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Tuesday, September 22, 2020

The third part: taking the trees for the forest

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By Gambian Outsider

I have been asked time and again what my thoughts are on this or that provision of the “draft constitution.” To me a constitution is like a forest and I am being asked what I think about this tree or that tree. On another note, based on the number of readers to articles dealing with the draft constitution, it appears to me that such articles are boring to most, because they do not deal with juicy stuff; you know, like scandalous materials and happenings that do not add any value whatsoever to Gambian lives. I am sure you are aware or should have been aware that articles and the readership about the draft constitution have been down because so-called juicy happenings have drowned them. Nothing in a democratic state protects the rights of citizens’ other than the constitution, yet, here we are.

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To some, I seem stuck talking about what a constitution is and what it is supposed to do. I am by no means faulting those who jump to this or that provision without getting into the foundational discussion of what a constitution is and what it is supposed to do. I believe knowledge of what a constitution is and what it is supposed to do is indispensable to having a constitution that can stand the test of time. I certainly welcome all the articles written about the draft constitution notwithstanding the misinformation and disinformation in some of them. In some of those articles, their authors leave out many details and assume that the readership will fill in those details. That I believe is a mistake.

If a writer is arguing for a certain principle or doctrine, that writer has a responsibility to explain that principle or doctrine as clearly as possible. In that way, when the readership understands that principle or doctrine, it is hope, it will be rooted in the soul. Without that kind of understanding, a principle or doctrine is read and easily forgotten because it did not take root and it did not take root because it was not clearly explained and inculcated in the mind. Certain principles or doctrines of self-government must be believed like one believes in religious tenets. They must be believed to be worth dying for. To have certain principles of self-government on a piece of paper is one thing. It is another thing for the people whom those principles are supposed to protect to believe those principles as if their very lives depended on them. This I believe is one of our responsibilities as writers and commentators on the draft constitution. In this “new Gambia” there is no greater undertaking than the constitution. A constitution is to a democratic state what a soul is to a body. Just like a body without a soul is death so is a democratic state without a constitution.

The writings and commentaries on the draft constitution seem to fall into two groups: (1) those who use only the 1997 constitution as a point of departure, and (2) those who not only use the 1997 as a point of departure but here and there also bring in the constitutions of other countries. I believe the subject matter of a constitution should first be discussed. After this has been done, then and only then is one at liberty to discuss and compare with the constitution of this or that country.

Because of its many shortcomings and confusions of constitutional principles the 1997 constitution is a terrible point of departure. I am not against using the United States Constitution as a model, but in order to do so, a writer, like me, has a responsibility to give reasons why using the United States Constitution as a model is a great idea, and at the same time not fail to point out some peculiarities of the United States Constitution that cannot be emulated. History can prove this point without getting into other complex issues. In this article, I intend writing about the following:
(1) What my opinion is on the draft constitution from studying its table of contents.
(2) Rules and Maxims.
(3) ) Parliamentary Democracy versus a Constitutional Democracy (sometimes Referred to as Presidential Democracy); and
(4) The Two Species of Constitutions Known to Man.
This article is what I hope to be the last foundational article I will write and after which, I intend to get into the text of the draft constitution. Like my previous articles, where I know that someone has stated an idea or a thought or principle better than I can formulate, I let that person’s words speak for themselves by quoting what that person have said. Like John the Baptist said about my Lord and Savior, Jesus Christ, “He must increase and I must decrease.”

I will here repeat what I have said in my first foundational articles. I believe one month is way too short to discuss something as important as the constitution of a country. I cannot for the life of me understand the rush without adequate and thorough discussion of such an important document. Then again, who cares what I think. After all, like Job said, “I am a worm and no man.”

(1) What my opinion is on the draft constitution from studying its table of contents:
I answer that the draft constitution is a monster. By “monster” I have in mind the monster in Mary Shelly’s Frankenstein. If a state’s constitution is supposed to be a human being, what the CRC come up with is nothing short of a monster. In Mary Shelley’s Frankenstein, there are many who believe that the monster’s name is Frankenstein but that is not the case. The creator of the monster is Victor Frankenstein, a young scientist who creates a hideous sapient creature in an unorthodox scientific experiment. Victor never tells what the name of the creature is.

The creature is called a monster because of its make-up of different parts and its source of life. Another analogy would be, asking my dear sister Dr. Sarr and former school mate Mary Cham to cook me some “Domoda.” I asked them because it is rumored that they are good cooks. Before these ladies started cooking, they bought the generally known ingredients that go into cooking a Domoda and started cooking. However, they did not stop there but were also putting some of their favorite food items in the cooking pot. Things like tofu, honey, milk, cheese, eggs, Palm oil among other things. After the ladies finished cooking, who would call the dish they have cooked a Domoda? Similarly, that is what you have in the draft constitution.

There are many things in it that do not belong in there. So, strictly speaking, that is, going by the definition of a constitution, the draft constitution does not satisfy the definition of a constitution. It goes beyond what a constitution is supposed to cover. It is like building a house wherein some parts of the house have cement and other parts have mud. When the storm, rain and flood come, the entire house will not be able to withstand the force, especially that part built with mud. A similar flaw is found in the 1997 constitution. Because it is named a “draft constitution,” I therefore go with the name that is given to it. One of the underlying principles in the making of a constitution is that, whatever can be created by ordinary legislation does not belong in a constitution.

This can be inferred from either the expressed powers or implied powers, and also the inherent powers of the different branches of government. For example, if a constitutional provision says that a certain branch of government shall print money, it necessary follows that, that branch may create a bank or a financial institution. You know, banks store money. The power to print money and how money is to be printed need not be explicitly stated in that provision. By going through the table of content of the draft constitution, I drew a line across all the provisions that I believe can be created by ordinary legislation as not belonging to a constitution. You can deduce from what I have said that the creation of a constitution is more than an ordinary legislation. It is an extraordinary process. Dr. Weaver has this to say concerning a constitution and a statute: “A constitution is a fundamental law while a statute is an ordinary law. A constitution is a primary enactment while a statute is secondary.

A constitution is an act of extraordinary legislation direct from the people acting in their sovereign capacity in relation to the structure of government, the extent and distribution of its powers, and the modes and principles of its operation, preceding ordinary laws in the point of time and embracing the settled policy of the nation. A statute on the other hand is legislation from the representatives of the people, or in the case of an initiative or a referendum, the people acting in their own legislative capacity, subject to the superior authority, which is the constitution. Statutes are enactments or rules for the government of civil conduct, or for the administration or the defense of the government. They are tentative, occasional, and in the nature of temporary expedients.”

The members of the CRC are quick to point out that the draft constitution is smaller in size than the 1997 constitution by a number of chapters or clauses and that is misleading. Here is what I mean, if a person who weighs 350 pounds loses 3 pounds what real difference does that made; 347 pounds would still be considered obese. So it is with the draft constitution. It is obese and badly in need of a major diet, in this case, major weight loss. The United States has a population of about 325 million people and its constitution can be read in its entirety in thirty minutes or less. The Gambia, with a population of less than 2 million people, ok,let me be generous here and give it a population of 2.5 million people, how in the world can its constitution be bigger than or longer than the constitution of the United States. I have a Four Volume set of books titled “Constitutions of Nations.” Volume One of the set contains constitutions of African countries that were in existence at the time of publication. The last printing of the set was in 1973; volume one contains 43 constitutions of African countries. Liberia, which is larger than and more populous than Gambia, its constitution is a mere six (6) pages long. Need I say more!
(2) Rules and Maxims:
Some commentators have applauded the CRC for explicating some provisions in the draft constitution. Those explications do not belong in a constitution. It is the nature of a rule or maxims that general language be used. General language gives, for example, a rule flexibility and vitality so that it is adjustable to changing society. Because a constitution is largely an outline of government, a constitution is not self-executing, Chief justice Marshall, whom I reverently call “The Chief” has this to say in 1819 in a seminal case: “A constitution to contain an accurate detail of all the subdivisions of which its great powers will admit, and all the means by which they may be carried into execution, would partake of the prolixity of a legal code and could scarcely be embraced by the human mind. It would never be understood by the public. Its nature, therefore, requires that only the great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves.”

Justice Story in 1814 says this about the form of the United States constitution: “The Constitution unavoidably deals in general language. It did not suit the purpose of the people, in framing this great charter of our liberties, to provide for minute specifications of its powers, or to declare the means by which those powers should be carried into execution. It was foreseen that this would be a perilous and difficult, if not an impracticable task. The instrument was not intended to provide merely for exigencies of a few years, but was to endure through a long lapse of ages, the events of which were locked up in the inscrutable purposes of Providence. It could not be foreseen what new changes and modifications of power might be indispensable to effectuate the general objects of the charter; and restrictions and specifications, which at the present, might seem salutary, might, in the end, prove the overthrow of the system itself. Hence its powers are expressed in general terms, leaving to the legislature, from time to time, to adopt its own means to effectuate legitimate objects and to mold the exercise of its powers, as its own wisdom and the public interests should require.”

(3) Parliamentary Democracy versus a Constitutional Democracy (sometimes referred to as Presidential Democracy):
The word “Parliament” is brought back in the draft constitution. This is a word that was noticeable in the 1970 constitution and disappeared in the 1997 constitution. What is a Parliamentary system? In a parliamentary system, the executive power is also vested on the Parliament. The executive leader of the parliamentary system is elected from the legislative branch directly. The executive is actually an appendage of the legislative branch. Here the name of the chief of state’s position can be “Prime Minister” “First Minister” “Chancellor” and the like. In the parliamentary system, if the parliament doesn’t like the Prime minister, they can cast a vote of no confidence and replace him. This tends to make the executive subservient to the Parliament. Its leaders are more devoted to party ideology, because they are selected by the party. A Prime Minister can serve so long as they have majority. Laws are enacted quicker in a parliamentary system.

Constitutional Democracy is one in which the executive power lies on a different branch of the government, the President of the republic. A constitutional democracy is based on written deliberate laws instead of customs. The executive is directly voted by the people or through a body elected for that purpose. Presidents can serve without a majority. The President is directly answerable to the people. It is more difficult in this system to enact legislation, especially in the event that the president has beliefs different from the legislative body.

Because the legislative body cannot do anything to threaten the president, the president can make it difficult for the legislative body to do anything. Based on the features of the two systems of government enumerated, a question arises. What system of government does The Gambia have based on the draft constitution? I believe the answer is clear. Why then is the word “parliament” in the draft constitution? Here you have two systems of governments being merged into one when they operated differently. Even though, I could not find the word “parliament” the 1997 constitution, there are certain provisions in there that are clearly suited to the parliamentary system then the constitutional or presidential system. It is sad to admit but the demons of the 1997 constitution are present in the draft constitution. Plagiarism is permitted in legislation. Most legislatures do it.

However, it is another thing to commingle two systems that cannot coexist at the same time in one government. I have often seen some of our brightest use the term parliament and the legislative body synonymously. The legislative body in The Gambia is called the National Assembly and not parliament. A parliament can be a legislative body but a National Assembly cannot be a parliament. Take the British Parliament for example. Its composition is bicameral but it has three parts: The Queen as head of state, the House of Commons and the House of Lords. When Parliament meets at Westminster, the House of Commons which include the Prime Minister, the House of Lords, and the Queen as head of state all convene at Westminster and this is call the British Parliament. As is clear, parliament is much more than just the legislative branch of government. In Question number 4 below, you will see how the inclusion of the term “Parliament in the draft constitution betrays something of the CRC.

(4)The Two Species of Constitutions Known to Man:
A constitution may be written or unwritten. An unwritten constitution does not mean that one cannot find some authoritative documents which declare some of its important principles. The British constitution is an unwritten constitution. It consists of some authoritative documents and customs. Dean Cooley has this to say about the matter: “The weakness of an unwritten constitution consists in this, that it is subject to perpetual change at the will of the law-making power; and there can be NO SECURITY against such change except in the conservatism of the law-making authority; and its political responsibility to the people, or, if no such responsibility exists, then in the fear of resistance by force.”

Another constitutional scholar illustrated this point in 1875: “Let us suppose that, at the next session of the British Parliament, a rigorous censorship of the press is established, the Queen authorized to lay what taxes she will, on whom she will, and collect them as she will, the Habeas Corpus Act repealed, and all the ministers supplied with the blank warrants under the privy seal, as it once was in France, which they may fill with any name, and by these means imprison any persons at their pleasure. And let us suppose that these laws pass through Parliament with precisely the same forms as those necessary for a statute to regulate the days of grace on bills of exchange, or to provide any other common mercantile or municipal measure. It is certain that no man in England would have a legal right to resist any one of these laws; and no court or magistrate in England would have a legal right to obstruct, or defeat, or annul them, or do any other thing than carry them at once into full force and effect. Of course, if the popular sentiment were not greatly changed, there would be opposition of rebellion or revolution, and not of legal right. But let any such law be passed by Congress and the President of the United States, or by the legislature and governor of any states, and it is only nothing. It is dead at its birth.

The judicial body of the nation or the State is ready to declare it to be nothing. And the reason for all this is, that the law opposes the constitution, and, by the force of that fact, is nothing. If, in England, the word “constitution” may mean the whole complex of all their political and legal institutions, here [in America] it means something distinct from them all, something sovereign over them all, imparting life to all of them that live, and denying life and power to whatever opposes it.” The scholar is saying that in Britain, Parliament reigns supreme whereas in the United States, the Constitution reigns supreme because its source of supremacy is from the people who allow themselves to be governed. If Parliament passes a law, that law has supremacy over any law before it and to which it is opposed. This is not the case in a country that has a written constitution as the United States.

Dean Cooley again says somewhere: “In America the leading principle of constitutional liberty has from the first been that the sovereignty reposed in the people; and as the people could not in their collective capacity exercise the powers of government, a written constitution was by general consent agreed upon in each of the States. These constitutions create departments for the exercise of sovereign powers; prescribe the extent of the exercise, and the methods, and in some particulars forbid that certain powers which would be within the compass of sovereignty shall be exercised at all. Each of these constitutes for the State the absolute rule of action and decision for all departments and offices of the government, in respect to all the points covered by it, which must control until it shall be changed by the authority which established it. Whatever act or regulation of any department or officer is in excess of the power conferred by this instrument, or is opposed to any of its directions or regulations, is altogether void. The constitution, moreover, is in the nature of a covenant of the sovereign people with each individual thereof, under which, while they [e]ntrust the powers of government to political agencies, they also divest themselves of the sovereign power of making changes in the fundamental law except by the method in the constitution agreed upon. The Constitution of the United States creates similar governmental trusts and imposes similar restrictions. The weaknesses of a written constitution are, that it establishes iron rules, which, when found inconvenient, are difficult to change; that it is often construed on technical principles of verbal criticism, rather in the light of great principles; and that it is likely to invade the domain of ordinary legislation, instead of being restricted to fundamental rules, and thereby to invite demoralizing evasions…”

Of the articles that have been written about the 1997 constitution and the draft constitution, nothing has been said about the two species of constitutions. I agree with those who use the constitution of the United States as a model because all or most of the elements of a written constitution are present in both the 1997 constitution and the draft constitution. This means, anything that does not fit the scheme of a written constitution does not belong in the draft constitution. For example, if we have constitutional or presidential democracy, then anything touching on parliamentary democracy does not belong in the draft constitution.

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