What about The constitution?

What about The constitution?

By: Imran Darboe

Editor’s Note : The opinions expressed in this article are those of its author. The Gambia Inquirer does not necessarily share them . 

It is an exciting time, the third genesis of the Smiling Coast, the breaking dawn of the third republic of the Gambia. After 22 years of governmental unaccountability, Gambians, after heaving a collective sigh of relief at the departure of former president Jammeh, are now determined, it seems, to scrutinize every decision made by our new government and inevitably, the result is a cacophony of voices of varied opinions – some reasonable, others angry, some a tad overzealous, others suspiciously mischievous in resonance. Refreshingly however, the Constitution has taken centre-stage in the discourse. It began with the first executive appointment (for vice-president) which triggered a debate as to its constitutionality thanks to the age restriction for that post under section 62(b) of the current constitution.

at the time, I stated on a Facebook discussion on the subject, rather cheekily, that “as a law student, perhaps I should be ashamed of myself for holding the opinion that the new Gambian government should be able to (where necessary) operate outside the provisions of the Constitution in selecting members of the Executive for the three-year transition period.” An opinion that sounds precariously close to some of the unrestrained allowances the current constitution  gives government.

Rather unsurprisingly, a learned Gambian brother duly told me that indeed I should be ashamed of myself for uttering what is no less than legal blasphemy. The Constitution is the law, he told me, and good or bad we must abide by it. It is the supreme authority of the land, and if we are to be seen as democratic by the international community closely watching, we must adhere steadfastly to its conditions, notwithstanding the consequences. Democracy, he said, required obedience to the law and any change must come through the right legal procedure.

In my defence, I argued that, to fix the defects in the system of the past 22 years, we first need to install the right people in positions where they can do some fixing. Since some of the present constitutional provisions seem to hinder appointment of such people (as evidenced by the VP situation), the new president ought to be able to, in the instance, ignore those provisions when selecting his transitional Cabinet.

Of course this view is purely subjective rather than objective and quite untenable in a practical legal sense. How can the president be allowed cherry pick which constitutional provisions to obey and which to disregard? It is, generally speaking, a recipe for disaster, or to be more precise, a recipe for abuse of power – yet even as I accept that, I will unabashedly attempt here to rationalize why I felt our situation could excuse such a radical and seeming indefensibly view. Beyond defending my opinion however, I argue that to hold government really accountable Gambians must move beyond defending just the letter of the Constitution and instead put more emphasis on, and stick up for the substantive values of liberty, freedom and human rights that it is supposed to embody within it – the fundamental values of the rule of law. Thus I will discuss the Constitution a little here.

For all the importance placed on obedience to our current Constitution, I think it is compliance to the principles of the rule of law which we must compel government to honour more stringently. As the great UK judge, Lord Bingham mentioned in his seminal book, The Rule of Law;

 

Law cannot be simply what is dictated by political authority or issued by the state. In the 20th Century there have been two examples of legal tragedies which were developing in parallel. One was totalitarian Soviet Communism, and the other German Nazism.

 

Thus a constitution alone does not make for democracy or good governance and indeed even North Korea does have a constitution, as does Syria, and so did the Third Reich under Adolf Hitler, Russia under Joseph Stalin and numerous other regimes past and present. I dare say that most of the atrocities perpetrated by those governments, have been carried out under legal laws of the state. Bingham notes that

In Nazi Germany, the law was an expression of the will of the German nation, and the will of the German nation was incorporated in the Führer (Hitler). Hence the law existed only as a body of statutory laws. The system was killing millions of people, because the law was given and contained in the statutes.

 

The same could be said of the Gambian Constitution under Jammeh’s rule. Not only did its provisions grant him extensive powers, but also constrained and curtailed, rather that proliferate and protect freedoms and rights of Gambians. Dr Abou Jeng, a Human Rights jurist and Associate Research Fellow at the Centre for Human Rights in Practice, University of Warwick, UK, in his article Constitutional Law-making in the Gambia, concluded that

… in the context of the Gambia, unless the inadequacies that beset its Constitution are confronted and reversed, its constitutional future remains both obscure and insecure. Thus The Gambia’s 1997 Constitution is not a people’s Constitution. It is a constitutional tragedy, the substitution of hope with despair!

 

The Gambian political activist Matthew Jallow also wrote in an article called The Gambia: Death Penalty Amendment, Sharia Law and the dangerous descent into lawlessness, about how the former president had usurped the constitution and with the help of a “rubber-stamp” National Assembly, had been freely amending it at will, gradually shoring up his authority while at the same time eroding Gambians’ freedoms and human rights. In essence he complained about the deficiencies of the Constitution which Jammeh had used to restrict and suppress dissent under the guise of legality. One can therefore perhaps appreciate why I may hesitate to demand absolute and steadfast fidelity to such a constitution.

As a nation’s ultimate moral and legal yardstick, a national Constitution must instrumentally establish separation of the powers of the various branches of government such that rule of law is robustly protected and one branch of government (e.g the presidency, as in Gambia’s case) does not hold excessive power. In our Constitution ,  as well as assurances of the supremacy of the Constitution,  the inviolability and protection of fundamental human rights and freedoms are also promised. However, the limitations to these freedoms and rights, which allows for governmental interference, are astoundingly broad in scope and open to serious abuse (and did result in serious abuse). Dr Jeng in his analysis, observed that legally measured, “The deficiencies of the Constitution are profound.” Indeed, Section 18, while protecting the right to life, states that the death penalty can be levied “in respect of a criminal offence for which the penalty is death under the Laws of The Gambia as they have effect…” This exception virtually allows the government to levy the death penalty for breach of any number of offences deemed criminal offence by the National Assembly – even where the laws making such offences criminal are draconian and overbearingly against the rule of law. In practice this had allowed the Jammeh government to make a number of new offences punishable by death.  Section 18(4) goes even further to state that death arising in the course of suppressing a riot, making a lawful arrest or preventing the escape of a prisoner is justifiable where “reasonably justifiable” grounds can be given.

So, assuming students or some other group of Gambians gathered to peacefully protest electoral reform, like Solo Sendeng did, and in the process are somehow provoked by authorities and an altercation ensues, security forces can murder persons in the process and easily justify it as a death in the course of ‘suppressing a riot’ or ‘in the process of making an arrest’ and, since every mischief in Jammeh’s Gambia was carried out in the name of ‘national security’, that death would have easily been justified under the lax provisions of the Constitution. Of course it did happen on April 10th 2001 and with Solo Sendeng in 2016. In fact, I suspect that we might find a lot of the terrible, deplorable treatment of Gambians under Jammeh, though offensive to the substance of the rule of law and our moral consciences, if subjected to the current Constitution, would be legally excusable.

Of course similar restrictions are placed on other civil liberties and rights such as liberty, freedom of speech, assembly etc. The inclusion of customary law, undefined and unrestrained – as a source of law further exacerbates the constitutional deficiencies. Our customary laws are in many cases generally discriminatory by nature, (in many cases unsympathetic to women’s and children’s right) and unascertainable, thus they lack clarity or certainty and hardly conform to the rule of law. Further yet, the Constitution provided for the retention of all the decrees passed by the AFPRC when Jammeh took power (Section 7). Some of the decrees have been repealed, yet many remain. These are laws imposed by a military junta, to forcefully regulate Gambian social life and civil liberties after they suspended the 1970 Constitution. How can a Constitution that is supposed to be the supreme authority of the state and an embodiment of the will of the Gambian people, include forcefully imposed decrees whose implementation the people had no say in?

To add further insult, Schedule 2 of the Constitution provides indemnity from legal proceedings, for decisions done by virtually any persons or institutions during the AFPRC’s time in power. Many Gambians call for bringing to account persons who committed unforgivable crimes during the AFPRC era, yet Paragraph 13(1) of Schedule 2 seems to exempted any and all members or agents of the AFPRC Government by stateing that

no member of the Armed Forces Provisional Ruling Council, any person appointed minister by the Armed Forces Provisional Ruling Council or other appointees of the Armed Forces Provisional Ruling Council shall be held liable or answerable before a Court or authority or under this Constitution or any other law, either jointly or severally, for an act or omission in the performance of his or her official duties.

 

To ensure that this provision is immune to legal or other challenge, the Constitution states that the “National Assembly shall have no power to pass a Bill to amend or repeal this paragraph or paragraph 11, 12, 13 or 14 of this Schedule.” Para 13(2) holds that

it shall not be lawful for any court or tribunal to entertain any action or take any decision or make any order or grant any remedy or relief in any proceedings instituted against the Government of The Gambia or any person acting under the authority of the Government of The Gambia, or against any person or persons acting in concert or individually to assist or bring about the change in Government which took place on the twenty second day of July 1994.”

Dr Jeng in his writings highlights yet further atrocious expansion of this indemnity in the form of the Indemnity Amendment Act 2001 which was enacted as a result of the April 10, 2001 student protest that saw 14 young unarmed people killed. It gives the president carte blanchė powers. The Act allows the president to,

for the purpose of promoting reconciliation in an appropriate case, indemnify any person he may determine, for any act, matter or omission to act, or things done or purported to have been done during any unlawful assembly, public disturbance, riotous situation or period of public emergency.”

In essence, the Constitution seems to me to serve more as a democratic smokescreen, proffering fundamental rights and freedoms on one hand while summarily
snatching them away with unrestrained limitation clauses on the other hand. No wonder Dr Jeng in his conclusions said that

there is considerable split between the expectations of Gambians and the vision of the Transitional and Consequential Provisions on one hand, and the actual text and essence of the Constitution on the other. Even where there exist some value in certain constitutional provisions and their supervisory mechanisms, these are neither adequate nor capable of shaping a progressive social order.

 

It is these glaring handicaps in the Constitution, amongst others, that have me convinced that it is not a Constitution I will strictly measure the new government’s conduct to. Until we have a truly democratic constitution, I will only really protest where the new government breaches substantive principles of the rule of law – appointing qualified persons into positions where the only objection is their age (which under the circumstances does not impact their ability to do the job) does not fall under that list  for me (personally speaking). To me the inclusion of the age requirement provision served no purpose than to restrict challenge to Jammeh’s presidency. Even if one disagree with my view however, I hope one can agree that the new found interest in constitutional matters should take a broader and more significant dimension, focussing more on whether the laws of the Gambia conform to fundamental human rights – whether it be ensuring independence of the judiciary is appropriately observed, questioning whether the National Assembly is genuine representing the electorate’s will or not etc. The conversation must shift to how good governance and the rule of law should shape governmental activity. It is my hope that in the new dispensation, we will form advocacy groups, pressure/interests groups, unions and civil society groups as well as political activists who will fight to make sure that the content of an amended Constitution contains and protects the values, rights and liberties of the Gambian people, and outline and determine the powers and  responsibilities of government reasonably, without any of the discretions and indemnities in the current constitution that bestowed the president and his machinery with powers to arbitrarily infringe Gambian rights and freedoms. As Lord Bingham notes,

The rule of law does not require that official or judicial decision-makers should be deprived of all discretion, but it does require that no discretion should be unconstrained so as to be potentially arbitrary. No discretion may be legally unfettered.”

 

Civil society, interest groups and political activists must actively ensure Parliamentary law-making is transparent and must make their voices and that of the electorate heard and reflected in law-making. The National Assembly cannot be allowed to enact legislation for the interest of the president. Indeed these are difficult challenges considering the depth of political illiteracy of the masses. These groups must thus saddle the task of educating the nation and fighting for the best interest of the populace. Access to justice must not only be an idealistic proclamation in a Constitutional document which turns around and makes access to justice impossible through onerous exceptions and practical hurdles.

Thankfully we have the university of the Gambia where young Gambians are learning the law, with quite a number of learned and experienced lawyers in practice too. I do hope these law students will embrace community interest work through advocacy groups, challenging government and providing advice for those who might feel the oppressive touch of government’s power. Perhaps judicial review can be an effective tool too, rather than just an empty promise within the constitution. It is a new Gambia, yet it is not going to be perfect – government is going to make some mistakes, bad decisions, unfair or controversial laws. We must be able to challenge them in court through fair proceedings and without fear or intimidation.

In conclusion I think it is a great sign that Gambians have begun to take an interest in the Constitution and constitutionalism, in holding the government to the law, in matching their actions to the provisions of the constitution. Let us raise the standard even higher and make sure our Constitution reflects our will as the sovereign people of the Gambia. Let us make sure the constitution does not merely broadcast rhetoric, but that its provisions are aligned to the rule of law and that the fundamental human rights and freedoms recognised both nationally and internationally are robustly protected within it. They must be realistic and without unjustifiable or unrestrained limitations. Advocacy groups, civil society and interest groups amongst others, are the key in this endeavour.

 

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