COLUMN | The Case for Sensible Reform Without the Toxic Draft
By Pa Louis Sambou
Not even the bookies could have predicted how events turned out. The snap ambush laid dressed in white winter gear in anticipation that the snow-white terrain will last the skirmish but, low and behold, the heavens rained cats and dogs, melted away the cover and spectacularly gave the position away. The elite smelt blood but, it appears it was a false start after all. It is said that the ‘bus driver’ is a poor navigator but, I doubt the same could be said of his sense of smell for ‘treachery’. Well, it is often said that it takes one to know another. The ‘bus driver’ has of course not committed any treachery in recent times, has he?
The ‘incompetence’ label often attributed to President Barrow appears to give opponents and on-takers an unrealistic sense of leverage and strength; I suppose this is a strength in disguise thanks to which the ‘Coalition partnership’ and his ‘political god father’ were unexpectedly seen off without a fight. One would have thought that others wouldn’t repeat the errors and miscalculations of the aforementioned duo. If the calculation on the subject at hand was that President Barrow would be fazed by wigs and gowns then I think one is right in saying that most were completely unprepared for the rude awakening which followed.
To cut to the chase, President Barrow is more capable than he makes out, besides, it does take some level of competence to have duplicity on one’s political antecedent. He does however make the case for the introduction of polygraph testing which all Presidential candidates would be required to pass; such may seem an unnecessary rigmarole but, I hope it is given some serious thought.
On a more serious note however, it is of importance to set out the details of the apparent bone of contention being Schedule 4(5)(2) of the draft Constitution. It states:
“…the term of office of the person holding the Office of President as at the effective date shall be construed to include the existing term and the person may contest election for the Presidency for only one more term as provided in this Constitution after the expiry of the existing term.”
Effectively, this renders President Barrow ineligible to run for a third term if at all he wins another term in 2021 or, at some other time in the future. What’s there to disagree with, with such a balanced and reasonable restriction some would say and, I get it. However, the construction of this provision, when considered carefully, one gets the impression that it had been surgically drafted to target the sitting President rather than to serve as a general mechanism for the purposes of preserving the principle of the 2 term limit. As a general principle it ought to have been constructed so that it restricts all former occupants of the office e.g backdate its retroactive effect to the effective from date of the 1970 Constitution.
Under the draft Constitution, former President Yahya Jammeh is eligible to run for the Presidency again for a further 2 terms but, the sitting President Barrow is restricted to just one additional term. This joke wrote itself. Completely irrational, out of sync and wholly unacceptable. I do apologise for being the bearer of bad news but, this isn’t the only (or most) outrageous perversity in the draft.
Are President Barrow’s claims of “discrimination” founded? For such to be substantiated as laid out in section 33(5) of the Constitution, it must be shown that the respective provision accorded him less favourable treatment and that such adversity is attributed wholly or mainly to his race, colour, gender, language, religion, political or other opinion, national or social origin, property, birth or other status. Whether or not he is being discriminated against as alleged is certainly a determination I am not in a position to pontificate on or self-indulge in a speculative exercise about. However, I would like to think that the term was used loosely to suggest unfair treatment as opposed to discrimination in the true sense of the word.
On the pertinent question as to the legality or otherwise of the failure on the part of President Barrow to commit the draft Constitution to the National Assembly as required, I am not aware of any existing Constitutional provision or statute which mandates him to do so. It has to be borne in mind that the decision to commission a new Constitution was one decided by the Executive and, in the absence of any other superior authority dictating otherwise, such remains a matter of policy (not law) whose pursuit and progression is subject to Executive discretion rather than any legal mandate. However, had the question as to whether the public wanted a new Constitution been put to the public and decided through a referendum, then, the President would not have had such unchecked Executive discretion which he enjoys over the matter. Some of us unsuccessfully argued for such a referendum. In hindsight, I am sure most would wish such a referendum took place but, that’s now water under the bridge.
If media reports about the President’s protest against Schedule 4(5)(2) are as reported, then I suppose the reason for the delay in committing the draft to the National Assembly no longer needs to be a subject of guesswork.
In any case though, the draft is not the be all and end all. It is in my view the most dreadful legal framework ever presented for the regulation of a multi-faith democratic society. It embodies callous populist militancy. It is a route-map to a governance structure whose ultimate objective is, to undermine the State, our legal system, education system and all aspects of public life for the sole purpose of establishing a Theocracy which I doubt would be any safe a place for the Christian minority whose plight in these matters continue to be completely ignored as if they don’t matter. The dog-whistle position paper commissioned by the ‘independent’ and ‘impartial’ Justice Jallow, CRC Chairman offers a clear indication of the trojan horse policies which will follow if this draft passes. As it turns out, it’s not just the Christian minority whom were on the menu and whom this great swindle of a draft Constitution seeks to purge. The systematic extermination of the jews in the 3rd Reich, the genocide against the Muslim minority in Myanmar did not begin overnight but came about gradually and engineered by an elite; in the case of the former, Adolf Hitler’s ‘Meine Kampf’ laid the groundwork. Whether it is the objective of the CRC or not but, I yet again caution that such will be the inevitable outcome of their poisonous populist draft. It will lead to the systematic elimination of the Christian minority and other Muslim minority sects deemed not to be in tune with the briefed wisdom. I do not say these things lightly and I genuinely hope that history proves my reasoning to be wrong. Otherwise, this shall serve as a solemn testimony that the red flag was raised but ignored and, therefore, culpability on the part of the architects of such populist project shall not be avoided on the basis of lack of reasonable foresight.
My concerns about the extreme dangers this draft Constitution presents to our tolerant and peaceful society does not in any way prejudice my judgement as to the plight and concerns of others for whom the alleged withholding of the draft by the President is abominable. I do empathise with that position. However, in as much as we want reform we mustn’t pursue it at any cost; this draft is a poisonous instrument which is beyond detoxification. Additionally, it opens up a backdoor for the reemergence of a Yahya Jammeh Presidency. This is surely not acceptable.
Abolition of the upper age bar for Presidential candidates, repeal of the provision which compels a lawmaker to re-contest their seat following dismissal from their party, Presidential term limits, re-introduction of the absolute majority electoral system are realistically speaking the essential reforms which are required. The former two have already been effected through amendments to the Constitution and, the latter two can be achieved through the same mechanism and at no cost to us whatsoever. Most would argue that unless we proceed with the draft the D116 million it cost us would be wasted. Well I doubt any of us will for the purposes of not losing their air ticket risk taking their seat on a flight with the knowledge that it is unsafe and will crash. Additionally, as reform through amendments does not require a referendum, sums which would otherwise have been spent on a referendum will be saved. This is a net saving.
The time has come for the CRC firm to be wound up and reforms pursued via alternate means, without the poisonous divisive draft and, in a manner which brings our diverse people together rather than divide them or segregate one group in favour of another. It is said that all good things when taken to an extreme become self-destructive, we must avoid this path and forge a compromise. Amendments to the existing Constitution achieves exactly just that.