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Sunday, June 26, 2022

CRC members woefully, illegally and unconstitutionally failed to insert ”secular” in Section 1 of our new draft constitution

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On Friday 15th November, 2019, Justice Cherno Jallow, Chairman of Constitutional Revision Commission (C.R.C.). announced the long awaited draft of our new Constitution, and gave our electorate only 14 days, to react to it. This is too short and totally unacceptable, more time is required, if our electorate should do Justice, to this important civic duty. C.R.C members, had a total 18 months to finish their work, and now they are giving the electorate, who has the voting power, to vote either ”Yes” or ”No”, in a referendum, a very short time to do so. I am calling on The Gambia Bar Association (G.B.A.), and all N.G.O’s, to hire lawyers who will quickly go to The High Court, to obtain an Injunction, to prevent C.R.C members from finalizing the said draft, and to give the electorate more time to do its civic duty. ”Justice delayed, is Justice denied.”

Recent Standard publication
I was terribly flabbergasted and highly perturbed, when I read a highly provocative article titled:- ”C.R.C explains controversial absence of secularism in draft.”, that was published in the front – page and page2 of The Standard Newspaper publication of Wednesday 20th November, 2019, written by Omar Bah. The article started thus:- ”The Chairperson of the Constitutional Review Commission, Justice Cherno Sulayman Jallow has explained the Commission’s decision not to include secularism in the new draft Constitution, which has sparked a huge controversy, especially on social media….”. It goes on to say :- ”Justice Jallow said ”Secularism has never been included in any of Gambia’s previous Constitutions”. This may not be correct, because apart from our 1970 Republican Constitution and our 1997 Constitution, Gambia had other Constitutions, may be Mr Hassoum Ceesay, Executive Director of N.C.A.C., our great historian, may help us with this clarification.

Justice Jallow went on to bogusly say:- ”This is not a religious issue. This is not about Islam vs Christianity or Christianity vs Islam. This is about ensuring that we maintain the peace, cohesion and harmony amongst our people. If you look at the 1970 Constitution, Section (1) clearly spelt out that The Gambia is a Sovereign Republic Period. That’s what it said and the 1997 Constitution, the original draft which was eventually adopted at a referendum, stipulated the same provision in Section (1). No issues were raised.” As a Gambian Christian, a Senior Canadian- Trained Theologian and an ex adhoc Preacher of The Wesley Church, now The Wesley Cathedral, I vehemently object to this. Jesus Christ said:- ”He who honours me before people, I will also honour, before my heavenly father. But he who dishonours me before people, I will also dishonour, before my heavenly father”. “He” here also includes “she” It is of paramount importance to say, what Section (1) of our 1970 Constitution, was saying, was ideal and acceptable at that time, because then there was no religious fanaticism in The Gambia, because Christians, Muslims and other faiths, and even unbelievers, lived in peace and harmony, as our National Anthem dictates:- ”For The Gambia our homeland, we strive and work and pray, that all may live in unity, freedom and peace each day….”

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At the time when The Constitutional Review Committee, under the Chairmanship of Ghanaian-born Judge, Honourable Justice Gilbert Quay, completed its draft of our 1997 Constitution, which was later adopted in a referendum held on 8th August, 1996, organized by the then P.I.E.C., under the able Chairmanship of Mr. Gabriel John Roberts, there was no ”Secular” in Section 1 of the said Constitution. In 2001, My Learned Friend, Mr. Joseph Henry Joof, was the Honourable Attorney General & Minister of Justice. He illegally and unconstitutionally inserted ” Secular” in the said Section 1. Honourable Mr. Kemeseng Jammeh (M.P.), challenged him for this unilateral insertion, and took him to The Gambia Supreme Court. The Honourable Justice Hassan B. Jallow (C.R.G.), who is now deservedly The Honourable Lord Chief Justice of The Gambia, was the sole Supreme Court Judge, who ably adjudicated over this Case, and he rightly held that, the aforesaid insertion, was illegal and unconstitutional, because since it was an entrenched clause, therefore for it to be properly amended, a referendum should have been held on the matter, but this was never done. I fully agree, the said insertion by Mr. Joof, was illegal and unconstitutional, but now that members of the C.R.C., have the golden legal opportunity, to legally insert ”Secular”, in the said Section 1, why was it, they wrongly, illegally and unconstitutionally, decided not to do so?, as India and many other Commonwealth Countries have rightly and wisely done. This is International best practice, within The Commonwealth Of Nations, and since The Gambia under the dynamic and visionary leadership of His Excellency President Adama, wisely restored its Commonwealth membership, on 8th February, 2018, The Gambia therefore, should not be an exception to this. DR. Melville Gorge (my Private Dentist, and sole proprietor of Smile Dental Clinic), is the only Christian representing Gambian Christians in The C.R.C, all the other members are Muslims, and they cannot tell Gambian Christians, that they have forgotten this famous Quranic quotation in arabic:-“lacum denukum walia deen, from Sura/Chapter Kafiron (disbeliever)” (ie follow your religion, and let me follow mine). In other words, there is no compulsion in religion.

What Mr. Joof the then Attorney General & Minister of Justice did, was both legally and constitutionally wrong, but he was instinctively right, because :- (1) two years after that, we had the controversial veil issue, at St. Theresa’s School at Kairaba Avenue, which His Royal Highness Prince Charles, The Prince of Wales and The Duchess Of Cornwall visited, during their Royal visit to The Gambia, after their arrival, on 31st October, 2018, for a short Royal Visit, (2) Mr. Joof was also instinctively correct, because on 12th December, 2015, Ex-President Yehya Jammeh, bogusly declared The Gambia, as a so- called “Islamic State”, thereby provoking both Gambian and non- Gambian Christians, beyond all human endurance.

Justice Jallow, went on to bogusly say: – “when the revision of the Laws was carried out in 2009, it should have been removed because the Supreme Court had declared it unconstitutional. What is not law you dispense with. You only reproduce what is law…..” I vehemently disagree with Justice Jallow. Here he is unjustifiably lambasting and lampooning, His Supreme Court Colleague, who is both his Learned Senior at both The Gambia Bar, and at the aforesaid Court by far, who was the Legal Consultant, who had the aforesaid Contract, deservedly awarded to him, by the then Attorney General & Minister of Justice, Ms Marie Saine- Firdaus. If the Consultant, made any mistake in his work, Ms Saine- Firdaus, as the Attorney General & Minister of Justice, and The Chief Legal Adviser of The Gambia Government, should have meticulously vetted the work of the Consultant, to ensure that it was perfectly in order, before taking it to ex-President Yahya Jammeh and his Cabinet colleagues for approval. She was indeed grossly negligent, in the execution of her Official duties. It is therefore very unjust and unfair for Justice Jallow, to now pass the buck to the Consultant, or to attempt to make him “a scape goat” or a sacrificial lamb. This is totally unacceptable. Justice Jallow was the Attorney General of British Virgin Islands, from 1999 to 2007, therefore he knows full well the legal procedure, which I am talking about. When he held that position, he did not employ a single Gambian lawyer, unlike the present Honourable Lord Chief Justice of The Gambia, who was kind, patriotic and gracious enough, to employ some Gambian lawyers, when the United Nations deservedly appointed him as :- (1) Chief Prosecutor of the International Criminal Tribunal For Rwanda (I.C.T.R.) from 2003 to 2015 and (2) Chief Prosecutor of The Mechanism For International Criminal Tribunals (M.I.C.T) from 2012 to 2016. Unlike Justice Jallow, he firmly believed (and he still does), in the adage :- “Charity begins at home.” The Holy Bible also says :- “When thou art converted, strengthen thy brethren”.

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Finally, Justice Jallow bogusly said:- “The other thing I find most unfortunate is that so much emphasis is being placed on clause 1, but there is far…… more important clause in the context of what is being debated at the moment, which is clause 151 of the draft Constitution. It makes it very clear, that the National Assembly cannot pass any Bill to declare or to establish any religion as a state religion, whether it is Islam, Christianity or whatever it is. The National Assembly is barred from doing anything like that, and effectively that is what you find in the current Constitution in Section 102 (B). That is a characteristic of a secular State. But you do not have to say it……” Again I vehemently object, to what Justice Jallow, my former St. Augustine’s Sixth Form Classmate was bogusly saying. All Gambian Christians, do not want an implied reference to “A Secular State”. On the Contrary, we want an explicit reference to it in our draft Constitution, and preferably, it should be inserted, in Section 1 of the said Draft, as an Entrenched Clause, which will legally make it difficult to amend, because of the sacrosanct and inviolable Constitutional requirement, for a referendum to be conducted on the matter, by The I.E.C.
In conclusion I saw on the internet recently, My Learned Junior, Mr. Joey Goswell, a U.K- based Gambian Lawyer, wrongly saying, that for him, the insertion of “Secular” in Section 1 of the said Draft is academic, because somewhere else in the Draft, there is a Clause which impliedly prohibits, the declaration of The Gambia as “An Islamic State”. I vehemently disagree with My Learned Junior, and I am vociferously putting it to him, that to search for the aforesaid implied clause, for laymen and laywomen, without guidance from learned lawyers, will be tantamount “to looking for a needle in a haystack” (ie performing a very difficult or impossible task). On the contrary, ”Secular”, must be put in a prominent place in the said Draft, pro bono publico (Latin:- for the public good).

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