Transformative Constitutions: How One African Nation is Writing A New Constitution for National Healing and To Learn from The Past

By: Oladeji M. Tiamiyu, J.D. ’20

The Constitutional Review Commission in The Gambia, located in the Greater Banjul Region

When democracies endure prolonged crises, a complete constitutional review can be valuable to legitimize the nation’s constitution and to create an outlet for national healing. The Gambia launched the Constitutional Review Commission (CRC) to conduct a full-scale review of the current constitution after enduring the 22-year rule of Yahya Jammeh, whose administration was characterized with the flouting of constitutional norms and violations of clear constitutional provisions. The Gambia is a small West African nation that is—with the exception of a 50-mile coast on the Atlantic Ocean—surrounded entirely by Senegal and is seven times smaller than Niger State, the largest state in Nigeria. Despite the country’s small size, what happens here has important implications for youthful constitutional democracies around the globe.

The CRC is considering a broad range of issues for the new constitution ranging from granular issues, such as what the qualifications for a judge should be, to broader issues like whether a right to health care and housing should be enshrined within the constitution. This is the second time a committee has been organized to review a pre-existing constitution. When Jammeh came to power as leader of the 1994 military junta, he organized a CRC to create the nation’s current constitution. Important considerations for the current CRC include: 1) how a culture of judicial independence can be constitutionally promoted and protected when, at best, the judiciary has been silent in the midst of unconstitutional conduct or co-opted to serve the interests of the President; and 2) how the constitution’s language can be given substantive effect to protect, among other things, a free press and rights of marginalized groups.

Paradoxically, perhaps the greatest effect of the CRC’s presence will not come with changes to the constitution, but instead through empowering civil society to share political opinions without the fear of repercussions. The CRC has traveled across the country to receive input from members of civil society and this has fostered a sense of political and civic activism that would have been unthinkable under the prior administration. From speaking with local taxi drivers during my morning commute to discussions with senior members of the Gambian Bar Association and lawyers at the Ministry of Justice, everyone is deeply engaged with the complex issues facing the new constitution. Despite diverging opinions, the unifying theme is for greater oversight on the president.

Adama Barrow, The Gambia’s current president, has little in common with former President and military junta leader Yahya Jammeh. For one, President Barrow came into power at 51 and ran for president as an independent while his predecessor came into power as the leader of a military coup at the ripe age of 29. Moreover, Barrow has freed journalists and members of opposition parties while his predecessor imprisoned and, as described in hearings at the Truth Reconciliation and Reparations Commission (TRRC), tortured government dissenters in the infamous Mile Two prison and executed 50 Ghanaian nationals. Barrow has also sought to rekindle economic and diplomatic ties with Senegal and the Economic Community of West African States (ECOWAS) sub-region while his predecessor created extensive diplomatic schisms within the region. Yet despite these differences, the experience with Jammeh has left the nation skeptical of the presidency as an institution. There are high expectations that the new constitution will be more durable and effective than the current constitution.

The current constitution came into effect in 1997 and provides for, among many important provisions, “freedom and independence of the press and other information media,” §207(3), prohibitions against torture and inhumane treatment, §21, and that the judiciary “shall be independent and…shall not be subject to the control or direction of any person or authority” §120(3). However, Jammeh successfully introduced amendments that undermined these provisions. For example, President Jammeh amended §52 of the Criminal Code Act to make written or oral statements considered critical of the government a legal cause of action. To prevent the erosion of constitutional checks and balances “by the parochial interests of one man,” the CRC is just one facet of the transformative justice process that operates in tandem with the Truth Reconciliation and Reparations Commission (TRRC) to raise greater awareness of Jammeh’s actions. The TRRC has heard testimony from those who participated in the military coup with Jammeh and claims of torture during his administration.

Dr. Baba Jallow, the Executive Secretary of the TRRC, described the purpose of the transformative justice process as creating ‘nation-schools’ that inform citizens, especially the youth, on the language and purpose of the constitution so that no future government can violate or trivialize their rights as the previous administration did. A constitution, regardless of how well written, can only have substantive effect if a nation’s citizens understand their rights and oppose those forces that conflict with the constitution. The outcome of this process will serve as an important template for similarly situated constitutional democracies seeking to promote civic engagement and prevent the re-occurrence of harmful government actions.

Oladeji M. Tiamiyu is a 2L at Harvard Law School who spent the January semester as a legal intern at The Gambian Ministry of Justice.