In a democratic republic, a fundamental purpose of the constitution is to provide all rights to citizens and then place obligations on the State to respect, protect and fulfill these rights. A democratic constitution creates all safeguards to ensure that the State and no one else violates human rights in the first place. While some human rights inadequacies exist in the 2020 Draft Constitution and the 1997 Constitution is even weaker in terms of rights, the Barrow Papers are even worse. Not only have Barrow Papers lowered the bar but also went further to take away critical rights.
For example, both the 1997 Constitution and the 2020 Draft Constitution guaranteed the right to life. In guaranteeing the right to life both documents also provided some elaboration as to the extent and circumstances of this fundamental right. But in the Barrow Papers, Section 30 merely states, “every person has the right to life.” No more. No less. This is very concerning.
The right to life has been recognized by international human rights law to be sacrosanct, inviolable and non-derogable. The UN Human Rights Committee states that, “The right to life is the supreme right from which no derogation is permitted, even in situations of armed conflict and other public emergencies that threaten the life of the nation.”
For this reason, both the 1997 Constitution and 2020 Draft Constitution fall short of international standards for the protection of the right to life as both documents provide permissible grounds for the taking of life. The 1997 Constitution allows for the death penalty while the 2020 Draft Constitution permits deprivation on grounds of effecting arrest or suppressing a riot, among other conditions.
But for the Barrow Papers, there are no conditions whatsoever provided either for the protection or deprivation of life, which is even worse. Such open provision poses a severe threat to life by allowing for a potential arbitrary deprivation which is tantamount to no protection of life.
The 1997 Constitution and the 2020 Draft Constitution have recognized the right of individuals and groups or organizations to seek redress at the high court to defend human rights. But in the Barrow Papers, Section 26 on the ‘Enforcement of fundamental human rights and freedoms’ that right to go to court has been given to only a person, and not to entities such as groups or organizations. In the protection of human rights, it is necessary that such right be also accorded to organizations to act on behalf of or for individuals who may not have the means to go to court. Hence it is a huge limitation of human rights where only a person affected could go to court, but no organization could act on his or her behalf.
Section 31 of the Barrow Papers on the ‘Protection of Liberty’ has removed the 1997 Constitution standard that when a person is arrested, he is informed immediately but, in any case, within 3 hours, the reasons for the arrest. The Barrow Papers only said a person arrested will be informed ‘promptly’ with no timeline. This provision is indeed open to abuse because it could take the police any amount of time to inform. This puts a suspect at the mercy of the police.
Furthermore, the 2020 Draft Constitution provides that a person could only be detained within 48 hours, as opposed to the 72 hours provided in the 1997 constitution. But the Barrow Papers have reverted to 72 hours. The State must not be keen to suppress rights, hence every effort must be made to ensure that citizens always enjoy freedom as soon as possible. The police must be professional, efficient and diligent so that they do not arrest or detain unnecessarily.
Under Section 38 on ‘Freedom of Expression’ the Barrow Papers said this right does not include propaganda for war, incitement to violence or to break law and order, hatred resulting in vilification of others or incitement to cause harm, hatred that is based on any ground of discrimination. On the surface this may sound reasonable because hate, war, violence, and discrimination are despicable which should not exist in any civilized democratic society.
However, these are also broad terms which can potentially threaten free speech. Such provisions should not be in a constitution but rather in subsidiary law so that they are well defined and not left to the discretion of law enforcement and justice delivery institutions and officials.
The way this provision is expressed in the Barrow Papers is open to abuse in which a mere opinion or criticism by any citizen, or by critics, activists, political opponents could be perceived as advocating for hate or vilification of someone if the Government does not like it. This provision has the potential to undermine citizens’ demand for transparency and accountability as it limits their ability to express grievances against public officials or calling for public mobilization to demonstrate.
Under Section 39 on the ‘Freedom of the media’, the Barrow Papers introduced a worrying article that, “the right to own and operate media in subsection (2)(a) shall be limited to only Gambians.” The right to freedom of expression is an internationally recognized right which extends to all human beings. Hence to deny a non-Gambian to operate a media house inside the Gambia is discriminatory and a violation of the fundamental right of both the non-Gambian and citizens alike.
This is because such foreign-owned media offers Gambians the ‘freedom to seek, receive or impart information or ideas’ which is a right guaranteed in Section 38 of the same Barrow Papers, thus contradicting themselves. Secondly, as a business entity, foreign owned media houses also offer job opportunities to Gambians which the Barrow Papers now seek to deny as well.
Under Section 39(5), the Barrow Papers deleted an important safeguard from the 2020 Draft Constitution which states that, “The State shall not penalize any person for any opinion or view or the content of any broadcast, publication or dissemination.”
By deleting this provision, the Barrow Papers are now saying a media house, a journalist and indeed anyone could be penalized for expressing a divergent and dissenting opinion that they don’t like. Freedom of expression and the media have been considered the lifeblood of democracy. Hence to penalize citizens for their views means to criminalize opinion, silence voices and thereby kill transparency and accountability and so encourage abuse of power, incompetence, inefficiency and corruption in the public sector.
Under Section 42(1) on the right to ‘Freedom of assembly’ the Barrow Papers stated that, “Every person has the right, peaceably and unarmed, to freedom to assemble, to and demonstrate,” but deleted the second part, which is the right “to picket, and to present petitions to public authorities or private institutions” which is guaranteed in the 2020 Draft Constitution.
This is a huge setback for human rights, democracy, and good governance as it denies citizens the ability to assemble in front of the gates or premises of a public institution or a private company to express their grievances. Furthermore, it denies citizens to submit a protest letter or statement as a petition to elaborate their issues, concerns and demands to public institutions and private companies.
In all democracies worldwide, the rights of citizens to picket and petition are fully guaranteed. Every day we see these on our television screens in Dakar, Accra, Kenya and even in dictatorships such as Uganda where citizens gather in front office buildings to protest and hand over petitions to their officials. In 2020, I led a picket for Black Lives Matter in front of the US Embassy on Kairaba Avenue and handed over a petition letter to the embassy officials.
But today, Pres. Barrow and his Cabinet ministers say picketing and petitioning will not happen in the Gambia. If that is the case, then all steam has been taken out of demonstrations as they are rendered useless and ineffective. It means when the Barrow Papers become law in this country, citizens will now have to go to the bush to protest as the IGP has been imposing on citizens.
Section 49 of the Barrow Papers is about the right to education. Both the 1997 Constitution and the 2020 Draft Constitution guarantee the right to both primary and secondary education and to be made available freely. Unfortunately, the Barrow Papers does not recognize the right to secondary education as it has deleted it.
Secondly, the Barrow Papers intends to progressively introduce free TVET and tertiary education, just like the 1997 Constitution and the 2020 Draft Constitution stated, but what is missing in all of these documents is the timeframe for the introduction of free education. There is no point in providing a right that will not be fulfilled.
The entire provision on consumer protection has been deleted by the Barrow Papers. The 2020 Draft Constitution created this provision to guarantee the rights of consumers to have quality goods and services provided by both public and private entities, to obtain the right information about goods and services, to protect the health, safety and economic interests of consumers and to compensate consumers for loss or injury due to defective goods and services.
Even though there is the Consumer Protection Act 2014, constitutionalizing consumer protection provides stronger protection thus highlighting the importance of the health and safety of consumers who are citizens. By removing this provision, the Barrow Papers are therefore serving the interests of businesses and public institutions more than the welfare of citizens as it lowers the bar for them.
The 2020 Draft Constitution provides for the Independent Boundaries and Electoral Commission (IBEC) to conduct a continuous registration of voters. But the Barrow Papers have replaced ‘continuous registration’ with ‘periodic and supplementary registration’ in its Section 66 on the right to be registered and to vote.
Continuous registration is the ideal form of voter registration as it prevents a citizen from losing the opportunity to register by missing the periodic or supplementary registration. The opportunity to register at any time is necessary in protecting this right. Secondly, continuous registration reduces the burden on the IBEC to mobilize financial, material and human resources and logistics to organize specific registration periods.
Above all, continuous registration prevents illegal voter registration and errors which are characteristic of mass registration at specific periods. Continuous registration allows the IBEC to better organize and manage the voter register and make it transparent for stakeholders as well.
Check out Constitution Series 5 on Lowering Democratic and Good Governance Standards.
For The Gambia, Our Homeland
Madi Jobarteh
