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Wednesday, October 21, 2020

Rejoinder: ‘Christians’ complaints over draft should be taken seriously’

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By Pa Louis Sambou

Having come across the above captioned article which was published on your medium on 12 October 2020, I have reason to address a few fundamental inaccuracies, inaccuracies which I shall interrogate in the full knowledge that I will yet again attract more pathetic allegations from fellow citizens of “inventing prejudice”, fellow citizens some of whom unfortunately and ironically self – identify as ‘human rights’ activists. I never thought I’d ever have to say this but, the uncomfortable truth is, the spectacular unveiling of closet bigots among us (Gambians) is about the only good thing to show for the over D116 million investment on the now historical draft Constitution.

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The article in question quoted Mr Mai Fatty as having said that:

“There is no provision in the draft Constitution that legally compels, mandates or subjects non-Muslims to sharia courts’ jurisdiction. Any imputation to the contrary is fanciful, and not grounded on any provision in the Draft.”

It is perhaps helpful to appraise Mr Fatty of the current state of the relevant law being section 137(4) of the Constitution which states that: “The Cadi Court shall only have jurisdiction to apply the Sharia in matters of marriage, divorce and inheritance where the parties or other persons interested are Muslims.” Clearly, as we speak, under the existing 1997 Constitution, the Sharia only takes jurisdiction if all “parties are Muslims”. Now, let’s contrast this with the proposed changes in the draft Constitution shall we?

I will humbly draw Mr Fatty’s attention to the provision in the now historical draft Constitution which addressed the issue of Sharia jurisdiction being section 188(1) which states that: “The Shari’ah High Court has original jurisdiction to hear and determine Shari’ah causes or matters relating to marriage, divorce, inheritance, and endowment (waqf) amongst people who are subject to Shari’ah in that regard.” The legal effect of this proposed provision was to: change the legal test from the current position of the law being ‘whether the “parties are Muslim”?’ to ‘whether the “cause or matter” belongs to a Muslim?’ so that a non-Muslim spouse, child or dependent of a Muslim will for the purposes of inheritance etc. be subject to the jurisdiction of the Sharia even though the CRC final report at paragraph 477 misleads otherwise, it’s a lousy trap well spotted. Therefore with all due respect to Mr Fatty, if there’s any “imputation not grounded on any provision in the draft”, it is certainly that of his “fanciful” misconception.

Mr Fatty was also quoted as having stated that:

“The Shariah provisions did not create a new judicial system but rather reinforced the existing Sharia judicial system contained in the 1997 Constitution in two ways: (a) by expanding its jurisdiction and (b) by streamlining its appellate processes.” Such a bold assertion implies that the author is well versed in the subject about which they speak and in which case it won’t be unreasonable to expect them to have offered some explanation in order to guide the readers’ understanding of the same. But as if it is an intentional omission, the author makes no effort to offer any scintilla of evidence to support his position, an approach which features in and cuts right through every single one of the author’s commentaries on the subject under review. I am sure Mr Fatty would agree with me that when commenting on matters of legal substance, it’s very useful to reference the legal authority upon which one relies to sustain a given proposition. Otherwise, why even bother?

For the record and in the interest of keeping the public accurately informed, it is, as a matter of fact that: (1) under the existing 1997 Constitution, there exists the common law legal system comprising the Magistrates’ courts and the relevant tribunals, the High court, Court of Appeal and the Supreme Court with the Sharia only administered by the Cadi court and its Appeal panel none of which under the existing Constitution aren’t superior courts; and in contrast, (2) the now historical draft Constitution at part X, chapter III proposed the introduction of Superior courts of which the Sharia high court was one and with the Court of Appeal and Supreme court having Sharia jurisdiction. Therefore, contrary to Mr Fatty’s claims, proposals under the now historical draft Constitution constituted an introduction of a “new Judicial system” (so that the Sharia is on par with the common law). This is for the avoidance of doubt not a suggestion on my part that such an innovation is one which I disapprove of but, merely pointing out a fundamental inaccuracy in Mr Fatty’s presentation (and perhaps his misconception) of the facts and the proposed law as was presented in the now historical draft Constitution.

As a libertarian, I strongly believe in the personal liberty of individuals to exercise free will and choice etc. That said, if it is the view of the members of the Muslim community that justice on matters for which the Sharia has jurisdiction will be better served if appeals on those matters could be pursued right through to the Supreme court, then in my view, that should be facilitated. However, such must not be pursued in isolation of sufficient safeguards to prevent such an innovation resulting in others suffering detriment which shall constitute a breach of their fundamental rights. The latter (safeguards) were completely missing from the relevant judicial innovations of the now historical draft Constitution and hence my informed and constructive opposition. I did earlier on lament the lack of substantiation on the part of Mr Fatty to support any of his unhinged claims and, to avoid an invitation of accusations of hypocrisy, I will direct readers to my Report on the now historical draft Constitution at paragraphs 4.1, 4.11 and 4.12 wherein my humble reasoning on the particular issue of lack of adequate safeguards is comprehensively set out as well as reasonable recommendations.

Mr Fatty was also quoted as having said that:

“Yet it should be appreciated the draft cannot provide for the subjective needs of every individual or group. That is not the purport of constitution making… There is no Constitution in the world that is capable of satisfying every one.”

I hasten to state that I could not agree more with the substance of this aspect of Mr Fatty’s commentary. However, where I disagree is, his characterisation of such as being the position of the Christian community. To set the record straight, legal safeguards under the existing 1997 Constitution to the effect that:

∑          An Islamic State shall not emerge by virtue of an amendment to an unentrenched provision (a safeguard undermined by the unentrenchment of draft section 10 in the face of an introduction of an on par Sharia legal system under draft part X, chapter III);

∑          no citizen shall be denied employment, access to facilities etc. on grounds of their religious belief (a safeguard undermined by draft section 49(3));

∑          Non – Muslims will not be subject to Shariah law (a safeguard undermined by draft section 188(1));

∑          Judges not qualified in the Common law will not be appointed to sit as judges in the Common law courts (a safeguard undermined by draft section 191)  among others; are fundamental human rights safeguards which are guaranteed under the 1997 Constitution but which the historical draft Constitution proposed to strip away.

In light of the above, it is either the case that Mr Fatty’s representation is a consciously veiled provocation or, he is so abysmally ill informed of the facts, he isn’t in a position to offer any commentary whatsoever without radiating unnecessary contempt or provocation. It’s certainly not my place to judge which is which but, I beseech Mr Fatty to take reasonable steps to appraise himself of the material facts including reach out to the appropriate authority before making a running commentary of the sort which is unbecoming of a person of his position.

Mr Fatty is right in stating that “the declaration of an Islamic State” by Yahya Jammeh “was not derived from any law”. However, such a statement ignores the reality that under the now historical draft Constitution, that which Jammeh unlawfully declared (an “Islamic State”) was designed to come about by a simple amendment to the unentrenched draft section 10 at a later date. Clearly, the concerns of the Christian Community revolved around the insidious scheme of the CRC rather than any past unlawful actions of former President Jammeh.

Mr Fatty was further reported to have commented on how the practice of Islam is prejudiced in “Common law Europe”. To correct the author, there is no such thing as “common law Europe” — “Common law” is only practiced in United Kingdom, the jurisprudence in most of the rest of Europe is Roman law and not “common law” as Mr Fatty incorrectly asserts. Additionally, to suggest that the “Common law” in the United Kingdom is prejudicial to Islam is with all due respect to Mr Fatty a very dangerous fantasy which must definitely not be allowed to go unchallenged:

?          The UK Equality Act 2010 among other things protects everyone’s right to free practice and manifestation of religion both in public and in the workplace, something which equally protects Muslims as evidence in the case of Abdirisak Aden and Mahamed Hasan v Tesco

?          Also, Muslims in the UK are not obligated to submit to the jurisdiction of the UK common law family courts hence the existence of Shariah Councils which are privately administered independent of the UK Justice system by Muslims, in accordance with Islam and for Muslims who choose to voluntarily submit to its jurisdiction. This right subsists thanks to the rightful safeguards accorded by the “common law” which Mr Fatty speaks of in pejorative terms.

Therefore, to suggest that the religious rights of the Muslim minority in the UK is less protected than that of others is completely inaccurate and an unfortunate representation for a person of Mr Fatty’s status to make. In actual fact, the religious rights of Muslims as a minority in the UK enjoy far more protection and rightfully so than that enjoyed by the non-Muslim minority in The Gambia whom the CRC were more than happy to eject into extinction by the Genocidal framework they presented disguised as a ‘Constitution’ thanks to the indifference of a supine lobby who after-all didn’t mind Christians being a collateral damage at all.

Mr Fatty’s commentary that “the views of the Christian Council should be taken seriously with regard to the draft constitution” are acknowledged but, I guess I can confidently say that I am speaking for the vast majority of Christians in saying: thank you so very much and — well spoken ‘Captain hindsight’ and, to borrow our ‘bus driver’s’ phrase: “where were

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