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Saturday, October 24, 2020

Regarding the Draft Constitution Part IV

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By Foday Samateh

Before proceeding to discuss Local Governments in the draft Constitution, there is an outstanding matter from a previous commentary that begs for attention. It is quite evident that this series has sworn by reforms to National Assembly with three crucial caveats. The weak position of the Assembly in the removal of the President from office was expounded on in Part II. The indefensible and unjustifiable exclusion of the Assembly from the removal of Judges from the bench was contested in Part III. Now, the promised challenge to the composition of representation in the Assembly.

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The aspects that raise concerns about composition of representation in the National Assembly involve the Speaker, the so-called marginalized groups, and the unassigned seats on the Assembly Service Commission.

The wisdom of revoking the President’s power of appointing someone as a nominated member to the Legislative branch, especially as the Speaker, is too overwhelming to advance any argument for it. It is one of the numerous reasons that necessitated the drafting of a new Constitution. The proposed alternative method of choosing the Speaker, however, seems a begrudging improvement on the status quo. The idea that the National Assembly needs to elect an outsider to be their Speaker borders on belittlement of the institution.

To be cynical about it, this is the third time the draft Constitution, rather than just remedying the deficiencies of the past affecting the National Assembly, has intentionally struck a body blow to the most representative branch of the democratic system. All three blows, one for each branch, constitute a distrust, it seems, of the people’s elected representatives. For the Executive branch, the draft Constitution rather trusts a five-member medical board or tribunal of judicial officers and legal practitioners to determine if the President should be removed from office than the fifty plus Assembly members representing every constituency in the country.

For the Judicial branch, the Constitution rather trusts the Judicial Service Commission and a five-member tribunal of judicial officers and legal practitioners appointed on the Commission’s advice to determine if a Judge should be removed from the bench than the Assembly members elected by the people. And for the Legislative branch itself, the Constitution rather have the elected representatives of the people choose a supposedly non-political, non-partisan, impartial sage presides as the Speaker — the most influential and powerful figure in the Assembly — than trust them to choose one from among their own ranks. If the intent and object of having an ex officio Speaker is truly about ensuring fair-mindedness and impartiality in the presiding chair in the most political and partisan of all the three branches, why the Deputy Speaker is not also another non-partisan outsider?

The other argument that the Speaker needs to be an ex officio member to be free from constituency obligations is not supported by facts and experience of well-established democracies. The Speaker of the National Assembly cannot possibly be busier than the Speaker of, for example, the British House of Commons or the U.S. Congress — both of who are elected members of their respective legislatures. While the draft Constitution deserves to be commended for many great reforms, it should be called out for betraying in multiple instances an elitist disdain for the elected institutions on which our democracy owes its legitimacy.

The enormities of the three constitutional disempowerments of the National Assembly highlighted above call for redress for the sake of representative government and the Constitution itself. Neither will work to the promise of their potentials if any of the branches is denied for any reason their inherent powers. And for the National Assembly, that includes finally according the members a mind of their own to choose one of their fellows to preside as the Speaker of the Assembly. Should it be pointed out the Speaker isn’t only the single most important member of the Assembly who chairs as well the National Assembly Service Commission — the institution’s adm

inistrative body — but also is the second in line of succession to the Presidency?
Moving to the special seats allocated to “marginalized” groups, namely, the 14 regional seats to women (two for each administrative region), and the two persons with disabilities, these are affirmative action by constitutional decree that evokes two conflicting reactions. On the one hand, the sympathetic understanding takes into account the historical and cultural circumstances that put “marginalized” groups at a disadvantage when it comes to serving in public office, especially an elective one.

On the other hand, the democratic rule of one person one vote will interject that acknowledging the disadvantage and leveling the playing field for everyone is one thing. But to provide exclusive seats for these groups in addition to their rights and freedom to run for the single-member constituencies is tantamount to conscripting the Constitution to rig the democratic process.

The draft Constitution cannot name any codified injustice that is responsible for the marginalization of these groups and their disproportionately low numbers in public offices which it is compelled to address. Nor can it contrive any credible scenario of pre-determining a desirable gender composition of the National Assembly through a free and fair election for the single-member constituencies. So, out of thin air, it creates a special category of representation for a specific group. No level of disproportionately low number of women from the single-member constituencies in the National Assembly can justify establishing regional seats exclusively for women. The two seats for people with disabilities is proposed for only one purpose that can be likened to a magician’s sleight of hand in attempting to distract attention from the real trick, which in this situation is a ploy to achieve women empowerment through an extraordinary manipulation of the Constitution.

There is something Third World-ish about the allocation of special seats for women as if it’s ordained by the high priests of international advocacy organizations. If the 14 regional seats had been reserved for only men, imagine the thunderstorm of uproar that would be brought to bear, and rightly so. That would be discrimination against women. Why should it then be okay when the same exclusive right is conferred on women? Is it okay to discriminate against men? The Constitution should under no circumstance condone any form of discrimination whether that discrimination is deemed positive or negative. The Constitution should confer equal rights and equal freedoms on all without regard to gender, age, ethnicity, region, religion, social status and so forth. The Constitution should treat every Gambian as citizen. Nothing more, nothing less. Not as men and women unless such distinctions are absolutely necessary for the avoidance of doubt or ambiguity, but such distinctions should not extend to gender-based preferential treatments or double-standards. A man shouldn’t enjoy any freedom or right in the Constitution more than a woman. In the same vein, a woman shouldn’t enjoy any freedom or right in the Constitution more than a man.

There is something gross and awful about these regional seats. They are created for one specific group of citizens only as means to an end. To bump up artificially the number of women in the National Assembly. From a paternalistic standpoint, it is par for the course. That the only way to empower women is to condescend to them by treating them as a special category that needs handouts. And that women must be held to a different standard and be given special help lest they wither on the vine where men thrive and triumph. Condescension is the gender policy of paternalism.

From the feminist standpoint, the regional seats exclusively for women must be defeatist. That unless women are given affirmative action entitlements, they stand no chance of measuring up to or catching up with men. True feminism rightly demands gender equality, which means equal rights, equal freedoms, and equal privileges for man and women; not special rights, special freedoms and special privileges for women over men.

Another problem with the special seats in the Assembly needs mentioning. It is one more instance of the draft Constitution’s elitist snobbery toward the Legislative branch. Nowhere does the Constitution require a minimum number of women Judges for the Judicial branch, as it shouldn’t. Whether or not women constitute the majority of Judges should be incidental to the outcome of open-minded, credible search for qualified people for Judgeship. And nowhere does the Constitution require that if the President is a man, the Vice President must be a woman, or that at least a certain number of Cabinet and other presidential appointments in the Executive branch must be women, as it shouldn’t. If the President is free to appoint competent persons regardless of gender, why shouldn’t the electorate, who elect the President, not be free to elect candidates of their choice to represent them in the National Assembly?

That’s the thing, isn’t it? The elitist snobbery toward the National Assembly seems to be born of the draft Constitution’s apparent lack of faith in the electorate — the people — to elect competent or ideal candidates for the Legislative branch. Hence, the multiple constitutional end runs around the Legislative branch to protect other institutions and the country from the consequences of the people’s political choices. That is the draft Constitution’s vote of no confidence in both the people and democracy. A terrible mistake. It’s true, the country’s elected officials have so far been unable to carry out their briefs. But we are an evolving republic. The draft Constitution must help pave the way for timeless reforms and not stand in the way of reformers who may emerge unannounced at any time as history shows time and again elsewhere. No democracy is fated to be bound to any set of challenges and problems. A moment mustn’t be confused with destiny.

Whatever one feels about women empowerment, which no one feels more strongly about than yours truly, the author of this article, the section of proposed 14 regional seats exclusively for women in the Assembly needs to be scrapped. Being so undemocratic and discriminatory toward about one half of the nation, the end cannot justify the means. At the very least, it must have a sunset clause by which date, say after three or four election cycles, the special seats shall cease to exist. These seats shouldn’t exist to begin with. They certainly cannot exist in perpetuity.

Talking about regional seats, here is a better idea, once again. The 14 seats can be increased to 21 seats (three for each administrative area or some variation based on the population per region) to form the upper house of the National Assembly. That will solve all the underlying problems and concerns about separation of powers and checks and balances among the three branches as discussed briefly in Part II of this commentary on the draft Constitution and in detail in my essay A Case for Second Legislative Chamber. Much more work will get done in much less time at much less cost to the taxpayers. Our country and our democracy will both be much better for it.

Moving on to other things in the draft Constitution that should be changed regarding the Legislative branch are the three seats in the National Assembly Service Commission for non-members. According to Section 163 (2): “The National Assembly Service Commission shall comprise – (a) the Speaker, as Chairperson; (b) the Deputy Speaker and, if more than one, both Deputy Speakers; (c) the Leader of the Majority Party; (d) the Leader of the Minority Party; (e) three persons (not being members of the National Assembly), at least two of whom shall be women, who have good experience in public service matters, appointed by the Assembly.” (Emphasis is mine.) What is the draft Constitution’s justification for at least two of the three persons to be women? Suppose the Speaker, the Majority Leader and the Minority Leader all happen to be women, should at least two of the three non-member persons still be women?

The greater concern is that not only the required gender composition of the three persons needs to be scrapped — irrespective of the fact that no such demand is made of the Judicial Service Commission or the Public Service Commission, and correctly so — but also their status as non-members of the Assembly. The National Assembly Service Commission is the administrative body of the Legislative branch and should comprise only Assembly members. Since the National Assembly passes laws, approves the national budget, ratifies treaties, and reserves the power to authorize deployment of the Armed Forces to foreign lands, surely they can run their own show. The three non-member persons are far more likely to be beholden to the political interests of the others on the Assembly Service Commission than if they are elected members of the Assembly. Besides, there is something undemocratic about unelected persons deciding how an institution of elected members should conduct themselves. The word is aristocratic.

In summary, the Speaker should be an elected member of the National Assembly; the proposed regional seats exclusively for women should be dropped; and the undesignated persons in the National Assembly Service Commission should also be Assembly members. These three elements must be part of the necessary changes to the draft Constitution if it hopes to endure as the supreme law of the land.

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