The Gambia 2019 Draft Constitution - Page 24 of 24

Table of Contents

SCHEDULE 3. TRANSITIONAL AND CONSEQUENTIAL PROVISIONS

1. Interpretation

In this Schedule-

“effective date” means the date of the coming into force of this Constitution, which shall be the date after the day this Constitution is adopted at a national referendum; and

“existing” means in being or current or, as the case may be, having the force of law or being in operation, immediately before the coming into force of this Constitution.

2. Existing laws

Subject to the provisions of this Constitution, all laws that were in force immediately before the effective date shall, on the effective date, continue to be in force with such modifications, adaptations, qualifications and exceptions as may be necessary to bring such laws into conformity with this Constitution.
Subject to subsection (3), where any matter that falls to be prescribed or provided for under this Constitution by an Act of the National Assembly or by any other person or authority, is prescribed or provided for by or under an existing law or is otherwise lawfully prescribed or provided for immediately before the effective date, that prescription or provision shall, as from the effective date, have effect with such modifications, adaptations, qualifications and exceptions as may be necessary to bring it into conformity with this Constitution.
If, in respect of any particular matter, any existing law assigned responsibility for that particular matter to a specific person or authority, and this Constitution, upon the effective date, assigns that responsibility to a different person or authority, the assignment under this Constitution shall prevail.
Where an existing law had not been brought into force before, or was to come into force on a date subsequent to, the coming into force of this Constitution, the law may be brought into force in accordance with its terms, or it shall come into force on such subsequent date, as the case may be, in so far as it is not inconsistent with this Constitution.
The National Assembly shall, within three years of the coming into force of this Constitution, make such provision as may be necessary to repeal, amend or adapt any existing law not, partly or wholly, consistent with this Constitution, to bring the existing law into conformity with the provisions of this Constitution.

3. Rights, duties and obligations

Except where this Constitution provides otherwise, all rights, duties and obligations, however arising, of the Government or the State and subsisting immediately before the effective date, shall continue as rights, duties and obligations of the Government or the State under this Constitution.

4. The Executive

The existing Executive shall, from the effective date, continue as the Executive of The Gambia for the purposes of this Constitution.
The Office of Chief of Staff of the President’s Office may, after the effective date, be filled in accordance with the provisions of this Constitution, but the person appointed to that Office shall serve only for the unexpired period of the term of the incumbent President.
The existing Office of Secretary General as head of the Civil Service shall, from the effective date, continue as if it were established under this Constitution, and all the provisions of this Constitution relating to that Office shall apply.
The existing Office of Secretary to Cabinet shall, from the effective date, continue as if it were established under this Constitution, and all the provisions of this Constitution relating to that Office shall apply.

5. Term of office of incumbent President

The person duly elected President of The Gambia prior to the effective date and serving in office as at the effective date shall be the first President of the Third Republic of The Gambia and shall be deemed to hold the Office of President in accordance with the provisions of this Constitution.
Notwithstanding anything contained in this Constitution or any other law or any rule of interpretation or rule of construction, the term of office of the person holding the Office of President as at the effective date shall be construed to include the existing term and the person may contest election for the Presidency for only one more term as provided in this Constitution after the expiry of the existing term.

6. Disclosure of assets, etc

Where a person, by virtue of the office he or she holds, is required to make a disclosure of assets, liabilities or business interest, whether of himself or herself, and the person had not under any existing law made such disclosure before the effective date, the person shall make the disclosure required under this Constitution within three months after the effective date or, if the Anti-corruption Commission has not commenced its work by then, within three months after the commencement of work by the Commission.

7. The National Assembly

The existing National Assembly shall, from the effective date, continue as the National Assembly of The Gambia for the purposes of this Constitution.
The existing constituencies shall, from the effective date, continue to be single member constituencies for purposes of elections to the National Assembly, until such time as the number is altered by the Independent Boundaries and Electoral Commission in accordance with this Constitution.
The expanded membership of the National Assembly shall take effect and the members thereof shall only be voted for at the next general elections after the expiry of the term of the existing National Assembly.
The existing Offices of the Majority Leader and the Minority Leader of the National Assembly shall, from the effective date, continue as such in accordance with the provisions of this Constitution.
The Office of a second Deputy Speaker of the National Assembly shall not, if established, be filled until after the next National Assembly has been elected and its members sworn into office.
The authority of the National Assembly Service established under section 111 of the repealed Constitution shall, from the effective date, continue as such without alteration in the mode of appointment of its members until after the next National Assembly has been elected and its members sworn in as members of the National Assembly Service Commission.

8. Term and language of the National Assembly

Notwithstanding section 138 relating to the term of the National Assembly and pursuant to section 137 (1), the term of the existing National Assembly shall come to an end at the same time as that of the existing President and, accordingly, the existing National Assembly shall stand dissolved on the day immediately before a general election of members of the Assembly following dissolution.
The provision under section 155 (1) for the business of the National Assembly to be conducted in any other language apart from the English language, shall not take effect before the next general election following dissolution of the existing National Assembly.

9. Convening of next National Assembly and Standing Orders

The power conferred on the Clerk of the National Assembly to convene the first sitting of the National Assembly shall apply with effect from the next National Assembly that is elected after general elections.
The existing Standing Orders of the National Assembly shall, in so far as they are not inconsistent with this Constitution, constitute the Standing Orders of the National Assembly until revoked, amended or otherwise revised by the Assembly.

10. The Judiciary

The existing Judiciary and the courts constituted thereunder, save the Special Criminal Court, shall, from the effective date, continue as such for the purposes of this Constitution.
If, on the effective date, a matter on which legal proceedings were commenced before an existing court relates to an interpretation or application of a provision of the repealed Constitution, the matter shall be resolved in accordance with the provisions of the repealed Constitution.

11. Judges

The judges of the existing superior courts shall be deemed to have the requisite qualification for appointment as prescribed in this Constitution and in that regard to have been properly appointed in accordance with this Constitution.
Where, on the effective date, a non-Gambian is appointed to and holds the office of judge of a superior court, he or she shall be deemed to have been appointed in accordance with section 188 (3) of this Constitution and may therefore continue to hold office in accordance with the terms of his or her appointment.

12. Local Government Authorities

The existing Local Government Authorities and their geographical boundaries shall, on the effective date, continue as such.
The term of office for which existing members of the Local Government Authorities have been elected shall continue to be in force, and the term established under this Constitution shall only come into effect following the next Local Government elections after the effective date.
Where, before the effective date, a person was elected or appointed as a Seyfo or an Alkalo, he or she shall, from the effective date, continue to serve in such office as prescribed in this Constitution.

13. Electoral boundaries

The existing constituency boundaries shall continue to have effect after the effective date until otherwise determined by the Independent Boundaries and Electoral Commission pursuant to section 81.
For purposes of section 81 (2), the period at which the Independent Boundaries and Electoral Commission may review the names and boundaries of constituencies after the effective date shall be reckoned from the date of publication of the last national census results before the effective date.

14. Existing offices

Subject to this paragraph and other provisions of this Schedule, where any office has been established by or under an existing law and this Constitution establishes or provides for the establishment of the same, or a similar or corresponding office, any person who, immediately before the effective date, holds or is acting in the former office shall, in so far as it is consistent with this Constitution, be deemed as from the effective date to have been appointed, elected or otherwise selected to act in the latter office.
For the purposes of sub-paragraph (1), where this Constitution prescribes a qualification for an existing office which the current holder of the office does not possess, the current holder of the office shall, notwithstanding any qualification or disqualification attached to the office, continue in such office as if he or she satisfied the requirements to hold such office in accordance with the terms of his or her office.
Any person who, under the existing law, would have been required to vacate his or her office at the expiration of any period or on the attainment of any age, shall vacate such office on the expiry of that period or on the attainment of that age.
Nothing in this paragraph affects the power of any person or authority under this Constitution to make provision for the abolition of any office or the removal of any person from office or to require any person to retire from office.
For the purposes of any law relating to pensions or other retirement benefits, the continuity of service of any person holding a public office shall not be affected by the coming into force of this Constitution.

15. Service Commissions

Subject to sub-paragraph (2), the existing National Assembly Service, Judicial Service Commission and Public Service Commission shall, on the effective date, continue to function as such.
Within a period of six months after the effective date, the Secretary General shall take all necessary steps to ensure the establishment of the Teachers Service Commission, Health Service Commission and Security Service Commission as provided in this Constitution, and the Public Service Commission shall, after that period, cease to perform the functions assigned to those service Commissions under this Constitution.

16. Independent institutions and offices

Subject to sub-paragraph (2), the functions of the Director of Public Prosecutions shall be performed by the Attorney General until a Director of Public Prosecutions is appointed in accordance with this Constitution.
The Attorney General shall not continue to perform the functions of the Director of Public Prosecutions for a period exceeding nine months after the effective date.
Subject to sub-paragraph (4), the Ombudsperson may perform those functions of the Anti-corruption Commission as it has jurisdiction over prior to the effective date until the Anti-corruption Commission is appointed.
The Ombudsperson shall not continue to perform the functions of the Anti-corruption Commission for a period exceeding nine months after the effective date.
Where, prior to the effective date, the holder of an independent office was appointed on a fixed term, the holder of the office shall, from the effective date, continue to serve for the period remaining on the fixed term, and thereafter if he or she is entitled to a renewal of appointment, the renewal of appointment shall be made in accordance with this Constitution.

17. Commission for implementation of the Constitution

There is established the Constitution Implementation Commission (“the Commission”), which shall have responsibility for the implementation of the provisions of this Constitution.
The Commission shall comprise-
1. a Chairperson, appointed by the National Assembly by a vote of not less than sixty per cent of all the members of the Assembly; and
2. four other members, at least two of whom shall be women.
The Chairperson and other members of the Commission shall be persons of high moral character and proven integrity who-
1. are qualified in public law, human rights, public administration and government, with post-qualification experience of not less than fifteen years; and
2. shall not include any person who had served on the Constitutional Review Commission appointed pursuant to the Constitutional Review Commission Act, 2017.
The provisions of Part I of Chapter XII shall apply to the Commission to ensure its independence and effective functioning.
The Commission shall perform the following functions-
1. to monitor, facilitate and oversee the development of legislation and administrative procedures required for the implementation of this Constitution;
2. to provide necessary assistance, including providing expert advice, to any person or authority which has responsibility for ensuring the efficient and effective establishment of any commission, independent institution or other office established under this Constitution;
3. to co-ordinate with the Attorney General the preparation and introduction in the National Assembly legislation required to implement this Constitution;
4. to report on a periodic basis to the National Assembly Constitutional Implementation Oversight Committee on progress in the implementation, and any impediments to the implementation, of this Constitution; and
5. to work with each commission or other independent office established under this Constitution to ensure that the letter and spirit of this Constitution is respected.
The Commission’s mandate under this paragraph shall, unless otherwise extended by the National Assembly, come to an end after a period of three years following its establishment.
Any extension to the period in which the Commission may continue to perform its mandate shall not, in aggregate, exceed three years.

18. Establishment of National Assembly Select Committee

The National Assembly shall, in accordance with its Standing Orders and within thirty days after the date of adoption of this Constitution at a referendum, establish a select committee on Constitution Implementation Oversight Committee (“the Committee”).
The Committee’s function shall be to oversee the implementation of this Constitution and, in that regard, shall-
1. liaise regularly with the Constitution Implementation Commission established under paragraph 17 to ensure that the Commission is carrying out its mandate as prescribed in that paragraph;
2. receive periodic reports from the Commission on the implementation of the Constitution, including reports relating to-
  1. the preparation of the legislation required by this Constitution;
  2. the process of establishing the commissions and independent institutions and offices required under this Constitution;
  3. the process of establishing the infrastructure necessary for the proper management of the commissions and independent institutions and offices;
  4. the decentralisation of powers and functions to the Local Government Authorities as provided in this Constitution and any Act of the National Assembly giving effect to this Constitution in that regard; and
  5. the challenges to the process of implementing this Constitution, providing recommendations on how those challenges may be properly addressed;
3. co-ordinate with the Attorney General, the Commission and relevant select committees of the National Assembly to ensure the timely introduction and enactment of legislation required by this Constitution; and
4. take necessary action on the reports received under paragraph (b), including addressing any problems in the implementation of this Constitution.

19. Financial support to the Commission

The National Assembly shall, upon the establishment of the Commission referred to in paragraph 17 and for each subsequent year thereafter while the Commission remains established, provide adequate funding to the Commission to enable the Commission to efficiently and effectively carry out its functions.

20. Commissions of Inquiry

Where, prior to the effective date, a Commission of Inquiry was issued under the repealed Constitution or any other law-
1. the Commission of Inquiry shall continue to exist and shall exercise its powers and perform its functions in accordance with the repealed Constitution and the commission establishing it; and
2. any finding, order or recommendation by the Commission of Inquiry shall be dealt with in accordance with the repealed Constitution and the commission establishing it.

21. Enforcement of other provisions of this Constitution

Save as otherwise specified in this Schedule, all other provisions of this Constitution take effect from the day after the date of adoption of this Constitution at a referendum.

This draft text is provided in collaboration with International IDEA (Draft of 12 Nov 2019)