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City of Banjul
Friday, September 25, 2020

The Draft Constitution: Curtailment of presidential powers

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By Solomon Demba

Firstly, I commend the CRC Commissioners for the service they offered to our nation; it is very much appreciated.
Here, I do not intend to provide an in-depth analysis of the constitution, but wish to offer some cogent opinions on key provisions such as on the term of the presidency, the appointment of ministers, and disqualifications for election as president.

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In my view, these provisions are important factors in determining whether the constitution will attain popular endorsement or whether it would be decimated by politics. The thought of allowing politics to prevail over law seems unconscionable, because politics creates uncertainties. In the midst of that uncertainties law may be given effect in a way that produce injustices. To avoid such pitfall, law must keep out of politics if were to achieve justice and fairness for public good. As an organiser of orderly society law must be clear and predictable so as to allow all citizens to equally participate in the affairs of the very society they constructed. We should therefore think longer and hard before rushing ahead with the draft constitution in its current Form. Without first achieving the political neutrality test it may not possible to achieve popular endorsement; thereby rendering the noble exercise futile and waste of public money.

Indeed, the prominence given to the separation of power principles in the new constitution could well be described as a silent revolution, capable of enhancing effective checks and balances within the state. This is not surprising as it has become increasingly necessary to unshackle the Gambia from decades of bad governance. Separation of powers in its simplest sense has the objective of ensuring that the exercise of state powers is subjected to adequate scrutiny at different levels of the state.

I believe that the drafters are right to give such prominence to the separation of power principle in an attempt to promote accountability and transparency within the state. But the constitution must be neutral in terms of politics if it is to have a chance of attaining popular endorsement. Therefore, it must not to be seen to be generating a political outcome which may be so unnecessarily undesirable to the political protagonists. It is best that electorates are left to produce political outcomes in deciding the faith of politicians not any kind of backdoor mechanism.

For these reasons, as a passionate positivist as well as a democrat, it is objectionable to give retrospective effect to Section 102 of the constitution; which will have impinging effect on the term limit of the current President.
Retrospective application of law will unfairly impose liability on individuals where no such liability existed previously. This is contrary to the principle of rule of Law as individuals should not be penalised under ex post facto laws.

Although retrospective law may be seen as a ‘necessary evil’, especially under unusual conditions, there are no such conditions in The Gambia to warrant such arbitrary legislation. Retrospective legislation is undemocratic as its effects tend to fall before the actual democratic process, making it incompatible with the values of a democratic society.
On the appointment of the Ministers under Section115 (The Appointment of Ministers), in my view, cabinet positions are political positions; as agents of their elected political leader, they must retain the confidence and trust of the leader to enable them to work collectively on the principle of collective responsibility. To that end, the leader must not be constrained politically to make such appointments.

At times the very feebleness of successive governments seemed to have emboldened advocates for curtailment of the Executive powers. But it is unnecessary to create political obstacles that could impede Government’s ability to conduct its business efficiently. The select committee mechanism is sufficient to allow NAMs to hold Ministers accountable. Therefore, it is prudent for the leader to hire and fire Ministers as he/she deems fit.
The act of subjecting the appointment of the Ministers to a confirmatory vote of NAM blurs the separation of power principle. Such process will in no doubt be overshadowed by political bickering and dramas. This will serve no useful purpose for good governance, effectiveness and efficiency. Events that preceded the recent appointment of the ombudsman speak for the delay that is likely to be caused by such process if applicable to appointment of Ministers.

While the confirmatory vote by NAMs is important in certain key positions, for example ombudsman and Head of Civil Service or even DPP, it is legally unsound to apply the same principle to ministerial appointments. In fact, it begs the question if the President has the unfettered powers to appoint the VP, why not his or her Ministers. It seems inconsistent and illogical not to vest the same unfettered power in the President when it comes to appointment of Ministers. An Executive must have the necessary powers to manage its Ministers for increase efficiency in the Government.
In relation to the weight of presidential pardon on criminal conviction, it is almost with certainty that 88. (5) has made presidential pardon provided by 94 redundant as it states this: The President shall neither have nor exercised any power to – (a) establish a one-party State; (b) establish any religion as a State religion; or (c) alter the decision or judgement of a court in any proceedings.

While 942(c) subsections (1) (e) allow Presidential pardon to have effect on the punishment of the offence, it does not nullify judicial decision that led to that conviction in respect of principle of separation of powers. It is worth noting that the wording on 94 is loose and indecisive thereby rendering it redundant in the face of section 88 (5).
I think it is right for society to rehabilitate offenders for the greater benefit of society. Thus, the law must not unfairly disqualify people without reasonable justifications. The point of justice is fairness; without fairness there can be no justice and no democratic society. This explains why section 94(2) (b) only bars people with certain criminal convictions as this: (i) an offence involving dishonesty or immoral conduct; or (ii) any other offence for which he or she has been sentenced for a term of imprisonment of twelve months or more. Clearly, it specifies convictions that are likely to be captured, allowing those who convicted for politically motivated offence to rightfully participate in the political process. That is right and compatible with the principle of justice.

It is fair to say the drafters have exhibited exceptional drafting skills to create a seminal instrument which may transform The Gambia into fully functioning democracy if adjudication and administration of law is not politicised. In the same spirit we must be resolute in our efforts to ensure that any provisions which expressly deny the exercise of fundamental rights guaranteed by the same constitution are reviewed/ amended, in the furtherance of our democratic society.
Indeed, a constitution built upon political neutrality is the one likely to attain popular endorsement.

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