PART THE SECOND:  ON CONSTITUTIONAL LAW!

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By Gambian Outsider! 

This article is sincerely and respectfully dedicated to lawyer Lamin J. Darbo.  A man I greatly respect because he knows what he is talking about on constitutional matters. His consistency and clarity of thought on constitutional matters are very admirable. I have never met or communicated with Koto Lamin, but I admire and respect him. This is really remarkable indeed and probably a blasphemy because I am praising, Koto Lamin, a mere mortal over the immortal god of Gambian law, the Chief Justice, whom I dubbed the Greek god Zeus. Like Zeus, the god of Gambian law delivers decrees without explaining the legal basis of his positions on issues that come before the Court. Since becoming chief justice, I am yet to see or read a full length legal opinion of Zeus. Anyway, on to Constitutional Law! 

Whatever a person’s undertaking might be, it is always wise to have some clear knowledge of what one is about to do. In answering the question, what is Constitutional law, the goal is to bring to light the Telos of constitutional law. By Telos, I mean End as the Philosopher (Aristotle) put it. Telos means an aim or goal or purpose. Every human endeavor has a purpose or a goal or an aim. For example, we make food to eat or to sell. We do not just make food because we love making food. We sleep because we need rest. We do not sleep just for sleep sake. You get the idea. Societies come into being because, as the Philosopher says, man is a political animal. Human beings are meant to live together. Man is a political animal means a man can truly become a man among others like him, living in a society governed by laws and customs. Man cannot develop his potential and realize its natural endby living alone. According to the Philosopher, the natural end of man in this life is happiness. Because human beings have to live together, rules of conduct must necessarily be developed so that one person or entity does not infringe on the affairs or if you like, the jurisdiction of another. The great English commentator defines law as, “ Law, in it’s most general and comprehensive sense, signifies a RULE of ACTION; and it is applied indiscriminately to all kinds of action, whether animate or inanimate, rational or irrational. Thus we say, the laws of motion, of gravitation, of optics, or mechanics, as well as the laws of nature and of nations. And it is that rule of action, which is perfected by some superior, and which the inferior is bound to obey.” As should be obvious, the definition covers almost everything that can be conceived. To understand human made laws, the Commentator says, “Municipal Law is also ‘a rule of civil conduct.’ This distinguishes municipal law from the natural, or revealed [law]…” In the general definition, the Commentator says somewhere “some superior.” What exactly does that mean? Is it a person, a body or what? Let’s look at the structure of a civil society and see if we can discover what he is talking about.

One writer defines a State “as a body politic or society of men united together under common laws for the purpose of promoting their mutual safety and advantage by the joint efforts of their combined strength.”  There is a distinction between a ‘state’ and a ‘nation’ but we need not get into that.  A Swiss jurist says that a State is either sovereign or dependent. He went on to say, “a state is sovereign when there resides within itself a supreme and absolute power, acknowledging no superior and it is dependent when in any degree or particular its authority is limited by an acknowledged power elsewhere.” This definition is insightful because majority of Gambian writers and commentators are quick to appeal to laws outside of The Gambia as if those laws are superior to Gambia’s fundamental law. I will say this for now, Gambia’s fundamental law is primary mandatory authority and all other man made laws are persuasive authority within the jurisdiction of The Gambia. I am not by any means saying that the laws of other countries or bodies are to be ignored, but in terms of supremacy, Gambia’s fundamental law is supreme within the jurisdiction of The Gambia. For if that is not the case, then Gambia is not a sovereign state. I bring this up to highlight the great importance of the constitution of The Gambia in Gambian society. The Constitution of the Gambia cannot and should never be taken lightly. If I may say so, it is that thing which gives life to the polity. And understanding of its role in Gambian society is of paramount importance. Another writer says: “ Sovereignty in its full sense imports the supreme, absolute, and uncontrollable power by which any independent state is governed.“ In the case of Gambia, Section 1 subsection 2 of the 1997 constitution tells us where or who is that sovereign. It says: The Sovereignty of The Gambia resides in the people of The Gambia from whom all organs of government derive their authority and in whose name and for whose welfare and prosperity the powers of government are to be exercised in accordance with this Constitution. This is an oft-quoted provision, but the amount of lip-service paid to it is beyond me. The Gambia Constitution is supreme because of where it derives its supremacy. The Constitution is not absolute. The Sovereign-power is absolute, because it derives from the people. Without the people, there is no sovereignty. That being the case, it follows that the people created the constitution and not the constitution the people from whom the sovereign-power derives. The Sovereign-power can dissolve the constitution and made another one, but a constitution can never dissolve the sovereign-power because the sovereign-power is the people who make up the society.  What I am trying to highlight is something I want you to use as lens as you study this “draft constitution,” This takes us back to where this article started. What is the Telos of a constitution?

The Philosopher defines a constitution as “ the ORGANIZATION of offices in a state and determines what is to be the governing body, and what is the END of each.” One eminent constitutional scholar defines a constitution as “the body of rules and maxims in accordance with which the powers of sovereignty are habitually exercised.” Here is another lens to use as you go through the “draft constitution.” Ask yourself, as you read the draft constitution, how are the powers of sovereignty being exercised in this “draft constitution”? Another important inquiry is to look at the respective natures of a rule and a maxim. What I mean is, are rules and maxims specific in nature or general in nature? I will have more to say about this issue when I delve into the text of the draft constitution in a future article. Another constitutional scholar defines a constitution thus: “ A constitution is the fundamental law according to which the government of a state is organized and the relations of individuals with society as a whole are regulated.” Above I mentioned how the constitution is the supreme law because its supremacy is derived from the sovereign-power, which is absolute. Here, in the definition just given ‘fundamental law” is mentioned, and by that it is meant, a constitution, when looked at as positive law, all other laws must be compatible to it if they are to survive. What I am saying is that no positive law can contradict the letter and spirit of the constitution. Another lens, in the immediate definition: “according to which the government of a state is organized…” This is telling you that government and State are not synonymous in one sense, but in another sense they are.  Here is what I mean. In terms of priority of existence, the State is always before the government. A government can be dissolve but a State cannot if you know what I mean. A State is like the body and the government is like parts of that body, hence, we say government is the arms of the State.. In another sense, i.e., in terms of action, the State is synonymous with the government because the State acts by its’ arms, the government and naturally the arms are part of the body (State). A State organizes itself through a constitution and acts by its’ arms, the government. Here you see why  in this sense “constitution” and “government” are inseparable. The truly political community is constitutionally organized and governed.  As the FORM of the state, the constitution is the principle of its organization. A Constitution’s primary function can be divided into two parts: (1) to establish the government and give it limited powers (recalled that only the sovereign is absolute in this scheme), and (2) protect the citizens from those powers. A constitution is supposed to say to governmental power, whether expressed or implied, thus far you shall come but no further.  A constitution’s primary organizational objective is to establish and organize the three main branches of government; give to each specific powers that the other branches may not infringe upon. Of the three main branches of government, one does not create the others; neither do two create one. All three are equal at inception. Generally, a Constitution should not created things that can be created by ordinary legislation. Here is another lens to use toward the “draft constitution.” Whatever you see that can be created through ordinary legislation does not belong in the constitution. A constitution should never get into the business of telling people what they can do and what they cannot do.

Now that you have a sense of what a constitution is, when did the CRC, in its many consultations ever discussed what a constitution is and if it did, to whom? A survey published a few weeks ago indicates that 63 percent of Gambians did not know that a Gambian constitution exists. If a person does not know that a thing exists, it is difficult to know what that thing is! Happy Thanksgiving everyone!

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