I cordially invite reference to an eye–catching front–page article, published in the Wednesday 7th October 2020 publication, of the widely–read The Standard Newspaper, titled: “PLANS TO RESURRECT DRAFT WITHOUT C.R.C ARE UNLAWFUL.” The author, Mr Omar Bah’s aforesaid title, was the bogus and totally unacceptable utterance, of my learned junior, Mr Mai Fatty. The first paragraph of Mr. Bah’s article reads: “A former special adviser to President Adama Barrow, has said the Government’s plan to appoint an Independent body of stakeholders, to review the Draft Constitution, is unconstitutional and could spark massive political uncertainty.”
The second paragraph of Mr. Bah’s article reads: “The Minister of Justice, Dawda Jallow, recently told an online media platform, that the Government is now planning to resurrect the document, by appointing an independent body, that would be tasked with the responsibility of ensuring the common ground.” Paragraph 3 of Mr. Bah’s article, which was a continuation, of the Hon. Attorney General’s statement, reads:- “We want the process to be led by people we can trust, not me, our role here as a Ministry, is to facilitate, probably raise the necessary funding and logistics, to support that process, A.G Jallow told the popular internet platform.” Paragraph 4 of Mr Bah’s article reads: “ But in an exclusive interview with The Standard on Tuesday, Gambia Moral Congress leader, Mai Ahmad Fatty said:- “This is positive news, what troubles most of us regarding this, is the intention of the State, to channel this through an Independent body once again, The State has hatched another plot, to kill The C.R.C Act, neutralize it and unlawfully transfer its mandate and jurisdiction, to another independent body.”
My reasoned legal analysis
I am vociferously putting it to my learned junior, Mr. Mai Fatty, that the State’s intention to channel a review of the so–called Final Draft Constitution, through an independent body of stakeholders, this by any stretch of the imagination, is not “…. another plot to kill the C.R.C Act, neutralize it, and unlawfully transfer its mandate and jurisdiction, to another independent body,” as he bogusly asserted, in his aforesaid so-called exclusive interview, with The Standard Newspaper. I am further putting it to my learned junior, Mr Mai Fatty, that the key official functions of the C.R.C., are clearly encapsulated in Section 6(1) of The Constitutional Review Commission Act (2017), which reads:- “The functions of The Commission are, to draft a new Constitution , and to prepare a report in relation to The Constitution.” The C.R.C Chairman, Justice Cherno Jallow and other C.R.C. Members, have therefore fully executed their statutory mandates, and these two important legal documents, were presented by the C.R.C. Chairman, on 30th March 2020, to His Excellency President Adama Barrow, at a televised ceremony at the State House, in the presence of Honourable Cabinet Ministers, other members of The C.R.C etc. As soon as this happened, both the C.R.C. Chairman and other C.R.C. Members, have automatically become “functus offisio” (Latin:- ie description of a person, who has discharged his duty, and whose office or authority, is at an end”, as Google authoritatively says. It is therefore incomprehensible and totally unacceptable, monumental legal nonsense, for my learned junior, Mr Mai Fatty, to bogusly assert: “… unlawfully transfer its mandate and jurisdiction to another independent body.” Paragraph 5 of Mr. Bah’s article reads: “The State’s definition of independent body, is one that is capable of being fully remote controlled by the State. It will not work. The State must follow the law, respect the law and abide by the law. So far, the State has quickly built the reputation of circumventing the law, in situations, that do not favor their subjective disposition, the C.R.C. is the only legal entity, that has the exclusive jurisdiction to review the 1997 Constitution, and to draft a new one…..’
My reasoned legal analysis
Concerning Mr Mai Fatty’s bogus assertion: “ The State’s definition of independent body, is one that is capable of being fully remote controlled, by The State,” I am putting it to Mr Mai Fatty, that not every person is morally bankrupt, and to quote the favorite words of the late Honourable first Gambian Chief Justice, my good friend Mr. Justice Abdu Kareem Savage, if the people appointed by the State to serve in the said independent body, “ are people of timber and caliber” (ie people who can never be remote controlled by the State, people with high and uncompromising integrity), then Mr. Fatty’s aforesaid assertion, may therefore be false. As soon as those members have been duly appointed, they can rightfully sue Mr. Mai Fatty for “slander.” “defamation” is defined in the Law of Tort / Civil Law thus: “the lowering of a person’s dignity and integrity in the opinion, of the right – thinking members of society.” If a defamatory matter, is published, it is called “libel”, and if it is made orally (as it is the case here), it is called “slander.” Mr. Mai Ahmad Fatty, also bogusly asserted: “……The C.R.C. is the only legal entity that has the exclusive jurisdiction, to review the 1997 Constitution.” This is another monumental and unacceptable legal nonsense, and I am again putting it to him, that if my learned friend, the Hon. Attorney General, rightly advises His Excellency President Adama Barrow, to officially appoint members of this independent body, by evoking the executive power, given to him by Section 76 (1) of our 1997 Constitution, those Presidential appointees, will have the same powers and mandates, as the defunct members of the C.R.C.
Paragraph 6 of Mr. Bah’s article reads: “…Fatty further argued that the attempt may lead to civil strife and instability in the Country, because they shall be resisted by Political Parties and Civil Society, by all necessary immediate means.” I am putting it to My learned junior, that he knows full well, about the three inchoate / incomplete offences in Criminal Law, namely: (1) Incitement, (2) Conspiracy and (3) Attempt. By the aforesaid irresponsible and unpatriotic utterance of Mr. Fatty, he can be rightly and swiftly arrested by the police, and charged with “Incitement of Violence,” contrary to The Criminal Code. The inchoate Criminal Offence, that is allegedly committed, when one urges another, to commit a crime, is called: “incitement.”
The Gambia as a secular state
Section 1 of the Final Draft is titled: “The Republic,” and Section 1 (1) only reads: “The Gambia is a Sovereign Republic”. Gambian Christians, under the leadership of The Gambia Christian Council,(G.C.C.), have been persistently requesting, that Section 1 should clearly say inter alia:- “The Gambia is a Secular State,” but the C.R.C. Members, have persistently refused to accept this, most likely because, they were influenced by bogus Gambian lecturers in the diaspora, who bogusly and ignorantly asserted, that if “Secular State,” is inserted in the Final Draft, this would legalize homosexuality and lesbianism in The Gambia. Section 144 of The Criminal Code (1933) is titled: “Unnatural Offences”, and homosexuality and lesbianism are both criminalized, and are called “acts against the order of nature”. The main reason, why The G.C.C. strongly advocated for “Secular State”, to be included in Section 1, was that on 12th December 2015, the ex-President Yahya Jammeh, unilaterally and unconstitutionally, declared The Gambia as: “An Islamic Republic,” thereby making Gambian Christians, second class citizens, in their Motherland. This was a flagrant violation of Section 100 of our 1997 Constitution, which inter alia, expressly prohibits The National Assembly, from passing any Bill, which makes a particular religion, to be The State Religion. Even though “Secular State” was unconstitutionally inserted in Section 1 of our 1997 Constitution, and in the landmark case of Kemesseng Jammeh Vs The Attorney General in (2002), the Gambia Supreme Court held that, the said insertion was unconstitutional, as it was an Entrenched Clause, therefore for it to be properly and fully amended, the I.E.C. must also conduct a Referendum for The Gambia’s electorate, concerning this Constitutional issue of paramount importance. Both parliamentary approval and a referendum on the matter, should have been executed. But in this case, only the first Constitutional requirement was satisfied. Despite all this, the G.C.C. rightly wanted “Secular State” to be inserted in Section 1 of The Final Draft, as an Entrenched Clause. The Oxford Advanced Learner’s Dictionary by A.S Hornby, authoritatively inter alia defines “democracy,” as: “majority rule, accompanied by respect for minority rights.” This is why, in our present National Assembly, we have both a Majority Leader and a Minority Leader. The G.C.C. strongly relies on the famous adage: “once beaten twice shy” (ie once hurt, one is doubly cautious in the future).
On Tuesday 6th October 2020, the G.C.C. under the leadership of its able Chairman, The Most Rev. James Allen Yaw Odico, called for a press conference, at The G.C.C. Headquarters in Kanifing, in which it was made abundantly clear, inter alia (1) The G.C.C. objects to Secular State being omitted from Section 1 and (2) The G.C.C., also inter alia objects, to the multiple references of “ The Sharia” in the so – called Final Draft. The G.C.C. prefers, what is written in Section 7 (f) of our present 1997 Constitution (ie The Sharia shall only apply restrictively, in three areas: (1) marriage (2) inheritance and (3) divorce, among people to whom it applies). Apart from these 3 areas, The G.C.C. also strongly objects, to the other multiple references, of The Sharia, in other parts of the so-called Final Draft Constitution, because this is diametrically opposed, to The Gambia’s cherished status as A Secular State.
The National Assembly Select Committee on Human Rights, whose able Chairperson is the Honourable Speaker, Mrs Mariam Jack – Denton, made the important observation, that Section 7 of our 1997 Constitution is titled “The Laws of The Gambia,” is an Entrenched Clause, but the corresponding Section 101, in the so- called Final Draft, is not an Entrenched Clause. The said Parliamentary Select Committee, has therefore rightly recommended, that Section 101, should also be made an Entrenched Clause, in order to protect the rights of minorities in The Gambia, especially Gambian Christians, and non-Gambian Christians, living and working in The Gambia. The main Constitutional difference, between a General Clause, and an Entrenched Clause, is that, it is much easier to amend the former, than to amend the latter. The legal modus operandi for amending the former, is for the Hon. Attorney General to go to the National Assembly and table a Motion, for its amendment. If two-thirds of Hon. M.P.’s vote in favor of the Motion, then the proposed amendment is fully completed. But to amend an Entrenched Clause, the aforesaid legal procedure must first be strictly complied with and after that, the Hon. Speaker will then have to write officially to the I.E.C Chairman, the honest, Hon. and God-fearing Alhaji Mr. Momarr Njai, and officially request him, to conduct a referendum on the matter.
“Christians’ complaints over the draft should be taken seriously.”
I was very flabbergasted, when I recently read an article with this title, recently published in the Monday 12th October 2020 publication, of the widely- read The Standard Newspaper. The author, Omar Bah, was quoting an utterance of my learned junior, an ex-Interior Minister. But Mr Fatty was indeed “blowing hot and cold” (ie contradicting himself), since he bogusly went on to say: “… yet it should be appreciated, the Draft cannot provide for the subjective needs of every individual or group…” I am further putting it to him, that The Gambia’s Christian Community, though small in number, as opposed to the greater Muslim Community, is not just any group. It is a crucial group, and a force to be reckoned with, because it is a small group that makes The Gambia, a Secular State (ie a State, which does not recognize any religion as the State religion).
If my learned junior, Mr. Mai Fatty, when he was studying for his Bachelor of Laws (L.L.B) Degree, at a University, he studied Company Law, then he will obviously know, about the famous “Rule In Foss Vs Harbottle (1843), which inter alia dictates:-“ That majority shareholders, will never be allowed, to bully minority shareholders, even though they are, the prime movers of the company.” I rest my case.
