Statutory provisions that arise through legislation by considering and passing bills at the National Assembly could only stand the test of time if they conform to the letter and spirit of the Constitution. Any bill that is passed and assented to into law which does not conform to the letter and spirit of the Constitution is bound to become void if challenged at the Supreme Court.
Hence in order not to put the cart before the horse it is best to amend the Constitution so that any bill that is passed would be in conformity with its letter and spirit. Legal reform therefore is not only statutory reform of the various laws of the National Assembly but also constitutional reform of the supreme law of the land.
A case in point is the Criminal Offences Bill which has just been passed by the National Assembly. Section 18 of the Constitution of the Republic deals with the right to life and sought to oust the death penalty for crimes that do not result in death, like treason for which a person is convicted of without causing the death of anyone. The relevant portion reads:
“No person shall be deprived of his or her life intentionally except in the execution of a sentence of death imposed by a court of competent jurisdiction in respect of a criminal offence for which the penalty is death under the Laws of The Gambia as they have effect in accordance with subsection (2) and of which he or she has been lawfully convicted.
As from the coming into force of this Constitution, no court in The Gambia shall be competent to impose a sentence of death for any offence unless the sentence is prescribed by law and the offence involves violence, or the administration of any toxic substance, resulting in the death of another person.”
It is therefore clear from this that the drafters aimed to nullify the death penalty for any crime that does not result to the cause of death through violent means or the use of toxic substance but maintained it as long as one is convicted and sentenced under a law that maintains the death penalty. This is why the drafters made the following provisions to give a chance to review the death penalty. It reads:
“The National Assembly shall within ten years from the date of the coming into force of this Constitution review the desirability or otherwise of the total abolition of the death penalty in The Gambia.
Constitutional reform has not touched on this matter but statutory reform has led to the passing of a bill, the Criminal Offences Bill in the National Assembly.
Clause 157 of the bill stipulates that “a person convicted of murder shall be sentenced to imprisonment for life.”
If this Bill becomes law, then there will be no sentence that will carry the death penalty. However, anyone could come again and pass a bill to introduce the death penalty by an Act of the National Assembly and will still be enforceable. Constitutional reform is therefore key.
