The so-called Final Draft Constitution was prepared by members of the Constitutional Review Commission and on the 30th March, 2020, its Chairman, Justice Cherno Jallow, presented it to His Excellency President Adama Barrow in the presence of Honourable Cabinet Ministers, other members of the C.R.C. etc, at a televised ceremony, at the State House in Banjul.
Two main types of government
When one studies Constitutional Law or Government /Civics/Political Science, one would know, that there are two main types of Government. The first type is a Presidential Government, and the second type is a Parliamentary Government. In a Presidential Government, the bulk of political power or authority, is officially/constitutionally vested in the President of that country or state, while the residue of political power /authority, is vested in the Legislature and the Judiciary, respectively. This has to be so, because of what Lord John Emerich Acton, a British Constitutional Expert, (1st Baron, U.K.) once said: “Power tends to corrupt, and absolute power, corrupts absolutely.” It is because of the likelihood of this human frailty, that legal luminaries rightly came up with “The doctrine of Separation of Powers.” In 1690, John Locke, the Englishman, and erudite Jurist, wrote in his law book: “Second Treaties Of Government”:- “It may be too great a temptation to human frailty, to grasp at power, for the same persons who have the power of making laws, to have also in their hands, the power to execute them, whereby they may exempt themselves from obedience to the laws they make, and suit the law both in its making and execution, to their own private advantage.”
This important constitutional doctrine was further developed by an erudite French lawyer, Montesquieu. In a nutshell, the doctrine asserts that: Government has three arms namely: (1) the Executive, which implements the laws (2) the Legislature, which makes the laws and (3) the Judiciary, which interprets the laws, whenever a legal dispute arises, between belligerent parties.
The three aforesaid functions of Government are executed separately by the three aforesaid arms, thereby creating a system of “checks and balances”. The three aforesaid arms must check and balance each other. The Executive is indeed “Primus inter pares” (Latin: i.e the first among equals), among the three aforesaid arms of Government. This is authoritatively confirmed by Professor E.C. Wade and Professor A.W. Bradley, by what they wrote in their joint masterpiece law book titled: “…Constitutional And Administrative Law”(10th Edition), on page 49: “Broadly speaking, the Executive functions, comprises the whole corpus of authority to govern, other than that, which is involved in the Legislative functions of Parliament, and the Judicial functions of the Courts….”
The Presidential system of Government has been working effectively and intermittently for The Gambia, since its attainment of Republican status from the U.K. on 24th April 1970. One therefore wonders, like “Alice In Wonderland” by Lewis Carroll, why on earth the C.R.C has decided to attempt to change the Presidential Government to the Parliamentary Government in the so-called Final Draft Constitution?
What type of government existed in newly independent Gambia/ The Gambia?
On 18th February 1965, Colonial Gambia obtained political independence from Britain, and its then political leader was Prime Minister, Honourable Mr. David Kwesi Jawara. Shortly after that, postal mails addressed to Gambia in West Africa, were mistakenly dispatched to Zambia, in Southern Africa, and vice versa. The powers that be in newly independent Gambia, then rightly decided to alter the country’s name from Gambia to The Gambia. At that time, the type of Government that existed in our newly independent country was a partial democratic Government, and its ceremonial political leader was Her Majesty Queen Elizabeth II of Britain. On 24th April 1970, The Gambia obtained Republican state status from Britain and our then Honourable Prime Minister, (now Sir Dawda Kairaba Jawara, (K.C.M.G., G.M.R.G.), metamorphosed to the first Executive President of the new Republican state “vel primus, vel cum primus” (Latin: ie either the first, or among the first). The late Honourable Sir Alieu Sulayman Jack, K.C.M.G, (the father of our present Honourable Speaker of our National Assembly, my learned friend, Honourable Mrs Mariam Jack- Denton.), was the distinguished Gambian citizen, who ably represented Her Majesty Queen Elizabeth II in newly independent Gambia/The Gambia, as His Excellency the Acting Governor General, and he performed the historical, prototype and noble task of assenting to The Gambia’s 1970 Republican Constitution, on behalf of Her Majesty The Queen. From then henceforth, the type of Government that existed in the Republican of The Gambia, was partially a Constitutional Presidential Government, or a hybrid or a fusion of this type of Government, with a Parliamentary Government. His Excellency President Sir Dawda Kairaba Jawara’s People’s Progressive Party (P.P.P) Government which ruled this country democratically for about 3 decades (30 years), was a fusion of a Constitutional Presidential Government, and a Parliamentary Government, in which Honourable Cabinet Ministers of the Executive, were also members of Parliament.
What type of government existed in The Gambia from 22nd July 1994 to 1996?
On Friday 22nd July 1994, a bloodless military coup was successfully staged in The Gambia, by a small group of lieutenants in the Gambia Army, led by the then Lieutenant Yahya Jammeh (military police, with a red beret).
This put an immediate halt to the fusion of a Constitutional Presidential Government and a Parliamentary Government, and for two years (from 22nd July 1994 to 1996), our beloved Motherland was ruled by a Military Junta called: The Armed Forces Provisional Ruling Council (A.F.P.R.C.), under the Chairmanship of Rt. Colonel Yahya Jammeh. The A.F.P.R.C. was both Legislative and Executive, and The Gambia’s 1970 Republican Constitution was suspended. The country was ruled by Decrees, until 29th September 1996 when the then Provisional Independent Electoral Commission (P.I.E.C.), under the able Chairmanship of Mr. Gabriel John Roberts, and the able Deputy Chairmanship, of the late Bishop DR. Solomon Tilewa Johnson, successfully organized the long-awaited Presidential Election. The two aforesaid Honourable P.I.E.C. gentlemen officially appointed me as the sole Legal Adviser of a joint P.I.E.C./Civic Education Panel, which appeared on G.R.T.S. television, once a week, with the then able G.R.T.S Director General, Mr. Bora Mboge, as the presenter, to explain in a live phone-in T.V. program, the Draft Constitution to The Gambia’s electorate, before the 1996 Presidential Election was conducted. “Knowledge is power, and the pen is mightier than the sword”, as the famous adage goes.
Was presidential government restored after the 1996 presidential election?
After the keenly contested 1996 presidential election, the A.P.R.C. party under the leadership of Yahya Jammeh, won this election. Constitutional Presidential Government was briefly restored, followed by several years of dictatorship, until the 1st December 2016, when the landmark Presidential Election was organized by the I.E.C., and a Coalition of 5 political parties and 1 Independent Candidate, with Honourable Mr. Adama Barrow, as its presidential candidate, won the election, and restored Constitutional Presidential Government in The Gambia. From then to date, The Gambia still has a Constitutional Presidential Government.
PARLIAMENTARY GOVERNMENT:- A Parliamentary Government, is a Government, in which The National Constitution, has given the bulk of Political power or authority, to The Parliament or The National Assembly, as The Constitutional Review Commission (C.R.C.), has attempted to do in The Gambia, in its so – called Final Draft Constitution, which has now failed woefully, and rightly so. In a Parliamentary Government, a notable feature is that, Hounourable Cabinet Ministers Of The Executive, are also Honourable Members Of Parliament. In a strict Presidential Government, Hounourable Cabinet Minsters of The Executive , are not Hounourable Members Of Parliament, but Honourable Parliamentarians have the power or authority, to summon them to appear in Parliament, to answer questions, pertaining to their Official portfolios, from Honourable M.P.’s. This in British Parliamentary terminology, is called:- “ Question Time In Parliament.”
After The Second Reading of The Bill, that was tabled on Tuesday 22nd September 2020, by the Honourable Attorney General & Minister of Justice (Honourable Mr. Dawda Jallow),which incorporated the so-called Final Draft Constitution, when the matter was put to the vote, out of a total of 53 M.P.’s, 33 voted “No”, therefore 23 voted “Yes.” To use Parliamentary language, “The No’s have it”, as The Honourable Speaker Of The National Assembly, My Learned Friend, Mrs Mariam Jack-Denton, would rightly say, before her gavel or hammer authoritatively descends, on her desk. This result fell far short, of the sacrosanct and inviolable Constitutional requirement, in Section 226 (2)(b), of our 1997 Constitution, which clearly says:- “… 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.” . I have been reliably informed, and i verily believe, that there were 3 Honourable M.P.’s, whose votes were not counted, namely:- (1) Honourable Ms Fatoumatta Njie, M.P. for Banjul South Constituency, who had traveled out of The Gambia, (2) Honourable Mr. Sedia Jatta, the M.P. for Wuli West Constituency, who was absent when the voting was taking place, because he went to the toilet, and by the time he returned, his voting opportunity, had passed and (3) Honourable Mr. Demba Sowe, who has died recently, and the I.E.C, is getting ready to conduct a by – election in his Constituency (ie Niamina West Constituency). Even if the 3 missing votes, are added to the “Yes” votes, the “Yes” votes, will still be the loser, because the final result will be, 26 “Yes” votes and 33 “No” votes. All Honourable M.P.’s who voted “No”,including The Minority Leader, Honourable Mr. Samba Jallow of N.R.P., Honourable Mr. Sekou Marong Indenpendent Candidate Of Latrikunda Sabiji etc, must indeed be warmly congratulated, for a Parliamentary job well done “Pro Bono Publico” ( Latin :- ie for the good of the public).
MONUMENTAL AND UNACCEPTABLE REMOVALS OF POWERS OF HIS EXCELLENCY THE PRESIDENT :-
(1) POWER TO ASSENT TO BILLS:-Section 88(1)(b) of the Final Draft reads:- “ The President shall, subject to this Constitution exercise or perform the following powers and duties (b) assent to Acts enacted by the National Assembly and where required, to bring the Acts into force.” This is a monumental Constitutional error because:- (A) The President does not “assent to Acts”, and (B) The National Assembly “does not enact Acts”. It merely passes Bills, and it is after His Excellency The President, has given his “ Presidential Assent” to those Bills, that is when those Bills will be enacted, or when they will metamorphose to an Act or a Statue of the National Assembly/ Parliament.
(2) POWER TO APPOINT CABINET MINISTERS:- Under Section 71 (3) Of The Gambia’s 1997 Constitution, His Excellency The President, has the unfettered Presidential power or authority, to Officially appoint his Honourable Cabinet Ministers, without any vetting or approval, by The National Assembly / Parliament. But Section 115 (2) of The Final Draft, attempted to take this power away from him, and it reads:- “ The President shall, within forty – five days of assuming office, nominate and appoint the Ministers, subject to confirmation by the National Assembly.”
(3) POWER TO RECEIVE FOREIGN DIPLOMATS AND CONSULAR REPRESENTATIVES:- Section 88 (1) (i) of The Final Draft reads :- “The President shall, subject to this Constitution, exercise or perform the following powers and duties :- (i) appoint High Commissioners, Ambassadors and Diplomatic Representatives, and receive Foreign Diplomatic and Consular Representatives.” Concerning “…. receive Foreign Diplomatic and Consular Representatives”, this Presidential duty, must not be made mandatory, because at times, His Excellency The President, may be so busy with other important affairs of State, and as a result, he will not be able “to receive all Foreign Diplomatic and Consular Representatives”, as occurred recently, when he instructed Honourable DR Momodou Tangara, our able Foreign Minister, to receive on his behalf, the Letters Of Credence, of His Excellency Mr David Belgrove (O.B.E.), the new British High Commissioner To The Gambia. “ The President shall….” in Section 88 (1) (i), should therefore have read:- “ The President may…..”.
(4) POWER TO DECLARE WAR:- Clause M of Section 88(1) of The Final Draft reads:- “ Subject to the prior approval of the National Assembly, to declare war and make peace…” Since President Adama Barrow’s Official title, also includes :- “ The Commander – In – Chief Of The Gambia Armed Forces”, which is Officially conferred on him, by both Section 11 of The Armed Forces Act(1985), Cap 19:01,and by Section 61 of our 1997 Constitution, and since Section 12(b) of The Gambia Armed Forces Act says:- “ subject to the provisions of this Act, the responsibilities of The Commander-In-Chief, shall include (b) The power to order any of the said forces, to engage in operations for the defence of The Gambia, for the preservation of public order, for the relief in cases of emergency, or for any other purposes appearing to The Commander-In-Chief, to be expedient,” these wide-ranging Statutory military powers of The Commander-In-Chief Of The Gambia Armed Forces, obviously encompasses, the power to declare War. Therefore, subjecting this power to Parliamentary/National Assembly approval or otherwise, was clearly an attempt, to remove “the power to declare war”, from His Excellency The President Of The Republic Of The Gambia, and The Commander-In-Chief Of The Gambia Armed Forces.
To buttress my Constitutional point, Google authoritatively says:- “Constitutional convention requires, that the declaration of war, or commitment of British Armed Forces, is authorised by The Prime Minister, on behalf of The Crown. Parliament has no official Constitutional role, in the process…”
(5) EXECUTIVE POWERS OF HIS EXCELLENCY, THE PRESIDENT OF THE REPUBLIC OF THE GAMBIA :- Section 90 of The Final Draft is titled:- “ Decisions Of The President.” Section 90 (1) reads:- “Where The President takes a decision or issues a directive, in the performance of any function under this Constitution or an Act of the National Assembly, the decision or directive shall be in writing, and shall bear the seal and signature of The President.” This provision, is almost “ Ippissima Verba” (Latin:- ie verbatim), with what is written, in Section 76 (1) of our 1997 Constitution, which authoritative reads:- “ The executive power of The Gambia, is vested in The President and, subject to this Constitution, shall be exercised by him or her, either directly or through the Vice-President, Secretaries of State or Officers responsible to him or her.” This is clear evidence, that the aforesaid Section 76 (1), which gives His Excellency The President Of The Republic Of The Gambia, the power to make Executive Orders, or to issue Presidential Directives, has been fully maintained by The Final Draft. All the members of The C.R.C. must be warmly congratulated for this, because His Excellency The Elected President Of any Republic, by any stretch of the imagination, is not just an ordinary Citizen. Even in the finest of Democracies (The U.S.A., is an excellent case in point), the elected American President enjoys Executive Powers, granted to him/her, by Article 2 of The American Constitution. When Mr. Donald Trump was involved in “ The Race To The White House”, one of his campaign promises to the American electorate was that, if he won the Presidential Election, he would build a wall between America and Mexico, to prevent illegal immigrants from entering The U.S.A., The Trump Wall, commonly referred to as “ The Wall”, would cost The American Tax Payers, about 8 to 12 Billion Dollars. When The American Parliament, refused to approve this grand and costly project, His Excellency Mr. Donald Trump, used his Constitutional Executive Powers, to kick-start the construction of The Wall Project, which is now progressing very fast.
(6) POWER TO MAKE PEACE:- Clause M of Section 88(1) of The Final Draft reads:- “ Subject to the prior approval of the National Assembly, to declare war and make peace…”. This Section is inter alia saying, that before His Excellency The President Of The Gambia, engages in making peace, the prior approval of Parliament, must be obtained. This is indeed, a preposterous and unacceptable Section, because it is not in conformity, with International Best Practice. As a Senior Canadian- Trained Theologian, let me authoritatively say, in his masterpiece “Sermon On The Mount”, otherwise called:- “The Beatitudes”, Jesus Christ inter alia said:-“Blessed are the peace makers, for they shall be called, the children of God”, (Mathew Chapter 5, Verse 9-The Holy Bible). If God Almighty loves and accepts peace makers, who are National Assembly Members, to object to this?. In fact, I am further submitting, that any objection to this, will be tantamount to allegedly committing, the heinous Common Law Criminal Offence of “ Blasphemy”, which Google authoritatively defines as:- “The action or offence of speaking sacrilegiously about God, or sacred things; profane talk”.
Following the untimely demise, of the late His Excellency President Ahmed Sekou Toure, the first President Of Guinea Conakary, on 26th March 1984, at the age of 62 years in Cleveland, Ohio, U.S.A., who was the previous Chairman of The Iraq-Iran Peace Committee, the late His Excellency President Sir Dawda Kairaba Jawara (K.C.M.G.), (G.M.R.G), of The Gambia, was deservedly Officially appointed, by The Organization Of The Islamic Conference (O.I.C), as the new Chairman of, the aforesaid Peace Committee. This well-deserved appointment, suited our first Gambian President very well, because one of his middle names:- “Kairaba” in Mandinka, means :- “Big Peace.” In Mandinka “ Kairo”, simply means “Peace.”. There was absolutely nothing, in our 1970 Republican Constitution, which said that, before our first President embarked on this important Peace Mission abroad, he should have got, the prior approval, of then Gambian Legislature. Our first Gambian President, was indeed highly commended by the O.I.C, for a very successful Peace Mission, concerning 2 neighboring Islamic States, which ferociously lasted, from 1980 to 1988, almost one decade (ie 10 years).
The Camp David Accords, were a pair of Political Peace Agreements, signed by the late Eyptian President, His Excellency Mr. Anwar Sadat and the then Israeli Prime Minister, His Excellency Mr. Menachem Begin, on 17th September 1978, following 12 days of secret negotiations at Camp David, the Country retreat of His Excellency The President of United States in Maryland. The 2 aforesaid eminent Statesmen, could therefore not claim, The Law Of Contract Defence of “ Non Est Factum” (Latin:- ie not my deed). These two Framework Peace Agreements, were signed at The White House, and were witnessed and negotiated by, His Excellency President Jimmy Carter. The second of these Framework Peace Agreements ( A framework for the conclusion of a Peace Treaty between Egypt and Israel, successfully led directly, to the 1979 Eygpt-Isreal Peace Treaty or Truce. Mr. Sadat and Mr. Begin; later became deserving recipients, of the shared prestigious 1978 Nobel Peace Prize. The Nobel Peace Prize, is one of the 5 Noble Prizes, established by the Will of the famous and rich Swedish industrialist, inventor and armaments manufacturer, Alfred Nobel, along with the Prize in Chemistry, Physics, Physiology or Medicine and Literature. It was of paramount importance to note, that there was absolutely nothing in the American Constitution, which made it mandatory for the then American President, His Excellency Mr. Jimmy Carter, to first obtain Parliamentary approval, before embarking on this monumental Peace Mission.
(7) POWER TO DECLARE STATES OF PUBLIC EMERGENCY:- Section 34 of our 1997 Constitution, is titled:- “Declaration Of State Of Public Emergency.” Section 34(1) reads:- “ The President may, at anytime by Proclamation, published in The Gazette, delcare that (a) a state of public emergency exists in the whole or any part of The Gambia, (c) a situation exists , which if it is allowed to continue, may lead to a state of public emergency. Sub- Section (2) reads:- “ A declaration made under this Section, shall lapse at the expiration of a period of seven days, or if the National Assembly, is not then in session twenty-one days, beginning on the day, on which the Proclamation is published in The Gazette unless, before the expiration of that period, it has been approved, by a resolution of the National Assembly, supported by the votes of not less than two-thirds of all the Members thereof.”
Interestingly, Section 71 of The Final Draft is titled:- “Derogations From Fundamental Human Rights Under Emergency Powers”, and Section 77(1) reads:- “An Act of the National Assembly, may authorise the taking during this period of public Emergency, of measures that are reasonably justifiable, for dealing with the situation, that exists in The Gambia.” This Section clearly confirms, that the power of His Excellency The President, to Officially declare, a state of public emergency, has clearly been taken away from him/her, and now an Act of The National Assembly, must authorize this. This is very preposterous and unacceptable, when one takes into cognizance, the long period of time, for an Act of The Nation Assembly/Parliament, to be fully operational. Google defines “ Emergency “ thus:- “A serious, unexpected and often dangerous situation, requiring immediate action.”If the C.R.R., Members, are telling Gambian, that in cases of National emergency, His Excellency The President, can no longer “ Sua Motto” (Latin:-ie on his own), declare a state of public emergency, except he /she is authorized to do so, by an Act of the National Assembly, then i am vociferously putting it to both The C.R.C., Chairman (Justice Cherno Jallow) and othe C.R.C., Members, that their understanding or comprehension of the meaning of “ Emergency”, indeed leaves much to be desired.
Another important Constitutional point, that is of paramount importance, for His Excellency The President, to have Executive Powers, given to him / her by The National Constitution, is that, the National Assembly/Parliament, may be in recess when a National emergency occurs. In such a political scenario, His Excellency The President (1) may instruct The Honourable Speaker or The Deputy Honourable Speaker, to summon and emergency sitting of The National Assembly, to solved this emergency. (2) But if he/she has been granted Executive Powers, to declare a state public emergency, when a National emergency exists, then there will be no need, to pursue (1) above. “ Necessity, is the mother of invention”, as the famous adage goes.
FINAL DRAFT ATTEMPTED TO VIOLATE H.E. PRESIDENT BARROW’S POLITICAL RIGHTS:- Section 102(1) of The Final Draft is titled:- “ Term Of Office Of President”, and Section 102(2) reads:- “ No person shall hold office for President, for more than 2 terms or 5years each, whether or not the terms are consecutive”. This means, the present 5 years term of H.E. President Barrow, and are being counted. This is unconstitutional and unacceptable, because Section 100(2) (C) of our 1997 Constitution, inter alia says:- “The National Assembly shall not pass a Bill (C) “ ……To deprive any person retroactively, of vested or acquired rights…..” This is also an attempt, to take away from the Incumbent President, His Political Rights, guaranteed by Section 26(a) of the said Constitution, which reads:- “ Every Citizen of The Gambia, of full age and capacity, shall have the right, without unreasonable restrictions (b) to vote and stand for election, at genuine periodic elections, for Public Office.”
CONCULSION:- The key Official Functions of The C.R.C. are 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 prepare a report in relation to the Constitution.” The CR.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 State House.
It is therefore very mind – boggling and highly provocative, to read an article titled: “C.R.C. SAYS DRAFT CONSTITUTION IN COMA, NOT DEAD”, published in the Friday 2nd October publication of The Standard Newspaper. The Author, Alhagie Manneh, was quoting, what Justice Cherno Jallow recently said. I am putting it to him, yes the so-called Final Draft Constitution, may be in coma, not dead, but it is in serious and irreversible coma, and it is now waiting for Senior Experienced Medical Doctors, to pronounce it “clinically dead”, and after that it will be put in a coffin for burial, and His Excellency President Adama Barrow, will not grant it a State Funeral, as he did recently at Arch 22, for the late Gambian legendary footballer, Alhajie Mr Momodou Njie, alias “ Biri Biri”, who died in Dakar, Capital of neighboring Senegal, on Sunday 19th July, 2020. I Rest My Case.