By Yusef Taylor, @FlexDan_YT
The leader of the Political Party Gambia Moral Congress, GMC recently remarked that “The Gambia is a NOT a secular Republic” in response to a debate on The Gambia’s secularism as a new constitution is being developed. His statement was a response to a question by Karamba Touray on Gambia’s secular status I am interested in how all you good folks believe we should handle this matter in the New Constitution.” Below are the statements from Mai Ahmed Fatty and Karamba Touray. Join the discussion. Let us know how you think this matter should be handled.
On 25th October, Mai Ahmed Fatty released this statement on his Facebook account.
“Yesterday, my brother Karamba Touray ignited an animated debate about secularism. Brilliant minds including brother Malick Kah, my comrade Coach-Pasamba Jow, the resident political analyst Musa Jeng and prominent pundits like the erudite Natta Mass etal, as usual did justice to the matter. Contrary to the contention of many, including some lawyers, who continue to wrongfully contend that The Gambia is a secular state, I asserted with categorical inference, that The Gambia is NOT a secular Republic. I promised to return to prove this today, due to scarcity of time attributing to my prior commitments. I am here to fulfill that promise. Once more, I shall be laconic due to time constraints.
Seventeen years ago, the then Gambian Minister of Justice & Attorney-General introduced a Bill in Parliament (Act No. 6 of 2001,) to amend Section 1 of the 1997 Constitution of The Gambia. Parliament subsequently passed the bill into law on the 15th May 2001, and former President Jammeh signed his assent on the 25th May 2001.
Subsequently, Hon. Kemesseng Jammeh filed a writ of summons against the Attorney-General at the Gambia Supreme Court, invoking its original jurisdiction to declare that amendment not only null and void, being of no legal effect, but also a declaration that the promulgation of the law by both the National Assembly and the President was ultra vires. The case reference is S.C.C Suit No. 4 of 2001.
It’s imperative to note that prior to the said amendment, the original wording of Section 1 of the 1997 Constitution reads: “The Gambia is a Sovereign Republic.” The amendment sought to insert the word ‘secular’ between “Sovereign” and “Republic”, to read: “The Gambia is a Sovereign Secular Republic”.
The matter was set for legal arguments before a very eminent panel of five distinguished Justices of the Gambia Supreme Court. The gravamen of Hon. Jammeh’s contention was that Section 1 of the Constitution was an entrenched provision and therefore could not be amended through a normal process. It required amendment exclusively via a national referendum, and that the combined powers and authority of both the National Assembly and the President CANNOT alter that constitutional imperative. Since the government was attempting to surreptitiously change an entrenched provision of the Fundamental Law through the back-door, the unconstitutionality must be resisted. The Attorney-General raised untenable preliminary legal objections bordering on jurisdiction and more, with remarkable failure.
On the 29th November 2001, the five eminent Justices of the Supreme Court UNANIMOUSLY held that the amendment was unconstitutional, ultra vires, null and void, and of no legal effect. It struct off the word “Secular” from the provision for fatal irregularities. The significance of this landmark decision is that Section 1 of the 1997 Constitution reverts to its original provision: “The Gambia is a Sovereign Republic”. Now this brings me to my irrefutable assertion that The Gambia is NOT a secular state. I am pleased to refer you to [1997 – 2001] GR 839, where the case was legally dissected in extenso. That means the existing 1997 Constitution is silent over the matter of secularity, and there is growing public opinion that it should remain so, without being disturbed. Excuse the typos – am in a rush.”
The statement which sparked the debate from Karamba Touray is copied below
“In the last week I have heard some religious figures namely Alhagie Ousman Jah (Hajj Amir) on GRTS and Sheikh Chebbo Cham one of the leading Salafi voices and another oustass whose name I can’t remember each decry their opposition to the designation of a Gambia in the new constitution as a secular state . Their argument is that the designation could theoretically prohibit the teaching of religion in public schools and forbid the general expression of religion within the institutions of government. I cannot imagine how that can happen in a country with nearly 95 % Muslim population. On the other hand how would an independent Gambian court adjudicate a constitutional case brought forward by a determined atheist who says he doesn’t want oustasses attached to our public schools paid from the treasury? In free and democratic Gambia, courts charged with interpreting the constitution can be expected to do just that. Do we settle for a compromise designation that says “Gambia is a democratic republic” where sovereignty lies in the individual citizens? This may leave the status quo in place and remove the controversial secular word. I suspect this would be a contentious battle. Religious conservative are manoeuvring to frame their position as one that defends religion and casting proponents of secular designation as people who oppose religion itself. And proponents would see any attempt to modify the designation as a creeping altering of the bulwark of our diversity. I am interested in how all you good folks believe we should handle this matter in the New Constitution.”