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Saturday, June 25, 2022

A response to CRC Chair’s read on the country

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By Foday Samateh

Speaking at a news conference on the Constitutional Review Commission’s countrywide listening tour, the Commission Chairman Cherno Jallow was reported to have remarked that: “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.”

Many will surely bemoan this as an unequivocal indictment of the elite and the intellectual class. That judgment will be correctly rendered.
But these dark clouds, viewing them from a different perspective, can also be silver linings. Myriad factors have contributed over the past fifty years to the unenviable state of affairs. Key among them is faith in government. The history of politics shows that it’s always foolish to trust governments and always wise to not trust them. Government is essentially the power of the state at the disposal of a bunch of people relative to a population; and people, being humans, are liable to be “untrustworthy, greedy, unreliable, and without conscience,” especially when they are in a position to get away with it. Therefore, governments must, by their very nature, always bear the burden of proof that they are doing right by the people. They must never enjoy the benefit of doubt regarding their duties and actions. Faith in power should be reserved only for God.

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Gambians have lost faith in government under three presidencies for reasons that are too numerous and obvious. To elaborate on them would be belabouring the point. The more relevant concern here is how this lack of trust pertains to the constitutional review that is underway. That the Chairman of the Constitutional Review Commission (CRC) was the one who made the lamentable observation about the public’s loss of faith in the ruling class is, in a paradoxical sense, heartening. If anybody should be cognisant of the prevalent deficit of faith in the officialdom, they ought to be him and his fellow members of the CRC. This insight should inform their deliberations over what to keep, what to include, and what to strike out from the constitution so that the rights, powers, and the institutions they will maintain, reconsider or establish under the new one will reflect the public’s skepticism of government.

The constitutional review will result in two possible outcomes. It will be superior or inferior to the current one. The degree of superiority or inferiority will depend on how terrific or terrible the draft turns out to be. And based on the CRC’s own Issues Document as well as views the public expressed during the nationwide listening tour, either outcome is likely.
Both the Issues Document and a good number of the public who spoke to CRC on the listening tour are rightly concerned about presidential powers, particularly when it comes to appointments. The presidential power to hire and fire key officials and officers in both the executive and judicial branches with little or no oversight is imperial in all but name.

It is probably the biggest undermining factor of our government of separated powers and democracy itself. Thankfully, opinions seem to align on a consensus to revamp the process. But some proposed alternatives to fix a grave problem raise grave questions of their own. The idea of the Judicial Service Commission (JSC) or the Public Service Commission (PSC) to be responsible for many of what have been presidential appointments or to be vested with a veto power over such appointments, for instance, is grievously flawed on several levels. Such proposals as well as the numerous offices the CRC identifies under the executive branch for possible elevation to constitutional status, and the proliferation of administrative commissions the CRC puts forward for possible inclusion in the constitution are symptoms of a common disease that afflicts too many reforms: over-correction.

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The president’s imperial power of hiring and firing needs to be curtailed and the potential for abuse needs to be minimised as much as possible. But the reforms should remedy the defects in our democratic system of separated powers, not exacerbate them. Much of the problems in our government are born of the current constitution’s deliberate circumventions of the tenets and principles of separation of powers. Any meaningful oversight of the president’s appointments can be the responsibility of only the legislative branch. The constitution, however, defied logic and reason and the best practice by excluding the legislative branch from weighing in on almost all presidential appointments.

To instead require the president to consult with the JSC when appointing judges, or the PSC when appointing members of the Independent Electoral Commission, for example, is a cop out. It was a conscious act of subverting legislative oversight power, thus effectively weakening our democracy from its very inception. The corrective measure should be the president nominates judges, cabinet ministers, other top officials, and security chiefs for the legislature to hold an open hearing on the nominations before voting to confirm or reject them. Any other arrangement will be a mere substitute for the flawed status quo or worse. The JSC and the PSC should have no constitutional role in presidential appointments. As a constitutional or institutional matter, the president should not be bound by their advice, because the president should be answerable to only the legislature and the courts.

The potential for over-correction extends to the “marginalised groups” and the political parties. The marginalised groups are defined in the CRC Issues Document as women, the youths and the physically-challenged. There is no denying that citizens who fall under these three categories are under-represented in the decision-making positions in the government. It’s right, fashionable even, to decry this under-representation as a problem that must be addressed. That said, the claims that it’s a result of discrimination have no basis in law or fact. There has never been any law or policy to discriminate any group for being women, youths or physically challenged. In fact, in the chapters on fundamental human rights and citizenship, the constitution explicitly prohibits all forms of discriminations based on gender, sex, age, tribe, religion, creed and so forth. The constitution rightly recognises all Gambians as citizens as a whole or individuals. No more, no less. The citizenship of a man is equal to that of a woman. The same holds true for the old and the youths; the able-bodied and the physically-challenged.

The compelling need to address the under-representation shouldn’t justify introducing categories of citizens in the constitution. That in itself would be an act of discrimination, however well-intentioned. The constitution cannot declare in one chapter that no citizen shall be treated with favour, affection or ill-will based on gender, sex, age, tribe, religion or other attributes; and then declare in another chapter that this or that category of citizens shall be treated with favour or some other criteria based on gender, sex, age or other attributes. Measures like this tend to create more problems than solve. Cases in point are Affirmative Action in the United States and South Africa.

In The Gambia, the under-representation is mostly a consequence of social problems or lack of opportunities. It is not a legal problem or a legacy of some past discrimination like in the United States and South Africa. Therefore, it should be left to the political process and civic activism. The change needs to be organic to the country’s political and social progress, rather than decreed from on high. The temptation to impose a constitutional injunction of proportional composition of the cabinet on the president, or the proportional composition of the executive committees and electoral candidates on political parties should be resisted. It would not bring about better governance or a better democracy.

All it would do is require quotas to be filled for the sake of complying with the letter of the law rather than its spirit. More importantly, the constitution shouldn’t be turned into something it has no business being. It should prohibit presidents and political parties from doing what constitutes discrimination. It shouldn’t go any further by commanding them to do what should be best left to their discretions and judgment under prevailing circumstances.Among the things to be avoided in the Constitution are hard and fast rules for qualifications for public office. Academic achievement, for example, has its uses, but it’s not always the same thing as wisdom. Experience counts in keeping a system functioning, but sometimes the occasion calls for a fresh, reform-minded visionary. High intelligence is a great asset for solving hard problems, but character and moral courage are more important for society’s well-being. Expertise is always ideal but it doesn’t always come with values a country holds dear. A public official who is imbued with integrity but light on paper is more preferable than one who is strong on paper but light on integrity. And effective leadership at any level consists of much more than a university accreditation. Admittedly, government involves more than what farmers or other trade groups can bring to the table. That makes eggheads, bureaucrats and pencil-pushers indispensable. But for fifty years and counting, the educated class has shown themselves to be — in the country’s bleak assessment — undesirable elements, who are “untrustworthy, greedy, unreliable and without conscience.”

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

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