Some Thoughts on Constitution Making in the Gambia

The choice of Dr. Muhammed Ibn Chambas as the neutral interlocutor for the revival of the stalled constitutional process of the Gambia should be welcomed by all who yearn to have new democratic constitution for our nation. Dr. Chambas comes to the assignment under the aegis of IDEA with vast? experiences in post dictatorship constitution making from his native Ghana where he had served as minister under the late President John Jerry Rawlings civilian Government under the 1992 Constitution of Ghana. Dr. Chambas has considerable diplomatic experience spanning ECOWAS ACP and UNO for more than 25 years, there is no doubt he is eminently qualified? for task at hand.

Therefore, all those involved in the initiative to have him as an honest broker should be commended. However, in matters of constitution-making and law reform generally, mere initiative is not sufficient. In our case, we need to particularly focus on three points.

The first is that constitutional law-making and law reform are serious issues which require deep deliberation and empirical validation. Which the CRC Act 2017 sufficiently provided for in an inclusive manner in terms of process. At this juncture our nation does not need to repeat the process that produced the excellent draft ?that was rejected by the National Assembly or to start the process de novo.

Second, we must keep in mind the diversity of thoughts and ideas ?to be considered when designing substantive constitutional principles and administrative laws and engage with the two sides of the coin separately. Substantive constitutional principles govern how power is distributed within government and how the different organs of the state behave and interact with each other; the principles define the limits of power and specify controls and sanctions, whereas administrative laws are directed at executive agencies of the state and the enforcement agencies that are to provide safeguards and due process even in worst-case scenarios.

Third, we need to understand that administrative laws are instruments for actualising and propagating a wide variety of interests as per the constitutional vision and the nation’s ?extant theory of government. Which interests need protection and priority as a matter of democratic process.

In view of these issues, let us analyse the renewed constitution making ‘process’. It is important to state here that the writer fully supported and still supports the draft Constitution as submitted to the National Assembly in September 2020! The reasons why Gambia does not have a new constitution is clear for all to see: The issue of term limit and when does the clock start running?

The CR Commission's mandate including its Terms of Reference was clear enough and fully understood by everyone concerned so there was no ?misunderstanding. The high professional quality of the work of the Commissioners was also beyond reproach. ?The final draft constitution is not perfect but then which human effort is? ?Does one agree with all the provisions of the draft? Of course not! Still, it is an excellent draft.

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However, the CRC Act 2017 and the process it engendered in a way led to ?the false start the nation witnessed in 2020. It must be said that any effort to clarify crystal is bound to be controversial, but this is what the CRC ended up doing. In its quest to avoid ambiguity in the final draft constitution and to clear any doubts about the terms and conditions of the presidency including the number of terms the president can serve, the drafters framed a singularly important provision for an ‘incumbent president’ not for the most important national office.

In the same vein drafting a supremely political document and deliberately exclude political parties in the composition of the Commission tasked with the drafting was in my view ill-advised with repercussions to the present stalemate our nation is wading through.

With hindsight the process, which ?was thoroughly consultative at home and abroad was torpedoed by the sequencing of the design of the process. Why did the People who were consulted throughout the drafting process not asked to verify whether their inputs were reflected in the final draft through a referendum before the parliamentary process? ?

Therefore, whatever method the nation chooses to reignite the constitution making process political parties ought to be in the forefront . The making of a new constitution for any country marks a seminal moment in its history. It demonstrates the desire of the people to fundamentally change their system of governance.

The process must give our people an opportunity to make a fresh start by reviewing their past experiences, identifying the root-causes of their problems, learning lessons from past mistakes, and making genuine efforts to provide solutions for their better governance and future development.

The decision to review the constitution must give opportunities to all strata of society ?and citizens at home and abroad to participate as fully and freely as possible in the exercise so that the new constitution produced will be truly ours.

In my view, the National Assembly ?as the supreme law-making body has the mandate to consult the people and make proposals for a process that will deliver ?a popular and lasting constitution based on national consensus. The challenge to the NAMs ?is to do their work 'without fear or favour' and to use all means at their disposal to encourage people's participation in the process.

The challenge to the Executive branch of government is to create an inclusive ?atmosphere of peace, security, and freedom necessary for fruitful discussions and debate of all aspects of draft constitution including issues of term limits for all elective positions.

From my experience as a Lecturer, I see the following as the theoretical or philosophical bases for recommendations:

The new constitutional order must encapsulate a vision of development as freedom: freedom from hunger, freedom from fear, freedom of expression and freedom of conscience. Together these freedoms must swing on an axis of devolution of power to the people and decentralisation of facilities services and resources closer to the people.

This objective can be achieved by reengineering the public finance architecture of our nation and by embedding an equitable ?sharing formula of the national revenue. A vision anchored on a firm commitment of the government of day to conservation and green development.

The new constitutional order must be responsive to The Gambia's potentially vulnerable geographical position. The overarching objective is to safeguard our national independence, sovereignty, and territorial integrity. The means to achieve this objective include strengthening the concept of one Gambia unity of our nation-state and fostering policies of cooperation, understanding and friendliness at the regional, African, and international levels.

The new constitutional order should come to terms with The Gambia's multi-ethnic and cultural diversities. The objective is to promote nation building and national unity while fully respecting our cultural diversities and ethnic identities. One of the means of achieving that is to adopt a form of government that can best respond to the above principle.

The new constitutional order should come to terms with The Gambia's recent ?past and present and should be sufficiently futuristic to meet internal and external challenges and people's aspirations for a better life. The aim here is to avoid the pitfalls of the past, which have caused much suffering while building on universal human rights values, which have proved workable and have survived all odds.

The present state of affairs should also be considered critically in order to identify both values that are permanent and those, which seem fleeting. The aspirations for the future indicate the direction which the ?people want ?our country to take. They can be responded to by making a constitution that is sufficiently flexible to meet those challenges as they come.

The new constitutional order must be designed ?to enable Government to govern effectively and democratically. This objective needs a sound design to avoid both anarchy and tyranny. One of the effective remedies is to distribute power and responsibility in such a way that no loopholes are left for agitators to cause anarchy and for dictators to impose their will.

There should be such a balance of powers in the new constitutional order that no one single social class or group should be able to establish its hegemony to the extent of flouting the established democratic principles. The objective here ?is to eliminate the politics of exclusion, sectarianism, and unconstitutionality. To remedy such a situation, there is need to control all social forces within the constitutional order and to put in place institutions that can effectively resolve conflicts fairly and peacefully.

No class or group should be politically marginalized as evidenced by The Gambia's historical experience. The aim is to establish solid foundations of equality, equity, and social justice. One of the ways to achieve this is to give clear constitutional channels to realise the rights of women, children, disabled persons, and minorities.

The established institutional frameworks must be capable of creating conditions for peaceful transfer of power. The foundational objective is to entirely eliminate the practice of capturing power through sheer force or other unconstitutional methods. This aim can be partly achieved through the constitutional subordination of the military to civilian authority and the establishment of independent institutions to supervise the transfer of power.

The new constitutional order must ensure that major controversial issues are resolved through democratic engagements and where necessary national referenda. The objective is to ensure that controversial issues do not lead to polarization of the nation into hostile camps. One of the ways to achieve this may be through use of national referenda to resolve issues democratically.

The new constitutional order have to ensure that constitutional structures are viable and flexible, coherent, and integrated to promote a culture of constitutionalism. The aim is to safeguard the constitutional arrangements as suggested by the people and approved by them or by their elected delegates. The means would include clear procedures for amending the constitution, making the constitution widely known and studied and empowering people to defend it.

Presently there is a national consensus that the 1997 constitution must be replaced because it is inherently flawed and no longer have ?legitimacy from the very people for whom it was meant to serve. Several parts of the constitution were amended without consultation and there are impositions of autocratic ideas and values aimed at concentrating state power exclusively in the hands of the executive branch of government.

Therefore, a wide and diverse debate that includes the participation of all segments of society must be integral to this renewed process. This task requires ascertaining the mood of the nation and the shifts in the perceptions of what a democratic government is for and the values and types of conducts that are considered undesirable or otherwise in a political settlement.

We have recently witnessed a spate of unconstitutional change of governments in the Sahel on the pretext that the erstwhile governments have not performed to the satisfaction of the populace.

The question begging to be asked by Gambians ?is why now and why were the people not consulted or their political leaders since 2020? After all the Constitution is the creation of a sovereign act. It is the result of an extraordinary legislation approved directly by the people acting in their sovereign capacity enabling the government architecture to be set up, laying down the foundations of political order and the scope and extent of distribution of its legitimate powers, the methods, and principles of its operation, as well as embracing the spirit of a nation.

Administrative laws address certain contingencies, situations, or areas whereas the Constitution is rigid and cannot be easily amended (as Gambians have learned the bitter lesson in 2020). It is framed for the ?past present and ?future while dealing conclusively with the past and is intended to be permanent.

The Constitution provides ?the structure of the organisation of public responsibilities? which must be performed in any community. It defines the responsibilities and vests power in specific institutions of the state. These particular roles are intended to be performed in the interests of the people as a whole. A written Constitution describes the basic character of the governmental system (Republic), establishes the main divisions of public power (the Presidency-Executive- Public Service, the Legislature, the Judicature,) and makes provisions on the relationship between the state and the individual ?.

The relationship between the state and the individual is primarily guided by a Bill of Rights, which limits the actions of the state, and which is enforced by the Judiciary in the event of a dispute or a violation. In my view the bill of rights as incorporated in the draft constitution 2020 is inordinately long without providing organic pathways for the realisation of these inalienable rights.

Constitutionalism means that the government is subject to restraint in the interest of citizens, and that the government is not arbitrary or totalitarian. As ?Montesquieu stated that ‘constant experience shows that every man vested with power is liable to abuse it, and to carry his authority as far as it will go. To prevent this abuse, it is necessary from the very nature of things that one power should be a check on another’.

Where the Constitution contains clear checks and balances to the exercise of public power, it serves as an underpinning for the principle and practice of constitutionalism. The mere existence of a Constitution is not proof of a commitment to the principle of constitutionalism.

Separation of powers means that the government is divided into three separate branches. Each of the branches is granted a specific function including law making, execution and adjudication. Each branch is confined to its activities and acts as a check on the activities of the other arms of government.

For example, Bills passed by the National Assembly come into law on receiving the Presidential assent. The President has the right to veto such Bills and refer them back to National Assembly for revision. The National Assembly has the power to override the veto? and the right to impeach the President. The judiciary interprets laws enacted by President and National Assembly. The Supreme Court ?has the power to declare the constitutionality or otherwise of a particular law.

While the ideas canvassed in this piece may be common to most modern constitutions which were all to a large extent inspired by the first republican constitution-the US Constitution 1789. Still the shortest? constitution in the world but ?it did not come with a bill of rights or term limits for the president. The first republican constitution tacitly supported the enslavement of Africans and denied their descendant full citizenship for than three hundred years!

To conclude therefore constitutions come in all shapes and sizes but one constant trait of modern constitutions is that they reflect the historical circumstances of their making and the ?visions and ideals of their makers. It is fitting and proper to end with the words of an American original who fought in the American civil war on the U.S Government side led by President Abraham Lincoln--the great emancipator and retired as a supreme court Judge under President Franklin Delano Roosevelt who gave Americans A New Deal:

“The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellowmen, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics”.? ?

Justice Oliver Wendell Holmes, Jr.