By Lamin J. Darbo
As a national document, a democratic constitution must settle national authority in a manner that avoids concentrating public power in any one segment of a political system. In no small way, the 1997 Constitution of the Republic of The Gambia (the Constitution) comprehensively failed this basic test.
Notwithstanding theoretical delineations between the traditional arms of a democratic polity, and the Constitution’s self-serving claim of separating power, the reality is completely different. Not only are the Legislative and Judicial branches accorded inferior status by making both ultimately answerable to the Executive, critical agencies indispensable to the proper functioning of a democratic state are all similarly degraded. In a nutshell, meaningful national power is entirely concentrated in the Executive.
Additionally, there are express contradictions between key Constitutional provisions, as well as considerable fluff in need of excision from the document.
Accepting that a polity with weak institutions cannot ensure accountability under the best constitution, there is nevertheless a compelling need to retreat from the brazen amalgamation of public power in one branch of government.
In the circumstances the contention that the Constitution suffers from democratic deficit and therefore requires ditching is not a matter for serious debate. That general agreement about its glaring shortcomings notwithstanding, the idea that any proposed replacement, no matter how mediocre and wrongheaded must be better is an objectionable tenet.
As the Draft Constitution (the Draft) wends its way through the Second Reading in the National Assembly (NA), the design flaws in the architecture of the Constitutional Review Commission Act 2017 (the CRC Act) are clearly visible. The Second Reading commenced the debates proper on the Draft and the storms it must travel through will get heavier but not heavy enough to sink this mediocre document. It must go through the full parliamentary schedule to the decisive Third Reading for interim approval or complete defeat.
Interim approval pending the verdict of the people in a referendum, or complete defeat ending its legislative journey should it fail to secure seventy five percent support in the NA. The Second Reading vote this week is therefore not a make or break but may be a harbinger of the Draft’s direction of travel going into the critical Third Reading.
Although unassailable a principle that the President cannot tinker with the Draft, it is coming before the NA as a Bill, giving that organ the Constitutional mandate to debate and amend, or throw out completely if that eventuality coincides with the required numbers of the Solons.
According to section 100 (1) of the Constitution, “the legislative power of The Gambia shall be exercised by Bills passed by the National Assembly and assented to by the President”! A further demonstration of the authority of the NA to debate and amend the Draft is articulated thus:- “… a Bill or motion may be introduced in the National Assembly by a member of the Cabinet or by a member of the National Assembly, and the National Assembly shall give consideration to Bills and motions so introduced” (see 101 (1) of the Constitution).
Indeed, Chapter XXII talks about “Amendment” and “Alteration” of the Constitution and the power to “amend, add to, repeal or … alter” is expressly donated to the NA (see 226 (8). Section 226 (9) specifically states:- “… 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 …”.
In the particular circumstances of the presented scenario, the intricate linkage between the Constitution and the Draft is unquestionable. “Promulgation” and “repeal” are specific words employed in the Gazette Supplement of 28 August 2020 announcing the Bill now awaiting the outcome of the collaborative enterprise between NA and the people. Clearly the Draft controls nothing as the mandated procedures are delineated in the Constitution.
The NA is the normal supreme authority in the arena of legislative scrutiny but where any process triggers a referendum, it collaborates with the electorate. Therefore the postulation that on entrenched provisions, the voters ousted “… the legislative competence of parliament” and they “… alone could amend or repeal entrenched clauses via a referendum” is an unbelievably misguided and preposterous proposition.
Without the parliamentary journey and approval, there is no avenue through which the voters can articulate their preferences on an entrenched provision and same applies to the Draft.
Similarly the contention that “… Parliament may debate, pass or reject the constitution referendum bill, but not the draft constitution itself” is nonsense of the highest order. I am not aware of anything called a “constitution referendum bill”. Once the “Promulgation” and “repeal” bill garnered parliamentary approval, the Speaker refers the matter to the IEC for a referendum (226 (4)(c). There is not and there will not be a “constitution referendum bill”.
A stitch up from the onset, the question may be moot that the Constitutional Review Commission (CRC) has the mandate to draft a proposed new Constitution but it remains a live issue that the promulgation of the document is a competence it does not have.
In Kenya, a country whose constitution the CRC extensively copied and pasted in the Draft, all members of that country’s parliament were part of the National Constitutional Consultative Forum (the National Forum). So were all members of the Commission, and the District Forums. By every measure a truly national process but the anti majoritarian mechanism shepherded by our Attorney General brought the project to its current location.
Although the idea that our nation requires a new constitution was properly conceived, the delivery mechanism selected was faulty in the extreme. Whether that was deliberate or incompetence is an open question. The authorities had the option of establishing constitutional or constituent assemblies or a constitutional commission. Ill advisedly it chose the latter with a truncated structure and clear shortcomings in the Gambian context.
A constitutional commission like the CRC “… is formed for the purpose of preparing a draft constitution for consideration or adoption by another body…”
Moreover, “Commissions are different from the legislature or the constituent assembly in at least three ways: function (they do not make final decisions on the constitution, being advisory), qualifications (primarily expert, rather than political or representative), and size (small, and therefore with different dynamics from assemblies) …”.
By every rational yardstick, the idea that the NA is bereft of competence to touch the Draft in any way is an incomprehensible proposition. The legislative domain denotes the core competence of the NA and given the Constitutional provisions earlier referenced, it has the competence in law and doctrine to make appropriate amendments to this Draft.
Indeed, the meaning around the legislative jargon of Third Reading is another authoritative demonstration of what the NA can do with this Draft. It can debate and amend as necessary before the ultimate vote at the end of the Third Reading.
And how about the end product!
“A recent comparative study undertaken by the United States Institute of Peace of nineteen constitution-making processes observed that of those processes that used commissions, these bodies did not seem to produce a better result than those using a constituent assembly or parliamentary drafting committee with experts…”.
With what the CRC ultimately produced, we know that very well in The Gambia.
It may be a long and tedious process but only a Draft amended by the NA may save this project of a hundred and sixteen million Dalasis and counting.
The chickens are truly home to roost but the knives of the Solons may save the Draft!
They have the Constitutional right to remove the excess fat from the Draft.
Lamin J. Darbo