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City of Banjul
Wednesday, October 21, 2020

The Draft Constitution – hunters, hares and stag dilemma

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By Lamin Comma

I once read a story about some hunters who came together to go hunting.  A group of hunters went into the forest to hunt in order to provide food for their families. They had nets, spears, bows and arrows.  They came across a stag and a drove of hares in a field. They had to take a decision whether to encircle the stag as a group, snare and catch it or to each individually shoot at the hares.  Individually shooting the hares would be much easier than having to stealthily surround the stag as a group. In the first instance, some few hunters would easily kill a hare but the stag and the rest of the hares would have dispersed and thus some families would go without food because some hunters would never get a hare.

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In the case of killing the stag, it could feed the entire village but that would require the group working together.  Any decision by one member of the group who decides to shoot at the hares instead of joining to snare the stag would lead to a definite failure to catch the stag because it would notice the presence of the hunters and sprint away. They took the decision to cooperate and stealthily encircle the stag, entangle it with the nets.  In modern day game theory, the stag hunt as a story, has been found to be a useful analogy for social cooperation – even in international agreements.

The Draft Constitution 2020 did not pass in the National Assembly despite the ardent and persistent efforts and advocacy of its supporters and the not so loud silence of those who oppose it.  The aftermath seems to be one of bewilderment and frustration in some quarters and a very dull silence of an apparent lack of a Plan B for moving forward.  This must not be a case of despair, nor a categorization of winners and losers or even a platform of finger pointing or stigmatization.  Ironically, it should be an energized opportunity to forge ahead in order to achieve the original objective as defined as the function of the Constitutional Review Commission (CRC) – to review and analyze the current Constitution and draft a new one. The CRC Act provides a framework for achieving the desired objective.

However, Section 22 (3) of that Act requires that the final draft that is to be produced cannot be altered or amended by the approving political authorities – the National Assembly and the Executive. Nonetheless, both institutions were given the opportunity, as part of the consultative process, to put forward their objections and/or contributions before such a final draft was presented.  This specific section has singularly given the Commission the discretion (my emphasis) as to what goes in or otherwise to be left out of the final draft as derived from their consultations.  This is where the window of opportunity has remained open, no matter how narrow it may appear to be, in order to move forward by applying the game theory of the stag hunt.  The Commission made strenuous efforts on their coverage of views on our governance framework.  Certainly no one expected a perfect document or outcome.

Nevertheless, it appears that there was a lack of preparation for a rejection at as early as it has just happened.  It seems the societal mindset has been more eagerly focused on overcoming the memories of the past governance system and zealously carving and ushering in a more ideal future than to pay a closer attention to the requisite final political process – having an approval by the political institutions.  Emphasis seems to have been placed more on finding a legal solution – a legal framework of governance that would bar the recurrence of the past governance experience.  In this regard, the political process was given lesser emphasis or consideration.

The political process has a major, if not the most important, aspect in the scheme of things in so far as it is the vital link to a referendum.  It is the weakest link in the chain of events.  If that link gives in, the objective will be lost – just as in the stag hunt, where a weak link will emerge if one of the hunters decides to go for the hare and not the stag.  In any political process, consensus building is of utmost importance in order to achieve the objectives set out.  The success of any consensus building is predicated on dialogue and compromises.  That is the reality of life.

Thus, in order to move forward we need to make the attempt to dialogue and build consensus on issues that are considered relevant to the vital political players – the elected executive and the national assembly (political party and voter representation).  This is fundamentally essential in order to build a common platform to campaign for the seventy-five percent voter support at the referendum.

The window of opportunity arises from the fact that the CRC had used and still has the discretion to include or exclude issues in a final draft.  The platform for dialogue and compromise starts with revisiting the issues that are of concern to the two active players or institutions.  They are active in the sense that without their overt support, the objective will not be realized as has been amply demonstrated by the rejection of the draft.  As an example to open up debate on this opportunity, here are two examples or issues raised which are derived from the opinion expressed in the media by the executive – the Cabinet in general – in the recent past and prior to the draft being forwarded for consideration by the National Assembly.  They may not necessarily be the be-all of the objections but it could be the opener for dialogue.

Firstly, the Draft Constitution requires that the two terms for the executive includes the current term.  It is abundantly acceptable that the two term limit is a general requirement for most democracies in the world to avoid self-perpetuation in office.  However, the contention is – should it be applied retrospectively?  How relevant is the retrospective application of the term limit in the democratic process especially considering the fact that it is only a one time situation and not a permanent or recurrent feature of a future governance system?

The point is, what is so important to a retrospective application of this requirement to the extent of insisting on its inclusion in the draft and thus practically and fundamentally jeopardizing a required consensus at the political level.  Would it not be too idealistic to imagine any first time sitting executive to accede to such a request?  The argument is not that it is the requirement from the consultation considering the fact that not everything opined or required by the people from that process has found its way into the draft.  The best possible way to enforce this requirement, if indeed it is vital, is to leave it to the voters to decide if a sitting executive should continue – through the ballot box and through the competitive bidding by the political parties.   The retrospective application of law does happen but its relevance in this instance appears to be flimsy compared to the jeopardy it creates.

In other words, such a request or objection by the executive should have been given a good listening ear and endorsement as part of building the requisite consensus so as not to lose or endanger the objective. Sometimes one wonders realistically how many political leaders would have acceded to this requirement.

The second example lies with the appointment of senior civil servants.  The civil service is a special institution which is the engine of day to day administration.  It is the major tool for the implementation of policies emanating from the executive.  It is traditionally considered to be neutral in matters of politics.  This country has had one of the best institutions of its kind on the continent and what happened to it in the last regime is history known to almost everyone.

It appears that the prescription for a cure has been misplaced which may seem to be a bone of contention. The Draft requires that the appointment of certain senior civil servants has to be approved by the National Assembly.  Presumably this is considered a cure for the diagnosed abuse of this institution in the past.  In other words, the neutral institution is now to be moved under the umbrella of a political one which has the hallmarks of being politicized in the long run (my emphasis).

It should be remembered that cross carpeting is not a common phenomenon in politics especially when it is wholeheartedly legally endorsed or provided for.  In a situation where presently there is a minority of members on the side of an executive, that scenario will assuredly change, in the long run, into a majority – if we go by the history of the cross-carpeting of membership in the Assembly.  Paradoxically, the very abuse one is trying to avoid becomes reinforced by an executive having a majority of members in the Assembly and such abuses would have become very legitimate indeed.  The other side of the coin is where an executive has a minority representation in an Assembly, the appointments could become a stalemate and thus become a burden and a hindrance for the smooth operation of the administration.    These are the realities of politics.

It would, therefore, not be unreasonable to seek the revision or revisiting of the civil service appointment requirement with an alternative that would reinforce the powers of the Public Service Commission (PSC).  It may be suggested that the civil service institution should firmly remain under the PSC whose powers should be grossly increased as the cure to abuses.  The appointment of the Chair of the PSC (political) could be the one that is approved by the National Assembly. The argument is or should be that the civil service must and should remain independent with its own independent code of administration.  Presumably, it is a balance of power that is required and not a shift.

These are just two examples that seem to have emerged from the objections of the executive with regards to the draft (as observed in the media).  They are fundamental to having a consensus but they are not so essential or sacrosanct to a constitutional or governance framework.  They could be resolved through compromises that will create a common campaign platform.

There has been so much commendable effort put into this process that we need to be once more creative, realistic and more optimistic and use the discretion granted to CRC in order to achieve the original objective of having a new Constitution by the next elections.  We need to re-invigorate the resolve to achieve it.  The vital stakeholders should come together to dialogue.

The fear of partisan intervention in the final process must not overwhelm the energies of creativity in consensus building. One way of minimizing such an interference may be to have a forum comprising CRC, the executive and a representative committee from the National Assembly and the Judiciary (all the arms of government) or a one more time consultation at the political level after observing or analyzing the lessons learnt with the objective of building the required consensus to see us through a new draft.

There indeed should be a Constitution before the next elections but such a constitution must have a solid and realistic foundation to carry it through a referendum based on the mutual support of all the active stakeholders.  All the hunters must be persuaded to come on board in order to snare the stag of governance that will politically feed the entire nation.  Just Thinking Aloud.

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