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Legal answers of Dr Henry DR Carrol (MRG), when jointly interviewed with Mr Emmanuel Joof, Chairman of National Human Rights Commission, on QTV by Mr Benjamin Roberts on Monday 25th November, 2019

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By:- DR. Henry D.R. Carrol (M.R.G.),
Senior Oxford-Trained Lawyer, Solicitor
General Emeritus Of The Gambia & Founder
Senior U.T.G. Law Lecturer (From 2007 to Date).

Programme anchor Benjamin Roberts: Distinguished ladies and gentlemen, welcome once again, to our popular QTV Business & Economy programme. Today we are going to analyse, some important parts, of our 2019 Draft Constitution, which has been [presented] by the ConstitutionReview Commission (CRC). To help us with this noble task, our two distinguished Gambian legal luminaries, who have been invited to do this patriotic task, are Dr Henry Carrol, a solicitor general emeritus of The Gambia, and a founder senior University of The Gambia Law lecturer (from 2007 to date), and Mr Emmanuel Daniel Joof, the able chairman of our National Human Rights Commission. Distinguished gentlemen, welcome to the programme.

First and foremost, let’s begin with the bit that has been dubbed the most controversial aspect of the 2019 Draft Constitution – omission of the words “Secular” or “Secularism” in the draft constitution. Dr Carrol, the issue of secular and secularism is not a first in The Republic of The Gambia. Could you be gracious enough to give us the history of the contention for the inclusion of the word in our previous constitution?

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Dr Carrol:- Thank you Mr Roberts, for graciously inviting me once again, to this your popular programme. It is an important civic duty, and I am very happy to be here. Now to answer your first question, “secular” and “secularism”, should in fact be a first in The Republic of the Gambia. Let me now briefly give you the history of the contention for the inclusion of the word, in both our previous constitution (that is, the 1970 Republican Constitution) and our present 1997 Constitution, which is still in force. Admittedly, Section 1 of our 1970 Constitution says: “The Gambia is a Sovereign Republic.”

At that time, this was ideal and acceptable, because by then, there was no religious fanaticism in our country, Christians, Muslims, other faiths, and even unbelievers, all lived peaceably as one family, as our National Anthem says, “For The Gambia our homeland, we strive and work and pray, that all may live in unity, freedom and peace each day…..”. It was in 2001, when Mr Joseph Henry Joof, the Attorney General and Minister of Justice, inserted the word “secular” in Section 1 of our 1997 Constitution. Honourable Mr Kemeseng Jammeh (MP), challenged Mr Joof, and took him to The Supreme Court. Our present and learned Lord Chief Justice, Mr Hassan Jallow, was the sole Supreme Court judge, who dealt with the case. He ruled that the said insertion by Mr Joof was unconstitutional, because that Section 1, was an entrenched clause, and therefore for it to be properly amended, the IEC should have conducted a referendum, but this was never done.

Mr Roberts: Discussions on some social media platforms have put forward cogent points, against the exclusion of the word “secular” and “secularism” in Section 1,Subsection (1) of the 2019 Draft Constitution. Some of the arguments are thus: (1) That whether the word “secular” or “secularism”, was or was not in the previous constitutions, is not what matters, but rather what is the purpose to be served by its inclusion. (2)That no elected official will attempt to bring in his/her religion, in the execution of his/her duties. (3) That seemingly there is a precedent given to sharia to the creation of a Sharia High Court, calling into question, which is the spirit of the Constitution should be endeavouring to give effect to sharia under a secular state?and not the precedence or dominance accorded to it in the 2019 Draft Constitution… I would want to have both of your views on these cogent arguments put forward within social media discussion fora on the draft constitution.

Dr Carrol:It goes without saying, or it is axiomatic, that the legal inclusion of “secular” in Section 1 of the 2019 Draft Constitution, by the CRC members, would indeed serve a very useful national purpose. It will clearly help to prevent history repeating itself in The Gambia. We do not want another president like Yahya Jammeh, attempting to illegally and unconstitutionally declare The Gambia as an “Islamic state”, without a referendum. Present Gambian Christians have no problem with His Excellency, President Adama Barrow. He is a liberal and broad-minded Muslim. Our fear is, the president coming after him.My second answer relates to the third argument on social media. The status quo must remain as it is. That is, a restrictive application of the sharia, in matters of marriage, inheritance and divorce, as stipulated In Section 7 (f), in our present 1997 Constitution. If the Cadi Appeals Panel is upgraded to a Sharia High Court, then similarly, Christians will also ask for a “Christian High Court”. What is sauce for the goose is also sauce for the gander.Then our present High Court, to which both Christians and Muslims have equal access, will be a white elephant.

Mr Roberts: Dr Carrol, should the explicit provision for Sharia Law to the point of establishing a high court be a cause of concern? Or is this perhaps a result of say, the challenges being experienced at the level of the cadi court, the administration of the provisions of Sharia law? And if so what has the experience been at the level of the cadi court, to the point where it warrants the establishment, for the first time in the Constitutional history, this demand for a Sharia High Court?

Dr Carrol: Firstly, it is legally and linguistically wrong, to say Sharia Law, because sharia means Islamic law, therefore to say sharia law, is highly tautological… Yes, the explicit provision for the sharia, to the point of establishing a high court, is indeed a big cause for great concern, especially for Christians and liberal-minded Muslims. Therefore, this strange proposal made by the CRC, is unconstitutional. It will divide Gambians, instead of bringing them together, as our National Anthem says, and this unacceptable proposal, will be diametrically opposed to The Gambia’s indisputable status as “a secular state.”

Mr Roberts: Sub-section 3,Section 12 on Duties of Citizen provides for “safety of whistleblowers regarding corruptive practices”. Pursuant to the same Sub-section (1)(g), why does the provision in Sub-section 3 not extend to Sub-section (1) (k), given the challenges we are facing as a national environmental mismanagement, such as illegal dumping and illegal deforestation amidst global warming challenges?

Dr Carrol:Firstly, it is of paramount importance to provide safety for whistleblowers regarding corruptive practices. It is legally wrong to say “corruptive practices”, instead it should be “alleged corruptive practices”, because under English Law, “Every accused is presumed innocent, either until he/she has been proven guilty, or until he/she has pleaded guilty”.

It is very important for the State to protect whistleblowers, because of the possibility of fatal reprisals from either the accused/ suspect, or his/her associates. A good example, was what happened in Ghana recently, when a whistleblower who was habitually exposing top public servants, for alleged official corruption, he was shot dead.To answer your second question on why the provision in Sub-section 3 did not extend to Sub-section (1) (k). Now Sub-section 3 of Section 12, under the subtitle “Duties Of Citizens” reads: “A person who exposes, or engages in any lawful act to prevent, the misuse and waste of public funds and property pursuant to Sub-section (1) (g) commits no offence under any law, including this Constitution.” Now Sub-section (1) (k) of Section 12 of the draft says: “The exercise and enjoyment of rights and freedoms provided for in this Constitution, are inseparable from the performance of duties and obligations, and accordingly, every citizen shall:(k) protect and conserve the environment of The Gambia”.

Yes, I concur in toto ab initio, that the protection given to people in Sub-section 3, should also be extended to people, connected with Section 12(1) (k) (that is, those who “protect and conserve the environment of The Gambia”). But there is a monumental environmental protection problem here. The preamble of Section 12 (1) clearly says: “The exercise and enjoyment of rights and freedoms provided for in this Constitution, are inseparable from the performance of duties and obligations, and accordingly, every citizen shall: (k) protect and conserve the environment of The Gambia.” This strangely means, that only Gambian Citizens have the constitutional obligation or duty, to protect The Gambia’s environment. Therefore, non-Gambians are free to pollute with impunity, with no legal liability. As a founder senior environmental law lecturer, at The Faculty of Law of The University of The Gambia, I have always told my LLB degree students, that this preposterous and discriminatory provision, which is a flagrant violation of the general anti-discrimination clause, in Section 33 of our 1997 Constitution, must be amended as soon as possible, for better environmental protection in The Gambia. But here are we again, the chairman and other CRC members, are repeating the same monumental mistake in the Draft 2019 Constitution. Unfortunately, bad environmental history, is repeating itself.
Editor’s note: The transcripts of this interview were provided by Dr Carrol. Up to the time we went to press, this prerecorded programme was not broadcast by QTV.

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