By Dr Satang Nabaneh*
Introduction
Gambians will go to the polls on 4 December 2021 to elect a new President. This presidential election is a milestone in The Gambia’s ongoing democratic transition since the end of the dictatorial rule of former President Yahya Jammeh. Consequently, this blog discusses the next presidential election and the implications for human rights.
During the twenty-two years that characterized the last five elections (1996-2016), commonly referred to as the Second Republic, Jammeh cemented his regime and gave himself a semblance of legitimacy through regular elections held every five years. Jammeh’s presidency was not only notorious for the disregard of the rule of law and due process, but also the wanton, through numerous amendments to the 1997 Constitution with largely anti-human rights and undemocratic provisions.
Given the unprecedented political events witnessed in The Gambia in 2017 that resulted in a transition from a dictatorship to a democracy, the state of liberal democracy following this momentous change is briefly explored in this blog.
Building a Human Rights Culture
Since the present government took office in January 2017, it has committed itself to the promotion of democratic rule, respect for human rights, rule of law and maintaining political stability. To this end, the government is undertaking key constitutional and legal reforms to consolidate the democratic gains made by the Gambia. In building a culture for the respect, protection and promotion of human rights, the government of The Gambia recognised the need for a legal and institutional framework to which a human rights culture will be anchored (Nabaneh and Sowe, 2018).
The launching of a number of processes and institutions such as the Truth, Reconciliation and Reparation Commission (TRRC) and Constitutional Review Commission (CRC), security sector and civil service reforms as well as deliberate attempts to put hands off of human rights in order to ensure that citizens enjoy them are examples of these human rights commitments. Consequently the enjoyment of basic rights such as freedoms of expression, assembly, association, and of the media have indeed flourished in the country that were never seen before. Indeed, thanks to these measures the Gambia registered a massive jump in the freedom of the press index in 2018.
To institutionalize a human rights culture, the National Human Rights Commission (NHRC) was established following the passing of the National Human Rights Commission (NHRC) Act by the National Assembly on 13 December 2017 and assented to by the President a month later, on 13 January. The NHRC is mandated to monitor, investigate and consider complaints of human rights violations in The Gambia committed by the state, private persons and entities. The five commissioners have been approved by the National Assembly and officially appointed by the President as provided by the Act in February 2019.
In fulfilment of its international human rights obligations, The Gambia became, on 23 November 2018, the ninth country in Africa to make the declaration under article 34(6) of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights (African Court) to allow individuals’ direct access to the Court (African Court on Human and Peoples’ Rights 2018). Additionally, the declaration allows the Court to trigger its jurisdictional competency under article 5(3) to allow for a limited number of access for NGOs. The Gambia on 28 September 2018 also ratified important UN human rights treaties including the Second Optional Protocol to the International Covenant on Civil and Political Rights, the Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment (CAT), the Convention for the Protection of All Persons from Enforced Disappearance (CED) and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (CRMW).
While progress is being made in strengthening its democracy, the fundamental challenges that The Gambia continues to face are: adherence to good governance principles and practices in line with respect for human rights and the rule of law.
Legal Framework
The 1997 Constitution guarantees the right to political participation, including the right to take part in public affairs either directly or through representation and to vote and stand for elections (s.26). To take part in elections, the Constitution went further to guarantee the right to be registered as a voter and entitled to vote (s.39). To ensure the enjoyment of these rights and the management of all public elections including the registration of political parties, the Constitution created the Independent Electoral Commission (IEC) (s.43) whose functions are further enunciated in the Elections Act. The Elections Act places an obligation on the IEC to register voters including Gambians living in foreign countries (s.11) in line with established qualifications for a person to be registered (s.12). The Act prohibits the registration of prisoners (s.13).
Furthermore, the NHRC in June 2020 issued an advisory note in which it called on the Government to amend the Elections Act to address a number of issues relating to the right to vote and enhance the capacity of the IEC to better conduct elections including to modernise elections by using ballot papers among other reforms. The demand for electoral reforms has been longstanding. For instance, the Jammeh Government did not only ignore these calls but also went ahead to amend the Elections Act in 2015 with even more unfavourable requirements for the opposition in particular. These included that party executives must reside in the Gambia while pegging party registration fee at a million dalasi (approx. $50,000), among other changes. These amendments became the source of political protest in April 2016 which led to the death in custody of Solo Sandeng, the then National Organising Secretary of the main opposition, United Democratic Party (UDP), who alongside other members were arrested for leading a peaceful protest for electoral reforms and demanding for the resignation of President Jammeh.
Unfilled Promises
The political watershed in December 2016 brought along with it huge promises for a brighter future for democratic governance in the Gambia. Notwithstanding the unfair playing field, the inability of the opposition to form and remain a viable and effective coalition meant Jammeh’s victory in four consecutive presidential elections. The opposition coalition’s decision to unite to contest the 2016 Presidential elections was a critical element in ending Jammeh’s rule.
Thus, the Coalition candidate and now President Adama Barrow, together with the constituent parties, were well-known and ardent political actors who had waged a longstanding battle for electoral reforms and democracy over the past two decades. In their 2016 Manifesto, they were clear in the set of deliverables listed for attainment once they won the election. Not only did they commit themselves to a three-year transitional agenda, but the Coalition also noted that within six months of coming to office, they would repeal or reform all laws that infringe on human rights, popular participation and democracy, including embarking on institutional reforms. Furthermore, a number of provisions in the Constitution, the Elections Act as well as the Public Order Act were identified for review in order to enhance democracy and good governance in the country.
Ironically, almost five years into office the President has reneged on a number of these promises and hopes for better governance including stepping down after three years in office. The hallmark of these drawbacks is the failure of the Draft Constitution 2020 to pass in the National Assembly, apparently because of the lack of visibly strong support from the President himself. Hence, when the Draft Constitution was presented to the National Assembly in September 2020, a minority 23 Members voted against comprising mainly allies of Barrow and the former ruling party, APRC, thus denying the required number of votes to pass it.
Additionally, President Barrow has also appointed several former Jammeh Ministers and retained scores of former top public sector officials and security officers in key Government institutions, who are alleged to have committed gross human rights violators as indicated during the TRRC public testimonies. Indications of an alliance between Barrow’s party and former President Jammeh’s generated resentement and further polorisarion of the political landscape. While this alleged alliance seemed to have dissolved as Jammeh has urged his supporters to vote for the opposition, the commitment of the President Barrow and his Government has been questioned in regard to the full and expeditious implementation of the TRRC recommendations. The declaration by the TRRC’s lead counsel Essa Faal to vie for the presidency, has not helped matters either. Subsequently, the head of the victims’ association warned the Government not to use Faal’s candidacy as an excuse to fail to implement the Truth Commission’s recommendations. After two initial submission postponements, the 14,000 page document was submitted to the President on 25 November 202, nine days before the presidential elections. Observers have further noted that even in his statement while receiving the TRRC Report, the President only spoke mainly about reconciliation and peace building while downplaying the need for justice by asking citizens to be patient. His statement did not contain any reference to prosecute perpetrators of human rights violations
The President as per the TRRC Act (s.30) is obligated to, within thirty days of receiving the report, submit copies to the National Assembly, UN Secretary General and other regional and international organisations. Upon completion of these processes, the report will be made public. Barrow or his successor will have six months to issue a white paper containing iys proposed plan on tbe implementation of the recommendations.
The Government’s lack of accountability for incidences of corruption and police brutality have heightened concerns about the peace and stability of the country. For instance, one major cause of concern was the reinstatement of Commander Gorgui Mboob as the head of the Police Anti-Crime Unit, notorious for its highhandedness. This came after he was found to have committed torture by a panel led by the National Human Rights Commission (NHRC) in 2020. The Commission has since written to the Inspector General Police (IGP) seeking explanations as to why Mr. Mboob was returned to his former office contrary to the recommendations of the panel which included the Police itself. In light of the foregoing, the country has been facing massive governance and development challenges that are affecting the social and economic wellbeing of citizens. Not only has cost of living risen sharply but also the delivery of basic social services has been challenging. Both of which are now manifesting in widespread frustration among the population according to a 2021 Afrobarometer survey. Many citizens have now concluded that the Government is not only corrupt and inept but is also ignoring the cries of the population to respond to the myriads of concerns about the state of affairs within the country.
Social and Political Exclusion
Political parties remain largely structured in terms of the patriarchal system where men usually lead, and women play supportive roles and are, in some instances, given token positions which lack the necessary power and authority. The presence of ‘yaye compins’ and the use of women as mobilisers, campaigners, cheerleaders, cooks and voters remains the main character role for women. In addition to women, young people as well as persons with disabilities (PWDs) are therefore faced with exclusion and low-quality participation as well as limited representation in the power and decision-making structures and processes of parties. Of the 18 registered political parties not one is led by a woman, while only a few have women deputy party leaders. Since the position of secretary-general is usually the most substantively powerful position, and is generally in the hands of men, women leaders play second fiddle to male counterparts. Part of the reason for this situation lies in the way parties are created. Usually, these parties are formed by a man, or a few men first, and then opened up to the rest of the population.
The formation of these parties does not necessary take a democratic format as the leadership is often already identified in the person or persons who set them up. It was only in 2017 that a political party, for the first time, publicly opened up all leadership positions for grabs at a congress, even though the party was first initiated by a few people, men again. This happened when Citizen’s Alliance, a new party, emerged.
Political parties do not have high levels of inclusion which has therefore affected the quality of democracy and good governance within them. Since 2017 nevertheless, much progress has been registered in many of the parties who have actually elected women, youth and PWDs for their leadership positions. However, for most of these parties, gender parity, quotas and equal representation are not reflected in their constitutions. These achievements are usually as a result of the goodwill of leaders and the growing demand for representation by their women and youth members. Notwithstanding, it is noticeable that these parties wish to be more democratic even if/when(?) they have failed to take practical steps to do so. Hence, parties need to review their constitutions and other instruments to introduce democratic norms and practices such as term limits, gender equality, ensuring greater transparency in management of resources, set quotas for youth and PWDs and make decision making quite participatory and inclusive.
The multi-party system has seen intense dynamism and expansion since 2016. There is a proliferation of political parties, with more than 18 political and 5 independent candidates expressing interest to compete in the December 2021 presidential election. Markedly however, only one female is in this race, as an independent candidate. This shows that women’s political participation is still fraught with challenges.
Conclusion
Despite the excitement and enthusiasm that greeted the onset of of a truly open and free multiparty politics following decades of authoritarian rule, The Gambia’s democracy remains fragile. While measures have been undertaken by government to deal with the abuses of the past and to reinstate democratic institutions in the country, there are concerns regarding existing repressive laws that stifle fundamental human rights. Decrees, for instance, are still part of the laws of the Gambia. It is hoped that these laws will be amended or repealed including the Criminal Code, the Public Order Act and NGO Act. More importantly, government should ensure that laws and their interpretations are in conformity with regional and international human rights standards.
In addition, there are key concerns regarding the Government’s sheer lack of commitment and interests to the security sector and civil service reform which have not yet started in full and the enactment of the anti-Corruption Commission Act. The absence of a comprehensive anti-discrimination legislation in The Gambia means that women do not still enjoy full and effective protection against discrimination in all spheres and access to appropriate remedies.
*Dr Satang Nabaneh is the Director of Programs at the University of Dayton Human Rights Center (USA). Additionally, she is a post-doctoral researcher at the Centre for Human Rights, University of Pretoria (South Africa). She currently pursues research interests including international human rights law and monitoring mechanisms, democratization in Africa, and Gambian constitutional law.
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