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Monday, August 8, 2022

On the bad laws

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By Nyundu Drammeh

To go piecemeal or the whole hog in the legal reform exercise; that is not the only Question…. Age Discrimination for political posts too is
‘Until the bad teeth are removed, the mouth must chew with caution ‘, a parody of a saying in ‘gods are not to blame. So is it true with our many provisions in our Constitution and our constitutions (our other laws)
Our Minister of Justice has promised the nation that in about 18 months The Gambia will have a new Constitution which will usher in a new Republic, the Third Republic. Great news. I pray to live to witness that day, that historic moment. But what the Minister has not told us, or what I have not read, is what his Ministry will do with the many ‘bad laws’ we have in our Constitution and constitutions (other Acts of Parliament), some of which have provisions which are not in harmony with the provisions in our Constitution.

The establishment of a Constituent Assembly/Constitutional Review Committee, the reviewing of the Constitution and the referendum will all definitely take time, will require that the processes are transparent and judiciously done. That cannot be compromised if we are to give ourselves a great Constitution (certainly not a fool proof one). But what do we do with the other ‘bad laws’? Do we endure until we have a new Constitution, the disharmony and the rights violations? Do we do piecemeal amendments, the removing of the bad teeth from the mouth? Would the law enforcers be asked to ignore or not enforce the ‘bad laws’? Law enforcement cannot wait too. Enjoyment, protection and fulfilment of people’s rights, their human rights and Gambia’s obligations under ratified international legal instruments, cannot wait as well while the Constitutional review finishes. A catch-22 situation?

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The provisions relating to sedition, permission to use loud speakers, permit for demonstration, the President coming under the definition of ‘public officer’, the false information thingy, age discrimination, the removal of death penalty, forfeiture of seat if a parliamentarian changes party, etc will all require some immediate remedy, if certain fundamental rights are to be enjoyed in full and if we are to fulfil our obligations under international legal instruments such as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. And these cannot wait until the review of the Constitution is finished.

My lay review of the Constitution tells me it is also full of claw-back clauses. We get our rights with the right hand and, before one could say Jack Robinson, they are snatched away with the left hand. And that is why I think the setting of an upper age limit or the lower age limit with regards to the Presidency is discriminatory in both letter and spirit and out of harmony with our international obligations. Section 33 (1) says ‘all persons shall be equal before the law’…. But then it limits the reach of subsection (2) by subjecting it to certain exceptions indicated under subsection (5), one of which is ‘with respect to the qualifications prescribed by this Constitution for any office’….. And subsection (4) interprets ‘discrimination’ to mean ‘affording different treatment to different persons attributable wholly or mainly to their respective description by by race, colour, gender, language, religion, political or other opinion, national or social origin, property, birth or other status where by persons of one description are subjected to disabilities or restrictions to which persons of another such description are not made subject, or are accorded privileges or advantages which are not accorded to persons of another such description’.

If we juxtapose this omnibus definition of ‘discrimination’ as indicated in subsection (4) of Section 33 against Section 62 (1)(b) which prescribes the ‘minimum age of thirty years but not more than sixty-five years’ as one condition to be qualified for president, and by extension vice president, we can see ‘age discrimination’, whatever was the rationale or philosophy (of the drafters or the consultative committee) behind the inclusion of Section 62 (1)(b). Why was a lower and upper age limits prescribed as a qualification to be President or Vice President of the Gambia? What interest was it serving? How is the exclusion of those 29 years and under and 65 year and above from being President in their ‘best interests’? What was the rationale behind this exclusion? Thus, it was great that our National Assembly voted to remove the upper age limit. It was discriminatory- there was no reason to show that it was in the ‘best interests’ of citizens above 65 years to be excluded from the enjoyment of a birth right. Whether the upper age limit was removed to make way for one person to become Vice President is discussion for another day. The jury is still out on that. One thing is clear though: the removal of this age barrier opens the door for many other elderly statesmen and women. A far-reaching effect.

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A fundamental question that still linger in my mind is: why didn’t the Minister of Justice table the removal or expunging of the entire Section 62(1)(b) but only a part of it? If the upper age limit was regarded discriminatory, then it beats reason why the minimum age of thirty was not regarded so? Is it in the best interest for those between the ages of 18 and 29 to be excluded from the enjoyment of this right? How and why? Until this is made know, I would regard the exclusion of this category of citizens as discriminatory and unreasonable. Interestingly also, to be qualified for National Assembly membership, according to Section 89(1)(b), one has to attain the age of twenty one years. Disturbing, isn’t? If a person is 18 years old or older and of sound mind, he or she can vote in both the Presidential and National Assembly elections (Section 39(1)- vested with the right to decide who becomes his or her President or Parliamentarian. In the hands of an 18 year is the fate of a nation. He or she is, at that age, assumed to be capable of participating in decision making of the highest and most important but difficult type-electing one’s political leaders.

In a ‘first past the post’ election system, one vote can make all the difference. Yet, we have provisions in our Constitution which debar a 20 year or 29 year old young man or woman from becoming a National Assembly member or vie for the highest office of the land on the belief, my assumption, that he or she does not have the capacity or the capability to become one. Yet this young man or woman can vote, can use his or her vote to decide who represents him or her, is regarded in this instance to have the capacity and capability to decide, to know who can better represent his or her interest and that of the constituency or the nation. Both an irony and a paradox. Nothing is more discriminatory than this.

I can understand the exclusion of those under 18 years from the enjoyment of this right. We can demonstrate how their exclusion may be in their best interest. Being adult, 18 years and older, comes with certain obligations and responsibilities and to expect those under 18 years, an entire heterogeneous group, to both enjoy rights that only children have as well as shoulder responsibilities that only adults have, would be unjust. I am sure as the population of children grow, they form about 42 per cent of our population, we might consider lowering the age of voting to 16 years. Until then, we know children’s exclusion from the enjoyment.

There is therefore the need for the repealing of these age discrimination provisions. They rob our nation of having political representatives who are young, energetic and highly educated but disqualified by virtue of their age. These provisions deny the nation the contribution of 20 year or 29 year olds to the development of our polity and political leadership. Age discrimination would have denied England the contributions of William Pitt the Younger who became Prime Minister at the age of 24 years. It would have denied The Gambia a Jawara who was given the leadership of the PPP by men old enough to be his uncles. A country with a youthful population cannot shut the door of political leadership to its young men and women and expect to have a critical mass of leaders well prepared to steer the ship of State when they ‘come of age’ to become parliamentarian or President. May be it is time to run to the Supreme Court, to give opinion on the constitutionality of this provision. May be it is time for young people to flood political parties and take ‘ownership’. May be.

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