In the consideration stage of the Election Bill, members of the National Assembly voted to exclude diaspora voting, thereby rejecting Clause 14 of the proposed legislation.
Lawmakers expressed differing opinions during the debate regarding the clause, with some supporting the idea of allowing Gambians living abroad to vote, while others contended that such measures are in conflict with the constitution.
Clause 14 of the bill outlined the requirement for the registration of Gambians residing overseas, indicating:
The Commission will register a Gambian residing outside The Gambia as a voter if he or she meets the registration requirements outlined in this Act.
The Commission shall, in consultation with the Inter-Party Committee and Cabinet, establish comprehensive Rules for the registration and voting of Gambians residing outside The Gambia to participate in Presidential elections, referenda, or any other elections as specified by the Constitution or any other applicable law.
The Rules established by the Commission under subsection (2) shall outline (a) the criteria for selecting foreign countries where elections will take place and (b) the appointment of election officers along with the conduct of elections.
The joint committee report from the National Assembly on the bill emphasised that Clause 14 is in accordance with Section 141 of the Elections Decree, outlining the steps and procedures the Commission is required to follow for registering Gambians living abroad. The clause required the IEC to develop rules for implementation in collaboration with the Inter-Party Committee and Cabinet.
Nonetheless, the IEC raised concerns that engaging in consultations with these entities might compromise its autonomy. Consequently, the committee proposed an amendment that substitutes the requirement for consultation with the “Inter-Party Committee and Cabinet” for consultation with the “National Assembly.”
Hon. Sainey Jawara, National Assembly Member (NAM) for Lower Saloum, contended that the Constitution presently prohibits diaspora voting. He stressed that including such a clause would require a constitutional amendment.
Conversely, Hon. Sulayman Saho, NAM for Central Badibou, firmly disagreed with this perspective, alleging that Hon. Jawara had misinterpreted the Constitution. He referenced Section 39, which provides every Gambian citizen who is 18 years or older and of sound mind the right to participate in presidential and National Assembly elections. He contended that the Constitution does not outline residency as a prerequisite and emphasised that Gambians living abroad ought to be permitted to exercise their voting rights.
“That does not imply that the individual must be a resident of that constituency. These individuals are genuine citizens of the country who ought to be registered. He emphasised, “We have been denying them their right to participate in politics; we must provide them with an opportunity to be registered.”
Attorney General and Minister of Justice Dawda A. Jallow cited a Supreme Court ruling in the Bakary Bunja Darboe case, confirming the right of Gambians to register to vote. He clarified that Section 39 is a fundamental provision mandating voter registration within a National Assembly constituency. As the diaspora is not presently recognised as a constituency, it would be necessary to amend Section 88 to establish such a constituency prior to the implementation of diaspora voting.
“However, the reality is that section 39 (1) serves as an entrench clause, stipulating that one must be registered in a National Assembly constituency. This is indeed accurate, as the diaspora does not reside within a National Assembly constituency.” The National Assembly constituencies fall under section 88, 53 at present. Even if this clause is permitted to proceed, the IEC will face challenges in implementing it for the diaspora until they establish a constituency for them. This necessitates an amendment to section 88 to expand the number of national assembly constituencies, thereby enabling the diaspora to participate in voting. It’s a classic dilemma of cause and effect. Do you grant them the authority to define the boundaries? Considering the historical context, when this bill was introduced, there was also a draft constitution being developed. It was thought that the draft constitution would sufficiently address some of the shortcomings present in this bill. He stated that granting them the authority to register the diaspora at this time would not suffice, as section 39 requires the diaspora to be delineated into a National Assembly constituency. For this to occur, a constitutional amendment is necessary.
Minister Jallow elaborated that a constitutional amendment from 2015, which raised the number of National Assembly seats from 48 to 53, included the phrase “at least” to permit future expansion. Although more constituencies may be established without the need to amend Section 88, the delineation of diaspora voting constituencies must still adhere to Section 39 prior to any registration occurring.
“Therefore, it is at least 53, which means the number of constituencies can be increased without necessarily amending the 88. However, demarcation must occur to register, making compliance with section 39 mandatory.” It must comply with section 39; the diaspora needs to be demarcated prior to any registration occurring.
After the intense discussion, the Speaker requested a vote. Fourteen members were in favour of keeping Clause 14, whereas 25 opposed it. All members voted, resulting in the rejection of the clause.
