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Tuesday, April 20, 2021

Gambia 2019 Draft Constitution needs a rewrite

By Professor George Ayittey

Gambia unceremoniously unveiled its 2019 Draft Constitution. It will be presented to the people for approval in a referendum in 2020. The Constitutional Review Commission (CRC) must be commended for crafting a Constitution within such a short time after the former president, Yahya Jammeh, was ousted in January 2017. But the draft Constitution is 185 pages long – way too long. Rhetorically, it careens from one extreme to another. If Gambia with a population of 2 million people needs a 185-page Constitution, how long should be the Constitution of Nigeria with a population of over 200 million?
The chapter outline of the draft Constitution specifying freedoms, rights, responsibilities of public officers alone take up 12 pages. Then it goes into mind-numbing detail on the following topics:
· Leadership and integrity
· Responsibilities of leadership
· Restrictions on the activities of public officers;
· Restrictions on persons dealing with public officers in the service of this date
· Legislation on leadership
· The national assembly
· The judiciary
· Human rights commission
· Anticorruption commission
· State-owned enterprises
· National Council for civic education
Are you still awake?
Well, one must give the CRC some credit for being original. At least, they did not try to copy and blend the American and the French constitutions together as Ghana did in 1992.AConstitution reflects the political history experience and aspirations of the people and, therefore, has a cultural imprint. For example, if a people have labored under a despotic monarch for a long time, they may want to craft a Constitution that avoids another form of despotism. One simply cannot copy such a Constitution if one has never had such an experience, let alone blend two dissimilar experiences together.

Should Ghana copy the Japanese Constitution whose head of state has historically been an Emperor? So why copy and blend the American and the French? Rather interestingly, the American and the French constitutions approach the issue of liberty from two diametrically opposing angles. The American people see the date as a necessarily evil monster that will gobble up all or trample on the rights of the people. They have inalienable rights which must never be breached by the state. These are Life, Liberty and the pursuit of Happiness which are enshrined in the Constitution. In the American political scheme of things, the Constitution serves as a shield against a marauding state. The more power that state has, the less free its people.

By contrast, the French Constitution sees the state as a guarantor or protector of the rights of the people .The French Revolution of 1789 overthrew the despotic monarchy of Louis XIV, who famously declared that, “L’etat cest moi” (the state is mine). When the people rose up in the 1789 Revolution, they wanted to make it clear to the ruler that the state belonged to the people and they have the rights that must be protected and guaranteed by the state. It is difficult to see how the two views of the state can be reconciled or blended.

Now how do Gambians see their state? Obviously, the answer must reflect their postcolonial experience with government, which is not different from other Africans’ experiences. In postcolonial Africa, government ceased to exist and failed to provide basic levels of security, freedom, human rights and social services for its people. In many countries, including Gambia, the government was at war with its own people, repressing and brutalizing them. Worse, the government was hijacked by a phalanx of bandits, crooks and vagabonds who used the machinery of the state to enrich themselves, cronies and tribesmen, excluding everybody else. Jammeh plundered the state treasury of nearly $1 billion. Obviously in a new constitution, this monstrosity should not begin more powers. Instead, every effort must be made to clip its wings so that it does not abuse its powers in the future. The draft Constitution gives the state too much power.

It is understandable why the CRC produced a voluminous Constitution that long because they wanted to nail everything down. You see, the former president , ahem, a military coconut – insisted on being addressed as His Excellency Sheikh Professor Dr. Alhaji Yahya Abdul-Aziz Jemus Junkung Jammeh Babili Mansa. He governed on the fly – from the seat of his pants, making up rules as he went along. He vowed to rule for a billion years and claimed to have discovered the cure for HIV/AIDS. He also claimed he had mystic powers and would turn Gambia into an oil-producing nation. He threatened to behead gays. But despite his bluster, he was terrified of witches and evil sorcerers. He was booted out of office by ECOWAS troops in January 2017. He is being sheltered in Equatorial Guinea by another scrofulous dictator. He must be expelled and sent to the ICC for crimes against humanity.

Not wanting to take any chances, the CRC tried to put everything down. It would have said this to Jammeh, “Hey, it says here that you cannot rule for a billion years; only two terms in office.” But then, in so doing, the CRC went overboard and it is not alone. You see, in Africa, the art of constitution-making is not well understood.

A constitution is a social contract between the people (the governed) and the rulers, regarding how they shall be ruled. It should not be a document codifying how the president would like to rule the country – as was the case in Ghana in 1992 when Ft./Lte. Jerry Rawlings created a very powerful executive. Nor should it be a phantom document favoring one political candidate – as was the case in Nigeria in 1999. Under pressure to return the country to civilian rule, Nigeria’s military brass produced two constitutions in 1999 hidden from sight and held closely to its chest. Which one to release to the public depended upon who won the March 1999 elections. So Nigerians went to vote without seeing their Constitution, nor knowing their contents. Imagine.

More than half of Gambia’s draft Constitution is unnecessary or somewhere else and can be cut. For example, a Constitution should never attempt to define leadership qualifications for the president as one can to draw up more than 100 traits of leadership – from bravery and diligence to honesty and trustworthiness. Even then, should the lack of a redeeming trait disqualify one from becoming president? Nor should the Constitution wade into normative subject areas such as integrity. How does one determine if a person has integrity or not if they have not been tested as president?

A Constitution should not be the place to specify duties and restrictions on the activities of public officers. These are best placed in the Civil Service Code. The Constitution may specify broadly the functions of the National Assembly and the Judiciary but should stay away from detailed exposition of how they should be run. For example, the Constitution may say that they shall be a Speaker, chosen from the party that wins the most seats in the National Assembly. How they select the Speaker or what their function should be ought to be left out of the Constitution.

The duties of the president should also be left out of the Constitution. For example, the Constitution may say that the president should act in cases of national emergency to protect the people and safeguard the security of the nation. It should not specify what is a national emergency, nor what actions the president should take. Naturally, what constitutes an emergency may change over time. The U.S. Constitution was promulgated in 1789 and what was an emergency back then is no longer today because of technological advancements in dealing with hurricanes, fires and flooding. The Constitution may also assign foreign policy to the president but should not go into specifics how foreign policy should be conducted as circumstances would change over time depending upon the nature of the foreign government.

On rights, the draft Constitution goes into incredible detail about the rights of women, minorities, the youth, the elderly, the disabled, children, etc. It should as well have included the rights of cockroaches! All that was needed to say was to enshrine the dignity and rights of persons. For example, the Constitution may recognize a person’s right to a dwelling or home. It should not attempt to define a home as what constitutes a dwelling will change over time.

A Constitution for an African country should not exceed 20 pages. One thing we should understand in Africa is that the more power the state has, the less free its people. Our ancestors in some ethnic groups very well understood this axiom and abolished the state altogether. They are called stateless societies – such as the Igbo, Somali and Gikuyu. By contrast, we write Constitutions in modern Africa by assuming that head of state is a Messiah, bestowing powers upon powers on dictators such as General Samuel Doe of Liberia, Robert Mugabe of Zimbabwe, etc. Then when they started abusing those powers, we found to our chagrin that we had no countervailing powers to check them.

A good Constitution should start from this premise: No offence is intended and your academic credentials notwithstanding, we regard you – the president – as a potential bandit and tyrant. Then the Constitution proceeds to put in place measures and safeguards to prevent him from becoming a tyrant and a bandit. For example, you cannot dictate or take decisions alone by yourself. You must take decisions by consensus with your Council of Elders or Village Assembly. Fantasy? This is exactly how or illiterate peasants governed themselves in the traditional system.

In line with indigenous African philosophy, the state should be regarded as necessarily tyrannous that should be chastened, not over-empowered. This is akin to the American ethos. This does not mean the state must necessarily be abolished but rather finding ways of reining in a state which is out of control in many African countries. The American way of dealing with an out of control state is to create three equal branches of government – the executive, the legislature and the judiciary, with each checking the others. Africa may devise a different system. For example, Africa may establish a Supreme Council of Elders, given the reverence Africans confer on the elderly. Such a Council, given their collective wisdom, may veto legislation, cause the removal of the president or judges.

Another innovative feature for an Africa Constitution is to exempt the president from the appointment of the heads of those institutions designed to check him. The president should not be allowed to appoint the Atty. Gen., Supreme Court Justices, electoral commissioner, Speaker of Parliament, Governor of the Central Bank, etc. A conflict of interest situation is involved. It is difficult to have free and fair elections when electoral commissioner is appointed by the president.

It must be noted that the inviolability of the Constitution is not assured by inserting into the Constitution a clause saying that “military coups are illegal” – as Nigeria did with its 1979 Constitution. In 1983, Maj. Gen. Muhammadu Buhari (the current president) tossed the Constitution aside after seizing power in a military coup. Clearly, that constitutional clause did not stop him. A better deterrent must be devised.

Gambia’s National Assembly may lodge a copy of the Constitution with the African Union or the United Nations with the express instructions that the international community shall recognize only the civilian government that upholds this Constitution. It cannot be a tended, abridged or abrogated without the approval of supra-majority (at least 66%) of the National Assembly. This is to prevent a situation where some military coconut, waving a bazooka, seizes power, suspends the Constitution, plays martial music and declares himself president. To succeed, he must also suspend the Constitution lodged with the African Union or the United Nations.

Even more important, if Africa needs a Constitution, it should go back to its roots and hold a constitutional convention on the Manden Charter, promulgated at Kurukan Fuga. According to UNESCO, the Charter is one of the world’s oldest constitutions, predating the U.S. Constitution. Proclaimed in 1236, following a major military victory, by the founder of the Mandingo Empire and the assembly of his wise men, the Manden Charter, was named after the territory situated above the upper Niger River basin, between present-day Guinea and Mali. The Charter, though mainly in oral form, contains a preamble of seven chapters advocating:

“Social peace in diversity, the inviolability of the human being, education, the integrity of the motherland, food security, the abolition of slavery by razzia (or raid), and freedom of expression and trade.”

The Empire disintegrated when Mahmud Keita IV died around 1610. According to oral tradition, he had three sons who never agreed about succession and this sibling rivalry contributed to the end of the Mali Empire. But the words of the Charter and the rituals associated with it are still transmitted orally by griots from father to son in a codified way within the Malinke clans.

To keep the tradition alive, commemorative annual ceremonies of the historic assembly are organized in the village of Kangaba (adjacent to the vast clearing of Kurukan Fuga, which now lies in Mali, close to the Guinean border). The ceremonies are backed by the local and national authorities of Mali and, in particular, the traditional authorities, who see it as a source of law and as promoting a message of love, peace and fraternity, which has survived through the ages. The Manden Charter continues to underlie the basis of the values and identity of the populations concerned.

The Charter was transcribed, translated and republished. It divided the empire into ruling clans (lineages) that were represented at a great assembly called the Gbara. There were 16 clans known as the Djon-Tan-Nor-Woro (quiver carriers) responsible for leading and defending the empire. There were also 4 clans known as the Mori-Kanda-Lolou (guardians of the faith) who guided the ruling clans in matters of Islamic law. There were 4 nyamakala clans (people of caste) who had the monopoly on certain trades, which included but was not limited to smelting, woodworking, and tanners. Lastly, there were 4 clans of djeli (masters of speech) who recorded the history of the empire through song and story-telling.

Apparently, there was clan specialization or division of labor – just as we saw about sexual division of labor. Certain tasks such as defending the Empire and recording its history were reserved for certain clans. The Constitution contained 44 edicts, divided into four sections relating to Social Organization (edicts 1-30), Property Rights (edicts 31-36), Environmental Protection (edicts 37-39) and Personal Responsibilities (edicts 40-44). The constitution also required women to be represented at all levels of government (edict 16) [The Kingdom of Benin and the Swazi Kingdom also required government ministers to be balanced with female counterparts or advisers].

The Charter also guaranteed and upheld, among others, the following edicts:

Edict 5. Everybody has a right to life and to the preservation of its physical integrity

Accordingly, any attempt to deprive one’s fellow being of life is punished with death

Edict 9. The children’s education behooves the entire society.The paternal authority in consequence falls to everyone.

Edict 14.Do never offend women, our mothers.

Edict 16: Women, apart from their everyday occupations, should be associated with allour managements.

Edict 20: Do not ill-treat the slaves. We are the master of the slave but not the bag hecarries.

Edict 23: Never betray one another. Respect your word of honor.

Edict 24: In Manden, do not maltreat the foreigners.[Tell that to black South Africans.]

Edict 31: We should help those who are in need.

Edict 32: There are five ways to acquire property: buying, donation, exchange, work andinheriting. Any other form without convincing testimony is doubtful. [Tell that to those who preach communal ownership.]

Edict 40: Respect kinship, marriage and the neighborhood.

Edict 41: You can kill the enemy, but not humiliate him.

Edict 44: All those who will transgress these rules will be punished. Everyone is bound to make effective their implementation.

(It is noteworthy that the Charter affirmed the equality of women, freedom of expression, freedom of trade and frowned upon laziness and idleness. From Edict 9 may be traced the African saying, “it takes a village to raise a child.” The laws were binding on all, including the ruler (the rule of law). In those earlier times, the most common type of political configuration was the Confederation of clans, which could constitute a state. The Ga Kingdom in Ghana, for example, is a Confederation of six extended families or clans.

It may be noted that the Charter forbade wronging foreigners. Africa has always been hospitable to foreigners. Africa’s traditional system of governance has always been open and inclusive, which helped achieve stability. The Mali/Madinke Empire was a confederacy – like all other ancient African empires – and lasted for 400 years. (The Ghana Empire also lasted for 800 years).

Stability, to a large extent, owed its origin primarily to the design and operation of the indigenous political system in which anybody – even including slaves – could participate in the decision-making process, the essence of which was achieving consensus. Note that dictatorship and consensus building are never compatible.

There was representation of slaves, the freeborn and the nobility at the royal court in most African states. There was even foreign representation. The kings and chiefs of Angola and Asante, for example, allowed European merchants to send their representatives to their courts. No one was “locked out” of the decision-making process, to use modern phraseology. “The Dutch dispatched an embassy to the Asantehene’s court as early as 1701” (Boahen, 1986; p.58). In Angola, King Alfonso allowed the Portuguese merchants to send their spokesman, Dom Rodrigo, to his court. Europeans could even be selected chiefs. For example, in 1873, Zulu king Cetshwayo made an English hunter/trader, John Dunn, chief of an isifunda, or district. “Dunn, not content to hover on the periphery of Zulu society, became fully integrated into the social system. He married 48 Zulu women, accumulated a large following of clients, and even rose to the rank of isikhulu” (Ballard, 1988; p.55). Also, the case of Englishman Jimmy Maxen may be cited,  who in 1968 became the odikro of Anyaisi at Aburi in Ghana, shown below. in fact, foreigners can be Chiefs and there are white chiefs in Ghana and Nigeria.

Africans should be proud of and celebrate this constitutional heritage. First, the Framers of that Constitution may have been backward and illiterate but displayed astonishing sophistication in regards to the rights of women, environmental protection and even compassion. Evidently, African women were liberated centuries before their Western counterparts.

The political entity – structured on the Confederacy principle in decision-making by consensus – lasted for 400 years. By contrast, modern African leaders and elites, who sport a string of Ph.D.s, including Agricometriology (the application of nuclear technology to the cultivation of cassava or manioc) could not write a Constitution that would last even 40 years after independence. Why did the primitive Empire built on the Confederacy principle lasted for centuries whereas the modern state built on the unitary state system barely lasted for 50 years after independence? Did our ancestors know something about governance that modern African leaders and elites do not know? It would take a great deal of humility on the part of Africa’s ruling elites to answer those questions.

The peasants could afford to make a white man chief – not so much because they were in awe of white people – but because in their system, real power lay with the people and they could remove bad Chiefs at any time– not after any specified number of years, such as four years.

This author has always decried the foolish aping foreign systems and paraphernalia to impose upon the African people after independence in the 1960s. There is nothing wrong with Africa’s own indigenous economic system. All the leadership had to do is to go back and build upon the native traditions of free markets, free enterprise and free trade. But they never did this on the economic front; nor on the political and constitutional front. This was why things went so awry in postcolonial Africa.

In Mali, this betrayal was most perfidious. Instead of decentralized governance – as in a Confederacy – the ruling elites established a highly centralized one in Bamako, the capital. The one-party state system was adopted as well as collectivist agriculture under the banner of socialism. And get this: The one who supervised the destruction and desecration of Mali’s heritage was the country’s first president, Modibo Keita, who was honored by a number of local griots (a semi-endogamous group of professional bards) in celebratory songs in which the political leader was depicted as the direct descendent of Sunjata Keita, the founder of the Mali empire. The Keita government progressively lost its popularity among various strata of the population. An alliance between the dissatisfied segments of the Malian population—the peasants, the merchants, and the army —led to the success of the military coup d’état of 1968 that ousted Keita. But then the next “rat” – Moussa Traore – came to do the same thing: reintroduced the socialist one-party state system, collectivist agriculture, among others.

On March 18, 1991, angry Malians took to the streets to demand democratic freedom from the despotic rule of Moussa Traore. He unleashed his security forces on them, killing scores, including women and children. But pro-democracy forces were not deterred and kept up the pressure. Asked to resign on March 25, he retorted: “I will not resign, my government will not resign, because I was elected not by the opposition but by all the people of Mali!”. But two days later when he tried to flee the country, he was grabbed by his own security agents and sent to jail. From there, he lamented: “My fate is now in God’s hands.”

The lesson in all this can be gleaned from this African proverb: “He who does not know where he came from does not know where he is going.” Africa is lost because its ruling elites do not know where they came from. China has Confucius; so they have built 54 Confucius Institutes. Go figure.

Let’s hope the Gambian Constitutional Review Commissioners know where they came from.

The writer, a native of Ghana, and President of the Free Africa Foundation, both in Washington, DC. He is the author of the forthcoming book, The African Take-Off

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