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Monday, April 12, 2021

Letters: Who gave CRC the mandate to expand the jurisdiction of the Cardi Courts?

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Dear editor,

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I have read through the 11-page document of the CRC Act of 2017 at least 11times and could not find anywhere the CRC is given the mandated to expand the jurisdiction of the Cardi courts. On the contrary, section 6(2)(d)(vi) states ‘In carrying out its functions under subsection (1), the Commission SHALL[…] safeguard and promote […] The Gambia’s continued existence as a SECULAR STATE [in which ALL FAITHS ARE TREATED EQUALLY and encouraged to foster national cohesion and unity].’

1. The commission SHALL
This makes the matter non-negotiable. The CRC is bound by law to ensure the Gambia through the constitution is known and operates as a secular Republic. Now I ask, how does the non-inclusion of the term ‘secular’ help enforce the CRC’s mandate of ensuring a secular state? Mind you I said, ‘non- inclusion’ and not ‘omission’ to spare the optics the argument of ‘Kemeseng versus the Attorney General,’ which is beside the point, a mere distraction. It is common sense that just because the term secular was not in the previous constitutions, does not mean it cannot be in this one.

As for the argument that secularism means irreligion, it is a non-starter. I believe the commissions will not allow those with a distorted notion of what secularism is to determine what we are or are not as a country. By the way, they had the option, didn’t they, of challenging the CRC Act of 2017, specifically section 6(2)(d)(vi) that mandated our secularity as a Country. What they do not have the right to do is, prevent the CRC from enforcing a mandate given by an act of the National Assembly.

The reference to section 49 and 151(2) by many in arguingthat secularism is ‘implied’ and therefore assured, does not hold water. Allow me to use Lawyer Emmanuel Joof’s very clever illustration in relation to this point, to help put this argument in context: I quote; ‘For example if Mr. Jacob Daniel Njie becomes President of the Republic of the Gambia and for some reason decided that to help his Christian community he will use state funds to build 100 churches, put all priest and pastors on salaries provide for them free vehicles and housing etc. Can anyone challenge him based on sec 49 or 151(b)??? Remember he has not stopped anyone from practicing their respective religions nor has he established a state religion.’ The answer is obvious. Mr. Jacob Daniel Njie cannot be challenged legally based on these provisions. Where then is the secular state you argue is “implied” from these provisions? Clearly, the CRC for whatever reason has failed to ensure a secular republic as mandated by law. Remember, the act says the ‘commission SHALL’!!

2. ‘The Gambia’s continued existence as a SECULAR STATE…’
How did our ‘implied secular republic go from Cardi courts, to Shariah Magistrate courts, to Shariah high courts, and having supreme court jurisdiction? Going by section 189, under the subtitle, ‘Qualification for appointment of judges,’ we could end up in our common law courts with judges whose only training is in Shariah. We could end up with a chief Justice whose only training is in Shariah. In the same bid, the criteria set in this same section make it IMPOSSIBLE for a non-Shariah trained judge to be a Shariah court judge. And again I ask; where did the CRC get the authority to introduce these sweeping expansions of this Islamic institution??? How does this development align itself with the clearly spelt out mandate of ensuring a ‘SECULAR REPUBLIC?’ These concerning serious developments makes it hard to disagree with those who argue that this constitution has ‘an Islamic state in mind.’ It makes credible the reasoning that what we have in this draft constitution is a viable launch pad to a full-fledged Islamic Republic.

Section 151(2)(b) states ‘The National Assembly shall not pass a Bill-to establish any religion as a state religion;’ The point is, the National Assembly does not have to pass a bill to make Islam the state religion, the draft constitution has already done that. We may not necessarily be called ‘Islamic Republic of the Gambia’ but we have the workings of an Islamic republic embedded in the constitution. This therefore draws us to the logical conclusion that the non-inclusion of the term ‘secular’ paralleled with the sweeping expansion of the Islamic religious law, only spells one thing ‘an Islamic State in Mind.’

How does embedding Islamic religious laws/Shariah in the constitution ensure equal treatment of all faiths? This draft constitution established Islamic religious law as a state function in no unclear terms. Shariah courts, with shariah judges fully funded by all taxpayers. Speaking of state patronage, preferential treatment of a religion over and against other religions! As a minority, and I know I speak for most of us, we feel left out and unprotected by this draft constitution. This draft constitution discriminates against us and we are not having it.

I call on the CRC to take the bull by the horn and do what is right for our beloved nation. We have a nation to build, so much for our ‘common good,’ stir us in that direction. Give us the opportunity to entrench the term ‘secular republic’ in the constitution. With all due respect remove the provisions of Shariah in our constitution, they do not belong there.

Elizabeth Bass
A concerned citizen

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