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City of Banjul
Friday, February 26, 2021

Constitutionality (or not) of current IEC chairman’s position

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By Pa Louis Sambou

If one reels together the pitiful state of affairs of our post-dictatorship transition, one realises that its essence is no longer what marshals the delivery of what was supposed to be ‘the reform agenda’, something which has since mutated so much overtime, every party has their own unique strain of what ‘the reform agenda’ is. What an enigmatic pathogen! Perhaps the uniqueness of this strange enigma explains the choice of mediator, Mr Goodluck Jonathan who was so unique a political breed, he united a divided and chaotic opposition and, Northern and Southern elites against him and repelled his natural political allies and as if that’s not bad enough an indictment, he went on to lose an election which could you believe was ironically rigged in his favour. So effectively, the mediator’s relevance past his sell by date is coincidentally an enigma in itself which perhaps must have been the sole criteria upon which his appointment as mediator was made. What could possibly go wrong? Goodluck to us anyway.

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If the objective is to coach the incumbent on how to lose an election, then given Goodluck Jonathan’s gold standard track record, arguably no one else is better qualified. On a serious note though, I think we can completely rule this one outright, here and now, knowing how much the ‘bus driver’ loves his wheels. Alternatively, if one wishes to indulge the weird art of conspiracy theory, it could for all we know be some insidious ploy to manage the incumbent out of power. However, whilst this may be a very interesting idea in a theoretical sense, I would leave it at that and no further but consign it into the back burner of the remotest of remote possibilities if not that of complete fruit cake fantasies. Furthermore, if anything, no disrespect to Goodluck Jonathan but I’m sure there are far better qualified candidates for a conspiracy than an ex President who as an incumbent, on an election he organised and had rigged in his favour still managed to lose to the pensioner candidate. Personally, I’ll mark his selection as ‘mediator’ as an unfortunate occurrence which was wholly unnecessary never-mind his unsuitability for reasons which are a matter of fact an public record and certainly not the subjective opinion of an ordinary opinionated blogger.

So, to call a spade a spade, the facts (and not my opinion) clearly identify the ‘negotiator’ of choice for such fundamentally important subject as a widely discredited character on not one, not  two, not  three fronts but, on multiple fronts. Others may disagree of course but, the historical record speaks for themselves.

Now, moving on to the subject itself, it is realistically speaking a defeatist argument really to bog oneself down to examining something which is akin to rearranging the decks on the Titanic which effectively is what the subject of the ‘negotiation’ is. One need not be opposed to what was the draft Constitution to recognise the ‘negotiation’ as a farce. To better appreciate this proposition, it may be worth examining the completely misguided terms of reference attributed to it – “…to bring together the different political actors to reach a consensus on:

            Citizenship

            Justiciability of socio-economic rights

            Term of Office of the incumbent

            Threshold of the impeachment of the president

            Confirmation of ministerial appointments by the National Assembly

            Retirement benefits of judges.”

Obviously noticeable is that at no point has the above tried to address the real question. It keeps off that subject. Even more worrying is what appears to be an acquiescence of the above by a section of society who may not necessarily agree with this farce but nevertheless deem it an extension of their view and something they want to go easy on. In light of this, one cannot help but question: ‘whether the focus still is, to get the right constitutional settlement or, whether this has now evolved into something else?’ A speculation won’t be helpful but, I hope more people start to ask this question.

Effectively, without belabouring the point, the facts suggest that the focus and objective is no longer centred on addressing the fundamental question. There’s nothing necessarily wrong with seeking a consensus among the political parties around contentious political provisions of a proposed constitution but, to seek to do so to the neglect of so many other problems within the same proposed framework is an oversight whose fatal effects one can only helplessly hope that society won’t in time to come, bear the brunt of. One which will perhaps be more tragic than the price already paid over the course of the dictatorial Jammeh regime. Hopefulness, it has to be stated is however a very useless thing for one to hold on to. I hope this fact is borne in mind.

As the terms of reference of the ‘negotiation’ are so detached from the question to be addressed, one could only come to the conclusion that the intention is to do, say and claim all else but, address the question, a ploy which is in so many ways believe it or not, reminiscent of the irony of Hillary Clinton’s book What Happened (which attempted to offer an explanation of her loss to Donald Trump in 2016) but, this book, when read to the very end, one realises that Hilary Clinton still doesn’t know ‘what happened’. Just in case the joke on us is lost, I’ll be very blunt in stating that, the ever mutating constitutional ‘reform agenda’ as it currently is, even when fully delivered, nothing would have changed and we’ll perhaps regret the investment and effort like I have in the case of Hilary Clinton’s book (‘what happened’).

 The basis of the constitutional rebuilding process was flawed from the very beginning in that unless we objectively examine and seek an understanding as to what it is about the existing Constitution that led to the problems which we’re currently trying to fix, we’ll never understand that it was far much more than just a dictator. One cannot pretend to have a monopoly of the ideal solution, besides, contrary to the officialdom’s briefed wisdom, whatever the solution is, it’s a process rather than an event. A process which requires a renewal of the existing system whilst protecting its liberal components rather than the compounding of the problems in the existing system by hollowing its liberal components under the guise of ‘the will of the people’. It’s often said, that those who do not know history are doomed to repeat it and, this cliché could sadly not be more relevant in our case — I should perhaps nail my collars to the mast in anticipation of the usual accusations (of over-egging the pudding) in authoritatively stating that, this point doesn’t need exaggerating at all because it is an empirical fact as comprehensively laid out:

            Civil servants barred from seeking second jobs etc.;

            Fundamental human rights which under the existing constitution the state has no constitutional authority to limit except under an emergency are all handed on a plate for any future government to interfere with as they see fit;

            The court which deals with corruption matters being scrapped on the basis of six anonymous submissions (according to the CRC’s own report at p.119, para 473).

The above (which is just a tip of the iceberg) constitutes a body of extremely troubling developments which ought to be scrutinised but which aren’t at all thanks to the irrational excitement of the sort which led to the passing of the 1997 Constitution without any meaningful scrutiny and which inadvertently laid the foundation of the terror machine which would last over two decades to topple. Just like the public had been conditioned to believe the simplistic conjecture that once Jammeh is out of the picture, all our problems will evaporate, we’re yet again being led to believe that once we get a ‘new Constitution’ we’ll be a paradise for rule of law, democracy and good governance. As one highly enthusiastic proponent puts it, having a ‘new constitution’ is the ‘Gambian dream’. This of course implies that one has to be asleep to believe in it. This proponent’s unfortunate platitude accurately epitomises the problem: the people are either being misled or are completely ill informed on the subject or both. It is blatantly obvious that people do not really understand what it is that is being done in their name and, to ask them to vote on an issue so fundamental in such circumstances, would evidently be no different from the deception which gave birth to the same problem which we’re trying to fix being the 1997 Constitution. This would defeat the essence of a constitutional reform, won’t it?

To digress slightly, I guess I’m not alone in my despondent observation that the emergence of a much free democratic space, rather than encourage objective engagement and robust discussions, it opened up the floodgates for groupthink and discussion cum propaganda platforms which to put it politely, one could only describe as echo-chambers which enable environments in which the same opinions are repeatedly propagated and reinforced, with little or no exposure to opposing views whatsoever. This is very concerning it is — because it encourages and amplifies intolerance to opposing views and adversely compartmentalising if not blockade the free flow of ideas. Lamentation and disapproval doesn’t automatically mean that I hold the view that these platforms aren’t well-meaning but, I solemnly beseech these to, for balance and to test the validity of their own views, do more to engage views which are contrary to their own. Not for my purposes of course but, for their own and, for the collective good. To declare an interest, I’m characteristically irritated by interactions which are void of objectivity or balance and wouldn’t naturally gravitate towards these unless by sheer coincidence as was the case this weekend when a regular weekly programme which is usually (but not always) objective took French leave from the usual when held hostage by this groupthink syndrome. With all due respect, the featured letters ‘BBC’ in the description of this program may as well be taken to mean the ‘Bash Barrow Caucus’ given the content of the weekend’s special edition. With utmost of respect to those concerned, this isn’t to take anything away from the validity or merits of the case they made but, the absence of an opposing view, objectivity or balance sadly devalued an otherwise interesting subject.

Now, the relevance of the above-mentioned groupthink syndrome to the subject under review is that, what was dubbed the draft Constitution was not subjected to any meaningful objective scrutiny but a crescendo of praise singing and platitudes which appealed to nothing other than sentiments which do not rely on any criteria upon which to make them other than the feelings involved. I’m amazed that we were amazed that what was the draft Constitution fell flat on its face upon the very first scrutiny on the floor of the National Assembly. The idea that a framework which is incapable of surviving reasonable scrutiny but, relies on evading democratic scrutiny in order to pass is going to reform and entrench Gambian democracy for the better is frankly speaking for the birds. It’s unwise to suggest a finality to something which is still ongoing but, what’s clear is, democratic scrutiny rather than its evasion is the only thing which will guarantee a meaningful and fit-for-purpose constitutional reform.

With only a year before elections, I’m not convinced that rushing through a constitutional reform of whatsoever nature is wise, especially under a highly charged pre election climate. Going by the information which is publicly available, the singular case in favour of a rush through is so that elections are conducted under an absolute majority system. This ought not be an issue at all because, section 48 of the existing Constitution is not entrenched and could be easily amended to incorporate an absolute majority electoral system for the Presidential election in December 2021 and then thereafter, whomsoever ends up in office will reopen the constitutional review process without the undue pressure of time so that what was the draft Constitution could be meaningfully scrutinised for the sole purpose of ensuring that it addresses those concerns in the existing 1997 Constitution which necessitated the need for constitutional reform in the first place. This is a far more reasonable approach in my view and I hope it’s given some serious thought.

If by this stage, you find yourself struggling to figure out how everything said so far bears any relevance to the caption of this literature, well that’s precisely the point. That’s partly the object of this article. Just like the pivotal pillar of the Coalition agenda being ‘reform’ has mutated and diverged away from ‘reform’ and pretty much winged the subject, I thought  I’ll address this terribly frustrating political syndrome called bait-and-switch in a copycat fashion and whilst at it, seek an understanding and appreciation of the logic which drives it. So the diversion is intentional, albeit to make a very salient point.

For any policymaker or politician reading this, I hope the deflating experience of realising the bait-and-switch deception by this ‘copycat’ author, right at the end offers some understanding how such feels. Please do feel at home.

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