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Open Letter to the Constitutional Review Commission (CRC)


Dear Sirs,

The Constitutional Review Commission Act 2017 established the Constitutional Review Commission. The Act empowers the Commission to draft a new constitution for the Republic of The Gambia, and to submit the same to the president, who shall publish the draft within six months.

Pursuant to this statutory mandate, the CRC published an Issue Document containing 51point questions, public response to which, amongst other things, is expected to shape or influence the content of the draft constitution. The CRC is also, currently, embarking on a nation-wide tour soliciting public opinion on the questions raised. Among them are two questions concerning citizenship. However, the exercise is not restricted to Gambian nationals, which raises concerns as to whether the final outcome of the process would reflect the undiluted wishes and aspirations of the Gambian citizenry.

This letter will address one of the questions raised by CRC’s Issue document regarding citizenship.

Should a person born in The Gambia to non-Gambian parents become a Gambian citizen?

This question is basically asking whether birth right citizenship, otherwise known as jus soli based citizenship, should be recognized by the new constitution. Birth right citizenship can be defined as the unconditional right of anyone born in the territory of a state or country to the citizenship of that country.

Citizenship is not just about being born in a country. It is also about cultural and blood ties, and having a bond with the country. A period of continuous residence is therefore required to enable migrants and their children, who wish to become Gambian citizens, to fully integrate into the Gambian society, understand the culture, and be able to speak at least one major local language.

Under the current constitution, citizenship of The Gambia can be acquired in the following four ways:

a) Citizenship by birth: Born in Gambia to Gambian citizens (parents) or where one of the parents is a Gambian (s. 9);

b) Citizenship by descent: Born outside Gambia to Gambian citizens (parents) or where one of the parents is a Gambian (s. 10);

c) Naturalization: A person in The Gambia who is not a citizen but lives in the country for 15yrs can apply for citizenship by naturalization (s. 12); and

d) Registration: A person who is not a citizen but married to a Gambian spouse for 7yrs and have lived in The Gambia for that period can apply for citizenship by registration (s. 11).

Implications:

The ECOWAS protocol on free movement conferred on Community citizens the right to enter and reside in the territory of any member state, provided they possessed a valid travel document and international health certificate. The four supplementary protocols adopted between 1985 and 1990 also committed member states, among other things, to: provide valid travel document to their citizens, grant Community citizens the right of residence for the purpose of seeking and carrying out income-earning employment, ensure appropriate treatment for persons being expelled, not to expel Community citizens en-masse, limit the grounds for individual expulsion to reasons of national security, public order or morality, public health or non-fulfilment of an essential condition of residence. These treaty obligations also meant that The Gambia has very little control, if any, over who comes into the country, who remains, and how many. It is also largely responsible for the country’s migration-fueled population boom.

If the new constitution recognize automatic birth right citizenship, this would mean any person born within the borders of The Gambia and at our diplomatic missions overseas automatically becomes a citizen of The Gambia without any condition, whatsoever. It would no longer matter that none of his/her parents is a Gambian, whether he/she lives long enough in the country to have bonded, understand our culture and be able to speak at least one Gambian language, or does not even intend to remain in the country.

In respect of children, the situation, circumstance and legal status of their parents would also not matter, be it that the parents are criminals whose presence in the country is not conducive to the public good, have not lived in the country long enough to have bonded, do not speak or understand any of our languages, or have no intention, whatsoever, to remain in the country.

Depending on the operative wordings of the provision, the proposed law could also apply in retrospect, meaning any person who was born in The Gambia before the coming into force of the new constitution, but who is currently not a citizen of The Gambia, would automatically become a citizen of The Gambia regardless of whether he/she is living in the country or outside.

What is the Objective?

It is not clear why the CRC found the need to proffer this question. However, it does not appear that a change in law to allow automatic citizenship based on jus soli will serve any good purpose, let alone further our national interest:

The main sources of migration into The Gambia are countries within the ECOWAS region (the Economic Community of West African States), all of which recognize citizenship by descent. As a matter of fact, there is hardly any country in this world that doesn’t recognize this type of citizenship. Therefore, a child born to migrant parents (non- citizens), despite not being a citizen of The Gambia under the current constitution, is actually not stateless. He/she is a bona fide citizen of the country of his/her parents. Thus, making it possible for that child to acquire automatic birth right citizenship in The Gambia will only confer dual citizenship on him/her at the point of birth. This is clearly unnecessary and will serve no purpose whatsoever.

Furthermore, the lack of reciprocity in relation to the country of origin of the child and/or his/her parents, would also mean that automatic birth right citizenship will be diminutive of the value of Gambian citizenship.

Naturalization:

Under the current law, anybody who lived in The Gambia for 15yrs and intends to continue living in the country can apply for citizenship through naturalization. There is no suggestion that this position would change. Thus, a child born to migrant parents can make an informed decision as to whether or not he/she would like to become a citizen of The Gambia when he/she attains 18. If he/she wishes to become a citizen, he/she can demonstrate that desire by applying for naturalization. We don’t have to make that decision for him/her at the point of birth or at time when he/she is not born for there is clearly no necessity for that, and in any case not obligatory under any international treaty instrument.

Alternatively, the child’s parents can apply for citizenship on his/her behalf when he/she turn 15, which is the required residency period for naturalization in The Gambia.

Furthermore, the current laws on citizenship appears to be progressive, culturally compliant and of international standard. Any change in law would be retrogressive and incendiary to the many jus sanguinis Gambian citizens (those with citizenship founded on blood ties), who will soon realize the implications.

The International trend:

The international trend on citizenship has massively moved away from automatic birth right citizenship (jus soli). There are only 30 countries (out of about 200) in the world that presently practice this. Two are in the west, United States and Canada, and the rest are mainly small island states in the Caribbean and Latin America. There are no African, European, Asian or oceanic countries that practice automatic citizenship based on jus soli. That also means if The Gambia enacts this proposal into law, there will be no reciprocity, whatsoever, in relation to the source countries of migration into the country. What then is there to gain, or the national interest to promote?

The exception countries need to be seen in the light of their own history and constitutional set-ups. For example, the United States is a settler country (the Gambian territory was already settled for several hundred years before the founding of the country in 1888) with a rigid constitution that has jus soli citizenship laws entrenched. That means any amendment or repeal of the constitution will require the votes of at least two-third in both houses of congress, and ratification by three-fourth of the state legislatures.

Notwithstanding, both Democrats and Republicans have introduced Bills in congress, which sought to abolish or restrict jus soli citizenship laws of the United States. For example, Senator Harry Reid (D-Nev.) introduced legislation in 1993 that would have restricted birth right citizenship to the children of US citizens and legally resident aliens only. A similar legislation (Citizenship Reform Act 2005) introduced by the Republican Congressman, Nathan Deal, from the State of Georgia, would have restricted birth right citizenship to children born in wedlock to United States citizens or aliens lawfully admitted into the country for permanent residence an