REJOINDER | Response to Mr Mai Fatty’s Claim that: ‘Plans to Resurrect Draft Without CRC are Unlawful’





By Pa Louis Sambou


Having read the above captioned article which was published in the Standard Newspaper on 7 October 2020, I thought it necessary to share my humble thoughts on the subject matter. 


The above mentioned quoted Mr Mai Fatty as having said that:


“The CRC is the only legal entity that has the exclusive jurisdiction to review the 1997 Constitution and to draft a new one.  It remains relevant, and will not be set aside. Any deviation from this law by the State will be interpreted as the intention to create a custom-made draft from the desk of the Executive.”


I would humbly draw the attention of Mr Fatty to section 22(1) of the CRC Act which is what determines the extent of the CRC’s mandate. The implication of this provision is that the CRC “shall stand dissolved” one calendar month from the date the Promulgation Bill came to an end at the National Assembly. Therefore, as reaffirmed at paragraph 21 of the CRC Chair, Justice Cherno Jallow QC’s press conference speech, the CRC stands dissolved on 22 October 2020. 


Mr Fatty further states that:


“I call on the State to follow the law, due process and democratic practices. We will not accept any body to deal with the draft as suggested. The CRC Act must stand. Nothing less.”


As authoritatively stated, as of the 22nd day of the month, there will be no CRC and the legal effectiveness of the CRC Act ceases (with the exception of section 22(4) pursuant to which the CRC Secretary may if approved by the Attorney General continue in post to prepare the Commission’s statement of accounts to submit to the Auditor General). So, in light of the factual reality of the situation, going by Mr Fatty’s position (that no one but, the CRC should deal with the draft), the entire process and concept shall come to an end as of the 22 October 2020. I am sure this isn’t Mr Fatty’s preferred outcome but, may be the unintended consequence of his position. If we can recall, the insistence that the National Assembly “must not touch anything” in the draft Constitution albeit without any legal basis I must add was the primary driver of its voting down and, yet again, this insistence that no one but the CRC should deal with the draft Constitution may well be the latest and final intransigence which shall engineer its extinction. 


Furthermore, evidently, the claim that “plans to resurrect the draft without the CRC are unlawful” whilst a lawfully exercisable opinion, its substance is unfortunately not factual nor supported by any legal basis whatsoever with all due respect to Mr Fatty.


Now, given the circumstances, in order for the Constitution building process to be resurrected or salvaged, there has to be an alternate mechanism which is supported by a different framework other than the CRC Act (which shall cease to have any legal effect after 22 October 2020). So, yet again, Mr Fatty’s suggestion that proposals by the Justice Minister for an alternate process are “contrary to law” is totally incorrect. Rather than referencing “the law” etc. in blanket terms as if there exists one homogeneous law which regulates the affairs of statecraft etc., it would be very helpful indeed if “the law” was expressly detailed, won’t it? 


The proposal by Mr Fatty for “the State to devise a legal strategy that will send the current draft direct to a referendum”, unless I misconstrued it, appears to be making a proposition for the draft Constitution to be put to a referendum “direct”(ly) without the National Assembly rigmarole. By virtue of section 226(2) & (4) of the Constitution which mandates for all amendments to the Constitution to be enabled through a Bill proposed to the National Assembly, this proposition by Mr Fatty is a complete impossibility. Even if such were a possibility it won’t be lawful. All in all, the way forward requires new thinking and a reasonable examination of all possible alternatives, something which requires some moderation and a realisation that the CRC as a body, its individual members likewise their divisive strategy (which made no room whatsoever for discussions and consensus on the contentious issues) should most definitely play no part of any process moving forward. 


We have had a perfect demonstration of how not to do Constitution building, haven’t we? So now, we must, learning from those lessons craft a Constitution building route-map and process which is not reminiscent of the one just gone. 


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