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Friday, October 23, 2020

Plagiarism and the Final Draft Constitution

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By Madi Jobarteh

What is plagiarism? Plagiarism is an issue only in the academic and journalism communities where it is improper to use an author or a journalist or media house’s works, ideas or expressions without seeking and obtaining the necessary permission first. This means authors and journalists or media houses have some legal ownership over their products hence copyright. Thus to apply this concept to a constitution is utterly misplaced and outrageous.

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No one has ever heard of a country claiming copyright over its constitution! I have never seen yet any constitution that has been patented or trademarked. This is why anyone is free to quote any country’s constitution without first seeking permission or committing any violation, even if you misquote! Therefore, I find Lamin J Darboe’s fretting about the Final Draft Constitution being plagiarized as childish hence a futile attempt to derail an entire nation for nothing!

If we consider the Constitution of the Untied States as the first modern national constitution one can confidently say that there is therefore no constitution in the world that was not influenced by, premised upon, inspired by and similar to another constitution or document.

The US Constitution came into force in 1789. It was influenced by a number of human rights documents and constitutions. These included the English Magna Carta of 1215, the Mayflower Compact of 1620, the English Bill of Rights of 1689, the US Declaration of Independence of 1776 and the Virginia Statute of Religious Freedom of 1786 among others. There was even one person who singularly had a great effect on the US Constitution and he was the English philosopher John Locke.

Since then as new nations emerge especially beginning in Europe such as France or Germany one will find their constitutions being influenced by these same documents as well as the US Constitution itself and the ideas of the thinkers of the time. These included John Locke, Montesquieu, Rousseau and other European Enlightenment thinkers. Anyone who has studied law cannot fail to miss these history and facts! Hence it is indeed baffling that Lamin J Darboe could be making such incomprehensible fussing over the similarity between the Final Draft and the Kenya Constitution.

From 1945 to the 1960s most African, Latin American and Asian countries began to gain independence from colonialism and immediately embarked upon developing their national constitutions. One will find that in addition to the US and European constitutions, the constitutions of most of these new nations were greatly influenced by the United Nations’ Universal Declaration of Human Rights of 1948 and international human rights instruments that emerged since then.

When the African Charter on Human and People’s Rights emerged in 1986, to be followed by several related instruments, they also served to influence laws and constitutions in many African countries. For example, the Gambia’s own Women’s Act of 2010 was largely influenced by the African Charter on Women (The Maputo Protocol) as well as the UN’s Convention for the Elimination of all Forms of Discrimination against Women (CEDAW) of 1979.

At the end of the Cold War in 1989, we began to see more democratic gains inside Africa. For example, after decades of Apartheid, South Africa gained independence in 1994 and in 1996 the Mandela Government developed the country’s first democratic constitution. That constitution was hugely influenced by human rights principles and standards, and democracy and republican values that can be found in several other constitutions and documents to the point that it was considered the best constitution in the word at the tine.

In Kenya, after decades of dictatorship and following the bloody post election violence of 2007 the country reviewed its 1963 constitution in 2009 and emerged with a new constitution in 2010. That constitution was widely hailed around the world for its great achievements in the areas of separation of powers, a bill of rights and strong checks and balances to restrain power among others. Again this constitution was greatly influenced by global advances in human rights standards, democracy and good governance norms and republican values that can be found in several national constitutions and documents.

Therefore, where the Gambia also came out of a brutal dictatorship with its butchered 1997 Constitution it is only logical that it draws inspiration from international human rights norms and best practices found in other national constitutions and documents. For that matter there are no better constitutions to draw inspiration from more than South Africa, Kenya or Ghana which are incidentally also in our region. There is no nation in this world that will develop a national constitution without having close similarity with already existing constitutions if one wishes to tread on the path of human rights, democracy, good governance and republicanism.

I would have expected that this would all be too obvious to a highly educated and exposed lawyer such that the issue of plagiarism would not become an issue. But to my amazement, Lamin J Darboe decided to miss the point only to force the nation into a meaningless academic exercise in total neglect of the history and facts around constitutions. Why?
I wish to call on all Gambians to totally and completely reject the narrative that the Final Draft Constitution is plagiarized from somewhere else. This document is authentic. Its similarity with any other constitution, even for word for word, does not take anything away from it. The authenticity and legitimacy of the Final Draft remains in tact so far as the plagiarism narrative is concerned.
At least the Kenyans have not complained and surely they dare not complain otherwise theirs will also be questioned!

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