By Madi Jobarteh
Why did the Barrow administration change only two provisions in our Constitution when they had identified in their 2016 Manifesto numerous provisions that they would amend when they assume power? Whose interest are they serving by changing only the age requirement for president and judges? In his Manifesto, Barrow said his Coalition Government “will promote and entrench the sovereignty of the people; eradicate vestiges of the self-perpetuating rule; and empower citizens to defend their sovereignty and to have control over public authority as equal stakeholders.” Yet the provisions that should ensure this objective have been neglected in favour of those that empower only the Executive. Why?
According to the Coalition Manifesto, Barrow promised to change Section 39 of the Constitution and Sections 11 and 141 of the Elections Act in order to enfranchise Gambians abroad to vote. He promised to restore Section 48 of the Constitution to require presidential candidates to obtain at least 50 percent of the votes cast in the first ballot in order to win an election. His Coalition also promised to subject Section 63(1) to a referendum in order to introduce a two-term limit. They also said they will seek an act of parliament under Section 63(5) to determine the procedure for a referendum when a vote of no confidence is cast against a President. They also promised to amend Section 91 to prevent a NAM from losing his or her seat just because one is dismissed by one’s party. They promised that Section 42 would be amended so that no IEC Commissioner is arbitrarily removed unless subjected to a judicial inquiry.
Further, the Coalition said they would set up a Constituency Boundaries Commission in compliance with Section 50 of the Constitution. To empower electorates to recall undesirable NAMs, they said they would enact the procedure for that under Section 92. They also said they will enact other laws such as the Freedom of Information law so that public information is available to the general public all the time. In that regard they promised to repeal the Newspaper Act in order to make it easier and cheaper for one to establish a media house. Why then did they ignore all these provisions but only amended one?
Furthermore, they promised to revoke all pieces of legislation that criminalize speech including libel, sedition, false news and false publication within six months of assuming political office. They also promised to repeal any provision in the “Public Order Act that is not reasonable and justifiable in a democratic society such as those that hinder peaceful procession to highlight public grievances, which is the main tool for exercising civil society oversight over the governance process.” In fact their Manifesto described the Public Order Act as a law that, “gives too much power to the Inspector General of Police and does fetter freedom of association and assembly.”
Therefore why are these laws or provisions not repealed within these past six months?
Barrow’s Coalition also promised in their Manifesto to amend Section 114 of the Criminal Code that relates to giving false information to a public servant, because they recognize that citizens have a right to petition the president under Section 25(f) of the Constitution. They also promised to invoke Section 18 in order to abolish the death penalty through a referendum within one year of coming to office.
In other words, it is clear from their Manifesto that this Government, which was in the Opposition, knew all the shortcomings in our Constitution and committed themselves to changing them. Yet six months down the line, all they could do is to pick one insignificant provision, given our circumstances to change and leave the rest in place. Why?
The amendments they outlined show that the issue of legal and constitutional reform should be the highest agenda of this government. Hence it is indeed disheartening that our National Assembly Members would rubber-stamp this amendment when they know that we need a new constitution altogether.
Why should we change our Constitution just for the appointment of one person to one position when there are many other qualified Gambians to fill that position?
Our National Assembly Members have even deliberately ignored the fact that the Preamble of the Constitution has recognized July 22 as a legal act. Why was this not changed? Further in our Constitution, all of the actions, decisions and persons acting on behalf of AFPRC and July 22 coup have been completely indemnified under Section 232(13). Why was this not also changed? In fact Section 96(2) gives power to the president to dissolve the parliament and call for new elections at anytime as he deems fit. Yet our NAMs decided to ignore these bad provisions but to change only a tiny provision just for the appointment of one citizen! This is tragic!
On 20th July, the Minister of Justice said the government will pursue the drafting of a new constitution leading to a referendum and that process will take at most two years. Four days later, the president himself spoke in the parliament and reiterated that there will be constitutional reforms. In the first place one wonders why it should take 18 months to two years to draft a new constitution for the Gambia. I therefore completely disagree with the Justice Minister that we need two years to create a new constitution. We know all of the shortcomings of the Constitution. We have the expertise to draft a new constitution and go to a referendum within one year. Why then take 18 months to two years to do that?
Thus instead of insisting on one amendment, one would expect that the Executive and the Legislature would rather consider putting in motion a process for the total overhaul of this constitution and the creation of a new one. But even if they fail to do that, why then cherry-pick provisions to change and not change all of them at once?
I therefore hereby express my total condemnation of this constitutional amendment on July 25. The country does not need a piecemeal change of the constitution to suit one person or a government. We need a holistic overhaul of the entire constitution so that we have a new constitution to usher in a fresh republic founded on democratic principles and human rights. The action by both the Executive and Legislature is a betrayal of the deepest aspirations of the people of The Gambia. They have not served the supreme interest of our people and country in anyway by this action.