By Foday Samateh
The purpose here is to state, in principle, our freedom and right as a nation to have a new Constitution.
I must begin by admitting that I wasn’t following the proceedings in the National Assembly on the bill for a new Constitution. I took it for granted that it would all be procedural with the aim of improving whatever process the bill might envision. Thanks to news reports and social media videos, I was able to catch up on some of the deliberations. Imagine my shock to read and hear some well-respected members of the Assembly make certain incredulous claims.
To contend that the 1997 Constitution is a great Constitution, which it isn’t, is one thing. To argue that mere amendments will suffice in curing its defects, which they won’t, is still one thing. But to claim that the National Assembly members setting in motion a process for the drafting of a new Constitution are violating their sworn oath by turning themselves from legislators to inventors is quite another thing. To further claim that such a process is tantamount to overthrowing the current Constitution is stupefying. And to go even further to invoke the word treason to categorize any part of the process is indeed gobsmacking. Worst still, to all but assert that by virtue of the 1997 Constitution (the current Constitution) we do not possess the right and the freewill to abrogate it in favor of a new one is, to borrow a phrase, alarming.
Someone forget to tell The Gambian people when we were voting in the 1996 referendum to adopt the current Constitution that we could only amend it but not replace it in the future. That, barring another military rule, it would be our permanent Constitution for our generation and all succeeding generations through eternity. That was never the bargain or pact we made. And had we done so, such a bargain or pact couldn’t be binding. That would make us owned by the Constitution when we should be the owners of the Constitution. In the run-up to the referendum, there were myriad voices calling on the people to vote for the then-draft Constitution for various reasons. But the common denominator was that rejecting it would only prolong the military rule, since the military junta had made it all too clear that a Constitution was a pre-condition to democratic elections. There were some voices that recommended the draft as essentially great. But there were even more voices that urged the people to vote for it just to get the military rule over with and then we could figure out the way forward. That never happened because the junta leader who was supposed to give power back to the people changed his mind and stayed on as a civilian. The rest is sad, tragic history.
Now that we’ve entered a new phase in our political dispensation, a regimen of reforms is what the doctor prescribed. But no reforms will be truly meaningful in the absence of truly meaningful constitutional reforms. The Constitution being the Supreme Law of the land makes it rightly the foremost for reforms. It underpins everything. The substance of the bill presented to the National Assembly was only the first step in the constitutional reform process. Reasonable people can debate the merits of the process laid out in the bill. But the core question is about the need for a new Constitution. The National Assembly vote was to start the process rolling. To equate that to the National Assembly “overthrowing” the current Constitution is rather misleading, to be diplomat about it. The National Assembly vote in itself wouldn’t put the current Constitution to death or give birth to a new one. The committee that would be tasked with drafting a new Constitution wouldn’t have any authority to force their product down our throats. At the end of whatever process the National Assembly passed, the people have the unalienable right to decide by a referendum whether they want to adopt any draft as the new Constitution. Until that happens, the current Constitution remains in force. How is that akin to the National Assembly overthrowing the Constitution? And how, then, can any member of the National Assembly call on the people to rise up against his colleagues for starting a process the people themselves will have the final say on? If the people love the current Constitution so much, they will exercise their veto power over the draft that will be put before them in a referendum. Isn’t that the functional definition of democracy? Whatever happened to the eloquent aphorisms — power/sovereignty resides in the people?
One of the contentions against a new Constitution is that a Constitution is a living document. Though most American conservatives would vehemently disagree, I fully share that view. And to the extent that such a view is relevant to the question at hand, it is equally true that a Constitution that concerns itself with democratic rule is always an experiment in self-government. And experiments are bound to work or not. When they do, great; when they don’t, a recourse is necessary.
Another contention is that the bill presented to the National Assembly lacks Constitutional footing, that its reliance on section 226 which deals with amendments is unfounded. The logic or trick of this argument is if the bill cannot rely on the section dealing with amendments in the current Constitution, and since the Constitution doesn’t explicitly provide for the process of its own abrogation, the Constitution therefore protects itself from repeal. But is that the case?
Sub-section 8 of section 226 states that: “No Act of the National Assembly shall be deemed to amend, add to, repeal or in any way alter any of the provisions of this Constitution unless the title of the Act clearly indicates that intention and the Act does so in express terms.”
And section 9 states that: In this section –
(a) references to this Constitution include references to any law that amends or replaces any of the provisions of this Constitution;
(b) to the alteration of this Constitution include references to the amendment, modification or re-enactment with or without amendment or modification, of the Constitution or of any provision for the time being contained in this Constitution, the suspension or repeal or the making of different provision in lieu thereof, and the addition of new provisions to this Constitution.
Reasonable people can read the above subsections and reasonably disagree on their full intent and meaning. As Chief Justice Assan Jallow writing for the majority in Ousainou Darboe & 19 Others Vs. IGP & 2 Others noted that “seemingly certain and unambiguous provisions [in law]have often been the subject of different interpretations.” With that in mind, there will be those who will maintain that subsections 8 and 9 of section 226 are not sufficient for the repeal of the entire Constitution. And there will be others who will read into them the justification for the bill’s intent and object. We all can believe what we think the law says. Ultimately, however, the final arbiter of any law, especially the Constitution, is the Supreme Court. Its opinion is the only determinative ruling that materially counts.
But what’s incontrovertible is every provision of the Constitution can be amended save the five most obnoxious paragraphs in Schedule 2 thanks to Paragraph 17 which states: “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.” These so-called Indemnity Clauses shielding the former military junta from any prosecution for any crimes they might have committed during their treasonous rule are made supreme in the Constitution over all other sections, including the sovereignty clause and the supremacy clause. How can we truly claim that power/sovereignty resides in the people when the people are denied the power to bring to justice those who might have committed assassinations, murders, extra-judicial killings or looted the public coffers? How can we maintain such enormities in our Supreme Law as the only sacred cows? How come, based on the current Constitution, we can theoretically turn ourselves into a monarchy, a theocracy or even an autocracy, but we practically cannot do away with such affronts in our Constitution? For the benefit of the doubt, I’m a devout democrat who’s merely playing a devil’s advocate in the foregoing sentence. But the point alone, though not the only reason by any means, warrants a new Constitution. If anything, it’s an antidote to military coups. People who commit treason and disregard the rule of law by committing other heinous crimes against the state and citizens should not get away with giving themselves constitutional reprieve from justice.
All those are in fact peripheral to the principal purview of concern here. For all of the Constitution’s merits and demerits, it never arrogates to itself the power to tell us we cannot repeal it for a new one. Nowhere does it say this Constitution shall not be repealed. Even if it had made such a categorical declaration, that cannot prevent us from shelving it for a new one. No Constitution can supersede a people’s inherent and natural rights to self-determination when the needs arises.
On the final contention that 1994 isn’t 2017 is totally factual in every facet of comparison. But that’s not an argument against the call for a new Constitution. It’s the very reason to ask for one. The 1970 republican Constitution and the preceding one were, in a manner of speaking, handed down to us by the British Crown. The current Constitution, though a major improvement on the 1970 one, was a product of a military dictatorship. Yes, there were consultations and discussions and debates. But much of that occurred not because of the junta, but in spite of the junta. That said, the kind of open national discourse the draft Constitution required was undermined by the atmosphere of fear and intimidation that characterized the entire military rule. Hence, the Constitution — though adopted in the referendum, mostly to end the military rule — never depurated itself of the odor of illegitimacy associated with the military regime. Granted, it’s the Supreme Law, but there is little veneration for it.
This is the first time The Gambia is at liberty to draft a democratic Constitution under a democratic climate without any colonial or military ruler playing the overseer’s heavy hand. That’s why to tell us otherwise is so confounding. How couldn’t we have the freedom and the right to determine or change the laws that govern us? Why should a free people not exercise their freedom and rights to substitute their Constitution in favor of a new one when the occasion calls for it? That will surely sound strange to the Chief Justice, Assan Jallow, who told a stakeholders conference months ago that the new administration was working on writing a new Constitution, because to carry out the numerous amendments required to remedy the defects of the current one would be too cumbersome an undertaking.
It would have doubtless sounded strange to James Madison, the principal author of the US Constitution, because he had never told Americans in their Constitution, in the Federalist papers or anywhere else that the document that came out of the Philadelphia Convention in 1787 would forever be their Constitution from the date of adoption to perpetuity. And mostly certainly it would have sounded stranger to Madison’s mentor, Thomas Jefferson, who argued that since no generation had the right to impose its standards on future ones, “Every constitution, then, and every law, naturally expires at the end of 19 years. If it be enforced longer, it is an act of force and not of right.” Of course, Jefferson was being needlessly dramatic in his letter to Madison during the drafting of the US Constitution. The point here is to get the drift that no Constitution can be deemed un-repealable.
Americans have had no cause to write a new Constitution because the one they have, for all its short-comings, is seen as a monumental national achievement with all sides invested in it. It’s only second to the Bible in the public’s reverence. Can we say the same for the current Gambian Constitution?