COLUMN | The Finalised Draft Constitution: A Long Overdue Lifeline or A Deadly Sinker?
By Pa Louis Sambou
Any informed examination of a final outcome or return of any task must first identify the objectives which were set by the mandate for the given task and then match the final presentation against such objectives. Any determination not based on this objective principle can be justifiably written off as, at best an ill-informed opinion. I am no exception to this credibility threshold. Therefore, in my assessment of the subject matter, I shall restrain myself within the boundaries of sound objective reasoning [as if my life depends on it] based on the available facts and not my biased corruptible opinion.
Now, detailing the circumstances which necessitated the need for a review of the existing Constitution and the assignment given to such review body (The Constitutional Review Commission (CRC)) is perhaps a logical place to kick things off from I would imagine. The current Constitution, as an intended instrument for a progressive republic presents a number of challenges which most of the citizenry deem to represent a ‘sword of Damocles’ over our heads albeit very little consensus on substantive changes required. Although one must resist the temptation of stating with absolute certainty the detailed disdain every citizen had for what most dub the ‘Jammeh’s Constitution’, one would certainly not do justice to the subject matter without identifying the main drivers of such general despondence of which it must be stated there is a high dose of lazy misconception but, yet still credible contention of an even higher degree which it is reasonable to expect a review to carefully target:
Absence of State neutrality on religion, Unreasonable restrictions to candidacy for the Presidency, Executive excesses of the Presidency and perpetual occupancy of the office, Absence of Legislative and Judicial independence , Absence of Press freedom and respect for civil liberties, Absence of effective Executive oversight.
The desire for change was a majority view which for good reason led to the establishment of the CRC. It is however important to note that the review the CRC was tasked with was for all intents and purposes to be driven and guided by the dictates of the primary legislation under whose authority the exercise was sanctioned and funded. This would be the CRC Act 2017. At Section 6 of such Act are the terms of reference of the CRC of which were a mandate to uphold the principles of universal adult suffrage and the maintenance of the secular existence of The Republic.
So, in examining the final draft, it is only fair that one assesses its substance against the mischief it is ought to put right and the mandate under section 6.
Has the Draft Addressed the Mischiefs?
Without attempting to paraphrase the entire 176 page document, let’s examine the extent to which its substance dealt with and addresses the lamented provisions of the existing Constitution. Under the draft at section 93 and 94, eligibility to contest for the Presidency remains unduly restricted on grounds of age and, it further broadens the existing bar on dual nationals to include anyone who “owes allegiance” to another country (bear in mind this broad-brush includes among other things anyone who may be subject to a foreign legal order eg. UK, US, Canadian law as the case may be). So, it can be said that the draft, compared to the existing Constitution, imposes far more undemocratic restrictions which will make it far less likely for a young person or anyone from the Diaspora to contest for the Presidency never-mind occupying it.
As well as the above, there remains the potential for an incumbent to engineer the imprisonment of an opponent to facilitate their bar for his / her political gain. Additionally, any President under this draft is not going to wield any less Executive power than is currently the case under the current Constitution. With greater powers comes greater excesses.
There is a degree of progress with regards to the freedom of the media in the sense that section 46(5) and (6) appear to oust matters of media regulation from the State to some independent body to be established at sometime in the future. However, one must not take too much comfort in this because the State could still use the excuse of “incitement”, “discrimination” etc in view of the backdoor gagging tool thanks to sections 46(2) and 47(3) which by extension adversely impact freedom of speech and expression in the same way the current Constitution does if not more. With these in mind, one would be forgiven for questioning whether civil liberties and press freedom are any safer hands under this draft.
The establishment of independent institutions as oversight bodies under Section 214 is indeed progress from the current position but, one has to wonder how independent such bodies will be and to what extent they will operate independent of Executive influence if the heads and every member of such “independent institutions” are the President’s appointees. Additionally, the President under section 218 can dismiss these in like manner. Three questions come to mind: How independent is an institution if its members serve at the pleasure of the President? How effective will such an oversight body operate if the continued service of those who constitute it depends on the discretion of the very Executive power they exist to hold to account? Why hasn’t the appointment and removal of members of such important oversight bodies mirrored those of Judges as set at sections 190 and 194? These are valid questions to which there seems to be no answers to whatsoever in the CRC Report on the draft Constitution.
Moving on, unless I am mistaken but, there is wide consensus that an elected National Assembly member must not be subjected to a by-election simply because of a change to their party political allegiance. Effectively, this led to the repeal of section 91(1)(d) of the Constitution the letter and spirit of which section 141(1)(h) of the draft appears to have legislated to frustrate albeit from an alternative subtle angle. Most would wonder what legitimate objective such a restriction seeks to achieve. Besides, is it even of any necessity?
Addressing the question surrounding the issue of State neutrality on religion is one which demands great care and appropriate impartiality on the part of the CRC without which accusation of bias and conspiracy would be almost impossible to convincingly rebut.
Under the current Constitution, persons of all faith and none are subject to the same laws and Courts albeit members of the Islamic faith can voluntarily subject themselves to Shariah (Islamic Law) as a Court of first instance for certain Family law matters. Now, under the draft, a parallel Shariah legal systems would be created on par with the Common law Courts. Additionally, those legally qualified under Sharia alone will have a ‘right of audience’ and eligibility to sit as Judges in both Common law and Shariah Courts whereas legal practitioners qualified under the Common Law alone are not entitled to the same. I am not sure this encourages State neutrality; if anything, such enshrines in law, discouragement of any State neutrality and by implication and encouragement of State involvement, promotion and patronage [funded by State resources] of one particular religion and belief system over all others.
The above is a direct self - contradiction of section 1(3) of the draft itself which states that “…every faith shall be respected and treated fairly without any discrimination…”. Additionally, it dispenses with the restriction under section 153(b) prohibiting the National Assembly from passing a law to create a State religion. A State religion would have already been established once this draft passes.
Compliance with the Mandate under Section 6?
Contained within the terms of reference of the CRC were to ensure universal adult suffrage principles are upheld and, that the secular existence of the Republic is maintained. It must be buttressed that nothing in chapter vii, part 1 [which contains the draft provisions with regards to Franchise] mandates for any primary legislation or statutory guidelines to facilitate the extension of the franchise to Gambians in the Diaspora. Diaspora franchise remains an issue subject to political discretion of the government of the day rather than a Constitutional right. The franchise is not universally made available to every adult citizen of voting age. Therefore, based on the facts it is fair to say that this aspect of the CRC’s terms of reference has not been adhered to. Considering this, one is tempted to question the essence and motive of the CRC Diaspora tour; we mustn’t impugn their motives but, such deference mustn’t get in the way of justified observation.
The facts suggest that, mandate to maintain the Gambia’s secular existence whilst listed in the CRC Report on the Draft Constitution, it was totally disregarded for reasons which I shall resist the urge to guess or assume but, suffice it to say, nothing within paragraph 6.1 [Preamble] of the CRC Report on the draft Constitution offers any explanation in this regard. It must also be noted that within paragraph 6.11 [Judiciary] of the CRC Report on the draft Constitution it is not suggested that the CRC received any submissions which advocate for the establishment of an on par parallel Shariah legal framework, furthermore the subject matter did not constitute those issues consulted on (See CRC Consultation Document published October 2018). It is however worthy of note that subsequent to the publication of the consultation paper the CRC Chairman in a gathering of likeminded folks made an advocacy for such. The latter is the only logical explanation as to the source of the Shariah High Court and Supreme Court and by extension the failure to comply with section 6(2)(d)(vi) CRC Act. Notwithstanding the justification for the statutory breach, most doing so would be perfectly justified in questioning the independence and impartiality of the CRC Chair et al.
For the avoidance of doubt, the seismic expansion of the role of a religious legal code within The Gambia’s legal system is wholly inconsistent with the statutory mandate to “safeguard The Gambia’s continued existence as a secular State [in which all faiths are treated equally and encouraged to foster national cohesion and unity]”.
Considering the facts as they are, there is credence to the proposition that the CRC [the Chair in particular] prioritised their subjective views as to what ought to be, over and beyond the will of the National Assembly conveyed through the CRC Act at section 6. Our democracy will once again be reduced to a laughing stock yet again if at all it is the position in 2020 that, the skewed opinion of a Justice endorsed by the ‘subordinate faithful’ and validated by foreign ‘interest groups’ is good enough to write off the will of the elected Representatives of the Gambian people in Parliament.
The last time I checked, our Parliament was sovereign or, is this no longer the case?
Some of the Risks Posed by the draft
Undermining of the legal system:
the introduction of a parallel Shariah legal system to run on par with the Common law system in itself is an extremely dangerous development. To do so without any Constitutional guarantee of a parity of esteem in terms of judicial resources allocation exposes a chilling policy position which lays bare what will follow once this draft passes. What is there to restrain a future government from starving the Common law courts of funds to compel the use of the Sharia Courts? You may think this is a pie in the sky question but, it isn’t – section 10 of the draft which contains the laws of the Gambia isn’t an entrenched provision, therefore, a future government at the stroke of a hat can extend the role of the Shariah Courts to all other legal matters including the Criminal law, yes indeed, the Criminal law without any Referendum. We must be extremely careful.
Under this draft as it is, Sharia trained legal practitioners are favoured over those of the Common law (the former do not require legal Common law competence to represent clients in or sit as Judges in the Common law Courts whereas the latter does require Sharia competence to be granted the same in the Sharia Courts). This is a hint as to what the direction of travel will be once this draft passes: gradual transformation of the legal system from the Common law as we know it today to Sharia. This can happen at anytime and without any referendum whatsoever as section 10 (Laws of The Gambia) is not an entrenched provision and the Sharia legal edifice up to the level of the Supreme Court would have already been established by that time.
In essence, this draft is asking for voters to provisionally authorise and entrust into the hands of a future government the imposition of Sharia law for all legal matters and to all persons without exception and without any further referendum to authorise such. This isn’t my personal opinion but a point of fact based on the substance of this draft as already highlighted.
If one would rather have the rule by religion (as interpreted by those who wield the most influence) replace the rule of law then, your vote should be a resounding ‘yes vote’ in favour of this draft Constitution. Are 75% of the Gambian electorate really masochistic enough to voluntarily tie this noose around their necks in complete misplaced belief that no future politician will pull the platform? Time will tell.
Backdoor Islamic State:
An Islamic State and a State Religion would have been created in all but name once this draft passes and, regardless of what anyone says, there exists nothing whatsoever within this draft Constitution to prevent further weakening of the State by policies informed and driven by religious motivations for the sole objective of strengthening a particular religious order within the State, public life and private and public affairs.
This draft Constitution is by all accounts the infiltration before the final assault on the secular democratic Republic which shall gradually topple if this draft passes.
Risk to Citizenship rights under International law:
Is it really progressive to deny citizenship to people born in a The Gambia on the sole basis of their parents’ nationalities? Is there any essence to this at all? I think not.
Furthermore, the granting of Citizenship by birth [under section 15(1) and (2) of the draft] to children born outside jurisdiction to Gambian parents or with Gambian descent whilst no doubt drafted with the best of intentions and in good faith, it seriously undermines the rights [under International law] of the same class of people it seeks to confer Gambian citizenship by birth. Under International law, one’s citizenship cannot be revoked in circumstances whereby such revocation renders them Stateless but, the provision in question diminishes such International law protection for children born especially in the Diaspora to Gambian parents or with Gambian descent. Effectively, the validity of this provision can be relied upon by any other country to revoke the citizenship of people born in that particular country but to Gambian parents or with Gambian descent without such revocation being legally challengeable under international law.
We must bear in mind that citizenship revocation laws in most countries around the world especially in the West set very low thresholds upon which citizenship revocations are determined. In the United Kingdom, the UK Borders Act 2007 (section 32) and British Nationality Act 1981 (section 40) are regularly relied upon by the Home Secretary (The Gambia’s equivalence to Minister of Interior) to revoke citizenships of people. Similar citizenship revocation laws exist in most other Western countries all of which section 15 of the draft has the unintended consequence of opening Gambians’ children and grandchildren born in the Diaspora to in circumstances whereby protection under international law won’t be enjoyed (as a revocation won’t render the subject stateless).
Citizenship by birth for this class of people ought to have been an option [so that their citizenships of the countries in which they are born will enjoy international law protection] rather than one which happens automatically.
Risk to Property rights and Economic wellbeing:
The effects of section 261 of the draft are pretty grim. This is even an understatement.
The mere advocacy for a denial of land ownership to non Gambians would constitute a horror of cataclysmic proposition but, to legislate for this and do so in retrospect is in my view extremely unGambian, not in our legitimate national interest [unless we want to shun investment and foreign market capital coming in] and not something we as a nation should never ever countenance indulging. As we speak, people of multiple nationalities own land in The Gambia, the CRC’s proposition is for these to be seized in 15 years time – non-Gambians must not own land in The Gambia. Beside the horror of such, I am not sure this even sits well with Article 14 of the Universal declaration on human right.
Lest we forget, Zimbabwe under Robert Mugabe went down this route and, today inflation in Zimbabwe sits at 540%. Additionally its economy shrunk by at least 17% since 2002 with 72% of its population living in abject poverty. Whilst the dark arts of blaming ‘the foreigner’ for the failure of public policy with regards to land ownership, use, access and distribution may seem appealing to some of us, let’s bear in mind that such an irresponsible ‘land reform’ adventure has grave consequences and consequences whose shock our economy may not survive.
On balance, having thoroughly considered the final draft in very great detail, I consider it to be offering very little in comparison to the current Constitution but with pitfalls and risks with which comes dangers [to the democratic State, civil liberties, minority rights and rule of law] of astronomical proportions. Unless we shift away from our collective ‘slow boiling frog’ disposition which led us into a 22 years long dictatorship of an individual [Yaya Jammeh], we would dig ourselves into the subjugation of a system [a brutal theocracy] and risk the growing wave of fundamentalism in West Africa sweeping through into The Gambia. No sane, rational being would wish the above upon their country; I certainly don’t and no one should. Let’s smell the coffee and ditch the draft.