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Thursday, October 1, 2020

Final Draft Constitution – My preliminary reaction

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By Dr Ebrima Ceesay

Regrettably, the political atmosphere in post-Jammeh Gambia has become so negatively toxic and polarised that having a civil political or intellectual discourse is becoming a thing of the past. Post-Jammeh Gambia’s battle lines have clearly been drawn and sadly, I am often frustrated by the toxic nature of our political discourse back at home and on social media. Hence my decision to only share my commentaries here. Of course, I am thick-skinned and largely unaffected by even unfair criticisms, but there are doubts in my mind, as to the usefulness of some of the partisan debates I regularly see online in particular.

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The Gambia’s Constitutional Review Commission (CRC) completed and submitted the final draft constitution to President Barrow on Monday. Going forward, this now appears to be a parable of two choices and choosing which way to go – for both our politicians and the Gambian electorate alike – is of critical importance to avoid getting stuck in the past – thus maintaining or keeping the 1997 Jammeh constitution by default. The needs of the moment do dictate the importance of putting the national interest and pragmatism beyond narrow self-interest and political expediency. Having a strong understanding of what the stakes are at this point – is critical going forward; and therefore, we must put emphasis on finding solutions and reaching a compromise rather than focusing on scoring short-term political points.

In my view, The Gambia’s long-term security and stability should be given priority over political expediency and scoring short-term political points for that matter. Gauging reactions, in the wake of the publication of the final draft constitution, I would say that, in the main, there has been a somewhat mixed reaction from Gambians I spoke with – to the final draft constitution, with many subscribing to it while others have voiced concerns, saying the constitution does not go far enough in protecting minorities, for example.

This split was to be expected, considering that the framers or drafters of the new Constitution had worked against the backdrop of these two opposing forces: the inclusionists who wanted the word secular inserted into the constitution and those who were against insertion (exclusionists) – to borrow from Foreign Policy expert/scholar Dr Omar Touray.

Of course, although it is now clear to all that the word ‘secular’ has not been expressly mentioned in the new Constitution, notwithstanding, the constitution-makers have implied that there can be no doubt that although the word secular is not in letter, but clearly in spirit, in that new Sections 1 (3), section 5 (4), section 12, section 49, section 88 (5) (b) and section 153 have now been introduced, thus guaranteeing the fundamental right to freedom of religion, as well as embodying the concept that all religions in the Gambia – irrespective of their size and strength – do have the same status before the Law. The drafters of the new constitution went to great pains to insist that there are significant and clear provisions in these new sections providing adequate and durable safeguard measures and that there is no prescribed official religion in the Gambia.

For example, under Section 153. (1) The legislative power of The Gambia shall be exercised by Bills passed by the National Assembly and assented to by the President.
Section 153 (2) The National Assembly shall not pass a Bill to – (a) establish a one-party State; (b) establish any religion as a State religion; or (c) alter the decision or judgement of a court in any proceedings to the prejudice of any party to the proceedings, or deprive any person retroactively of vested or acquired rights.

Of course, there are still concerns being expressed particularly by some sections of the Gambian Christian community over the important question around the exclusion of the word secular, but overall, if truth be told, the new constitution is several steps ahead of the Jammeh constitution. In other words, the final draft constitution may not be an ideal document but there is consensus among many observers that even by Africa’s standards, the proposed new constitution is a step in the right direction and a progressive document for that matter, in spite of the imperfections. The document contains progressive provisions on a number of key areas. In short, the fundamentals of the new constitution are good – with a long monumental list of freedoms, rights and protections. Yet, the legitimate concerns of the Christian community must still be taken on board at the National Assembly level – the next phase and venue of the debate – because to use the Rastafari expression: “he who feels it knows it.”

Certainly, difficulty lies in untangling or unpacking the contents of the final draft constitution, but I would still urge the Christian community in The Gambia who still have reservations about the new safeguard measures inserted into the final draft, to continue to exercise their democratic rights by engaging their local National Assembly Members (NAMs) on the issue.

Now, pragmatism and dogmatism are two key approaches dialectically opposing each other and therefore going forward, Gambians can either have a pragmatic way of dealing with the situation or be just dogmatic. That is the stark reality with which we are faced. Personally, it is my fervent belief that pragmatism, based on practical considerations, is the best approach to deal with the issue. In short, a pragmatic approach beckons, as far as I am concerned. Gambians must now try and forge an agreement on the draft constitution that can serve as the basis of moving post-Jammeh Gambia beyond the transition period, and building a democratic country, anchored in the principles of democracy, rule of law, separation of powers and respect for human rights, including equality for all.

Up to three political parties, including President Barrow’s NPP and APRC, have a vested interest in seeing that the new constitution is rejected when put to a referendum in due course. And we all know that the referendum threshold for the final draft is quite high. For the proposed referendum to be accepted, a turnout threshold of 50 percent of the electorate would require approval by at least 75 per cent of the Gambian electorate.

Therefore, a compromise must be reached between all the powerful vested interests in the country before this new constitution would stand a good chance of being approved. The trade-offs are not going to be easy to navigate, but rejecting this constitution would also mean sticking with the useless 1997 Constitution. Therefore, any future referendum on the new constitution must be an opportunity for the Gambian electorate to demonstrate their determination and preparedness to see to it that the document that will govern their country is approved decisively come the referendum.

Again, although the final draft still has its shortcomings, nonetheless, it is, in most respects, a progressive document, in my view. For example, there are several ways in which the Legislature can check the Executive, in order to minimise the risk of centralisation of power at State House. Vast checks and balances between the three branches of government have now been put in place to ensure effective scrutiny.
For example, under the 1997 Constitution, the President can nominated five (5) members to the National Assembly, two of them are to serve as the Speaker and the Deputy Speaker. Now, under the new constitution, only elected members shall constitute the National Assembly. Under the proposed new constitution, the legislative branch will have the power to effectively scrutinise most of the president’s key appointments. Under the new Constitution, the president is only given a free hand to nominate and appoint his or her vice president and besides, the number of Cabinet Ministers that the Gambian president can appoint has been capped at fifteen, excluding, of course, the Attorney General and Minister of Justice.

Furthermore, the Speaker of the National Assembly will no longer be nominated by the President but will instead be voted. Going forward, all ministerial appointments are to be subjected to National Assembly confirmation which must be carried out within fourteen days after appointments have been announced; and in the event parliamentarians choose not to confirm a candidate, they are obliged [on the National Assembly] to offer reasons to the president in writing within three days of that decision.

The Independent Electoral Commission (IEC) is also being transformed into the Independent Boundaries and Electoral Commission (IBEC) and given the constitutional authority for the delineation of electoral boundaries. The National Assembly is being barred from amending the law to allow extension of the mandate of a president and the term limit for a president is two five-year terms. Therefore, a president can only serve for a decade in political office. Needless to mention, the National Assembly will now have a voice in the appointment of Supreme Court and the Court of Appeal judges by way of confirmation. And the president by himself is unable to remove a judge from the bench. Just some of the attractive features of the new constitution.

Dr Ebrima Ceesay, a former editor of the Daily Observer, now works and lives in Midlands in the UK. This article was originally published at the online portal Community of Gambianist Scholars.

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