By Burama FL Jammeh
The Adama Barrow administration is at it again to replace the 1996 Constitution of The Gambia. Every administration to write out her own version of Republican Constitution is dictatorship. To be a functioning Democratic Republic would require: (a) establish/uphold I-ndependence, D-emocracy and R-epublic (IDR principles, values, rules, norms, practices, guides, etc. and (b) institutes self-governance (in our case Regionalization/Decentralization). These ideals ought to inform the framing/structuring and content of a ‘National Republican Constitution’ while bearing in mind what are the principal purposes of a constitution.
The point whether ‘the 1996 Constitution’ should stay and/or go is not the most principal issue and certainly is not one to address our IDR deficiencies. As conceptual as maybe, we must establish fundamental IDR pillars upon which to build democratic governance infrastructures. This is necessary just like, for to be a Muslim, one must 1st internalized “Allah is 1 and Prophet Muhammad is the seal of prophethood’. Equally to be an Independent Democratic Republic (IDR) a nation (and her people) must fulfill some cardinal pillars. Many of these ideals/principles/norms, etc. are conceptual by nature and often not written anywhere for national referencing. The Civics Curriculum is in the national education system to address this issue, but it was watered-down and purposefully neglected to deny us opportunities to known. Two (2) of those cardinal pillars mentioned below are relevant for the purpose of this discussion:
1. Hierarchy of authority
In a Democratic Republic, The Sovereign People are The Natural/Supreme Powers of State. They are the owners and are self-govern. By decrees of nature, they can do anything at anytime democratically as they so choose. Some of these ‘natural powers of The Sovereign People’ can neither be legitimately outsource nor perform by others in their name of any manufactured-reason. And of course, there are some of their nature powers they could outsource if they so choose. Knowing and upholding these are important to the functioning of IDR-system of system.
This set up an important stage to the entire CRC-process to ‘replace the 1996 constitution’. The Constitution of The Independent Democratic Republic of Gambia is the principal rule book of The Sovereign People of The Gambia that defined the ideals of State, who is a member of State, how the State should be govern, the rights/civil liberties of the sovereign and what governors can/can’t do. The People own this principal document, and they ought to author. Authoring is not necessarily writing the words on paper; and that supposed inabilities by our people was one reason governors used to wrongfully take up this principal task of sovereignty in an IDR. The 1st obvious problem, if this ownership and authorship is taken from The Sovereign People of Gambia – then the very essence of Independent Democratic Republic is gone and/or at minimum seriously compromised beyond reasonable workability. And at this point, aren’t we IDR only by name?
2. Governance/government of the people
The sovereign people are self-governed! Elected/selected representation is to make the art of government more practical. The entire population of Gambia cannot meet on every small/big matter every time. That would neither be practical nor effective/efficient. Thus, we select/elect people of certain knowledge/characteristics/wisdom, etc. to represent our collective interests.
These selected/elected representatives neither have the natural powers of State nor can they do everything as they may wish. These representatives can only do and/or not do as prescribe by a Republican Constitution of The Sovereign People. Whatever is not included (or whatever is excluded) in that constitution for any reason and/or no reason is beyond them. Obviously, lot must be in place and/or happen for this ideal to be uphold, maintain, enforce, etc. including but not limited to good characters of our elected governors.
This is called Limited Government! The is government of Law. Limited government meant is a very important concept in IDR deserving an entire topic of discussion. Unless ownership of state is established/blessed, authorship of the constitution is segregated (not viewed as legislative process), and natural powers differentiated from representational authority there can be no functional institutional democratic republic. Equally governance in IDR requires another 2 essential features – (i) Separation of Powers – not 1 person or office should perform all the roles of governing and (II) diffusion of power – governing should down to those directly affected by the issues. Rather than our constitution become such contract of the people binding on elected governors; it is now purely a tool for the governors to dictate on the people.
Consequently, only the sovereign people can democratically and constitutionally change any and all of the Constitution. The kabuki sham of CRC process (National Assembly enact law giving Barrow power to establish a commission to write new constitution – power their offices do not have even under the current convoluted system) in Banjul is following a precedent that can be traced back to Jawara’s administration. To the contrary, our nation rallied behind Barrow and the Coalition 2016 to begin to change our fundamental IDR deficiencies. Sadly, these are not the right-agents for the right-changes – either they do not know much (or not enough) and/or the little they may have known is badly clouded by personal greed and hunger for power.
Our stage is nicely set to segue into Banjul. Let’s start on memory lane
? The 1962 Windley Constitution was a colonial document that not only matched us into independence but also picked out a president. Rather than a democratic transitional process, the 1962 Constitution decreed that The Colonial Premier Minister at Independence will automatically became the 1st President of Independent Gambia (not yet a Republic). This Premier is already known and whether (or not) he will/likely win is not a valid democratic standard. This was undemocratic but it favored the favored group – so they let it slide. This attribute over public public matters is still everywhere rather than put in place just rules or follow the rules. DK Jawara coronated into the presidency and he kept till 1994. During that span Jawara never see a need to hand back Gambia to her Sovereign owners to set the rules for the republic. He adapted the colonial rule book as it suits him. He sat in the colonial offices and run the nation on colonial terms as if that were not what was ended. Although modified a bit, governance in Banjul till today is run on that same colonial predisposition. They excused we are too illiterate to know what is good for us and/or that they are after-all us – both of those are against the ideals/principles of pts. 1 & 2 above. Up until 1994, what is called constitution in The Gambia is the 1962 Windley constitution modified to lodge all powers once hold by queen of UK and her Governor General and some more additions to Jawara. This convolution and greedy for power did not allow the IDR principles mentioned at (pt.1 & 2) above much less Separations of Powers and Regionalization/Decentralization of Governance (Diffusion of Power). The output of this centralization is even more terrible on our socioeconomics, environment, production base, and health of our people.
? 1994 military coup! With fundamental premises of an Independent Democratic Republic (IDR), military coup is inconceivable. Yet, it happened and not just in Banjul but all of Sub-Saharan Africa. Military coups were possible because the ownership of State as in IDR were never truly established in the 1st place.
Yahya and his group suspended Jawara’s laws called constitution and by 1996 he came up with his own version. The process was sort of decorated by holding meetings at selected, some panel round-table TV Discussions, etc. and ended with so called referendum for approval. “You may put a lipstick to a pig and is still a pig”! This document neither improves our lives, governing and/or our civil liberties. Fundamentally it has similar flaws as that of Jawara. It was to consolidate Yahya as civilian president (and not military strong man). In fact, that document today is vastly different (and not necessarily in good ways than on referendum day). It was so noisy, over 350 pages, that every legislative session therefore would require altering something from the text. Do I even have to explain what is wrong with that and essentially that is as good as no constitution (or put different that is a government without-limits). The limit is the government itself – are you not scared?
They grouped the provisions in pales of ‘non-entrenched’ and ‘entrenched’ provisions. The non-entrenched provisions can be changed by act of National Assembly at a legislative session. Many considered this an important, especially some of the half-baked so-called legal minds, great structure to the constitution. The constitution is the boss of both The Office of President and National Assembly – hence, hierarchical distortion if that can change/fire their boss for new boss. More important concern, The People own the Constitution and voted for it at referendum – elected officials cannot/should not circumvent that order. The People should do all Constitutional changes (small or big), through some well-defined processes. Again, if these groups can make any changes to The Constitution by themselves, where does that leave the principles of limited government? Every administration writing her own constitution, and our so-called legal minds argue over provision X or Z and/or Chapters A & B is simply a demonstration of ignorance. For Allah’s sake, we are talking Constitution and not some legislation cooked at National Assembly!
? In 216 our nation voted for Adama Barrow and The Coalition 2016 to make Gambia ‘A Functioning Institutional Democracy within 3 years. Surely, if this has to happen as proclaimed, it would require not just a New but very different Republican Constitution especially in the structure and institutional organization.
After 7 years in The State House, now fully drunk on power, Barrow is doing exactly what his predecessors have successfully done – putting together a rulebook that ensures his stay. Maybe, to discount the past 7 years even constitutionally, if in fact, he could not be pressured to include some kind of term limit or wise enough to cash-out his gains.
To sum up
I. Undemocratic (the process)
Legitimate democratic decision making requires at minimum a simply eligible majority approval/agreement. Often such decision is assessed at an acceptable secret ballot. Group meetings and/or consulting selected villagers do not suffice this standard to be considered democratic. Gambians never democratically sanctioned replacement of the 1996 Constitution and electing Barrow President and any other elected official into any office is not a vote to commission a new constitution. Until we are ready to do the right-thing(s) in the right-way(s) – our destination will always be downward.
II. Unconstitutional (the process)
I did not read every page of 1996 Constitution, but do I have to, to say the obvious? The 1996 Constitution has no expiration date that came due for Barrow to write a replacement. Neither do the vote of the nation to be a president is an authority to write a replacement constitution and/or do as you may wish. Remember presidency of Gambia is a ‘Limited Authority role. In fact, that constitution explicitly says some provisions are entrenched – meaning they cannot be amended. How does that square with Barrow and his National Assembly creating a commission to torpedo the entire document? Both the President and National Assembly members are in office on the strength of this constitution; when and where did that power come from for them to overthrow their boss? Besides the People are the owners of The Constitution. Only the owners can sanction changes legitimately, democratically, and constitutionally.
III. Indifferent product, noisy, unstable and centralized
Our wish for a new constitution at the heart of our struggle against Yahya’s tyranny was to establish ‘A Functional Institutional Democracy’ that is capable holding off abused endured from Yahya administration. And most certainly, we did not yearn for new constitution to create another dictatorship. The proposed draft constitution by CRC is no better than the 1996’s. It is technically a plagiarized copy, they’ve cut and paste, they’ve switched around chapters, play with text in some instance, etc. but the fundament frame of our civil liberties/rights, governance, justice administration are the same. And those weren’t the major problem areas for our democratic dispensation but power structures and adherences.
Furthermore, the document remained noisy by including everything from accounting to auditing of agencies to SOEs to Regional administration and anything in between. To prosecute this point, we must look at the purposes of a National Constitution of a Republic. Including daily operational issues and circumstances dictating responses makes a constitution unstable and purposeless. All those noises are the daily function of National Assembly to set rules for within constitutional boundaries and The Executive executing. The Constitution is the grand vision set in broader terms.
With these fundamental issues unresolved, our legal minds, from BAR association President, one Mr. Salam, who thumbs up the CRC draft because of the marriage provisions to some recent law graduates of UTG are blabbing over earlier rubbish over the proposed rubbish, is indications of failures of our education system to educate pupil of foundational civics of a Democratic Republic.
Finally, crafting a great Republican Constitution, does not necessary require legal minds (it could help) but citizens of great wisdom, knowledge, and thorough understanding of interplays and precedences in I-ndependence, R-epublic and D-emocracy are much better resources
