God or other deities, Motives for writing constitution, Preamble, Source of constitutional authority, Reference to country's history
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 observance 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.
CHAPTER II. THE CONSTITUTION AND THE LAWS
Constitutionality of legislation
4. Supremacy of the Constitution
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.
Ultra-vires administrative actions, Head of state removal
5. Enforcement of the Constitution
- 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.
- 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.
- 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-
- 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 person who is convicted of that offence shall be liable to the penalty prescribed by an Act of the National Assembly.
6. Defence of the Constitution
- Any person who-
- by himself or herself or in concert with others, by any violent 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 National Assembly for that offence.
- 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 violent or unlawful means to suspend, overthrow or abrogate this Constitution or any part of it.
- A person who resists the suspension, overthrow or abrogation of this Constitution as provided in subsection (2), commits no offence.
7. The laws of The Gambia
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 concerns members of the communities to which it applies;
Status of religious law
the Sharia as regards matters of marriage, divorce and inheritance among members of the communities to which it applies.
CHAPTER III. CITIZENSHIP
Requirements for birthright citizenship
8. Citizens on the commencement of the Constitution
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.
Requirements for birthright citizenship
9. Citizen by birth
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.
Requirements for birthright citizenship
10. Citizen by descent
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.
Requirements for naturalization
11. Marriage to a citizen
- 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 less 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 or under an Act of the National Assembly, to be registered as a citizen of The Gambia.
- 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.
Requirements for naturalization
12. Naturalisation as a citizen
- 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.
- 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 herself and his or her dependants.
- The Secretary of State shall give reasons for any refusal of an application made under this section.
- 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.
12A. Dual citizenship
- A citizen of The Gambia who acquires the citizenship of another country may, if he or she desires, retain his or her citizenship of The Gambia
- An Act of the National Assembly may make provision for the better implementation of this section.
Conditions for revoking citizenship
13. Deprivation of citizenship
- 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 voluntary and 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.
- 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.
- If the High Court is satisfied that the Secretary of State has established that the person concerned has acted in a manner described in subsection (1) and notified to that person, and, in a case referred to in paragraph (c) or (d) of sub-section (1) 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.
- 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. Restoration of citizenship
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 recognised, as a citizen of The Gambia.
15. Acts of the National Assembly
An Act of the National Assembly may make provision for-
Requirements for naturalization
the acquisition of the citizenship of The Gambia by persons who are not eligible to become citizens under the provisions of this Chapter;
Right to renounce citizenship
the renunciation by any person of his or her citizenship of The Gambia; and
- generally to give effect to the provisions of this Chapter.
16. Interpretation of Chapter III
- In this Chapter, "Secretary of State" means the Secretary of State for the time being responsible for citizenship matters.
- 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, in that country.
- 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.
CHAPTER IV. PROTECTION OF FUNDAMENTAL RIGHTS AND FREEDOMS
17. Fundamental rights and freedoms
Binding effect of const rights
The fundamental human rights and freedoms enshrined and 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.
Equality regardless of skin color, Equality regardless of social status, Equality regardless of language, Equality regardless of parentage, Equality regardless of race, Equality regardless of political party, Equality regardless of financial status, Equality regardless of creed or belief, Equality regardless of gender, Equality regardless of origin, Equality regardless of religion
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.
Right to life
18. Protection of right to life
- No person shall be deprived of his or her life the intentionally except in the execution of a sentence of death imposed by 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.
Prohibition of capital punishment
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.
Prohibition of capital punishment
The National Assembly shall within ten years from the date of the coming into force of this Constitution review the desirability or otherwise of the total abolition of the death penalty in The Gambia.
- Without prejudice to any liability for a contravention of any other law with respect to the use of force in such cases as 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.
Protection from unjustified restraint
19. Protection of right to personal liberty
Principle of no punishment without law
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.
Right to counsel, Trial in native language of accused
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.
- 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.
- 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.
- If any person 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 reasonably necessary to ensure that he or she appears at a later date for trial or proceedings preliminary to trial.
Protection from false imprisonment
Any person who is unlawfully arrested or detained by any other person shall be entitled to compensation from that other person or from any other person or authority on whose behalf that other person was acting.
Prohibition of slavery
20. Protection from slavery and forced labour
- No person shall be held in slavery or servitude.
- No person shall be required to perform forced labour.
- 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 reasonably necessary in the interests of hygiene for the maintenance of the place in which he or she is detained;
Right to conscientious objection
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.
Prohibition of torture, Prohibition of cruel treatment
21. Protection from Inhuman Treatment
No person shall be subject to torture or inhuman or degrading punishment or other treatment.
Protection from expropriation
22. Protection from Deprivation of Property
- 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
- Nothing in this section shall be construed as affecting the making of any law in so far as it provides for the taking or acquisition of property
- 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;
Protection of environment
by reason of such property being in a dangerous state or liable to cause injuries to the health of human beings, animals or plants;
- in consequence of any law with respect to the limitation of actions; or
- for so long as such taking of possession may be necessary for the purpose of any examination, investigation, trial or inquiry, or, in the cases of land, the carrying out thereon.
Protection of environment
of work of soil conservation or the conservation of other resources; or
- of agricultural development or improvement which the owner occupier of the land has been required and has without reasonable or lawful excuse refused or failed, to carryout, except so far as that provision, or as the case may be the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society.
- Nothing in this section shall be construed as affecting the making or operation of any law for the compulsory taking in the public interest of any property, or the compulsory acquisition in the public interest of any interest in or right over property, where that property interest is held by a body corporate which is established directly by any law and in which no monies are provided by an Act of the National Assembly.
- where a compulsory acquisition of land by or on behalf of the Government involves the displacement of any inhabitant who occupy the land under customary law, the Government shall resettle the displaced inhabitants on suitable alternative land with due regard to their economic well-being and social and cultural values.
- Any such property of whatever description compulsorily taken possession of, and any interest in or right over property of any description compulsorily acquired in the public interest for a public purpose for which it is taken or acquired.
- 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.
Right to privacy
- 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 of 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.
Regulation of evidence collection
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 authority 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. Provision to secure protection of the law and fair trial
Right to speedy trial, Judicial independence, Right to fair trial
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.
Right to public trial, Privileges for juveniles in criminal process
All proceedings of every court and proceedings relating to the determination of the existence or extent of civil rights or obligations before any other authority, including the announcement of the decision of the court or other authority, shall be held in public.
Provided that the court or other authority may, to such extent as it may consider necessary or expedient in circumstances where publicity would prejudice the interests of justice or interlocutory civil proceedings, or to such extent as it may be empowered or required by law to do so in the interest of defence, public safety, public order, public morality, the welfare of persons under the age of eighteen years or the protection of the private lives of persons concerned in the proceedings, exclude from its proceedings persons other than the parties thereto and their legal representatives.
- Every person who is charged with a criminal offence-
Presumption of innocence in trials
shall be presumed innocent until he or she is proved, or has pleaded, guilty;
Trial in native language of accused
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;
Right to counsel
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.
Right to examine evidence/witnesses
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
Trial in native language of accused
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.
- 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.
Principle of no punishment without law, Protection from ex post facto laws
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 offence 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.
Prohibition of double jeopardy
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 authorises 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.
Prohibition of double jeopardy
No person shall be tried for a criminal offence if he or she shows he or she has been pardoned for that offence:
Protection from self-incrimination
No person charged with a criminal offence shall be compelled to give evidence at the trial.
Jury trials required
A person charged with a criminal offence in the High Court shall have the right to elect to be tried by a jury.
- 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. Freedom of speech, conscience, assembly, association and movement
- Every person shall have the right to-
Freedom of expression, Freedom of press
freedom of speech and expression, which shall include freedom of the press and other media;
Freedom of opinion/thought/conscience, Right to academic freedom
freedom of thought, conscience and belief, which shall include academic freedom;
Freedom of religion
freedom to practise any religion and to manifest such practice;
Freedom of assembly
freedom to assemble and demonstrate peaceably and without arms;
Right to join trade unions, Right to form political parties, Freedom of association
freedom of association, which shall include freedom to form and join associations and unions, including political parties and trade unions;
Right of petition
freedom to petition the Executive for redress of grievances and to resort to the Courts for the protection of his or her rights.
Freedom of movement
Every person lawfully within The Gambia shall have the right to move freely throughout The Gambia, to chose his or her own place of residence within The Gambia, and to leave The Gambia.
Freedom of movement
Every citizen of The Gambia shall have the right to return to The Gambia.
- 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 and 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.
Restrictions on voting
26. Political rights
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;
Secret ballot, Claim of universal suffrage
to vote and stand for elections at genuine periodic elections 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.
Regulation of marriage
27. Right to marry
Right to found a family
Men and women of full age and capacity shall have the right to marry and found a family.
- Marriage shall be based on the free and full consent of the intended parties.
Equality regardless of gender
28. Rights of women
Women shall be accorded full and equal dignity of the person with men.
- Women shall have the right to equal treatment with men, including equal opportunities in political, economic and social activities.
Rights of children
29. Rights of children
- Children shall have the right from 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.
Limits on employment of children
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 be hazardous or to interfere with their education or be harmful to their health or physical, mental, spiritual, moral or social development.
Privileges for juveniles in criminal process
A juvenile offender who is kept in lawful custody shall be kept separately from adult offenders.
30. Right to education
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;
Access to higher education
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;
Access to higher 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.
State support for the disabled
31. Rights of the disabled
The right of the disabled and handicapped to respect and human dignity shall be recognised by the State and society.
- 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.
- In any judicial proceedings in which a disabled person is a party, the procedure shall take his or her condition into account.
Right to culture, Protection of language use
Every person shall be entitled to enjoy, practice, 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.
Equality regardless of creed or belief, Equality regardless of financial status, Equality regardless of parentage, Equality regardless of social status, Equality regardless of gender, Equality regardless of political party, Equality regardless of race, Equality regardless of religion, Equality regardless of language, Equality regardless of skin color, Equality regardless of origin
33. Protection from discrimination
General guarantee of equality
All persons shall be equal before the law.
- Subject to the provisions of subsection (5), no law shall make any provision which is discriminatory either of itself or in its effect.
- 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.
- 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.
- 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.
- 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 referred to in subsection (5).
- 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. Declaration of state of public emergency
- 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.
- 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.
- A declaration made under subsection (1) may at any time be revoked by the President by Proclamation which shall be published in the Gazette.
- 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.
- 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:
- any such resolution may be extended from time to time by a further resolution supported-
- in the case of a first extension, by the votes,
- 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.
- 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. Derogations from fundamental rights under emergency powers
- 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.
- 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. Persons detained under emergency powers
- 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 commencement 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.
- 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.
- A tribunal composed of the same members shall not review more than once the case of a particular person who has been detained.
- 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.
- 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).
- 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).
- 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 in 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.
Protection from false imprisonment
37. Enforcement of protective provisions
- 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.
- 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.
- An application under this section shall be without prejudice to any other action with respect to the same matter which is lawfully available.
- 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.
- 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.
- 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.
- An Act of the National Assembly may confer on the High Court such powers in addition to those conferred 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.
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. Interpretation of Chapter IV
- 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.
- 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.
- 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.
- 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.
CHAPTER VIII. THE JUDICATURE
PART I. The Courts of the Gambia
120. The courts and the judicial power
Structure of the courts
The Courts of The Gambia are:
- the Superior Courts comprising:
- the Supreme Court;
Right to appeal judicial decisions
the Court of Appeal; and
- the High Court and the Special Criminal Court;
- the Magistrates Court, the Cadi Court, District Tribunals and such lower courts and tribunals as may be established by an Act of the National Assembly.
- The judicial power of The Gambia is vested in the courts and shall be exercised by them according to the respective jurisdiction conferred on them by law.
In the exercise of their judicial functions, the courts, the judges and other holders of judicial office shall be independent and shall be subject only to this Constitution and the law, and, save as provided in this Chapter, shall not be subject to the control or direction of any other person or authority.
- The Government and all departments and agencies of the Government shall accord such assistance to the courts as the courts may reasonably require to protect their independence, dignity and effectiveness.
121. The Chief Justice
- The Chief Justice shall be the head of the Judiciary and, subject to the provisions of this Constitution, shall be responsible for the administration and supervision of the courts.
- An Act of the National Assembly may provide for the making of rules by the Chief Justice or such other authority as may be specified therein for regulating the practice and procedure of the courts.
122. The Superior Courts
In addition to any other power conferred on the court, each of the superior courts shall-
- be a superior court of record and shall have power to commit for contempt to itself and all such powers as are vested in a court of record;
- in relation to any matter within its jurisdiction, have power to issue such orders and directions as may be necessary to ensure the enforcement of any judgement, decree or order of the court.
123. Immunity from suit
A judge or other person exercising judicial power shall not be liable to any action or suit for any act or omission by him or her in good faith in the exercise of his or her judicial function.
124. Courts to give timely decisions
Right to speedy trial
It shall be the object of every court to deliver its decision expeditiously and-
in the case of a reference to the Supreme Court as to the interpretation of this Constitution or as to whether or not any person was validly elected to the office of President or was validly elected to, or vacated his or her seat in, the National Assembly, not later than thirty days; or
- in any other case, not later than three months, after the conclusion of the evidence, or arguments on appeal, and final addresses.
Provided that vacations shall be excluded from any prescribed period.
- It shall be the duty of the Chief Justice to require compliance with the provisions of subsection (1).
- For the avoidance of doubt, it is hereby declared that the validity of any decision shall not be called in question on the grounds that it was not delivered in accordance with the provisions of subsection (1).
PART II. The Superior Courts
A. The Supreme Court
Structure of the courts
125. Composition of Supreme Court
Number of supreme court judges
Within eighteen months of the coming into force of this Constitution, there shall be established a Supreme Court of The Gambia which shall consist of-
- the Chief Justice;
- not less than four other Justices of the Supreme Court;
Supreme court selection
such judge of the Court of Appeal as the Chief Justice may, by writing under his or her hand, select to sit in the Supreme Court for the determination of a particular cause or matter:
Provided that no Judge shall be elected under this paragraph unless he or she is qualified to be appointed as Justice of the Supreme Court.
- The Supreme Court shall be constituted by an uneven number of not less than five judges of the Court;
Provided that a single judge of the Court may exercise the powers of the Court in any interlocutory matter, which may be subject to a fresh application to a bench of five judges of the Court;
- The Chief Justice shall preside at sittings of the Court. In his or her absence, the most senior of the other judges of the Court shall preside.
- The Supreme Court may sit at any place in The Gambia appointed by the Chief Justice.
126. Jurisdiction of Supreme Court
Right to appeal judicial decisions
The Supreme Court shall be the final court of appeal for The Gambia and shall have such appellate and other jurisdiction as may be conferred on it by this Constitution or any other law:
Provided that the Supreme Court shall not have original jurisdiction in respect of any criminal matter.
The Supreme Court may depart from a previous decision when it appears to it right to do so; and all other courts shall be bound to follow the decisions of the Supreme Court on a matter of law.
- For the purpose of the hearing and determination of any matter within its jurisdiction, the Supreme Court shall have all the powers conferred by law on any other court established by this Constitution or any other law.
127. Original jurisdiction
Supreme court powers
The Supreme Court shall have an exclusive original jurisdiction-
for the interpretation or enforcement of any provision of this Constitution other than any provision of sections 18 to 33 or section 36(5) (which relate to fundamental rights and freedoms);
- on any question whether any law was made in excess of the powers conferred by this Constitution or any other law upon the National Assembly or any other person or authority;
- on any question as to whether or not any person was validly elected to the office of President or was validly elected to, or vacated his or her seat in, the National Assembly;
- on any question whether any official document should be produced, or its contents disclosed, in proceedings before a court where such production is resisted on the grounds that its production or the disclosure of its contents would be prejudicial to the security of the State or be injurious to the public interest.
- Where any question referred to in paragraphs (a), (b) or (d) of subsection (1) arises in any proceedings in any other court, that court shall stay its proceedings and refer the matter to the Supreme Court for its determination, and such other court shall give effect to any decision of the Supreme Court in the matter.
- The proceedings in the Supreme Court on any question referred to in paragraph (d) of subsection (1) shall be held in camera.
Right to appeal judicial decisions
128. Appellate jurisdiction
- An appeal shall lie to the Supreme Court as of right-
- from any judgement of the Court of Appeal on an appeal in any civil or criminal cause or matter from a judgement of the High Court in the exercise of its original jurisdiction;
- from any judgement of the Court of Appeal dismissing an appeal from a sentence of death imposed by any other court;
- in such other case as may be prescribed by Act of the National Assembly.
- An appeal shall lie to the Supreme Court with the leave of the Court of Appeal from a judgement of the Court of Appeal in any cause or matter commenced in a court other than the High Court where the Court of Appeal is satisfied that the case involves a substantial question of law or it is in the public interest that the cause or matter should be heard by the Supreme Court.
- An appeal shall lie to the Supreme Court with the leave of that Court from any other judgement of the Court of Appeal.
An appeal shall lie to the Supreme Court, in any case referred to in subsection (1), (2) or (3) at the instance of a party to the proceedings in the Court of Appeal or, with the leave of the Supreme Court or the Court of Appeal, at the instance of any other person having an interest in the matter or, in a criminal cause or matter, at the instance of the Attorney General acting in the interest of justice and for the avoidance of abuse of the legal process:
Provided that in any appeal at the instance of the Attorney General, the Supreme Court shall have no power to reverse any acquittal at a court of first instance or reverse a judgement allowing an appeal against conviction of a criminal offence.
Right to appeal judicial decisions
B. The Court of Appeal
Structure of the courts
129. Composition of Court of Appeal
- There shall be a Court of Appeal of The Gambia which shall consist of-
- the President of the Court of Appeal;
- not less than three Justices of the Court of Appeal;
- any judge of the High Court who is appointed to act as a Justice of the Court of Appeal.
Provided that no judge shall be selected under this paragraph unless he or she is qualified to be appointed a judge of the Court of Appeal.
- The Court of Appeal shall be constituted by three judges of the Court:
Provided that a single judge of the Court may exercise the powers of the Court in any interlocutory matter, subject to an appeal from his or her decision to a bench of three judges of the Court;
- The President of the Court of Appeal shall preside at sittings of the Court. In his or her absence, the most senior of the other judges of the Court shall preside.
- The President of the Court of Appeal may, in consultation with the Chief Justice, establish such divisions of the Court of Appeal as he or she thinks fit to sit at such places in The Gambia as he or she may determine.
130. Jurisdiction of Court of Appeal
- The Court of Appeal shall have jurisdiction to hear and determine appeals from judgements, decrees and orders of the High Court, and such other appellate jurisdiction as may be conferred on it by an Act of the National Assembly.
Establishment of military courts
The Court of Appeal shall have jurisdiction in appeals from Court Martial in the manner provided by law.
- An appeal shall lie as of right to the Court of Appeal from any judgement, decree or order of the High Court.
- For the purpose of hearing and determining any appeal within its jurisdiction, the Court of Appeal shall have all the powers vested in the court from which the appeal is brought.
C. The High Court
Structure of the courts
131. Composition of High Court
- There shall be a High Court of The Gambia which shall consist of-
- the Chief Justice;
- not less than seven other Justices of the High Court;
- any judge of a superior court whom the Chief Justice may, by writing, request to sit as a judge of the High Court.
- The High Court shall be constituted by a single judge.
- The High Court may sit at such places in The Gambia as the Chief Justice may determine, and he or she may establish permanent divisions of the Court to sit at various places throughout The Gambia and appoint judges of the Court to any such division.
132. Jurisdiction of High Court
- Save as provided in section 127, the High Court shall have original jurisdiction-
- to hear and determine all civil and criminal proceedings;
- to interpret and enforce the fundamental rights and freedoms as provided in sections 18 to 33 and section 36(5), and in the exercise of such jurisdiction, the Court shall have all such power and authority as may be conferred by this Constitution or any other law.
Right to appeal judicial decisions
The High Court shall have such jurisdiction in appeals from courts subordinate to it (other than the Cadi Court) as may be prescribed by an Act of the National Assembly.
Protection from unjustified restraint
133. Supervisory jurisdiction
The High Court shall have supervisory jurisdiction over all lower courts and adjudicatory authorities in The Gambia, and, in the exercise of its supervisory jurisdiction, shall have power to issue directions, orders or writs, including writs of habeas corpus, orders of certiorari, mandamus and prohibition as it may consider appropriate for the purposes of enforcing its supervisory powers.
D. Special Criminal Court
134. Special Criminal Court
- There shall be a Special Criminal Court which shall be constituted by a panel consisting of a Chairman and not less than two other panel members.
- A person shall not be appointed to be a Chairman of the Court unless he or she is qualified to be appointed a Judge of the High Court.
Establishment of judicial council, Head of state powers
The members of the Court shall be appointed by the President in consultation with the Judicial Service Commission
The Court shall have jurisdiction to hear and determine all criminal offences relating to theft, misapropriation and other similar offences in which public funds and public property are affected.
136. National Assembly to make further provision
An Act of the National Assembly shall make further provisions for the purposes of this sub-part.
Establishment of religious courts
PART III. The Cadi Court
137. The Cadi Court
- A Cadi Court shall be established in such places in The Gambia as the Chief Justice shall determine.
- The Cadi Court shall be composed-
- for hearings at first instance, by a panel consisting of the Cadi and two other scholars of the Sharia qualified to be a Cadi or Ulama; and
- [Act No. 6 of 2001.]
- The decision of the majority of a panel of a Cadi Court shall constitute the decision of the Court.
- The Cadi Court shall only have jurisdiction to apply the Sharia in matters of marriage, divorce and inheritance where the parties or other persons interested are Muslims.
- Any party to a proceeding in the Cadi Court who is dissatisfied with a decision of the Court may appeal to the Cadi Appeals Panel.
- A person shall be required to be of high moral standing and professionally qualified in the Sharia in order to be appointed a Cadi or Ulama.
- A party to proceedings in the Cadi court shall be entitled to be represented, at his or her own expense, by a person qualified in the Sharia.
137A. Cadi Appeals Panel
- There shall be a Cadi Appeals Panel which shall Panel 6 of 2001 consist of-
- a Chairperson; and
- not less than four other members.
- The Panel shall be constituted by three members of the Panel.
- The Chairperson of the Panel shall preside at a sitting of the Panel and in his or her absence, the most senior member shall preside.
- The Chairperson and other members of the Panel shall be appointed by a Cadi Appeals Selection Committee which shall consist of-
- the Chief Justice;
- the Attorney General; and
- a member of the Supreme Islamic Council nominated by that Council.
- A person shall not be qualified for appointment to the Panel-
- as a Chairperson, unless the person-
- is a legal practitioner and has been so qualified for a period of not less than five years, and
- is professionally qualified in the Sharia;
- as a member, unless the person is professionally qualified in the Sharia.
- The Panel shall have jurisdiction to hear and determine appeals from judgment of the Cadi Court and from the District Tribunals where Sharia law is involved.
- The Cadi Appeals Selection Committee shall prescribe the rules of practice and procedure of the Panel.
PART IV. The Judges
Supreme court selection
138. Appointment of judges
Establishment of judicial council
The Chief Justice shall be appointed by the President after consultation with the Judicial Service Commission.
Ordinary court selection, Establishment of judicial council
All other judges of the superior courts except the judges of the Special Criminal Court shall be appointed by the President on the recommendation of the Judicial Service Commission.
- Appointments of judges of the Superior Courts shall be by warrant signed by the President and sealed with the Public Seal.
- Before assuming the functions of his or her office, a judge of the superior courts shall take the prescribed oaths.
Supreme court selection
139. Qualifications for appointment of judges
Eligibility for supreme court judges
A person shall be qualified for appointment as Chief Justice if he or she is qualified to be appointed a judge of the Supreme Court and has been a judge of a superior court in a common law country for not less than ten years.
Eligibility for supreme court judges
A person shall be qualified to be appointed a judge of the Supreme Court if he or she holds or has held office as a judge of the Court of Appeal, or as a judge of a court having similar jurisdiction in a common law country, in each case for not less than five years, or if he or she has practised as a legal practitioner before a court having unlimited jurisdiction in civil and criminal matters in a common law country for not less than twelve years.
Eligibility for ordinary court judges
A person shall be qualified to be appointed as a judge of the Court of Appeal if he or she holds or has held office as a judge of the High Court, or as a judge of a court having similar jurisdiction in a common law country, in each case for not less than five years, or if he or she has practised as a legal practitioner before a court having unlimited jurisdiction in civil and criminal matters in a common law country for not less than eight years.
Eligibility for ordinary court judges, Establishment of judicial council
A person shall be qualified to be appointed as a judge of the High Court if he or she holds or has held office as a Principal Magistrate or Master in The Gambia, or an office, which in the opinion of the Judicial Service Commission, enjoys a comparable jurisdiction in a common law country, in each case for not less than five years, or if he or she has practised as a legal practitioner before a court having unlimited jurisdiction in civil and criminal matters in a common law country for not less than five years.
- In this section, "common law country" means-
- a country within the Commonwealth;
- a country outside the Commonwealth prescribed by an Act of the National Assembly for the purposes of this section the courts of which exercise a common law jurisdiction.
140. Vacancy in office of Chief Justice
In the event of there being a vacancy in the office of the Chief Justice, or if he or she is, for any reason unable to perform the functions of his or her office, the President may appoint the most senior judge of the Supreme Court to act in that office-
- until a person has been substantively appointed to, and assumed the functions of that office;
- until the Chief Justice has resumed the functions of his or her office, as the case may be. A vacancy in the office of Chief Justice shall be filled by a substantive appointment within six months.
Supreme/ordinary court judge removal
141. Tenure of office of judges
- No office of judge shall be abolished while there is a substantive holder thereof.
Ordinary court term length
Subject to the provisions of this section, a judge of a Superior Court-
- may retire on pension at any time after attaining the age of sixty-five years;
Supreme court term length, Mandatory retirement age for judges
shall vacate the office of judge on attaining the age of seventy-five years;
Establishment of judicial council
may have his or her appointment terminated by the President in consultation with the Judicial Service Commission.
- Notwithstanding that he or she has attained the age at which he or she is required to vacate his or her office as provided in this section, a person holding the office of judge may continue in office for a period of six months after attaining that age to enable him or her to deliver judgement or do any other thing in relation to proceedings that were commenced before him or her previously thereto.
- A judge of a Superior Court shall only be removed from office only for inability to perform the functions of his or her office, whether arising from infirmity of body or mind, or for misconduct.
- A judge may be removed from his office if notice in writing is given to the Speaker, signed by not less than one half of all the voting members of the National Assembly, of a motion that a judge is unable to exercise the functions of his or her office on any of the grounds stated in subsection (4) and proposing that the matter should be investigated under this section.
- Where a notice of a motion is received by the Speaker under Subsection (5), the Speaker shall forthwith cause a vote to be taken on the motion without debate.
- If such motion is adopted by the votes of not less than two-thirds of all the members of the National Assembly-
- The National Assembly shall, by resolution, appoint a tribunal consisting of three persons, at least one of whom shall hold or shall have held high judicial office who shall be the chairman of the tribunal;
- the tribunal shall investigate the matter and shall report to the National Assembly through the Speaker whether or not it finds the allegations specified in the motion have been substantiated;
- if the tribunal reports to the National Assembly that it finds the particulars of any such allegation have not been substantiated, no further proceedings shall be taken under this section in respect of that allegation;
- if the tribunal reports to the National Assembly that it finds that the particulars of any such allegation have been substantiated, the National Assembly shall consider the report at the first convenient sitting and if, on a motion supported by the votes of not less than two-thirds of all the members, the National Assembly resolves that the judge be removed from office, the judge shall immediately cease to hold office.
- Where a tribunal is established under this section in respect of any judge, the judge shall stand suspended from office. The suspension shall cease to have effect if the tribunal reports that none of the allegations against the judge has been substantiated or if a motion for his or her removal from office is not supported as provided in paragraph (d) of subsection (7).
- All proceedings in a tribunal under this section shall be held in camera and the judge concerned shall have the right to appear and be legally represented before the tribunal.
142. Remuneration of judges
- A judge of a Superior Court shall be entitled to such salary, allowances, and on retirement such gratuity and pension, as may be prescribed by an Act of the National Assembly.
Protection of judges' salaries
The salary, allowances, retirement gratuity and pension of a judge, as so prescribed at the time of his or her appointment, shall not be varied to his or her disadvantage
PART V. Administration of the Courts
143. Administrative provisions
- In the exercise of his or her responsibilities for the administration of the courts, the Chief Justice may issue orders and directions for the proper and efficient operation of the courts.
- There shall be a Judicial Secretary to assist the Chief Justice in the exercise of his or her responsibilities for the administration of the courts and financial matters. The Judicial Secretary shall be responsible to the Chief Justice for the performance of his or her duties.
- The Judicial Secretary shall be appointed by the President on the advice of the Judicial Service Commission.
- The Chief Justice shall submit the annual estimates of expenditure for the Judicature 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 to them his or her own comments and observations.
- The Judicature shall be self-accounting, and the moneys charged on the Consolidated Fund or appropriated by an Act of the National Assembly for the Judicature, shall be paid by the Accountant General to the accounting officer for the Judicature as required by the Chief Justice.
Establishment of judicial council
PART VI. The Judicial Service Commission
145. The Judicial Service Commission
- There shall be a Judicial Service Commission which shall consist of-
- the Chief Justice, who shall be Chairman;
- a judge of a superior court;
- the solicitor General
- a legal practitioner of at least five years standing at the Gambia bar nominated by the Attorney General in consultation with The Gambia Bar Association;
- one person appointed by the President; and
- one person nominated by the National Assembly.
- The members of the Commission (other than the members referred to in paragraphs (a) (e) and (g) of subsection (1)) shall be appointed by the President in consultation with the Chief Justice and subject to confirmation by the National Assembly.
- A member of the National Assembly shall not be qualified to be appointed a member of the Commission.
- Subject to subsection (5), a member of the Commission shall hold office for a term of three years and may be re-appointed.
Outside professions of legislators
A member of the Commission shall vacate his or her office if he or she ceases to hold the office specified in subsection (1) by virtue of which he or she was appointed or if he becomes a member of the National Assembly.
- A member of the Commission (other than an ex officio member) may be removed from office by the President with the approval of the National Assembly, but may only be removed for inability to exercise the functions of his or her office (whether arising from infirmity of mind or body or for any other cause) or for misbehaviour. A member shall be entitled to be heard in person or by a legal representative against any proposal to remove him or her.
- If a member of the Commission is, for any reason, unable to exercise the functions of his or her office for a limited period, the President, acting in accordance with the advice of the Chief Justice, may appoint a person similarly qualified to act in his or her place.
- A member of the Commission shall not enter upon the duties of his or her office until he or she has taken and subscribed the prescribed oaths.
146. Appointment of Judicial Officers and court staff
- The power to appoint persons to hold or act in any office to which this subsection applies shall vest in the Judicial Service Commission:
Provided that the Commission may, with the approval of the Chief Justice and subject to any conditions as it may think fit, delegate the powers referred to in this subsection to any judge or to the holder of any office to which this subsection applies.
- Subsection (1) applies to the offices of-
- Master, Registrar and Assistant Registrar of a superior court;
- the office of magistrate;
- the office of a member of any subordinate court;
- such other offices of a member of any court as may be prescribed by an Act of the National Assembly.
- The appointment of other officers and staff of the courts shall be made by the Chief Justice or such other judge or officer of the court as the Chief Justice after consultation with the Judicial Service Commission may direct.
147. Other functions of Commission
In addition to the other functions conferred the Judicial Service Commission by this on Constitution, the Commission shall have power-
- to advise the President in the exercise of their powers relating to the appointment of judges;
- to make recommendations as to the terms and conditions of service of judges and other judicial officers and officers and staff of the courts;
- to make proposals to improve the administration and efficiency of the courts;
- to prepare and implement programmes for the education of the public about the administration of justice;
- to exercise such other functions as may be conferred on it by an Act of the National Assembly.
148. Operation and procedure
- In the exercise of its functions under this Constitution, the Judicial Service Commission shall not be subject to the direction or control of any other person or authority.
- The Commission may by rules or otherwise regulate its own procedure.
- The Commission may, subject to its rules of procedure, act notwithstanding any vacancy in its membership or the absence of a member:
Provided that any decision of the Commission shall require the concurrence of a majority of its members.
CHAPTER XIX. The Media
Freedom of press
207. Freedom and responsibility of the Media
- The freedom and independence of the Press and other information media are hereby guaranteed.
- An Act of the National Assembly may make provisions for the establishment and operation of the Press and other information media.
- The Press and other information media shall, at all times, be free to uphold the principles, provisions and objectives of this Constitution, and the responsibility and accountability of the Government to the people of The Gambia.
Television, Radio, State operation of the media
208. Responsibility of State owned media
All state owned newspapers, journals, radio and television shall afford fair opportunities and facilities for the presentation of divergent views and dissenting opinion.
Right to protect one's reputation
209. Limitations on rights and freedoms
The provisions of sections 207 and 208 are subject to laws which are reasonably required in a democratic society in the interest of national security, public order, public morality and for the purpose of protecting the reputations, rights and freedoms of others.
- [Deleted by Act No. 15 of 2004.]
CHAPTER XX. DIRECTIVE PRINCIPLES OF STATE POLICY
211. Application of the Directive Principles of State Policy
The principles of state policy in this Chapter shall form part of the public policy of The Gambia for the establishment of a just, free and democratic state. These principles shall not confer legal rights or be enforceable in any court but-
- subject to the limits of the economic capacity and development of The Gambia, the Executive, the Legislature and all other organs of the State in taking policy decisions, making laws and in the administration of The Gambia, shall according to their respective functions be guided by and observe them with a view to achieving by legislation or otherwise the full realisation of these principles; and
- the courts are entitled to have regard to these principles in interpreting any laws based on them.
Integration of ethnic communities
212. National Integration and Unity
- All organs of the State shall strive towards the realisation of national unity, peace and stability.
- Every effort shall be made to integrate the people of The Gambia and foster loyalty to The Gambia without discrimination.
Right to culture
All the people of The Gambia shall be entitled to their ethnic, religious and cultural values which do not disturb the unity or cohesion of the State.
213. National Sovereignty and Independence
- The State and all Citizens of The Gambia shall endeavour to protect and enhance national sovereignty including social, political, and economic independence and territorial integrity.
- The State shall pursue policies which avoid undue dependence on other nations and institutions.
214. Political objectives
- The Gambia shall be a democratic state dedicated to freedom, peace, progress, prosperity and justice.
- The people shall express their will and consent as to who shall govern them and how they shall be governed, through regular, free and fair elections of their representatives.
- The State shall be guided by the principles of decentralisation and devolution of governmental functions and powers to the people at appropriate levels of control to facilitate democratic governance.
- In the composition of the Government, women shall be fairly represented.
- The Government, with due regard to the principles of an open and democratic society, shall foster accountability and transparency at all levels of government.
215. Economic Objectives
Right to work
The State shall endeavour to create an economic environment that maximises the rate of economic growth and employment and secures the maximum welfare and prosperity for all persons in The Gambia.
- The State shall endeavour to keep inflation under control.
- Recognising that the most secure democracy is one that assures the basic necessities of life for its people, the State shall endeavour to establish an efficient, dynamic and self-reliant economy whose underlying principles shall include ensuring:
Right to establish a business
ample and equal economic opportunity for all citizens and a pronounced role for the private sector, and the encouragement of private initiative;
- that persons bear their fair share of social and national responsibilities including their responsibility to contribute to the development of the country; and
Mentions of social class
a balanced development of all parts of The Gambia, improvement in the quality of life in rural communities and redressing economic imbalances between rural and urban communities.
- The State shall pursue a policy of:
- giving adequate priority to those sectors of the economy which promote national prosperity;
- promoting the development of agriculture and related industry;
- encouraging and protecting beneficial foreign investment;
Protection of environment
protecting the environment of the nation for posterity; and
Protection of environment
co-operation with other nations and bodies to protect the global environment.
- The State shall endeavour to ensure equal opportunity and full participation for women in the economic development of the country.
216. Social Objectives
- The State shall endeavour to secure and promote a society founded on the principles of freedom, equality, justice, tolerance, probity and accountability.
State support for the disabled, State support for children, State support for the elderly
The State shall pursue policies to protect the rights and freedoms of the disabled, the aged, children and other vulnerable members of society and to ensure that such persons are provided just and equitable social opportunities.
The State, in pursuing policies under subsection (2), shall be bound by the fundamental rights and freedoms in the Constitution and shall be guided by international human rights instruments to which The Gambia is a signatory and which recognise and apply particular categories of basic human rights to development processes.
Right to water, Right to shelter, Right to health care
The State shall endeavour to facilitate equal access to clean and safe water, adequate health and medical services, habitable shelter, sufficient food and security to all persons.
- The State shall encourage and promote the establishment and maintenance of contributory schemes that shall provide economic security for all citizens.
Right to rest and leisure, Right to safe work environment
The State shall endeavour to ensure safe systems of working for persons who are employed and to provide that such persons are entitled to adequate rest, leave and leisure.
- The State shall endeavour to ensure that adequate sports facilities are established throughout The Gambia and that sports are promoted as a means of fostering national integration, health and self-discipline and international friendship and understanding.
217. Educational objectives
- The State shall endeavour to provide adequate educational opportunities at all levels of study for all citizens.
The State shall pursue policies to ensure basic education for all citizens and shall endeavour to provide adequate resources so that such tuition for basic education shall be free for all citizens.
- The State shall endeavour to provide skills training centres.
State support for the disabled
The State shall take measures to create an adult literacy programme, rehabilitative vocational training for the disabled, and continuing education programmes.
Right to culture, Protection of language use, Reference to art
218. Cultural objectives
The State and all the people of The Gambia shall strive to protect, preserve and foster the languages, historic sites, cultural, natural and artistic heritage of The Gambia.
219. Foreign relations
The State shall endeavour to ensure that in international relations it:
- promotes and protects the interest of The Gambia;
- seeks the establishment of a just and equitable international economic and social order;
fosters respect for international law, treaty obligations and the settlement of international disputes by peaceful means; and
is guided by the principles and goals of international and regional organisations of which The Gambia is a signatory.
220. Duties of a Citizen
- The exercise and enjoyment of rights and freedoms are inseparable from the performance of duties and obligations, and accordingly, every citizen shall:
- promote the prestige and good reputation of The Gambia and respect the symbols of The Gambia;
Duty to obey the constitution
uphold and defend the Constitution;
- foster national unity and live harmoniously with others;
- respect the rights, freedoms and legitimate interests of others and refrain from acting in a manner detrimental to the welfare of other persons;
Duty to work, Right to choose occupation
serve The Gambia by working conscientiously in his or her chosen occupation;
- protect and preserve public property and expose and combat the misuse and waste of public funds and property;
- contribute to the well being of the community in which the citizen lives;
Duty to serve in the military
be loyal to The Gambia and contribute to its defence when necessary;
- cooperate with the appropriate agencies in the maintenance of law and order; and
Protection of environment
protect and conserve the environment of The Gambia.
- It shall be the duty of every citizen to abide by and conform with the provisions set out in subsection (1), but such duties shall not, of themselves, render any person liable to proceedings of any kind in any court.
CHAPTER XXII. AMENDMENT OF THE CONSTITUTION
Referenda, Constitution amendment procedure
226. Alteration of this Constitution
- Subject to the provisions of this section, an Act of the National Assembly may alter this Constitution.
- Subject to subsection (4), a bill for an Act of the National Assembly under this section shall not be passed by the National Assembly or presented to the President for assent unless-
- before the first reading of the Bill in the National Assembly, the Bill is published in at least two issues of the Gazette, the latest publication being not less than three months after the first, and the Bill is introduced into the National Assembly not earlier than ten days after the latest publication;
- the Bill is supported on the second and third readings by the votes of not less than three quarters of all the members of the National Assembly.
- If the President fails to assent within thirty days to a Bill passed by the National Assembly in accordance with subsection (2), the Bill shall be returned to the Speaker who shall refer it to the Independent Electoral Commission. The Independent Electoral Commission shall cause a referendum to be held on the Bill in accordance with subsection (4) and, if the Bill is supported on such a referendum by the majority provided for in that subsection, it shall again be presented to the President for his assent.
- A Bill for an Act of the National Assembly altering any of the provisions referred to in subsection (7) shall not be passed by the National Assembly or presented to the President for assent unless-
- the Bill is published and introduced in the manner required by paragraph (a) of subsection (2);
- the Bill is supported on the second and third readings by the votes of not less than three quarters of all the members of the National Assembly;
- the Bill has been referred by the Speaker to the Independent Electoral Commission and the Commission has, within six months of such reference, held a referendum on the Bill;
- at least fifty per cent of the persons entitled to vote in the referendum have taken part in the referendum and the Bill is supported in the referendum by at least seventy five per cent of those who voted.
- The Speaker and, in the case of a Bill to which subsection (3) or (4) applies, the Independent Electoral Commission shall certify that the relevant provisions of this section have been complied with and such certificates shall be delivered to the President when the Bill is presented for assent.
- Where a Bill which has been supported in a referendum by the majority provided for in subsection (4) is presented to the President for assent, the President shall assent to the Bill within seven days.
- Subsection (4) applies to-
- this section;
- sections 1 and 79(2) (which relate to the sovereignty of The Gambia);
- sections 4, 5(1) and 6(2) (which relate to the Constitution, as the supreme law of The Gambia);
- sections 8 and 13(4) (which relate to citizenship);
- Chapter IV (which provides for the protection of fundamental rights and freedoms);
- sections 39(1), 42(1), 47(3) (which relate to elections and the Independent Electoral Commission);
- section 63(1) and the first sentence of section 71(2) (which relate to the term of the President and the qualifications for Secretaries of State);
- sections 85(4) and 160 (7) (which relate to the Director of Public Prosecutions and the independence of the Auditor-General);
- sections 87 and 100 (which relate to the National Assembly and the legislative power);
- sections 120(1)(a), (2) and (3), 121(1), 123, 126 to 128, 130, 132, 133, 135 (1) and (2), 136 and 138(1), (4), (5) and (6) (which relate to the judicature);
- sections 149(1) and 151(1) which relate to taxation and the withdrawal of money from public funds);
- section 193(1) (which relates to local government).
- No Act of the National Assembly shall be deemed to amend, add to, repeal or in any way alter any of the provisions of this Constitution unless the title of the Act clearly indicates that intention and the Act does so in express terms.
- In this section-
- references to this Constitution include references to any law that amends or replaces any of the provisions of this Constitution;
- references to the alteration of this Constitution include references to the amendment, modification or reenactment with or without amendment or modification, of the Constitution or of any provision for the time being contained in this Constitution, the suspension or repeal or the making of different provision in lieu thereof, and the addition of new provisions to this Constitution.
FIRST SCHEDULE. DIMENSIONS OF THE NATIONAL FLAG
The National Flag shall be a flag of the following Design:
The flag shall measure twenty-seven units across and eighteen units down.
It shall be divided into horizontal stripes which shall have the following colours and dimensions from the top to the bottom:
- Red - six units one third
Blue- four unit one third
Green - six units one third.