By Omar Bah
The Government has provided an explanatory note explaining why it omitted the clause in the 2020 Draft that includes the right of natural or juristic persons to own and operate media in The Gambia.
The exclusion is one of several that have sparked controversy. In its clarification on the issue, the Government stated, “The 2024 Draft restricts media ownership and operation rights to Gambian citizens, either natural or juristic. In a small country like The Gambia, confining media ownership to citizens bolsters national security, safeguarding cultural authenticity, promoting local economic benefits, cultivating public confidence, and improving regulatory effectiveness.”
The decision to restrict media ownership and operation to Gambians aims to safeguard The Gambia’s national sovereignty. This measure will help guarantee that the media presents a fair and balanced perspective on local content and reports news about The Gambia from an authentic Indigenous viewpoint. Additionally, the Government anticipates that this approach will foster economic empowerment by opening opportunities for Gambian investment in the media sector.
Protest
The 2020 Draft, in Clause 50, affirms that every person has the right to peacefully assemble, demonstrate, picket, and present petitions to authorities. Surprisingly, the 2024 Draft omits this clause and instead includes Clause 42, mirroring sections 25(1)(d) and 25(4) of the 1997 Constitution. The rationale is the necessity to balance individual rights against the broader interests of society. The new provision acknowledges the importance of safeguarding individual freedoms while allowing for reasonable restrictions in cases where these freedoms may threaten national security, public order, or other crucial societal values.
Conversely, the Government argues that Clause 50 of the 2020 Draft grants expansive and unrestricted rights without adequately considering the potential need for limitations in certain situations, potentially compromising public safety or national security. Emphasizing the importance of imposing “reasonable restrictions” in a democracy to prevent the infringement of others’ rights or the destabilization of the nation, they claim that this approach aligns with international standards such as those recognized by the International Covenant on Civil and Political Rights (ICCPR).
The provision in the Draft Constitution of the CRC 2020 needs to adequately provide the necessary safeguards to address potential public safety and order risks. It also does not establish guidelines to balance individual freedoms with society’s collective needs, which could pose challenges in maintaining peace and respecting cultural norms. The new provision offers a more comprehensive and practical framework to secure the right to peaceful assembly without impeding the nation’s broader interests.
Supreme Court
In the 2024 executive draft, the entire clause related to the Supreme Court’s jurisdiction over the validity of a state of public emergency declaration was removed. This clause previously empowered the Supreme Court to assess the validity of emergency declarations, their extensions, and any related legislation or measures. However, the executive expressed concerns about potential challenges to implementing this clause in the draft constitution. They highlighted the possibility of conflicts between the judiciary (Supreme Court) and the legislature (National Assembly) due to overlapping oversight authority. The executive raised concerns that such disputes could lead to institutional friction and disagreements over the validity of emergency declarations.
The executive expressed concerns about the potential impact on National Assembly oversight if the Supreme Court were given the final authority to validate its decisions regarding state emergencies. This could be viewed as diminishing the legislative branch’s power and disrupting the balance of power within the Government. Additionally, the requirement for judicial approval for declarations and extensions of states of emergency might hinder the Government’s ability to respond swiftly during crises, as each step would need legal validation, potentially causing delays in emergency responses.
