The final draft constitution does not include the word ‘secular’ and says The Gambia is “a sovereign independent republic and a multi-party democratic state and comprises of people of different faiths, and each faith is to be respected and treated fairly, without any discrimination”.

A copy of the final draft was submitted yesterday to President Adama Barrow at State House by the 11 member committee of the Constitutional Review Commission (CRC).

Since the draft constitution was published last December by the Commission Gambians from all walks of life have expressed their opinions sometimes strongly on issues of concern to them. The provision on The Gambia as a ‘secular state’ generated the most heated debates.  

The Commission in an explanatory note accompanying the the final draft constitution justified the reasons why the word ‘secular’ was excluded from the constitution. It cited historical and judicial precedent as to the reasons for exclusion. 

“During the preparation, and prior to the publication of the Draft Constitution, the CRC received only two submissions on sovereignty, one from an institution, and another from an individual. Both submissions stated that the declaration that The Gambia is a sovereign Republic/State should be maintained in the Draft Constitution,” the Commission said. 

“In addition, the CRC received submissions from 5 individuals and 3 institutions in relation to the issue of secularism. Of these, 5 advocated against the inclusion of the word “secular” in the Draft Constitution and 3 were in favour (translating into 63% against and 37% for).

“The CRC commissioned a research paper on the history and modern understanding and approaches in relation to the use of the word “secular”. The result showed that the word “secular”, including the words “secularism” and “secularisation” evolved over time in history and scholars were not unanimous on any single definition. 

“After careful study and consideration of the research paper in the context of the 1970 Constitution and the 1997 Constitution, both of which did not use the word “secular”, the CRC considered it best to maintain the status quo and therefore retain section 1 (1) of the 1997 Constitution, which was an offspring from section 1 (1) of the 1970 Republican Constitution.

“The decision was arrived at after considering the attempt in 2001 to insert the word “secular” in section 1 (1) of the 1997 Constitution. The National Assembly at the time passed a series of amendments to that Constitution which (amongst others) affected section 1 (1). That section was an entrenched section and therefore required confirmation through a national referendum. That referendum was never carried out. As a consequence, the Supreme Court of The Gambia, following a challenge (as in the case of Kemesseng Jammeh v. Attorney General [1997–2001] GR 839) on the constitutionality of the amendment to section 1 (1), declared the purported amendment of section 1 (1) unconstitutional. Instead of omitting the word as required by the said decision of the Supreme Court, the 2009 Revised Edition of The Laws of The Gambia retained it. 

“The Revised Edition contained a footnote referencing the said decision of the Supreme Court. The CRC, after further careful review, concluded that the word “secular” did not form part of the 1997 Constitution considering the fact that the purported insertion of the word had been declared to be unconstitutional.

“Following the publication of the proposed Draft Constitution and the second round of public consultations, the CRC received 65 submissions expressing views for or against the inclusion of the word “secular” in the Draft Constitution. Unfortunately, the submissions to the CRC, like the debate on the issue of secularism, took a religious dimension. 

The Commission added: “Considering that the CRC had previously researched and deliberated on this subject thoroughly, it sought independent opinion from its consultants and other external experts. 

“The common thread of the responses received were that the Draft Constitution adequately provides the characteristics of a secular State without the use of the word “secular” and it was therefore appropriate that the word is not used.

6.2.4.Provisions of the Draft Constitution

“This Chapter in sections 1 to 6 recognizes that The Gambia is a Sovereign Republic and a multi-party democratic State and comprises people of different faiths, and specifically declares that each faith is to be respected and treated fairly, without any discrimination. All sovereign power belongs to the people of The Gambia and is exercised in accordance with the Constitution. 

“This Chapter, unlike the 1997 Constitution, provides a framework for the definition of the territory of The Gambia, its national days and further establishes the organs of State and recognises the Local Government Authorities to whom powers is delegated. Decentralisation of government through Local Government Authorities is provided to give autonomy to local governments for the development of their communities, which is important as it ensures that decisions are made closer to the local people and the communities they affect. The recognition of the need for decentralisation of government in the first Chapter is a key development.

“The Chapter retains section 1 of both the 1970 and 1997 Constitutions by simply declaring The Gambia as a Sovereign Republic. It also retains section 100 (2) (b) of the 1997 Constitution which prohibits the National Assembly, amongst other things, from enacting any law establishing any religion in The Gambia as a State religion (section 153 (2) (b) in the Draft Constitution). 

“Furthermore, section 49 (under Chapter VI) of the Draft Constitution guarantees freedom of conscience, religion, thought, belief and opinion and declares the individual right to manifest and practice any religion or faith without any interference from the State. Under section 88 (5) (b) (Chapter VIII), the President is specifically prohibited from exercising any power to establish any religion as a State religion. 

“Furthermore, the Draft Constitution generally recognises that The Gambia, is a nation of religions in which religious and cultural diversity are recognised and accepted as the hallmark of peaceful co-existence between its people; these qualities bind its people to stand as one family in unity, cohesion and peace. This is reflected in sections 1 (3), 12 (1) and (2) (b), 49, 88 (5) and 153 (2) (b) of the Draft Constitution.”