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Wednesday, June 12, 2024

A response to CRC chair’s read on the country Part 2

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By Foday Samateh

The case against prizing elitism in the constitution should be leveled against shifting a good deal of governing authority and power from elected officials to unelected bureaucrats and commissions. Faith in the system requires that the Electoral Commission, the Central Bank, the Auditor General’s Office and the Ombudsman’s Office are independent. But the Constitution shouldn’t make the Attorney General completely independent of the President, who, as the head of the executive branch, is ultimately responsible for carrying out the laws of the land. Nor should the Constitution make the Director of Public Prosecutions independent of the Attorney General who is the country’s principal lawyer. Such bureaucratic fiefdoms will serve no consequential purpose. They will only upset the constitutional and institutional hierarchies that are needed to hold subordinates who are found wanting in their jobs accountable. Besides, the attempt to anticipate every possible scenario of abuse of power with preventative measures in the Constitution will more likely succeed in spawning countless unforeseen problems in the administration of government. Good laws may not prevent bad people from doing wrong. But bad laws are sure to hinder good people from doing what’s right.

And finally, the commissions! Why a Teaching Service Commission when there are the Public Service Commission (PSC), the Civil Service, two Ministries of Education (which should be combined into one anyway), and Regional Education Offices across the country? Why a Health Service Commission when there are again the PSC, the Civil Service and the Ministry of Health? What then would be left of the PSC and the Civil Service in particular when teachers and health workers, who are the majority of civil servants, are given their own service commissions? Why a Land Commission when there are the Ministry of Lands and the Ministry of Natural Resources?
Why a Human Rights Commission (HRC) when there are the National Assembly, the courts, the Ministry of Justice, and nongovernmental and civil society organisations that commit themselves to holding the government to uphold the laws and the rights of the people? What can an HRC do that cannot be done with greater authority and better results by these institutions? Remember the fate of the Media Commission that was required under the current constitution? In its short life, that commission turned out to be the worst threat to freedom of the media. If the government is really serious about human rights enforcement rather than mere image-making by forming a commission with a cool-sounding name, it should establish a human or civil rights branch at the Ministry of Justice to specialise in prosecuting violations of such rights, especially by officials or agents of the state. And why an anti-corruption commission when there are the Auditor General’s Office, the Ombudsman, the Gambia Revenue Authority, the Ministry of Justice, the National Assembly, the Inspector General of Police, and the state intelligence? If these institutions cannot severally or collaboratively fight corruption, which is or should be one of their primary responsibilities, what hope is there that some commission will come storming to save the day?
Even if these commissions are needed, there is no need to enshrine them in the Constitution. The Constitution already grants the National Assembly and the President the power to establish commissions when the situation warrants it.

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But these commissions with pleasing names, like most government entities have already proved, will hardly live up to the purported objective for which they will be established. Our government over three successive administrations, and too many other governments for that matter, seem to have acquired special talents for creating more bureaucracy even as the bureaucracy fails to deliver the services and opportunities the people are promised. One would assume that as the age-old problems persist in defying same old solutions, the government would re-evaluate the means and methods of doing things, and rethink the functions and purpose of the administrative state. Instead, it doubles down on the alphabet soup of ministries, departments, agencies, and commissions. It’s no surprise that tending to the needs of the ever-bloating bureaucracy has become the primary pre-occupation, instead of restructuring the administrative state for the needs of the country.

A cursory glance at the national budget will disabuse the Doubting Thomases of their doubts. Year after year, the larger proportion of the budget goes to the expenses of the bureaucracy, and the leftover is sprinkled over the sea of problems the government is supposed to solve. To build a bridge, hospital, road or a school, the government has to take out a loan. No point mentioning the resources that need to be marshaled to urbanize our pitiful metropolitan areas. Even the endless, mindless hobby of creating new ministries, departments, agencies and commissions involves taking out loans. The shameless and cynical part of it all is that the government deliberately expands the bureaucracy sometimes just for the hope of winning donors’ heart about whatever happens to be the latest fad in the so-called international community. But when the donors’ dollars dried up, the tax-payers end up picking up the tab. And so the budget deficit gets larger and larger, the national debt gets bigger and bigger, and taxes get higher and higher.

The bureaucracy — if it ever were true to being the administrative state’s means of solving problems, providing vital services and creating opportunities for the people — has long since abandoned that essential mission. It has been nothing more than an income-earning trough and a cesspool for corruption and self-dealing for one class of citizens only: the educated class. Little wonder the country has lost faith in government.
The constitutional review is a historic chance to reset things. To learn from the past and reconstruct the administrative state on the timeless foundations of governing for our time. Establishing more commissions and independent bureaucrats, especially in the Constitution, isn’t charting a new course. It’s just harkening back to failed experiments and hoping for a different outcome. The commissions identified in the CRC’s Issues Document for possible inclusion in the Constitution will mostly be assigned to do what people who run for office are elected to do. They will stand in the way of electoral and governing mandates.

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And lest we forget, these commissions will inevitably expand the already sprawling bureaucracy and add new expenses on the nation’s finances. The work they will do can neither be considered too demanding for the relevant ministries of the underperforming bureaucracy nor be deemed susceptible to conflicts of interest to necessitate their establishment. The resources that will be spent on these commissions will be paid by the entire nation, including struggling farmers and market vendors. However, the resources will mostly benefit individuals who will be appointed to the commissions. And most of these individuals will come from, you guessed it, the elites. The same show goes on. The people pay for the government for the privileges of the elites. About time the people have lost faith in the system.

Several sections of the Issues Document show the CRC’s desire and determination for a Constitution that both prevents a repeat of the dictatorship and satisfies international (read Western) expectations. As pointed out earlier, many of the preventative proposals go beyond well-intended corrections into the territory of over-corrections. International expectations should be incidental to the national needs. We should shoot for a Constitution that works for The Gambia, first, foremost and exclusively.
The Issues Document also envisions a Constitution that confers less power on elected officials and more power on unelected elites within the bureaucracy. When the moment calls for a more concise Constitution that streamlines government, the CRC’s blueprint betrays a plan for a voluminous one that reaches into the domains of legislative statutes, public policies and political party platforms to absorb even the most mundane matters into the Supreme Law.

The Constitution should summon us to a set of ideals. At the same time, the idealism should be tempered with reality. What’s the point of drafting the most ambitious Constitution if the country can’t afford the costs it demands? The CRC should, therefore, draft a Constitution that provides for a government that is necessary. A government that has no more power than necessary for the security of peace and the protection of freedoms and liberties. A government that requires no more resources than necessary to provide vital services and invest in opportunities for the nation’s prosperity. The police power of the state is to the public’s freedoms as its expenses are to their incomes. The Constitution must reflect both with a government that is democratic and affordable.

The CRC wrote the Issues Document before embarking on the listening tour. But after traveling the country, they can no longer plead doubtful about what’s on the country’s mind: “The sum of the most pertinent issues raised by the Gambian community at large relates to concerns about the governance of the country…It is an understatement to say that Gambians generally have lost faith in government – and that is any government…They seem to view [the educated class] as untrustworthy, greedy, unreliable and without conscience…One even indicated that he does not trust his own educated sons because of how he has seen them amass their wealth. Some amongst them have even called for farmers to lead this country.”
The people have argued their case before Justice Cherno Jallow and his Constitutional Review Commission. Let no one say that their summation against government for the elites, by the elites and for the elites isn’t loud and clear.

The author, a Gambian, works and lives in the United States.

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