By Omar Bah
Lawyer Abdou Aziz Bensouda has revealed that the newly released draft constitution is fundamentally different from the original 2020 draft with a large part of its provisions changed, and in one case, a whole chapter removed.
He observed that the new draft constitution undermines separation of powers.
The new draft was released last week with government claiming it reflects The Gambia’s national values and ethos, and is consistent with its existence as a sovereign independent republican state premised on democratic principles.
However, the draft has been greeted with widespread criticisms for the many changes people perceived have been done to suit the interest of a few people.
Analyzing the document on The Brunch on Kerr Fatou Saturday, Lawyer Bensouda said unlike the 2020 draft which came with a detailed explanation of how provisions are justified and even a detailed list of those who worked on the document, the new draft did not come with any explanations or justifications for the many important items changed.
Bensouda further disclosed that very important elements dealing with transparency, conduct of public officials, the role of the Anti-Corruption Commission, civil liberties that have been well placed in the old draft, have all been changed in the new one and the government should explain why.
He said the powers of the Anti-Corruption Commission, for example, have been reduced significantly as most obligations to the commission have been tempered somehow.
He then went on to highlight the changes that potentially risk undermining the independence of the judiciary and taking away the rights of the people.
Judiciary financial autonomy
According to the lawyer, under the current constitution, the Judiciary, through the judicial secretary, submits its financial statement and budget to parliament but under the amended draft, the judiciary will now submit its budget to the president and it is the president who would submit it to the parliament.
“The new draft has also made it compulsory for judges to declare their assets to the Anti-corruption Commission before they become judges and after their tenure whereas ministers are free from doing so after they leave office.
That wasn’t in the 2020 draft,” Bensouda added.
He also noted that the Judicial Service Commission, which deals with the appointment of judges, currently consists of the Chief Justice, judges of the Superior Court, and a representative of the Bar Association, but under the 2024 draft, they have changed the requirements to now consist of the Chief Justice, AG, a judge of the Court of Appeal, a judge of the Supreme Court, the most senior Sharia judge, a magistrate, a Seyfo, IGP and a Bar Association member.
“While this may not mean a lot to the layman, if you ask a lawyer, they will say well, why? Because the body that deals with the appointment of judges should have very high legal qualifications. But how would a Seyfo or IGP be relevant in this? The judiciary is supposed to be independent so the more you subject the appointment of judges to the employment of government, you are moving the judiciary from being equal to the executive to being below the executive because now to terminate a judge – the IGP, AG and Seyfo work for the government. This undermines the independence of the judiciary which is a dangerous situation and I wouldn’t have expected that in 2024,” Bensouda reasoned.
Nomination for president
On matters dealing with the nomination of a presidential candidate, Bensouda revealed that the 2020 draft makes it compulsory for a nominee for president to declare assets to the Anti-Corruption Commission so that the commission can make its investigations, but this has been removed in the new draft, which now requires a nominee to declare only to the Independent Electoral Commission as obtained under the 1997 constitution.
Also, the provision that forbids political parties from receiving funding from non-Gambians has been removed whereas the provision which requires presidential nominees to have been resided in the country for at least three years has also been removed. “Even the clause which also says a person being nominated for president should submit a medical assessment has also been removed,” Bensouda said.
He further observed that the clause which forbids a presidential nominee to falsely declare assets has been removed, meaning that under the new provisions, you can lie about your assets and go scot-free.
Impeachment
Also in the new draft, the section which gives powers to National Assembly to impeach the president if he/she violated the constitution by one half of the Assembly has been changed to ‘gross misconduct’ instead of ‘violation’ and it has to take a two third majority to impeach the president.
“To make matters worse, under the 2020 draft, the tribunal that would sit over the process of impeachment would have included the chief justice, three others holding high judicial office and a layman who is not a judge, but that has been changed. It is now the chief justice, Supreme Islamic and Christian Councils representatives, a representative from the Medical and Dental Council and a representative from the Gambia Chamber of Commerce. Now how can some of these members understand the issues to be relevant to such a process?” Bensouda said.
Succession to presidency
The lawyer also revealed a fundamental change in the succession procedure of a sitting president should he or she resign, die or fall sick.
“In the old draft, and even currently under the 1997 constitution, if the president resigns before the end of his/her term, there should be an election within 90 days. But in the new draft, if the president leaves office as a result of those circumstances, the vice president, Speaker or Chief Justice or whoever becomes the successor will complete his term, meaning that Gambians will lose the chance of electing their leader right away. They must accept an unelected leader until his or predecessor’s term ends,” Lawyer Bensouda said.
Asset declaration
“The provision for ministers and their spouses to declare their assets before coming to office and after leaving office to the Anti-Corruption Commission in the 2020 draft has been changed, meaning that now the ministers and the vice president are required to declare their assets only when coming into office but are not subjected to do so when leaving office and this applies to their spouses. These changes to the previous draft are unfortunate”, Bensouda said.
He said strangely enough, the new draft requires National Assembly Members and judges to declare their assets when coming into office and when leaving office to the Anti-Corruption Commission.
Leadership
According to the lawyer, Chapter 5 which deals with leadership and integrity in the old draft, has been totally deleted in the new draft. “That is the chapter that envisaged good leadership, public accountability, and transparency. It also deals with the conduct of public officials and seeks to address conflict of interest and bribery. The chapter was aspirational and not mandatory. It envisaged good leadership,” Lawyer Bensouda added.
Term limit
On the vex issue of term limit which among other things led to the rejection of the 2020 draft allegedly masterminded by government, Lawyer Bensouda said the new draft is not clear on the term limit issue.
”I think if the intention is to shield the president from any argument about why he could not run in 2026, then they have made a mistake because my interpretation is that if this constitution passes before the end of his current term, he would not be able to run in 2026. The interpretation as I understand it is that you cannot run for more than ten years and in this case, Mr Barrow would not be available to run in 2026. If they wanted him to run for a third, they should come up with provisions that deal with that but they have not done that. There is ambiguity in the current provisions and anybody can go to court anytime this constitution is passed to argue no one can run for more than two terms,” Aziz said.
State of public emergency
Bensouda said when a public emergency exists, there is a process that dictates how it can be extended but the law that empowers citizens to go to the Supreme Court and challenge the extension has been removed in the new draft.
“In essence, the power of the Supreme Court to check the executive has been removed,” he said.
