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Tuesday, November 24, 2020

Gambia’s 2020 Final Draft Constitution: A critical political-economy perspective

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By Prof Abdoulaye Saine

Having read the Final Draft Constitution, Report of the Constitutional Review Commission on the Draft Constitution for the Third Republic of The Gambia, and Explanatory Memorandum to the Draft Constitution, in that order, and viewed several interviews, including Harona Drammeh’s with CRC Chairman, Justice Cherno S. Jallow, I am now in a position to share my thoughts on this important national document.

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Before doing so, I wish to discuss briefly key assumptions that inform this review, because like most reviewers who have not made their assumptions (biases) explicit, or known, I hold views of a political and economic nature that, in spite my best intentions, may sway my “objective” review. This is to be expected.

I have since the release of the final draft read eloquently presented arguments by political and legal scholars and pundits debating the merits and implications of one provision or another in the 2020 Draft Constitution. This is extremely healthy. Yet, as persuasive as these arguments are, they all exhibit the values, or normative preferences of the authors who scripted them, notwithstanding the legal, political and sociological reasoning(s) they were couched in.

That is to say, they are views, perspectives, even worldviews individuals hold as a result of shared core cultural values, disciplinary/professional training, lived-experiences, etc. Thus, Gambia’s Draft Constitution, before its adoption, is a deeply cultural, political, sociological and economic document, as it reflects a cross-section of views and sensibilities of Gambians. Whether this is “manufactured consent,” is another question for another time.
Assuming that the Draft reflects the views of Gambians, which I believe it does, to a great degree, it is bound to be contested space between framers on one hand, and conflicting preferences, views and perspectives, on the other. Yet, the Draft goes beyond these to also include economic and political proposals made by framers/drafters to Gambians. In sum, inasmuch as Gambia’s Draft Constitution is bounded in legal parlance and practice, it is deeply political, academic, normative and ideological document. I will spell these out as we go along.

Another assumption/view I hold is that the legal apparatus, is part and parcel of the State, which also includes the Executive, Legislature and the Military. It is the Constitutions and laws of a country that provide the legitimizing ideological glue to lived social/ societal and economic relations. The Draft Constitution is, as a result, a proposal in which rules of the game between competing elites themselves, is set against a backdrop of political, economic, religious, gender, racial and regional formations and hierarchies.

Constitutions rationalize embedded political, economic, and social formations and relations, and though a potential tool for social reform, it is likewise, a tool to maintain the status-quo- hence leaving fundamental political and economic interests in place. In other words Constitutions, at their best, are derivative, and reflective of material conditions, hierarchies and inequities in society. They express values, mores and myths that are embedded in social, economic and political relations in socially and economically stratified societies, as Gambia’s. Though mostly hidden in political and legal rhetoric, it is these elements of the Constitution’s legitimizing function, as part of the superstructure that amplifies its political and ideological proclivities.

Drafting a Constitution, like writing a book, or peer-review journal article, is an academic enterprise and brings with it preferences for how data/ views are organized and interpreted. In them lie methodologies to validate data, assess significance, reliability and relevance. This is what the CRC did worldwide and did very well.

Also, the kinds of questions Drafters asked, as well as use of the “Comparative Method” popular among political science “Comparativists,” who study Constitutions, (as I did in an early stage of my career), utilize the most “Similar and Different” research design to improve best practices. This is as much an academic endeavor as it is a legal enterprise. Importantly, Drafters’ training in professional/graduate schools often betrays, a Progressive, Liberal to Conservative continuum. This slant, or bias is not necessarily a bad thing- we all have them. They may be conscious, or unconscious to Drafters. Yet, they will likely bring them into the drafting process.

In sum, despite how hard members of the CRC tried, their values, ideas, morals, worldview(s) and training invariably leached into drafting of Gambia’s Draft Constitution. In my case, I am partial to a democratic, social-welfare systems similar to what obtains in Scandinavian countries. When it comes to social, moral concerns, my leanings are “progressive,” and lean more to the “left,” though not Communist. I oppose the death penalty and fervently advocate the fundamental rights of women, differently-abled, farmers and the historically marginalized in our society.

So, I am not neutral, and other reviewer, as well as Drafters are not. This is a good thing, and it is especially important to be conscious of these when writing an academic journal article, drafting a national Constitution, or reviewing them. I should mention in passing that compelling scholarly arguments advocate: “objectivity,” and “distance,” keeping one’s views separate and distinct from the research, and in this case, drafting process. I do not subscribe to this view.

Now that I have briefly staked out my political, economic, and social positions(s), i.e., my biases and “ideology,” I can now engage in a brief assessment of Gambia’s 2020 Final Draft Constitution. This is a twenty chapter document, and time and space will not allow for a detailed review and assessment here. What I offer here is an overview.

First, the CRC, and staff must be commended for having produced a good Final Draft Constitution; one that was inclusive, participatory, and transparent. It is a solid Draft Constitution that provides Gambians a way forward into the future with clearly delineated “Separation of Powers,” “Checks and balances” clauses, and well-defined rules of the game. The seriousness and painstaking methodology with which the CRC conducted business, collected data/opinions and collated and presented them in a clear and readable fashion, speak to their professionalism. Perhaps the single most important attribute to a good Constitution, lies in its effort to strike the proverbial middle-ground between contending/conflicting group interests, each, in the end, realizing their stated goals while making concessions to others. This is what the Draft has “succeeded” in doing to a large measure.

The Gambia’s 2020 final Draft Constitution is qualitatively superior to the 1965, 1970, and 1997 Constitutions. Retaining the best of the 1997 Constitution, Drafters strengthened fundamental rights of citizens: First Generation Rights (personal, press and other freedoms). Though the term “Secular” was omitted, the Drafters seized every opportunity to guarantee and strengthen rights and freedoms of religious, differently-abled, gender, group and cultural rights for all. Freedom of the Press was bolstered as well.
Equally compelling in the final 2020 Draft are the expansive economic rights and freedoms granted to citizens: rights to food, shelter, education until high school, a clean environment and to “Development.” While these rights and freedoms are seldom granted citizens even in older, more stable and wealthier democracies, Gambia’s Drafters took a bold and “progressive” stand aware that these rights, to a large degree, are contingent on Gambia’s socio-economic development. Aspirational as they are, Drafters thought it prudent to grant each Gambian these rights.

Additionally, cognizant of Gambia’s troubled autocratic past, Drafters made provisions to curtail the probability of another autocratic president placing himself/herself above the law. The Separation of Powers with provisions that strengthen the Legislature and Judiciary vis-√†-vis the Executive branch of Government, bodes well for the country well into the future. In great detail Framers spelled out functional responsibilities, mandates and jurisdictions of the branches of government. Responding also to the specific challenges presidential term-limits posed for the presidency in year’s past, Drafters left no room for current and future presidents to maneuver and extend their stay for a third term.

Restoration of the absolute majority provision that had been expunged from the 1997 Constitution in place of a simple majority (first-past-the-post) electoral system, makes it almost impossible for any political party to win the absolute majority of votes cast. This enables new and smaller political parties to play roles that they, otherwise, would, or could not. Along with on-the-spot-vote-counting, these provisions will likely broaden and strengthen Gambia’s political and democratic space and voter choices.

Therefore, these constitutional provisions portend a more politically inclusive, competitive and transparent future democracy. Crucially important also is inclusion of campaign-finance laws to avert the political process and politicians from being beholden to special interests. In a similar vein cabinet and other senior presidential nominees will now be vetted by the National Assembly. This, too, is an important addition that further institutionalizes transparency and accountability in the 2020 Draft Constitution.

Provisions strengthening representation that include fourteen women in the National Assemble (ridding the dubious provision of six nominated members that likely rigged votes in the president’s favor) along with two representatives for the differently-abled, adhere to international best practices and the liberal tradition. The CRC took some bold steps to regulate the Judiciary itself endeavoring to make it as independent and as transparent as possible to avert it from being used as a tool by a powerful executive. The role of judges in the hierarchy of courts including the Cadi Courts further delineate their powers and judicial mandates and jurisdictions.

In sum, there are numerous Constitutional Provisions in the 2020 Draft Constitution (that time and space will not allow me to review here) that guarantee fundamental freedoms, rights as well as define roles and functions of Public Institutions, Regulatory Bodies, land, intellectual/property rights, and rights to a clean environment, etc.

Yet, despite many strengths, innovations and its liberal thrust, the 2020 Draft Constitution exhibited some “conservative” tendencies on issues which the CRC could have taken a bolder and more ‚Äúprogressive” stance. Take for instance the omission of the term “Secular.” Its inclusion in the 2020 Draft could have settled once and for all this vexing issue and assuage the legitimate fears of Christians and other religious minorities.

The CRC may have suffered a mild case (some would say a severe case)of what I call the “Plague of Majoritism.” This is a worldview in which a majority religious, racial, and/or ethnic group becomes almost oblivious of the concerns and fears of religious, or ethnic minorities. As a result of which majorities fail to question their unearned privileges in society. Call it also, “tyranny of the majority.” Consequently, the CRC ended up too restrained, or cautious to appease the “Muslim Majority.”

I hold this view because Drafters have discretion, as they have demonstrated on other matters, including “Citizenship.” In excluding the term “secular,” they may have consciously, or unconsciously referenced their own worldviews, political/religious leanings, training, values and normative preferences/biases. In fact, Framers danced coyly around the term perhaps restrained by their moral, social, and political leanings. This hesitation and what I perceive sometimes an overly restrained temperament may reflect “group-think. Therefore, a pertinent question to ask is: What prior frame(s) and sensibilities did Drafters bring to the drafting process of the 2020 Draft Constitution?

In sum, while the CRC employed the “Comparative Method,” in appropriating international best practices from other similar cases to strengthen the 2020 Draft, it did not appear to follow positive cases in which the term “secular” was employed. Here, the CRC Drafters exercised discretion and opted for the “negative” case, instead. This choice was predicated not so much on legal grounds, per se, but more so on normative preferences whether consciously or not. It is the CRC’s choice backed by “majority” demand, members could respond. I respect that. It is the choice they made even though their might have been a few dissenting voices- again call it “tyranny of the majority.”

Similarly, the CRC, I believe, was much too constrained when it came to the issue of who was granted “citizenship.” While the 2020 Draft recognizes the “equality” of all citizens, I was struck by the hierarchy and the varying rights each category of “citizenship” enjoyed, or could exercise. Granting citizenship to individuals born to one, or two Gambian parents conforms to international best practices. They occupy the first rung in the hierarchy, followed by persons who are granted citizenship by virtue of being married to a Gambian national. The third rung in the citizenship hierarchy are persons who naturalize.

Gambians abroad who still maintain their Gambian citizenship occupy the fourth, whereas Gambians who have dual-nationality occupy the last rung. The enjoyment of rights and privileges by individuals in each category vary considerably, with the first rung enjoying the most unfettered rights, whereas Diaspora Gambians, and those that hold-dual-nationality, in particular, enjoying the least. It is a case of Orwell’s Animal Farm: “All Animals are equal, but some animals are more equal than others.”

This is because the 2020 Draft makes it almost impossible for third and fourth rung citizens to vote, or gain representation in the National Assembly for different reasons: one being the putative logistical and financial burden it would likely cause the “State.” And, in the case of dual-nationality Gambians, because of possible “conflicts of interest.” In doing so, the last two categories of citizens are technically stripped of their most basic rights to representation and the franchise. In this instance the CRC, as in other cases chose to maintain the status-quo rather than adopt the example set by neighboring states.

It is ironic that a relatively large constituency such as Gambians Abroad, often dubbed Gambia’s eight region and who contribute close to $400M annually to GDP, a sum larger than foreign investments, official development aid(ODA), combined, are technically excised and marginalized from the political process. Here too, I believe, the CRC had discretion to take a “progressive” and forward-looking position and work with the IEC to make the rights to vote and representation possible for Gambians Abroad rather than succumb to the”tyranny of the majority, ” as it did with the term “secular.” Alternatively, the Framers could have delegated the National Assembly, as it did with children eight years and over born in the Gambia of unknown parentage. Also, in this case, Instead of granting these children citizenship the CRC opted to once more adopt the “neutral” and politically expedient and passed the buck.

Similarly, the CRC, at a time of a growing continent-wide trend to grant citizenship rights to descendants of enslaved Africans, rejected it on economic grounds when, in fact, equally compelling economic reasons exist for granting them citizenship. Again, on this score the proffered reason was the sheer economic strain it could potentially have on State resources while ignoring the case of Ghana which made more than a billion dollars in revenue from the 2020 “Home Coming” events hosted on behalf of this constituency.

What seems puzzling is that while the Framers granted economic and social rights to Gambians: rights to education, health, housing, etc., fully cognizant of the enormous burden it would also obligate the state, they, appeared less concerned and instruct the State to take all measures to fulfill these rights. The reasons given by the CRC appear more political than legal.

In sum, technically denying Diaspora Gambians, generally, because of logistical difficulties, including dual-nationals, specifically, and descendants of enslaved Africans (with the attendant human resource and capital transfers they promise) is a political-economic determination and not a legal argument, per se. The CRC’s failure to exercise its discretion, I argue, could be in defense of Gambia’s political class of career politicians whose greatest threats to political longevity may partially lie in the Diaspora. Ask Yahya Jammeh?
By narrowing Gambia’s political space and choices the CRC, may have wittingly, or unwittingly sidelined genuine democratic competition of ideas and visions to maintain the status-quo. That may to some extent make them complicit in a major and dramatic legal and political maneuver to defend the political and economic interests of the political and legal elite. The United States Constitution defended rights of Southern slave- owners and the bourgeoning industrial and capitalist class in the East. Similarly, the British Constitution, though unwritten protected economic interests of the aristocracy and landed gentry. And British political philosophers of the Enlightenment were all too eager to rationalize these new political and economic orders. More importantly, in each of these cases, Framers belonged to these social and economic classes. And, in many instances, owned and sold slaves. Constitutions they authored protected their class and economic interests.

It appears to me, on the more universally accepted and uncontroversial entrenched/fundamental rights, and freedoms, (political, social, economic, cultural and group) the CRC made them even stronger. And, on the more controversial and contested, or acrimonious issues surrounding “secular,” “citizenship” for Gambians Abroad, gay rights, the death-penalty, Framers registered a more conservative stance. When “marriage” was defined as “between a man and a woman” the CRC sidelined the gay issue, completely. This omission is more a moral/normative argument and decision than it is a legal one. One would ordinarily have expected some discussion and clarity over this matter, even if the CRC sided with the majority of Gambians This case highlights, in my view, how Framers’ own moral sensibilities may have seeped into the Draft Constitution.

Take the issue of the “Death Penalty.” It is controversial and contested terrain that Drafters could have engaged, but opted instead to not address, and once again passed the buck to the National Assembly. Here, the CRC lost a golden opportunity to end this horrific practice, which is not a deterrent to crime, and more often than not is used for political ends. Gambians need not be reminded of the execution of nine individuals by Yahya Jammeh in 2012 for political and other nefarious reasons. If a national Constitution and its framers do not see the need to tackle the vexing death-penalty issue head-on, I am not sure what is?
The Shari’a Courts, in my mind, remain the Final Draft’s Achilles’ heel, Deeply patriarchal and controversial they harbor potential conflicts vis-a-vis some “equality” provisions of the Draft Constitution. These raise many important questions: For instance, is Shari’s compatible with Gambia’s 2020 Draft Constitution? Will it likely infringe women’s and other group rights and international agreements that Gambia ratified?

In the end, the Gambia’s 2020 Draft Constitution is a good and well-crafted document. It ranks among the “good” Constitutions in the continent because of its liberal thrust. Bearing in mind various stakeholders, and interest groups with different religious, political, moral and economic persuasions it fulfilled the terms of its liberal mandate, well. It delineated clearly the roles, and oversight functional areas, or purviews of the different branches of government, public institutions, etc. I am of the belief, however, that on important issues where the CRC could have and should have given direction as in the case of the death-penalty, the CRC, did not.

Ultimately, Constitutions are political documents with legal trappings, They are political and legal constructs imbued with ideas, ideals myths, mores, interests, and ideology of a people. And, if not handled well could become a tool in the hands of the political elite to serve their hegemonic interests. This makes it all the more important for Gambians and their representatives, the National Assembly, civil society and professional organizations to take ownership of an adopted Constitution and mold it to meet the needs of ordinary Gambians. Equally, they must hold lawmakers and their leaders accountable. Gambians, and especially youth, must not be content to vote every so often to select one official or another. If the latter obtains, the change that Gambians want to see will be slow, fitful and violent. The 2020 Final Draft Constitution, to the credit of the framers, is broadly written, and open to multiple interpretations and amendments. This offers a lifeline to citizens and political parties with alternative visions for a better Gambia but only when they take it upon themselves to act on them.

In the course of this brief review, I sought to unpack, using a critical political-economy approach to analyze and review Gambia’s Final Draft Constitution. While most critiques and reviews have focused on nuanced legal arguments internal to the Constitution, which are useful in themselves, I endeavored to subject the document to a broader interpretation and review while also paying attention to internal matters. The take-home messages, among others are: Constitutions are as much a legal document as they are political, They are driven as much by political imperatives as legal ones. Secondly, it should also be recognized that Framers, like farmers, engineers, researches, and teachers in the academy have normative preferences that are not divorced from their craft(s). In this case, the drafting process, is as academic as it is legal.

Abdoulaye Saine is University Distinguished Scholar and Professor (Emeritus) Miami University now living in The Gambia. Send all comments and queries to [email protected]

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