shall be kept separately from adult offenders.
30. All persons shall have the right to equal educational opportunities and facilities and with a view to achieving the full realisation of that right-
- basic education shall be free, compulsory and available to all;
- secondary education, including technical and vocational education, shall be made generally available and accessible to all by every appropriate means, and in particular, by the progressive introduction of free education;
- higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular, by progressive introduction of free education;
- functional literacy shall be encouraged or intensified as far as possible;
- the development of a system of schools with adequate facilities at all levels shall be actively pursued.
31. – (1) – The right of the disabled and handicapped to respect and human dignity shall be recognised by the State and society.
– (2) – Disabled persons shall be entitled to protection against exploitation and to protection against discrimination, in particular as regards access to health services, education and employment.
– (3) – In any judicial proceedings in which a disabled person is a party, the procedure shall take his or her condition into account.
32. – Every person shall be entitled to enjoy, practise, profess, maintain and promote any culture, language, tradition or religion subject to the terms of this constitution and to the condition that the rights protected by this section do not impinge on the rights and freedoms of others or the national interest, especially unity.
33. – (1) – All persons shall be equal before the law.
– (2) – Subject to the provisions of subsection (5), no law shall make any provision which is discriminatory either of itself or in its effect.
– (3) – Subject to the provisions of subsection (5), no person shall be treated in a discriminatory manner by any person acting by virtue of any law or in the performance of the functions of any public office or any public authority.
– (4) – In this section, the expression “discrimination” means affording different treatment to different persons attributable wholly or mainly to their respective descriptions by race, colour, gender, language, religion, political or other opinion, national or social origin, property, birth or other status whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject, or are accorded privileges or advantages which are not accorded to persons of another such description.
– (5)Subsection (2) shall not apply to any law in so far as that law makes provision-
- with respect to persons who are not citizens of The Gambia or to qualifications for citizenship;
- with respect to the qualifications prescribed by this Constitution for any office;
- with respect to adoption, marriage, divorce, burial, devolution of property on death or other matters of personal law;
- for the application in the case of members of a particular race or tribe of customary law with respect to any matter in the case of persons who, under that law, are subject to that law.
– (6) – Subsection (3) shall not apply to anything which is expressly or by necessary implication authorised to be done by any such provision of law as is refereed to in subsection (5).
– (7) – The exercise of any discretion relating to the institution, conduct or discontinuance of civil or criminal proceedings in any court that is vested in any person by the Constitution or any other law shall not be enquired into by any court on the grounds that it contravenes the provisions of subsection (3).
34. – (1) – The President may, at any time, by Proclamation published in the Gazette, declare that-
- a state of public emergency exists in the whole or any part of The Gambia;
- a situation exists which, if it is allowed to continue, may lead to a state of public emergency.
– (2) – A declaration made under this section shall lapse at the expiration of a period of seven days, or if the National Assembly is not then in session twenty-one days, beginning on the day on which the Proclamation is published in the Gazette unless, before the expiration of that period, it has been approved by a resolution of the National Assembly, supported by the votes of not less than two-thirds of all the members thereof.
– (3) – A declaration made under subsection (1) may at any time be revoked by the President by Proclamation which shall be published in the Gazette.
– (4) – A declaration made under subsection (1) that has been approved by a resolution of the National Assembly shall, subject to subsection (3), remain in force so long as that resolution remains in force and no longer.
– (5) – A resolution of the National Assembly passed for the purpose of this section shall remain in force for ninety days or such shorter period as may be specified therein:
(a) – any such resolution may be extended from time to time by a further resolution supported-
(b) – in the case of a first extension, by the votes of not less than two thirds of all the members of the National Assembly;
(c) – in the case of a subsequent extension, by the votes of not less than three quarters of all the members of the National Assembly,
– but no extension shall exceed ninety days from the date of the resolution effecting the extension; and
any such resolution may be revoked at any time by a resolution supported by the votes of the majority of all the members of the National Assembly.
– (6) – Any provision of this section that a declaration shall lapse or cease to be in force at any particular time shall be without prejudice to the making of a further declaration under this section whether before or after that time.
35. – (1) – An Act of the National Assembly may authorise the taking, during any period of public emergency, of measures that are reasonably justifiable for dealing with the situation that exists in The Gambia.
– (2) – Nothing contained in or done under the authority of such an Act shall be held to be inconsistent with or in contravention of sections 19, 23, 24 (other than subsections (5) to (8) thereof) or 25 of this Constitution to the extent that it is reasonably justifiable in the circumstances arising or existing during a period of public emergency for the purpose for dealing with the situation.
36. – (1) – Where a person is detained by virtue of or under any Act of the National Assembly referred to in section 35, the following provisions shall apply-
- he or she shall, as soon as reasonably practicable, and in any case not later than twenty four hours after the commencement of the detention, be furnished with a statement in writing specifying in detail the grounds upon which he or she is detained; and the statement shall be read, and if necessary, interpreted, to the person who is detained in a language which he or she understands;
- the spouse, parent, child or other available next-of-kin of the person detained shall be informed by the authority effecting the detention and shall be permitted access to the person concerned at the earliest practicable opportunity, and in any case not later than twenty-four hours after the commencemenet of the detention;
- where none of the persons mentioned in paragraph (b) can be traced or none of them is willing and able to see the person detained, the person who is detained shall be informed of this fact within twenty four hours of the commencement of the detention and he or she shall be informed of his or her right to name and give particulars of some other person who shall have the same right of access to the person who is detained as any of the persons mentioned in paragraph (b);
- not more than fourteen days after the commencement of his or her detention, the authority which effected the same shall give notice in the Gazette stating that he or she has been detained and giving particulars of the provision of law under which the detention is authorised;
- not more than thirty days after the commencement of his or her detention, and after that at intervals of not more than ninety days during the continuance of his or her detention, the case of the person concerned shall be reviewed by a tribunal as provided in subsection (2);
- the person who is detained shall be afforded every possible facility to consult a legal practitioner of his or her choice who shall be permitted to make representation to the tribunal appointed to review the case;
- at the hearing before the tribunal appointed for the review of his or her case, the person detained shall be entitled to appear in person or by a legal practitioner of his or her choice and at his or her own expense.
– (2) – A tribunal appointed to review the cases of persons who have been detained shall be composed of three persons being, or qualified to be appointed as, judges of the High Court.
– (3) – A tribunal composed of the same members shall not review more than once the case of a particular person who has been detained.
– (4) – On a review by a tribunal of the case of a person who has been detained, the tribunal may order the release of the person or it may uphold the detention; and the authority by which the detention was ordered shall act in accordance with the decision of the tribunal for the release of any person.
– (5) – No person may be detained under or by virtue of an Act of the national Assembly referred to in section 35 during any state of emergency in excess of a total of one hundred and eighty two days (whether such days are consecutive or not) and, on the expiry of that period, any person who has been so detained shall be entitled to invoke the provisions of section 19 (right to personal liberty).
– (6) – In every month during the period in which a state of public emergency is in force and in which there is a sitting of the National Assembly, A Secretary of State authorised by the President shall make a report to the National Assembly of the number of persons detained by virtue of or under an Act of the national Assembly to which section 35 refers and the number of cases in which the authority which ordered the detention has acted in accordance with the decisions of the tribunal as provided in subsection (4).
– (7) – For the avoidance of doubt it is hereby declared that where the declaration of a state of public emergency is revoked or otherwise ceases to be in force, any person who is detention or in custody by virtue of or under an Act of the National Assembly to which section 35 refers, other than a person sentenced to imprisonment by a court for an offence against such a law for a term which has not then expired, shall be released immediately without further order.
37. – (1) – If any person alleges that any of the provisions of sections 18 to 33 or section 36(5) of this Chapter has been, is being, or is likely to be contravened in relation to himself or herself by any person he or she may apply to the High Court for redress.
– (2) – An application may be made under this section in the case of a person who is detained by some other person acting on the detained person’s behalf.
– (3) – An application under this section shall be without prejudice to any other action with respect to the same matter which is lawfully available.
– (4) – If in any proceedings in any court subordinate to the High Court any question arises as to the contravention of any of the provisions of the said sections 18 to 33 or section 36(5), that court may, and shall if any party so requests, refer the question to the High Court, unless, in the opinion of the subordinate court, the raising of the question is merely frivolous or vexatious.
– (5) – The High Court shall-
- hear and determine any application made by any person pursuant to subsection (1) or (2);
- determine any question arising in the case of any person which is referred to it in pursuance of subsection (4);
– and may, in addition to the powers conferred on it by section 5 (which relates to defence of the Constitution) make such order, issue such writ, and give such directions as it may consider appropriate for the purposes of enforcing or securing the enforcement of any of the provisions of the said sections 18 to 33 or section 36 (5) to the protection of which the person concerned is entitled;
– Provided that the High Court may decline to exercise its powers under this subsection if it is satisfied that adequate means of redress for the contravention alleged are or have been available to the person concerned under any other law.
– (6) – The High Court shall consider every application and reference referred to it in pursuance of this section and, having heard arguments by or on behalf of the parties, shall pronounce its decision on the question in open court as soon as may be, and in the case of a reference under subsection (4), not later than thirty days after the conclusion of the final addresses of the parties.
– (7) – An Act of the National Assembly may confer on the High court such powers in addition to those confereed by this section as may appear to be necessary or desirable for the purpose of enabling the Court more effectively to exercise the jurisdiction conferred upon it by this section.
– (8) – The rights, duties, declarations and guarantees relating to the fundamental human rights and freedoms specifically mentioned in this Chapter shall not be regarded as excluding other rights which may be prescribed by Act of the National Assembly as inherent in a democracy and intended to secure the freedom and dignity of man.
38. – (1) – In this Chapter, save where the context otherwise requires-
“a period of public emergency” means any period during which The Gambia is at war or a declaration is in force under section 34;
“contravention” in relation to any requirement, includes a failure to comply with that requirement, and cognate expressions shall be construed accordingly;
“court” means any court of law in The Gambia other than a district tribunal or, save as provided in subsection (2), a court constituted under service law;
“defence force” means any naval, military or air force of The Gambia;
“member” in relation to a defence force, includes persons who, under the law regulating the discipline of that force, are subject to that discipline;
“owner” includes any person deprived of any right or interest pursuant to section 22;
“service law” means the law regarding the discipline of a defence force or of the Police Force or the Prison Service or any disciplined volunteer force;
– (2) – In relation to an offence against service law, a reference to “court”-
- in sections 18 to 20, subsections (2), (3), (4), (6) (but not the proviso thereto) of section 24, subsection (3) of section 25, subsection (8) of section 33 and subsection (2) of section 37 includes a reference to a court constituted by or under service law;
- in sections 19 and 20 and subsection (8) of section 33, includes an officer of a defence force and of the Police Force.
– (3) – References in sections 18, 19 and 22 to a “criminal offence” shall be construed as including references to an offence against service law and such references in subsections (4) to (9) of section 24 shall, in relation to proceedings before a court constituted by or under service law, be similarly construed.
– (4) – In relation to any person who is a member of an armed force raised otherwise than under the law of The Gambia and lawfully present in the Gambia, nothing contained in or done under the authority of the disciplinary law of that force shall be held to be inconsistent with or in contravention of any of the provisions of this Chapter.