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Wednesday, August 4, 2021

The Gambia’s struggle for a legitimate constitutional order

By Alagie Yoro

It is amazing that after fifty-four years as a nation we still have not decided how our country should be run.

Yet at this age, one ought to have married, brought up your own children and started the journey into the sunset of your life assured of a solid legacy.

The Gambia, as a nation, we seem to be prolonging our youth, refusing to settle down and take up the burdens of responsibility. What are we waiting for?
A People – Centered, a Home-Grown Third Republican Constitution.!!!
The Gambia’s supreme legal charters (the 1960,1970 and 1997 Constitutions) all of Westminster style and designed has been very elusive, doggy and very costly to the nation in the last 54 years.

Three Presidents have inherited and placed their efforts to enact Colonial vestige legal systems. The Constitutional Review Commissions and similar bodies of foreign jurist inputs have been held, colossal amounts of public funds deployed, but to no avail, as at now.

This time around, are Gambians winning as expected?
Gambian legal scholar Dr. Abou Jeng hypothesized at a colloquium that “A Constitution of whatever political dispensation ought to be an instrument of dialogue whose guidepost must make permissible a representation of consociation affirmation of the possibilities …

to command a mission that adds voice to the condition of human suffering, and perhaps crucially, undertake to mitigate it”.

The big question is: Will the People -Centered or a Homegrown Constitution be executed as expected by WE the People of the Gambia? Political will has to be very encouraging.

A globalized history of the United States would be only the latest twist in a constantly changing narratives.

Broadly speaking. The United States is routinely presented as the “perfect”, the greatest nation in the world, and the embodiment of democracy, freedom and technological progress.

The Gambia may have intruding on the slumbering nation through prevailing narratives. The founding fathers were paranoid or may be and ungrateful malcontents.

What was their cherished Declaration of Independence apart from empty posturing? They groaned about the burden of taxation without representation and sovereign republicanism, but it was the English who were shouldering the real burden of the legal charter.

The U.S. Constitution is 230 years old today. On Sept. 17, 1787, the Founding Fathers signed the Constitution at Independence Hall in Philadelphia’, forged a new government for the United State with only few amendments or changes; I am reminded that only 27 amendments or changes in one Constitution as old 230 years: I am reminded that the 1997 Constitution which is 22 years old today was butchered double more than the US Constitution; almost 50 times: Really?
Why our Constitutions without constitutionalism?
Even as we clamor for a new Constitution gathers momentum, we must be careful not to forget the basic structure of the 1960, 1970 and 1997, Constitution. Why the Gambia is always at Constitutional crisis illustrated how the powers-that-be have committed what is eloquently described as “Constitucide” the act of murdering and mutilating the Constitution, especially what President Yahya Jammeh administration did to the 1997 Constitution, to retain power not for the betterment of the people but to fulfill his individual egos.

The 1997 Constitution was amended almost 50 times (1997-2019). The one purpose of a constitution is to set out the fundamental conditions upon which individuals and groups within a country broadly agree to be governed.

Constitutions usually provide limits to government by establishing and distributing powers between different branches, institutions or offices of the government.

The Gambia’s Constitutions internal aporia remains problematic because Constitutional frameworks, as President Barack Obama says in his book, primed in the New York Times best-seller ‘Audacity of Hope’ that (Constitutions) are designed to force people into a conversation with the hope of offering legitimate means by which people argue about the future.

Of course, for a country that deserves so much, the failure of its Constitution to reflect the call of its people for an emancipatory Constitutional order is particularly disappointing.

Betrayed by the First and Second Republic, we had hoped for a future that would harness collective strengths and individual talents within the settings of a Constitutional democracy.

Today, Gambians are one-seeking trust, integration, unity and a reconciliation process that seek, to find a Constitutional common ground well before drafting begins; a new Constitution that can be oriented towards delivering a shared Constitutional vision that will provide to all Gambians to realize cohabitation that is possible.

One erudite Nigerian jurist, Taslim Olawale Elias once warned that writers of Constitutional law have the tendency to make false prophesies. He plausibly says though, that in the context of the Gambia’s Supreme law, unless the inadequacies that beset its Constitution are confronted and reversed, its Constitutional future remains both obscure and insecure.

The Second republican 1997 Constitution according to a Constitutional scholar Abou Jeng “is not a people’s Constitution. It is a Constitutional tragedy, a substitution of Hope with Despair”, he argued.

There comes a time in the life of a nation when the peoples cry on an issue and their sense of betrayal and futility lies at the hands of those they entrusted with power must surely come to an end.

This is not easy, since President Barrow, have the super-abundance of historical reasons, spectacular legal arguments and that of his own political considerations to give in to the demands of the Gambian people.

But regardless of what is expedient, as a leader, President Barrow is expected and has a duty to respect and fulfill the needs and aspirations of the people. After all, it is often an inescapable truth that Vox populi, Vox dei. (the voice of the people is the voice of God.)

It is for this reason that President Barrow publicly committed himself and, his Govt, deliver to the Gambians, ‘A People-Driven Constitution.

This way creates a new politics, a new way of doing things, a new approach to politics!
Why Constitution matters? According to Justice Ramaswamy of the Supreme Court of India in emphasizing the immense importance of the Constitution said that the Constitution, “unlike other Acts, is intended to provide enduring paramount law and a basic design of the structure and power of the State and rights and duties of the citizens to serve the society through a long lapse of ages.

It is not only designed to meet the needs of the day when it is enacted but also the needs of the altering conditions of the future.”

This draft Constitutions MUST contain certain fundamental basic structures that our political leaders MUST guard against being amended or mutilated. At least those features are fundamental law which are sacrosanct that include supremacy of the Constitution, Unity and Integrity of the State, Fundamental Rights, Sovereign and Democratic Structure, Rule of law, Separation of Powers, the Independence of the Judiciary, Secular Character of the Constitution and Limitations on the Amending Power of the National Assembly amongst others.

President Adama Barrow has launched to move a new Constitution, dusting off the shelves where his predecessors left a Constitutional Review Commission Act comprising of all Homegrown Eminent members to draft a People-Centered Constitution of the Third Republic, may bring life to our legal system, tasked to bring it to realization.

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