The Gambia’s post-dictatorship democratic transition recently suffered a setback. The Constitution of the Republic of The Gambia (Promulgation) Bill, 2024 failed to pass its second reading in the national assembly.

Passing the bill required the support of at least 75% of The Gambia’s 58-member parliament, including the speaker. Now, there’s uncertainty over the country’s democratic reforms.

This leaves The Gambia governed by the 1997 constitution drafted under Yahya Jammeh’s military junta. The 1997 constitution was widely seen as a tool for executive overreach. It didn’t have term limits, stalled key democratic reforms and lacked sufficient protection for human rights and democratic principles.

Failure to pass the new constitution is a setback to the “New Gambia” agenda, a campaign promise of the 2016 ruling coalition, which included the drafting of a new constitution and ensuring accountability for past human rights violations, and could lead to renewed political tension.

Proponents hailed the proposed new constitution as a step towards institutionalising checks and balances and strengthening civil liberties. Critics pointed to a lack of transparency, the absence of broad stakeholder consultation, and specific controversial clauses.

Those clauses included the removal of a retroactive presidential term limit, the weakening of checks and balances by reducing parliamentary oversight on appointments, and the potential erosion of judicial independence.

I am a Gambian legal scholar, researcher and human rights practitioner and I have been tracking The Gambia’s journey to solidify its democracy since the dictatorship of Jammeh. In this article, I present five of the most important things to know about this constitutional reform effort and why it failed to advance.

New constitution triggers and why it failed

1. Unfulfilled search for a new foundation:

A truly democratic constitution has been a central promise since the ousting of former president Jammeh in 2017.

An initial 2020 draft, the product of extensive nationwide consultations, also failed to pass. There were disagreements over provisions like retroactive presidential term limits. But the 2024 bill continues to face political and social hurdles.

The 1997 constitution presents a paradoxical approach to democratic governance, particularly in its mechanisms for political transition and constitutional amendment. For example, it has stringent requirements for constitutional change: a three-quarters majority vote from all national assembly members across two readings.

It also requires a national referendum, with 50% voter participation and 75% approval.

A high bar for constitution amendments can protect against impulsive alterations. But it also puts disproportionate power in the hands of a parliamentary super majority. This politicises constitutional reform, making it contingent on party allegiance and strategic manoeuvring rather than a broad national consensus.

An arrangement like the one in The Gambia could hinder the natural evolution of democratic governance and limit the nation’s capacity to adapt its basic law to the changing will of the people.

2. Unresolved concerns over presidential powers:

A key reason the 2024 draft faced such strong opposition related to presidential powers. The 2020 draft sought a two-term limit with a retroactive clause (meaning President Adama Barrow would not be able to run in the 2026 election). But the 2024 draft removed this retroactive counting.

This remained a point of contention, fuelling fears of potential term limit manipulation. More broadly, the bill proposed removing parliamentary oversight for all appointments, including ministers, the Independent Electoral Commission and independent institutions.

It also sought to grant the president more power over national assembly members. These proposals were viewed as undue centralisation of authority and a regression from the 1997 constitution.

3. Unaddressed threats to judicial independence:

The bill’s stated goal of judicial independence was undermined by certain provisions. The 2024 draft removed the requirement that the national assembly confirm the appointment of the chief justice and Supreme Court judges.

It also removed the citizenship requirement for the chief justice. Given The Gambia’s recent history where foreign judges on politically appointed, renewable contracts served as a tool of repression and eroded public trust, these changes therefore raised alarm about judicial impartiality and the erosion of oversight.

The bill left out Chapter V on “Leadership and Integrity” which was in the 2020 draft. This chapter, which outlined a framework for public officer conduct and aimed at combating corruption, was seen as vital for accountability.

4. Contentious provisions on human rights and civil liberties:

While the 2024 draft generally aimed to modernise fundamental rights and introduce additional socio-economic protections, it also contained specific restrictions that human rights advocates criticised. These included an increase in police detention periods from 48 to 72 hours, and perceived limitations on the rights to education, to petition public officials, and to freedom of assembly.

Provisions affecting citizenship by marriage (doubling the waiting period for foreign spouses to gain citizenship) and limiting media ownership and operation to Gambian citizens sparked debates over inclusivity and media freedoms.

These clauses likely contributed to the insufficient votes for the bill to pass.

5. Public fatigue amid the bill’s failure:

The failure of the 2024 constitution draft bill to pass second reading reflects a complex and polarised public discourse. While the government championed the bill as essential for stability and a modern republic, the main opposition, the United Democratic Party, opposed it.

Numerous civil society organisations expressed concerns about the diluted democratic safeguards and expanded presidential powers. In the end, a perceived lack of genuine public participation prevented its advancement.

The way forward

This outcome shows a division among the public. Some are tired of the drawn-out constitutional reform process. They want stability now. Others want to keep pursuing a genuinely transformative constitution.

This division is made worse by widespread disillusionment due to economic hardships and slow progress with various reforms since the post-dictatorship transition began.

The failure of the 2024 bill leaves The Gambia in a state of uncertainty about its foundational legal framework.

As I have noted elsewhere, it’s time for all to commit to an inclusive reform process.

This article is republished from The Conversation, a nonprofit, independent news organization bringing you facts and trustworthy analysis to help you make sense of our complex world. It was written by: Satang Nabaneh, University of Dayton

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Satang Nabaneh does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.