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Wednesday, October 21, 2020

Parliament can make amendments to the Constitution Of The Republic of The Gambia, 2020 (Promulgation) Bill

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By Toney F Mendy

At the heart of this conclusion is the fact, however unattractive it may appear to us, that the 1997 Constitution has laid down the procedures through which bills are to be tabled and treated at the National Assembly regardless of the nature of the bill. It appears that there is a lack of appreciation of what the law provides, or rather a lack of understanding of it by those in contention with this conclusion.

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Whatever the reasoning is on both sides of the divide, the question of procedure in the alteration of the 1997 Constitution would be guided by law specifically, the 1997 Constitution itself. All causal attempts to formulate an explanation, and initiate specially procedures for the alteration of the Constitution away from the legislative authority of the Assembly has thus far constituted the weakest arguments.

The constitutional amendment (repealing or promulgation) formula of The Gambia follows the two mechanisms in relation to entrenched clauses and their alteration or amendments. They involve a ‘supermajority rule in the legislature’ and ‘a supermajority in a referendum. The standard method of amending entrenched clauses, with approval of a two-thirds majority in both the first and second reading at the Assembly (section 226 (4b) of the 1997 Constitution) and by the endorsement of “at least fifty per cent of the persons entitled to vote in the referendum have taken part in the referendum and the Bill is supported in the referendum by at least seventy five per cent of those who voted” at Section 226 (4d).

 

What is being queried is the role of the National Assembly in the equation.

A constitution being both the legal and political foundation of a state is not easy to shape.  We must, therefore, be guided by reason and law in our quest to registering another step in our democratisation process.

It could only be, reasonably, a principle of constitutional design to have the National Assembly being the Chief Representatives of the People, and Legislative arm of the state, review what the Executive received from the Constitutional Review Commission and presents as a bill (The Constitution of The Republic of The Gambia, 2020 (Promulgation) Bill”) before it. There cannot be a more appropriate body to review the work of the Constitutional Review Commission than the Assembly which, under the request of the Executive earlier established the said Commission under the Constitutional Review Commission Act, 2017 (hereinafter referred to as the CRC Act, 2017) with specific mandates. The assessment of the task assigned to the Constitutional Review Commission lies primarily with the Assembly through the Executive introducing the “work” (now in the form of a bill, The Constitution of The Republic of The Gambia, 2020 (Promulgation) Bill” which it (the Executive) has asked the Assembly to task the CRC in 2017. That is why the enabling statute, the 1997 Constitution of The Gambia recognised under section 226 the role that Parliament should play in not only the alteration of the 1997 Constitution but law-making in general and equally, extensively outlines the procedures to be adopted in the alteration processes.

 

The first issue to address in this question of procedure is what is meant by “alteration of Constitution”? Section 226(9b) of the 1997 Constitution provides an answer in the much-needed clarity. It reads as follows:

“To the alteration of this Constitution include references to the AMENDMENT, MODIFICATION OR RE-ENACTMENT with or without amendment or modification, of the Constitution or of any provision for the time being contained in this Constitution, the “SUSPENSION OR REPEAL” or the making of different provision in lieu thereof, and the ADDITION of new provisions to this Constitution.”

The emphasis should be placed on the above words in capital letters.  The only logical conclusion that could be deduced from the above section is that, in effect, any modification, revision, amendment, changes or variation done on the Constitution means “alteration”. Take for example the nullification of the infamous Section 91(d) of the 1997 Constitution and all the other 53 amendments it underwent over the years all fell within the meaning of “alteration of the Constitution”.  But these alterations were not very much crucial to the very being of the Constitution because they do not touch fundamentally, the pillars of the Constitution captured under Section 226(7) (entrenched clauses).

Also relevant to address is that the fact the CRC Act, 2020 isn’t a bill for the alteration of the 1997 Constitution. It is a Commission established for the review of the 1997 Constitution and drafting of a “New Constitution”. Its primary function under section 6 (1) of the CRC Act, 2017 “are [merely] to draft a new Constitution and prepare a report in relation to the [draft] Constitution”.

The necessity and the establishment of the Commission under section 200 of the 1997 Constitution cannot be critiqued for any genuine reason. Nevertheless, it should be noted that it is not the commission’s mandate to introduce a Bill for the alteration of the constitution in parliament, nor does its “Draft Constitution” automatically translates into a Bill. In fact, under section 101 (1) of the 1997 Constitution, only National Assembly Members or a Member of the Cabinet can introduce a Bill for consideration before the Assembly.  Thus, the interlink between the work of the CRC and “The Constitution of The Republic of The Gambia, 2020 (Promulgation) Bill” only exists in the obvious fact that the “Draft New Constitution” which the Commission was tasked to draft is what is introduced before the Assembly as a Bill (“The Constitution of The Republic of The Gambia, 2020 (Promulgation) Bill”) by the Executive. That is evident.

Furthermore, the Parliament in its consideration or enactment of the Bill in question could exercise the discretion of inviting the CRC Commissioners as provided under section 22(2) of the CRC Act, 2017 “to attend before the National Assembly to clarify any matter and answer any question relating to the provisions of the [Draft] Constitution”.

Law-making process in its “ordinary form” is a responsibility shared between the Legislature and the Executive. See the legislative power of The Gambia under section 100(1) of the 1997 Constitution.

The “alteration” (in this instance total repeal) of the 1997 Constitution falls squarely within section 226 (7) (Entrenched clauses) which all must undergo a referendum as provided under 226(4) for any amended intended. Alteration of Constitution or changing entrenched clauses in any constitution generally adopt a rigid process.  The rigid requirements of the amendment procedure, are outlined under section 226 of the 1997 Constitution.

I have considered, very carefully, the provision of 226 in its entirety, and the powers of the Assembly under both the 1997 Constitution and Standing Orders of the National Assembly.  Section 226(1) provides that “…an Act of the National Assembly may alter his Constitution”. Under section 230 of the 1997 Constitution, “An Act of the National Assembly” “includes an Act of parliament established under any previous Constitution of The Gambia and a Decree of any former government”, and a “Bill” under the Standing Orders of the National Assembly 2019 (Revised Edition), means “the draft of a statute (or Act of the National Assembly) and includes a Private, a Committee and a Public Bill”.

It is apparent from the interchangeable terms (i.e. ‘Bill’ and ‘Act of the National Assembly’) what the status of the “The Constitution of the Republic of The Gambia, 2020 (Promulgation), Bill” or what is referred before the public as the “Final Draft Constitution” is. I have deliberately and continuously referred to it in its proper term, “The Constitution of the Republic of The Gambia, 2020 (Promulgation), Bill” because it is only when we understand and appreciate the status of the professed “Final Draft Constitution” before the Assembly that we would be able to construct our arguments proper.

Let’s get back to section 226 because it further outlined in details and subjected the alteration (repealing) of the 1997 Constitution to several procedures under subsection 2. It is reproduced below for ease of clarity:

226(2):

(a) before the first reading of the Bill in the National assembly, the Bill is published in at least two issues of the Gazette, the latest publication being not less than three months after the first, and the Bill is introduced into the National Assembly not earlier than ten days after the latest publication; and

(b) The Bill is supported on the second and third readings by the votes of not less than three-quarters of all the members of the National assembly.”

It is necessary to show that, this section captures the stages which the Promulgation Bill must follow with specific approval at the second and third reading in the Assembly. This section not only approves of the procedures that Bills follow before the Assembly but also affirms that even the Bill for the promulgation of the existing 1997 Constitution, “The Constitution of the Republic of The Gambia, 2020 (Promulgation), Bill” must follow the same procedure before the Assembly.

 

What happens if “The Constitution of The Republic Gambia 2020 (Promulgation) Bill” is to follow the procedures outlined under Section 226(2)?

 

All procedures before the Assembly are guided by the Standing Orders of the National Assembly, which in my view; and unless proven otherwise, remains consistent with the 1997 Constitution of The Gambia.

Section 108 (1) of the 1997 Constitution states the following: “Subject to the provisions of this Constitution the National Assembly may regulate its own procedure and, in particular, may make standing orders for the conduct of its own proceedings.” The conduct of the proceeding of the National Assembly in relation to the admission and treatment of Bills is captured under Standing Orders 62 to 79 of the Standing Orders of the National Assembly, 2019 (Revised Edition) which Standing Orders are basically, a reflection of section 101, 102, 226 and other sections of the 1997 Constitution of The Gambia.

“The Constitution of The Republic of The Gambia 2020 (promulgation) Bill” (the final Draft Constitution) is a “Government Bill” whose introduction touches at the heart of section 226 (4) and 226 (7) (entrenched clauses) of the 1997 Constitution.

It should be noted that the Standing Orders of the National Assembly provides under Standing Orders 62(8) that “The provision in Standing Orders 62 to 79 shall apply to government Bills, Committee Bills and Member’s Bills unless otherwise provided for herein”. The Standing Order basically adopts a uniform procedure in the handling of Bills. A Bill is a Bill before the Assembly and there is nothing like a bill of “special nature” whatsoever, except otherwise, where the Constitution provides a fixed vote to be adopted before a Bill could be passed.

Standing Orders 62 to 79 to outline the manner in which Bills are to be handled at every stage. As a way of summary, the following are the provision of the Standing Orders of the National Assembly compared to what the 1997 Constitution provides and the procedures to be undertaken at every stage:

  1. Standing orders 62 addresses the introduction of Bills (corresponds to section 101 of the 1997 Constitution ‘Introduction of Bills and motions’);
  2. Standing Order 63 addresses “Notice of Bills” (corresponds to section 101 (3) of the 1997 Constitution ‘Introduction of Bills and motions’);
  3. Standing Order 64, addresses the “Objects and reasons memorandum” (corresponds to section 101(2) of the 1997 Constitution, ‘Introduction of Bills and motions’)
  4. Standing Order 65 address the “First Reading (corresponds to section 226(2a) of the 1997 Constitution, “Alternation of this Constitution”)
  5. Standing Order 67, addresses “Second Reading” (corresponds to section 226(4b) of the 1997 Constitution, “Alternation of this Constitution).

Note: Standing Order 64 and 65 should be considered within the meaning of section 226 (9 a-b)

  1. Standing Order 68 “Committal of a Bill to Committee (Corresponds to section 109 and section 101(5) of the 1997 Constitution, Committees of the Assembly);
  2. Standing Order 69 Committee stage: Select, Standing or Special Select Committee (Corresponds to section 109 of the 1997 Constitution, Committees of the Assembly);
  3. Standing order 70 Committee stage: Committee of the Whole Assembly (Corresponds to section 109 of the 1997 Constitution, Committees of the Assembly);
  4. Standing Order 71 Resumption of Assembly (Corresponds to section 109 of the 1997 Constitution, Committees of the Assembly);
  5. Standing order 72 Consideration stage: Bills reported by a Select, Standing or Special Select Committees (Corresponds to section 101(5) of the 1997 Constitution).
  6. Standing order 73 Consideration stage: Bills reported by a committee of the whole Assembly;
  7. Standing order 74 Amendments to Bills after consideration stage: Reconsideration stage.
  8. Standing order 75 Amendments to Third Reading (Corresponds to section 226(4) of the 1997 Constitution);
  9. Standing Order 76 Withdrawal of a Bill;
  10. Standing order 77 Certificate of urgency (Corresponds to section 101(3) of the 1997 Constitution)
  11. Standing order 78 Member’s Bills: costs; and
  12. Standing order 79 Minister’s recommendation.

The citation of the above Standing Orders in relation to Bills and comparison of the same with the 1997 Constitution is relevant in that section 108 (2) nullifies any conduct of the Assembly that is in contravention with the Constitution and opens the postern for the challenge of this conduct of the Assembly before the Courts. It equally evidences that the procedures established by the Standing Orders of the National Assembly are in line with the Constitution and that the Standing Order of the Assembly adopts long-standing democratic legislative procedures in the conduct of its businesses.

The legislative process is such that the Bill before the Assembly would undergo its first, second and third reading according to Standing Orders, 65, 67 and 75 respectively. This procedure is a constitutional requirement under section 226 for even “The Constitution of the Republic of The Gambia, 2020 (Promulgation), Bill”.  Section 226(2) “a” and “b” requires the Bill to be read a first, second and a third time.

At the First Reading, Bills are to be merely handed to the Assembly. The second stage (Second Reading) would be the debate on the General Merits and the Principles of the Bills without necessarily examining the substance of the provisions of the Bill. The Bill would then be committed to a Special Committee or a joint committee which would conduct its report on the Bill and table the said report before Assembly for its consideration. The Assembly, after debating and adopting (or otherwise rejecting it) the report of Committee or Joint Committee would proceed to the Consideration Stage where it would examine the Bill clause-by-clause. This is provided for under Standing Order 66 (c) of the Assembly which outlines the subsequent stages of all Bills.  This stage avails Members the opportunity to vote on the detailed clauses of the Bill including amendments to the Bill.

Standing Orders 72 (2) empowers the Assembly “…to make amendments to a bill provided that the amendments, including new clauses and new schedules, are relevant to the subject matter of the Bill and comply with the following conditions-”

(a) They must be relevant to the subject matter of the clause to which they relate;

(b) They must not be inconsistent with any clause already agreed to or any decision already come to by the Assembly;

(c) They must, no later than when the first amendment is moved, be accompanied by notice of any subsequent amendments referred to or necessary to make an amendment intelligible, unless the Speaker permits otherwise;

(d) If an amendment is not within the long title of the bill, the long title shall be amended accordingly and reported to the Assembly; and

(e) Amendments proposed to an amendment shall be dealt with before a decision is taken on the original amendment.

Is this procedure adopted by the National Assembly in its treatment of Bills in contravention of the 1997 Constitution? Why should this procedure, therefore not apply to “The Constitution of Republic The Gambia, 2020 (Promulgation) Bill”, when the said Bill is introduced like any other ordinary Bill?

The last stage which the Bill would undergo is the “Third reading”. Here, Members vote to either pass or reject the Bill without further amendment.

It should be noted that the Bill, “The Constitution of Republic The Gambia, 2020 (Promulgation) Bill” is required under section 226 to have the approval of three-quarter of the Members in both it’s second and third reading or it would fail. How do the Assembly reconcile the different views that exist among them and even in the public regarding the content of the Bill?

Consequently, advocates against the National Assembly been empowered to effect amendments to the “The Constitution of Republic The Gambia, 2020 (Promulgation) Bill” would obviously face extra questions:

(1) What happens to first, second and third reading stages that section 226 requires a Bill of such nature to go through if the Assembly were to merely debate and vote on the Bill without examining it clause-by-clause and proposing amendments to it?

(2) How would the Assembly get to third reading without the Consideration Stage?

The legislative power like I earlier argued lies in the National Assembly and to some extent with the Executive. However, the amendment or alteration of entrenched sections of the Constitution takes an additional procedure, which is a referendum that calls for the involvement of the general populace. This doesn’t however, in whatsoever way rule out the role of the Parliament as the chief legislative authority.

The powers of the legislature are only limited under section 100(2) of the 1997 Constitution where it is bared from the following:

2) The National Assembly shall not pass a Bill-

(a) To establish a one-party state;

(b) To establish any religion as a state religion; or

(c) To alter the decision or judgement of a court in any proceedings to the prejudice of any party to those proceedings, or deprive any person retroactively of vested or acquired rights, but subject thereto, the National Assembly may pass Bills designed to have retroactive effect.

We must therefore distinguish the formal amendment procedures outlined in the 1997 Constitution which defines the legal process that must be completed in order to undertake the alteration or repealing of the Constitution.

The political process necessary to generate legitimacy and support for the alteration or promulgation of the 1997 Constitution differs from this legal process. Not only does the legal process require Parliament’s approval of The Constitution of Republic The Gambia, 2020 (Promulgation) Bill”, it must also be noted that the said Bill is introduced like any other ordinary Bill before the Assembly and would take the same legislative processes and procedures that Bills in accordance with the Constitution and Standing Orders of the National Assembly follow.  This process is not unique under our jurisdiction.

The National Assembly can indeed propose and vote for amendments to The Constitution of Republic The Gambia, 2020 (Promulgation) Bill” but should they?

 

Toney F Mendy is a fourth year – first semester, Law student at The University of The Gambia.

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