By Amadou Gaye, Member of CSO Steering Committee on Constitutional Review.
This is a personal opinion and not the opinion of the Committee.
This piece echoes a Civil Society leader’s call to appreciate the substantial goodness, strengths and opportunities found in the text of the new basic law for The Gambia. It duly acknowledges, though, that there is still room for substantive improvement to the Draft.
As a part of independent civil society, we’ve over the past two years invested so much of our time, energy, emotion, passion and every possible kind of effort, alongside political and other groupings, to critically and constructively review and contribute to the content of this supreme national document.
Never before has either the general population or Gambian civil society been accorded such a level of in-depth participation in framing a new republic. [ Salute to the CRC, the Attorney General’s office and the Government! ]
Thus, it is good to urge that all think and act practically at this crucial juncture. We know intellectuals love to debate over anything one serves up. But we wish to remind that the real-time for endless debate, especially those that lead nowhere, has effectively elapsed. It is noteworthy that any considerations (in praise or criticism) proffered at this material point do carry some weight with potential to influence thoughts, actions or decisions among the population, which may ultimately support or reject the proposed Constitution.
This Draft is not going back for public scrutiny in any meaningful way. Next stops along the rocky route to the referendum are the Presidency and the National Assembly (N.A).
Thus, debates around any contentious or burning issues need to be directed toward practical solutions and pragmatic outcomes that are realistically achievable. There are only two initiative options available at this point. The first is to simply assess the significance and quality of the Draft’s content to support or not support its suitability for adoption at a referendum, subject to any additional recommendations or adjustments at Executive or N.A level respectively. The second is to positively come up with sound proposals and seek to engage the National Assembly Members (NAMs) with advocacy and influencing for possible incorporation during their reading of the Bill. A mechanism for the latter has already been set up and actively utilised by key civil society organisations led by TANGO and supported mainly by UNDP, International IDEA, NDI and IRI. It is therefore strongly recommended to use such an established mechanism for civil society engagement and advocacy with the N.A.
It’s pretty certain that the current N.A has the capacity to yet enhance a few aspects of an already solid and progressive Constitution.
Overall, it appears this Draft deserves utmost credit and support, despite some notable gaps and areas to improve. Most importantly, the Draft had adequately strengthened the institution of the people’s representation (N.A) at the expense of the Executive, while ensuring a good dose of effective separation of powers. It has boldly expanded the bill of rights to not only protect gender equity, religious and other vulnerable minorities but to sweepingly cover the hitherto unfulfilled socio-economic and human development rights. It went further, for the first time, to ensure the justiciability (mandatory and enforceable by courts) of these fundamental development rights! It’s gratifying to note that these latter set of rights have been uncompromisingly championed, if not initiated, by our group of civil society actors led by TANGO back in early 2018. Civil society was convinced that having a democracy with the enjoyment of civil and political rights is grossly inadequate or meaningless for the majority of people unless it delivers socio-economic goods and benefits to citizens.
In a nutshell, the modernised bill of rights has admirably sourced from the UN’s 1986 Declaration on the Right to Development, as well as the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.
What’s more? The innovations include several constitutional and legislative themes – many of which were advocated for by civil society – that are truly forward-looking and groundbreaking. They will strengthen our fledgeling democracy, as well as the accountability and integrity of key institutions in charge of the country’s economic and financial management.
In contrast to the 1997 law, there are checks on the appointment powers of the President, which must be confirmed by the N.A. The revived Office of the Director of Public Prosecution (DPP) has been empowered and given independence. The issues of nominated NAMs and NAMs losing seat when expelled from their political parties have been eliminated. Unsuitable or ineffective NAMs can now be recalled by their constituent via a petition to the now reconstituted Independent Boundaries and Electoral Commission (IBEC) signed by 1/3 of that constituency. Local languages can now be used at N.A proceedings.
The very broad array of Independent Institutions featured is very significant for an emerging democracy like the Gambia’s. These are regulatory and oversight public bodies that are set up to be politically and institutionally neutral and independent from the 3 main branches of government. As “buffer” or “fourth-branch institutions” with entrenched provisions, they are effectively another significant layer of checks and balances and will help guard against unrestrained executive power (a major feature of Jammeh’s regime).
Guided by the most authoritative inter-governmental think-tank on world constitutions – International IDEA – the Gambian civil society was able to closely review the content of the best-formulated constitutions in Africa and elsewhere. Putting aside certain inherent weaknesses of the Draft, we can confidently state that the current Draft would still rank among the very top constitutions available on the continent.
Overall, it is very innovative, Gambian-like, and very modern.
Given all of the very progressive and forward-looking drive that characterise this supreme law, it may be about time to nationally celebrate this one good thing post-Jammeh. This instrument, despite its deficiencies, could be a major coup on the country’s search for a transformative development path toward a better future, a path that could successfully harness the nation’s true potential for real socio-economic progress.
Our civil society experience in contributing to the constitution-building process has taught us that a constitution is not the best technical document one can produce in terms of content. Rather, it is the best constitutional compromise one can realistically achieve among diverse interest groups with differing considerations. A ‘perfect constitution’ exists nowhere in the globe.
On that note and spirit, one may conclude thus:
Supporting the Draft at this critical juncture of the nation’s evolution and political transition would appear worthwhile and responsible while continuing to one-sidedly castigate it may not appear very smart or productive. The alternative would be retaining the 1997 constitution with all of its notable macro and micro deficiencies, at least for another lengthy and uncertain period that has the potential to significantly derail our democracy march or reverse the hard-earned gains being slowly registered or yet drag the country into the depths of despair once more.
We can instead engage, criticize and proffer constructive proposals via the productive mechanism mentioned earlier. The NAMs are there and may be entrusted with the noble task of making any necessary final tweaks, hopefully apolitically and in the interest of the country’s long-impoverished and deprived people.
Amadou Gaye