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Part 2: Power of National Assembly to Change the Final Draft
Since the CRC handed over the Final Draft Constitution to Pres. Adama Barrow on March 30 many have held the view that the President is not barred from adding or subtracting anything from the document. Others contend that the National Assembly also has the authority to change the document because legislative power rests with the National Assembly. They claim NAMs have the power to change anything that comes before them. This matter became a subject in the Paradise TV debate on the Final Draft a few days ago where even Hon. Ya Kumba Jaiteh seemed to make the same claim. I disagree with this view based on the law.
Following the removal of authoritarian rule in 2017, it was the new Gambia Government that created the CRC for the purpose of writing a new constitution for the country by obtaining the opinions of Gambians. The Government was aware that a constitution is not the opinion of neither the President nor the National Assembly rather a constitution is the opinion of all citizens. The power to create a new constitution is vested only in the people themselves.
Now that the CRC did its work of consulting Gambians at home and abroad and even had additional consultations with the Cabinet as well as with the National Assembly to also seek their opinions, it goes without saying that the Final Draft cannot, therefore, be changed by any institution, person or authority again. This Final Draft Constitution is the opinion of all Gambians for which no authority or person can or should touch it. It must go straight to the people in a referendum to vote on it – Yes or No. Both the President and NAMs have one vote each like every other citizen to also vote in that referendum.
To put this into a legal perspective, we must understand that the legislative power of the National Assembly is guaranteed in the 1997 Constitution in Sections 100 and 101, as well as in Section 226(1) in terms of constitutional amendments. These provisions give power to the National Assembly to create new laws or amend or repeal existing laws as well as amend constitutional provisions that are not entrenched. These laws come in the form of bills that are then reviewed and passed by NAMs and then assented to by the President so they become acts. This is the legislative power and process of the National Assembly.
But the 1997 Constitution does not give power to the National Assembly to create a new constitution. That power to make a whole new constitution rests only with the people. This is because the constitution is the supreme law of the land that deals with the sovereignty of the people and also determines the legal and institutional regimes of society among other things. For that matter, there are provisions in a constitution that cannot be changed by any institution or person but by the people themselves through a referendum.
Therefore, the Final Draft Constitution is not coming to the National Assembly in the form of a bill under the 1997 Constitution to be reviewed or changed and passed by NAMs into an act. Secondly, the The Final Draft contains both entrenched and unentrenched provisions and NAMs cannot change entrenched provisions. Thirdly, the purpose of the Final Draft Constitution is to replace the current 1997 Constitution. In light of the above, the National Assembly cannot, therefore, review and pass this Final Draft on its own into law. That would be unconstitutional because it would mean the National Assembly is acting on entrenched provisions of a constitution for which it has no powers to do so. This is the legal argument. In that light, when the Final Draft lands on the floor of the National Assembly what is expected is for NAMs to approve it wholesale and send it for a referendum.
In other words, to facilitate the legal and political process to its logical conclusion all that the National Assembly could do is to receive the Final Draft and then invoke the necessary provisions in the 1997 Constitution to facilitate the holding of a referendum.
For The Gambia Our Homeland