The passing of the Bill on setting aside the 65 year age limit is unconstitutional Says Halifa Sallah

The passing of a Bill aiming to amend section 62 subsection 1 (b) to remove the sixty five year age limit to contest presidential election is done without following the correct constitutional procedures, thus making the act unconstitutional.

Hence, the President of the Republic is best advised not to assent to this Bill to make it law. It is desirable to amend the provision as proposed before by the Gambia Opposition for Electoral Reform (GOFER).

However, the Government and the National Assembly must not amend the Constitution by relying on wrong procedures.

The Constitution provides for two ways of amending its provisions. It also provides two procedures for amending other laws.

Section 101 of the Constitution is designed to provide procedures for enacting laws. Bills aimed at amending other laws like the Elections Act have to be published in the Gazette for fourteen days before they are introduced at the National Assembly. This is the normal procedure. However, if the Executive attaches a Certificate of Urgency to a Bill, it may be introduced without publication for fourteen days if approved by the National Assembly. Hence, a Bill may take the normal route or the route provided for urgent matters. This is restricted to other laws and is not applicable when it comes to the amendment of the Constitution which is provided for under section 226 of the Constitution.

Section 101 subsection (3) which is applicable for enacting or amending other laws states: “No Bill, other than a Bill referred to in subsection (5), shall be introduced into the National Assembly unless it has been published in the Gazette, and such publication has been made at least fourteen days before the date of its introduction:

Provided that where the President certifies that the enactment of the Bill is required in the public interest as a matter of urgency, the Bill may be introduced notwithstanding it has not been published fourteen days beforehand, but the Speaker shall, on the introduction of the Bill, cause a vote to be taken in the National Assembly without debate on a motion to give consideration to the Bill notwithstanding that the said period of fourteen days has not expired.”

On the other hand, section 226 provides for the amendment of entrenched and non-entrenched provisions of the Constitution. The age limit does not belong to the entrenched clause. Hence, what is required to amend the provision is expressed under section 226 states:

“(2)  Subject  to subsection  (4),  a  Bill for  an  Act  of  the  National  Assembly under this section  shall not be passed by the National  Assembly  or presented  to the President for assent unless-

(a)    before the first reading of the Bill in the National Assembly, the Bill is published  in at least two issues of the Gazette, the latest  publica­tion being not less than three months after the first, and the Bill is introduced into the National Assembly not earlier than ten days after the latest publication; and

(b)      the Bill is supported on the second and third readings by the votes of not  less  than  three-quarters   of  all  the  members  of  the  National Assembly.”

Hence, there is need to return the Bill to the National Assembly without the assent of the President.