YOUTH POSITION PAPER: ON ISSUES RELATING TO CHILDREN AND YOUTH IN THE DRAFT CONSTITUTION

YOUTH POSITION PAPER:
ON ISSUES RELATING TO CHILDREN AND YOUTH IN THE DRAFT CONSTITUTION

Submitted to Constitutional Review Commission (CRC)

Rights stipulated in the draft Constitution What is the concern about the provision? What suggestions/amendments are being proposed?
Chapter 1: The Republic and Sovereignty of the People This section is okay as it is. We believe there is no need to include secularism in the constitution. However, the rights of the minority must be seen to be protected. We propose that, there should be an additional clause to bar the President from declaring the country as a religious state.

ChapterII: The Constitution and the Law This chapter is okay as it is.

Chapter III: National Values and Principles This chapter is okay as it is.

CHAPTER IV: CITIZENSHIP

Citizen by birth

14. (1) Every person born in or outside The Gambia after the coming into force of this Constitution shall become a citizen of The Gambia at the date of his or her birth if, at the time of his or her birth, one or both of his or her parents or grandparents is or was a citizen of The Gambia.

(2) A person who, prior to the coming into force of this Constitution, was a citizen by descent, is a citizen by birth. We are concerned that the draft Constitution only caters for citizenship by birth (S.14.1), citizenship by registration (s.15) and citizenship by naturalisation (s.16). There is no provision for citizenship by descent. S.14(2) in fact gives automatic citizenship by birth to all those who are currently citizens by descent. We think S.14(2) will become problematic in the future as it would allow current citizens by descent, when they become citizens by birth, transfer citizenship to their children who would not have any affinity to the Gambia.

We wish to propose that S.14(2) of the draft Constitution be removed and replaced by Section 10 of the 1997 Constitution
We propose that S.14(2) of the draft Constitution be deleted and replaced with Section 10 of the 1997 Constitution which reads as thus:

S.10: Citizen by Descent
A person born outside The Gambia after the coming into force of this Constitution shall be a citizen of The Gambia by descent if at the time of his or her birth either of his or her parents is a citizen of The Gambia otherwise than by virtue of this section or any comparable provision of any earlier Constitution.

Dual citizenship
17. A citizen of The Gambia by birth may hold the citizenship of any other country in addition to his or her citizenship of The Gambia. We are concern of dual citizens holding public offices in the Gambia We recommend that people with dual citizenship do not serve in any public office(President, Minister, Permanent Secretary, head of the judiciary, Chief Justice, Head of Public Enterprise/agencies, service chiefs, National Assembly Member, Speaker and Deputy Speaker of the National Assembly, Mayor, Chairperson of Area Council and Councillors)
CHAPTER V: LEADERSHIP AND INTEGRITY
Financial probity of public officers
S. 25. (1)
(b) in the case of a public official in the service of a Civil Society Organisation, be handed over to the organisation for the benefit, and in furtherance of the objectives, of the Organisation.
This provision needs to be made clearer…… ‘public officials’ in the service of ‘’Civil Society Organisations’’ is not covered in the interpretative section of the constitution. We suggest that the provision be read as follows (delete the word ‘public’):
Financial probity of public officers
25. (1)
(b) in the case of anofficial in the service of a Civil Society Organisation, be handed over to the organisation for the benefit, and in furtherance of the objectives, of the Organisation. Or to remove civil society.

CHAPTER VI: FUNDAMENTAL RIGHTS AND FREEDOMS
Freedom of expression

S.44.
(2) The right to freedom of expression does not extend to –

(c) the uttering of abusive or threatening speech or writing that causes feelings of ill-will, disaffection or hostility;
This subsection has the potential of undermining and restricting the enjoyment of the right to freedom of expression. It can also be used to silence dissent and prone to misuse especially against political opponents. We propose that this subsection (S.44 (2)(c) be deleted.
Rights of children
54.
(2) Children under the age of sixteen years are entitled to be protected from economic exploitation and shall not be employed in or required to perform work that is likely to be hazardous or to interfere with their education or be harmful to their health or physical, mental, spiritual, moral or social development. This subsection S.54(2) does not protect children who are above 16 years and under 18 years. Protection from economic exploitation should cover all persons under the age of 18 years. We propose that this subsection reads as thus:
(2) Children under the age of eighteen years are entitled to be protected from economic exploitation and shall not be employed in or required to perform work that is likely to be hazardous or to interfere with their education or be harmful to their health or physical, mental, spiritual, moral or social development.

Right to fair labour practices
58. Every person has the right to fair labour practices, including the right to form, join, participate, and organise a trade union. We need to expand the right to fair labour practice to include fair remuneration, reasonable working condition and the right to strike in accordance with the labour We propose this section to be written as thus:

(1) Every person has the right to fair labour practices.
(2) Every worker has the right—
(a) to fair remuneration;
(b) to reasonable working conditions;
(c) to form, join or participate in the activities and programmes of a trade union; and
(d) to go on strike.

(3) A person shall not be dismissed from employment for exercising the right in 2 (d)

Economic and social rights
60. (1) Every person has the right-
(a) to the highest attainable standard of health, which includes the right to health care services, including reproductive health care;
(b) to accessible and adequate housing, and to reasonable standards of sanitation;
(c) to be free from hunger, and to have adequate food of acceptable quality;
(d) to clean and safe water in adequate quantities; and
(e) to social security.

(2) A person shall not be denied emergency medical treatment. Key rights stipulated in the International Covenant on Economic, Social and Cultural Rights are the rights to work, equal pay for equal work without discrimination and rest and leisure. Section 60 as it is does not include the rights mentioned above. We propose this section to be written as thus:

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Economic and social rights
1. Every person and employee has the right –

(a) to the highest attainable standard of health, which includes the right to health care services, including reproductive health care; (b) to work, and shall receive equal pay for equal work without distinction of any kind.
(c) to accessible and adequate housing, and to reasonable standards of sanitation;
(d) to be free from hunger, and to have adequate food of acceptable quality;
(e) to clean and safe water in adequate quantities; and
(f) to social security.
(g) to rest, leisure and reasonable limitation of working hours and periods of holidays with pay, as well as remuneration for public holidays.

(2) A person shall not be denied emergency medical treatment.
Right to development

Image may contain: 1 person

64. (1) All peoples have, and every person has, a right to development, and to the enjoyment of economic, social, cultural and political development.
(2) Women, children and persons with disabilities shall be given special consideration in the application of the rights referred to in subsection (1).

Youth who constitute a greater percentage of marginalised groups are being left out in the ‘special consideration’ referred to in subsection 64(2). It should be noted for example that a nineteen year young man could be more vulnerable than thirty year woman. He should also benefit from the special considerations stipulated in subsection 64(3):

The special consideration referred to in subsection (2) shall include equality of opportunity for all in their access to basic resources, education, health services, food, shelter, employment and infrastructure. We propose the insertion of the word ‘youth’ immediately after the word ‘women’ in subsection 64(2)

The proposed new subsection would read as thus:

(2) Women, youth, children and persons with disabilities shall be given special consideration in the application of the rights referred to in subsection (1).
CHAPTER 7: REPRESENTATION OF THE PEOPLE
S.73: The right to be registered and to vote …
4) The registration of voters shall cease six months before any public elections. The cessation of the registration of voters six months before any public elections has the potentiality to exclude young people who might turn 18 years five months before a public election. We propose an amendment to this subsection to read as thus:

Subsection 73(4)
4) The registration of voters shall cease two months before any public election.

The registration shall all persons who will be 18years on the date of the election.
Section 82: Political Parties

(2) Every political party shall—
(g) ensure that at least ten percent of candidates for election to the National Assembly are youth;
Considering that youth constitute about seventy percent of the population of The Gambia and by extension the majority in political parties, ten percent of candidates of elections to the National Assembly is disproportionately low. This percentage, as a quota, should be increased to ‘at least thirty percent’ to reflect the demographic reality of the country and political parties.
New provision to read as thus: Political Parties
82.
(2) Every political party shall—

(g) ensure that at least thirty percent (30%) of candidates for election to the National Assembly are youth;
CHAPTER VIII: EXECUTIVE
Qualifications for election as President

91. (1) Subject to section 92, a person is qualified for election as President if he or she –

(b) has, on the date of nomination for election of President, attained the age of thirty years;
Considering that youth constitute about seventy percent of the population of The Gambia, putting the age at which one can become President of The Gambia at thirty years would significantly exclude a greater portion of the youthful population of a country whose median age is 19.9 years. We propose that the age one has to attain to become President be reduced to 21 years. (21 years is the proposed age one has to attain to become a Minister or a member of the National Assembly)
Putting the age for presidency at the age 30, NAM at 21 shall disenfranchise young people. Thus, once one is eligible to vote at the age of 18, one should be eligible to be voted for. Thus, this eliminate the issue of minimum and maximum age limit to be a president. We propose an amendment to this subsection 91(1) (b)

The new provision to read as thus:
91. (1) Subject to section 92, a person is qualified for election as President if he or she –
(b) has, on the date of nomination for election of President, attained the age of 21 years;

The age for qualification for presidency, and NAM should be at 18 years. Where this is impossible, the minimum age should be align to that of NAM and Ministerial position – 21. If one is qualified to be a National Assembly Member, such individual is qualify to be a president.

Qualifications for election as President
91.
(f) holds a minimum of an undergraduate degree plus five years’ work experience after the date of attaining that degree; or
(g) holds a minimum of a senior secondary school certificate or its equivalent plus twelve years’ work experience after the date of attaining that certificate.
We are of the view that 12 years and 5 years work experience for grade 12 and undergraduates respectively has the potential to disenfranchise many young people who formed the majority of the voting population. Furthermore, the section doesn’t make provision for young people with diploma qualifications including HTC and PTC. Thus we recommend for the reduction of the numbers of years require as workexperience and to also cater for those with diploma certificates. We propose for amendments to subsections 91 (f) and (g) and added a new subsection

The amendments to read as thus:
(f) holds a minimum of an undergraduate degree plus one year work experience after the date of attaining that degree; or
f) holds a diploma plus two years’ work experience after the date of attaining that degree; or
(g) holds a minimum of a senior secondary school certificate or its equivalent plus three years’ work experience after the date of attaining that certificate.

Disqualifications for election as President
92. (1) A person is disqualified for election as President if he or she –

(f) has, within ten years immediately preceding the date of nomination for election as President, uttered any statement to cause feelings of ill-will, disaffection or hostility between different classes or ethnic groups of The Gambia;
It’s our contention that ten years is too long a period to serve as a disqualification for election as president, and the decision of such disqualification should be place on a competent court of law to determine. Disqualifications for election as President
92. (1) A person is disqualified for election as President if he or she –

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(f) has been adjudged, within three years immediately preceding the date of nomination for election as President, to have uttered any statement to cause feelings of ill-will, disaffection or hostility between different classes or ethnic groups of The Gambia;

Qualifications and disqualifications of Ministers
114. (1) A person is qualified to be appointed a Minister if he or she –

(c) has attained a qualification at tertiary education level and can speak and write the English language well;
(d) has proven experience of not less than eight years from the date of earning the qualification mentioned in paragraph (c);
We are of the view that 8 years proven work experience as qualification for Minister will exclude young people from securing such appointments.

Qualifications and disqualifications of Ministers
114. (1) A person is qualified to be appointed a Minister if he or she –

(c) has attained a qualification at tertiary education level and can speak and write the English language well;
(d) has proven experience of not less than two years from the date of earning the qualification mentioned in paragraph (c);

CHAPTER IX
Establishment and composition of the National Assembly

134. (1) There is established the National Assembly of The Gambia.

(2) The National Assembly shall comprise the number of persons specified in Schedule 2, representing the constituencies therein specified. Considering that youth constitute about seventy percent of the population of The Gambia, their voice and interests should be catered for in the legislative processes, just like those of persons with disabilities and women. The provisions in the current Schedule 2 have marginalised youth representation in the Legislature despite comprising the majority of the population and the vulnerable groups We propose that Schedule 2 be amended to include ‘2 youth to represent the young people of The Gambia and elected by the National Youth Council

Schedule 2 (d) to read as thus:

Two (2) youth, a male and a female, elected by young people through the National Youth Council

Amend Section 142(3) to insert ‘National Youth Council’

Section 142(3) to read:

The registered voters of a constituency, administrative area, the national federation representing persons with disabilities or the National Youth Council, as the case may be, may initiate the recall of their member of the National Assembly by petition in writing –

Amend Section 142(4)(a) and insert ‘National Youth Council

Section 142(4)(a) to read

(a) verify that the petitioners are registered voters of the constituency or administrative area concerned, or are entitled, as registered voters, to vote in the federation representing persons with disabilities or National Youth Council
CHAPTER X: JUDICIARY

CHAPTER XI: LOCAL GOVERNMENT AND DECENTRALISATION
System of local government S.202 (2)
Local Government Authorities established under this Constitution shall reflect the following features-
(d) a minimum of ten percent of the members ofrepresentative bodies in the local government area shall be Youths Considering that youth form about 70 per cent of our population, we are of the opinion that this subsection should be amended to reflect that reality. Instead of a representation to be determined in terms of percentage of the total, we propose that it be stated in numbers, a male and a female youth representative.

We propose an amendment to this subsection to read as thus:

d) at the minimum, a male and female youth representative shall sit in all representative bodies in the local government area

Chapter 12

CHAPTER XIII: PUBLIC FINANCE
Section: 236. (1) (b) (iii)
236. (1) The following principles shall guide the Government and all public institutions, including persons dealing with the Government and such public institutions, in order to ensure the proper management of the public finance system in The Gambia –
(b) the public finance system shall be directed towards the development of The Gambia, and in particular –
(iii) all expenditure shall be directed towards the development of The Gambia, and special provision shall be made for marginalised groups and disadvantaged areas;
We are of the opinion that the term ‘marginalized groups’ and ‘disadvantaged areas’ are somewhat vague and would require better clarification. Who decides who is ‘marginalised’ or what area is ‘disadvantaged’?

We propose that the terms ‘marginalised groups’ and ‘disadvantaged areas’ are interpreted or further clarified in the Constitution to avoid possible abuse and favouritism by public officers in the identification of the marginalised groups and disadvantaged areas. Or that they be mentioned and interpreted in an Act of the National Assembly example an ‘Equality Act’.

Section 237. (2) (h)
237..
(2) The following criteria shall be taken into account in determining the additional funding to be made by the Government to Local Government Authorities –
(h) the need for affirmative action in respect of marginalised groups and disadvantaged areas ;
Like in Section 236 (1) (b) (iii), we are of the opinion that the term ‘marginalized groups’ and ‘disadvantaged areas’ are somewhat vague and would require better clarification. Who decides who is ‘marginalised’ or what area is ‘disadvantaged’?
We propose that the terms ‘marginalised groups’ and ‘disadvantaged areas’ are interpreted or further clarified in the Constitution to avoid possible abuse and favouritism by public officers in the identification of the marginalised groups and disadvantaged areas. Or that they be mentioned and interpreted in an Act of the National Assembly example an ‘Equality Act’.
243 (2)
243.
(2) This section applies to the offices of—
(a) the President and the Vice-President;
(b) the Speaker;
(c) a judge of a superior court;
(d) a member of the Independent Boundaries and Electoral Commission;
(e) the Auditor-General;
(f) the Ombudsperson;
(g) the National Human Rights Commissioners;
(h) the Anti-Corruption Commissioners; and
(i) the Director of Public Prosecutions.
It is our opinion that Section 243(2) does not seem to envisage future creation of Independent bodies. We are concerned that if new Independent bodies are formed they will not be mandated to access funding from the Consolidate Revenue Fund.We wish to suggest the addition of an omnibus clause which would address the issue of independent bodies whenever they are created. To avoid amending the Constitution every time a new Independent Institution is formed, we wish to suggest the addition of ‘paragraph j’ to the list this subsection applies
(j) any other independent body created under this Constitution

245. (1) The National Assembly may, by resolution supported by the votes of not less than one half of all the members, authorise the Government to enter into an agreement for the granting of a loan out of any public fund or public account. The number is small and the President often has a majority in parliament. Then all loans will be passed by the NA. We believe the threshold should be higher. We propose that the percentage be changed to two-third of the votes.
246. (1) An Act of the National Assembly shall set limits on –
(a) borrowings by the State;
(b) the public debt; and
(c) debts and obligations whose payment or repayment is guaranteed by the State.

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We are concerned that this section mandates the National Assembly to pass an Act which would set the limit on State borrowings and the public debt. However, it does not set or place a time limit within which the National Assembly should pass such an Act. We think a time limit should be specify, to obligate the National Assembly pass this Act. . We propose an amendment to this Section to read thus:

246. (1) Within a year of the coming into force of this Constitution, an Act of the National Assembly shall set limits on –
(a) borrowings by the State;
(b) the public debt; and
(c) debts and obligations whose payment or repayment is guaranteed by the State
248 (9)
New provision or subsection We are of the view that the Constitution only requires public consultation at the Draft Estimate level. However, being the second most important document after the Constitution, we think the public’s concerns and priorities must be considered from the outset and included at the budget formulation stage. We are proposing a new subsection, S.248(9) to read thus:
At Call Circular stage, Ministries shall consult beneficiaries on project performance of the previous year and plans for the coming year, and concerns of the beneficiaries must be reflected in each Ministry’s budget.
Expenditure before annual budget is passed

249 (3) New provision or subsection. We observed that the Draft Constitution does not place any deadline on the National Assembly within which it is to pass a budget. Fundamentally, the question we asked is this: in case there is a deadlock on the national budget between the National Assembly and the President what happens?
The Draft Constitution places no deadline on the National Assembly to pass a budget. In case there is a deadlock what happens? To ensure there is a time limit within which the budget is passed by the National Assembly, we wish to propose a new subsection (9) in Section 249 to read thus:

249(9)
In any case if the budget is not passed three (3) months into the new financial year, the National Assembly must either adopt the previous year’s budget or approve a budget agreed with the Finance Minister.
Chapter 14
Establishment and composition of the Commission
253. (1) There is established the Land, Environment and Natural Resources Commission.
(2) The Commission shall comprise the following persons, who shall be appointed by the President, subject to confirmation by the National Assembly-
(a) a Chairperson, who is, or is qualified to be appointed as, a judge of the Supreme Court (in addition to the qualifications set out in section 255);
(b) a Legal Practitioner of not less than ten years standing;
(c) a person with qualification in a field of study, and not less than ten years’ experience, in land administration, planning and survey;
(d) a person with qualification in a field of study, and not less than ten years’ experience, in natural resources management; and
(e) a person with qualification in a field of study, and not less than ten years’ experience, in environmental management We see this to be not youth friendly and recommend it to be more youth friendly by having a youth rep in the commission.
We propose that the compositions of the commission should consider youth representation.

Chapter 15 (The Public Service) We are fine with this chapter

Chapter 16 (National Security) We are fine with this chapter

Chapter 17 (National Youth Development)
S296. The Government shall, in any matter concerning the development of policies and decision making relating to or affecting the youth specifically, consult the youth to receive their opinions on such policies and decisions. The section is not specific on who the government will consult with on behalf of the youth

We recommend that the section specifically stipulates who will be consulted in regards to these matters. And on this we suggest that the consultation be done with youth representatives of the various regions through the NYC. We propose an Amendment to this section 296 to reflect as follows:
The Government shall, in any matter concerning the development of policies and decision making relating to or affecting the youth specifically, consult the youth, through the national youth counciland give due considerations to their opinions on such policies and decisions.
Chapter 18 (The National Council for Civic Education) We are fine with this chapter

Chapter 19 (Amendment of this Constitution) We are fine with this chapter

Chapter 20 (Miscellaneous) We are fine with this chapter
WE PROPOSE THAT A CHAPTER BE ADDED BEFORE CHAPTER 18 TO INCLUDE NATIONAL YOUTH COUNCIL IN THE DRAFT CONSTITUTION AS STATED BELOW:
THE NATIONAL YOUTH COUNCIL

Establishment and composition of National Youth Council

(1) There is established the National Youth Council.
(2) The National Youth Council shall comprise a Chairperson and female representative appointed by the President and seven other members elected by young people from the seven administrative regions. The members of the National Youth Council shall be appointed for a term of three years, subject to renewal of one more term only.
Qualifications and disqualifications

The qualifications and disqualifications of members of the National Youth Council to be prescribed by an Act of Parliament.

Functions of the National Youth Council
The functions of the National Youth Council are:
(a) To inform and advise the Government on all matters affecting the youth;
(b) To serve as the main channel of communication between the youth and the Government, and between youth groups and development partners
(c) To register, deregister, and discipline youth groups
(d) To conduct research on youth matters
(e) To mobilize resources for youth empowerment and development in The Gambia
(f) Supervise and coordinate the regional, district, ward and village youth committees as well as the national and community base youth organizations
(g) Plan and implement national youth programmes and youth friendly centres in The Gambia
and
(h) Any other functions prescribed by an Act of the National Assembly.

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