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Friday, December 1, 2023

Tracking the Constitutional Review Commission

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By Madi Jobarteh

The Constitutional Review Commission (CRC) has now been established and it is generally agreed that the commissioners are men and women of high calibre. Nonetheless citizens must watch them to ensure that they perform their mandate as per the Act and also protect them from potential political interference from the Government. The Commission will operate for up to 18 months, with a possibility of a six-month extension by the president upon the proposal of the chairperson. This means the president cannot unilaterally extend the Commission nor even initiate such extension.

It is necessary that citizens access the CRC Act to understand what it says so that we can be in a better position to track and participate in the activities of the Commission leading to the drafting of a new constitution that truly reflects the opinions of Gambians. A constitution is a foundational document which has to reflect our values and aspirations as a people. It should be holistic to stand the test of time without frequent amendments.

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We know that when the bill was placed before the parliament in December 2018 several provisions were removed because it was feared that those provisions would have made the National Assembly to commit treason if it were to implement them. Those provisions are as follows:
Section 22: Approval of constitution and report by the National Assembly.
1. The President shall, within sixty days of receiving the Constitution and the report under section 21 (1), transmit a copy thereof to the National Assembly.

2. The secretary shall, after consulting with the clerk of the National Assembly following the action referred to in subsection (1), make a sufficient number of copies of the Constitution and the report for purposes of the National Assembly.
3. The National Assembly shall, acting in accordance with section 226 of the 1997 Constitution, debate and approve the Constitution [without amendment].
Section 23: Approval of Constitution by referendum
1. Upon the enactment by the National Assembly of the Bill approving the Constitution, the Speaker shall, following the assent of the President, immediately transmit a copy of the Constitution to the Independent Electoral Commission.

2. The Commission shall, within sixty days of receiving a copy of the Constitution in accordance with subsection (1), organise a referendum on the Constitution.
Section 24: Adoption and entry in force
The Constitution shall be considered to be adopted once it has been approved at a referendum and shall come into force immediately, unless the National Assembly had, in relation to the Bill approving the Constitution, appointed a date no longer than three months after approval of the Constitution at a referendum on which the Constitution is to come into force.

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At the end of the day the approved Act only maintained Section 21 which states that,
1. The Commission shall, upon the completion of its work, submit a Constitution and a report thereon (in originals) to the President.
2. The Commission shall, upon the submission of the draft Constitution and report to the President, publish the Constitution and the report.

3. The Constitution and the report may, in addition to being published in the Gazette, be published in such other manner as the Commission considers fit.
Therefore in the approved Act (i.e. Section 21) there has been no timeline given to the president as to when he should submit the draft constitution to the parliament when he received it. I find this to be a major shortcoming in the Act because it could be that the president can delay, deliberately or not in submitting the draft constitution so that a bill for a referendum on the new constitution is carried out as specified under Section 226 of the existing Constitution.

Citizens must therefore be concerned about this gap so that we ensure that Pres. Barrow does not delay the process for whatever reason when we get there. That notwithstanding, Section 21 of the Act is progressive in that it has given powers to the Commission to unilaterally publish the draft constitution as it submits it to the president. The Commission needs no one’s permission to do that.
We must therefore also track the CRC when we get there to see if they will publish the draft constitution. Already the Act has protected their independence under Section 7 hence the Commission is under no one’s control or direction to do their work. The members of the Commission enjoy security of tenure as the Act states that they will serve for the entire duration of the operation of the Commission, without the threat of removal on unfounded grounds.

The principal mandate of the Commission is to a draft a new constitution, and to prepare an accompanying report. In discharging its responsibilities, the Commission is required to seek the opinion of the people of the Gambia, including the diaspora, and to invite professional, civic, political and other organizations to appear before it and make presentations.
The Commission must safeguard and promote a number of substantive principles, including the republican form of government, secularism, rule of law, fundamental rights, and the separation of powers. Notably, it must introduce presidential term limits.

Citizens must be vigilant and active in scrutinizing the Commission to ensure that its operations are transparent and in line with the values and standards of the Act and the Constitution. The Act states that the Commission will take decisions by consensus and in its absence by majority vote, with a quorum of at least six members.

This Commission is our Commission. Its success is our success hence each and every citizen must be jealously interested and hugely concerned about its work. The system change we yearn cannot take place without a new constitution that is democratic, progressive and modern. Since the constitution is nothing but the opinion of citizens then it is incumbent on each and every citizen, at home and abroad to take part in the consultative processes and activities of the Commission to share your opinion.

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