The Gambia’s Legal Luminaries Are On The Clock!
Written By The Gambian Outsider
The Constitution of The Gambia is about to be put under the surgeon’s knife (Amended) without pointing out the Cause of its flaws; not its’ Symptoms. The Attorney General of the Ministry of Justice is in the process of reviewing recommendations that would lead to constitutional amendments to the 1997 Constitution of The Gambia. This is a guy, who was against the Public Order Act (POA) before his party or the party he now works for came to power; and now is for the Act and argued (his office) for the constitutionality of the Act. Not to mention all the ethical issues this guy have raised within one year of being in office. If that is not cause for concern I do not know what is. Yet, Gambia’s “Legal luminaries” appear to ignore those facts. Since I am not among the learned, why would anyone listen to me? The big boys and girls have come to play so the little ones like myself must get off the stage. To paraphrase Saint John Baptist, they must increase and we the little ones must decrease. Because sometimes a cat may look at a king, here are my concerns as the son of a mother (motherland- Gambia).
Normally when a person is sick and go see a doctor, the doctor would usually asks the patient what brought her to his office, and the patient would in her own words tells the doctor what she thinks is wrong with her. If the patient experienced some pain, for example, she would describe that pain to the doctor. If, on the other hand, the patient experienced dizziness or some other kinds of ailments, she would also describe those things to the doctor. Now, as the patient is telling the doctor what she thinks (opinion) is wrong with her, the doctor by experience and without telling the patience is ruling out certain ailments as not at issue with the patient based on the information the doctor is getting from the patient. After the patient finished telling the doctor what she thought was wrong with her, the doctor would normally run a few tests, take blood samples and the like. When the results for the tests are ready, the doctor would call the patient and tell her what the tests indicate was wrong with her if any. The method that doctors use is no different from the method that lawyers used when a client goes to a lawyer’s offices to seek legal representation.
One of the biggest mistakes that a doctor or a lawyer can make is, in the case of a doctor, to look at the physical constitution of a patient, see something, never examined it, and say what is wrong with the patient without running any test whatsoever or in the case of a lawyer, hear what the client has to say and conclude on a cause of action without double checking on the law. After a doctor has conducted a test, he is supposed to tell the patient what the tests indicate was wrong with her. Likewise, after a lawyer have heard from a client and checked the law, the lawyer is supposed to tell the client whether she has a cause of action or not. One cannot cure a sickness if you do not know what the sickness is. In the same vein, a lawyer cannot represent a client if he does not know if the client has a cause of action or what it is.
As I pointed out above, the Attorney General will soon make recommendations to amend the constitutional, and yet, no one has come forward to tell Gambians what exactly is wrong with the Constitution. I now annoyingly ask the question that no one seems to be asking, what is wrong with The Gambia Constitution? If there are flaws, what is the root cause of those flaws? Recommendations and suggestions will flow in by the thousands and it is likely that not a single one of those recommendations or suggestions will categorically state the root cause of the flaws in The Gambia Constitution. In a country that claims to have so many “highly educated” persons, you would think that pointing out the fundamental flaw of The Gambia Constitution would be first priority, but unfortunately, that is not the case. The recommendations and suggestions on what needs to be done will inundate the airwaves, online newspapers and social media, but a discussion on the fundamental flaw of the constitution may never come up.
One symptom that has been much written and talked about is that the Executive has too much power; or that the Constitution lacks symmetry and therefore, it is imbalance or something to that effect. What is the cause of that imbalance or lack of symmetry? Those who made that argument failed to mentioned that, with that “too much power” of the Executive argument, there is mighty Section 67(1) (a);(b)(i) and (ii). All the Executive powers in the constitution, whether individually or collectively, can be defeated by Section 67. I am not in the business of attacking anyone personally, but if anyone decides to take what I am writing as a personal attack, and have a basis to refuted what I am writing, please write and point out, what the fundamental flaw is in the constitution, and not point to a symptom(s) of that flaw. You know, just write a sentence or two like: this is the fundamental flaw in the constitution … (fill in the blank).
Here, is the bottom-line, to say the Executive has too power in the Constitution, is to point out a symptom of a sickness. What is the real cause of the sickness? Had the sickness not been present in the body (The Constitution), then there would be no symptoms. I am yet to hear any Gambian both home and in diaspora say what the sickness is. Most Gambians who have something to say about the constitution talk about the symptoms but not the cause of those symptoms. While it is true that the Executive has many powers in the Constitution, that alone, is a weak argument because of the presence of Section 67 as I indicated above. I reiterate, however much power the Executive may have, Section 67 is available to remove the President from office if he or she abuses those powers. And, of course, if members of the National Assembly have the balls and “Moosorrs” to act!
Unless the cause of the sickness in the constitution is remedied, all the thousands of recommendations coming from every corner of the world will not help. To point out a symptom is not the same as curing the cause of that symptom. If too much attention is spent looking at how to limit the powers of the executive, and which should be curtailed somehow, but at the expense of not devoting enough attention to address the main cause of all the flaws in the constitution, what good is that? I am not at this point going to get into whether President Barrow is going to sit idly by and allow his constitutional powers to be limited.
Whenever I look at my copy of the constitution, the first impression that always comes to mind is that, the constitution is obese. Here is what I mean, the United States is at least three hundred times or more bigger than the Gambia, yet the U.S. Constitution can be read in its entirety in thirty minutes or less, whereas Gambia Constitution may requires days to finish reading it? Why? The more important question is why The Gambia Constitution is obese? The obesity of the constitution is the first obvious symptom of the sickness of the constitution and not the cause of all that is wrong with it.
Here is a provision that has been much written and talked about ad nauseam. That provision is Section 62 (1)(b) which concerns the age limit but has since been partly amended. Before it was amended to allow the Vice-President to assume the office of the Vice-Presidency, the Section reads as follows:
A person shall be qualified for election, as President if –
(b) he or she has attained the minimum age of thirty years but not more than sixty-five years;
The argument made against the provision was that, it was discriminatory. First, that was a very bad argument and therefore absurd. Second, the correct argument should have been that the provision was unwise because it deprived the country the wisdom of qualified citizens who could be assets to the country. That was the only flaw of the provision and not because it was discriminatory. Here is the reason why that part of the provision was not discriminatory at all before it was amended.
Section 33 (4) states as follows:
In this section, the expression “discrimination” means affording different treatment to different persons attributable wholly or mainly to their respective descriptions by race, color, gender, language, religion, political or other opinion, national or social origin, property, birth or other status whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject, or are accorded privileges or advantages which are not accorded to persons of another such description.
As you can see, the Constitution defines the term “Discrimination.” A closer reading of that part of the provision will show that there is at least one criterion that is not included in the enumerated criteria. What is missing is “Age.” Why would the writers of the Constitution spent time listing those criteria and left out “age”? There is a reason for it. So to interpret that part of the section 33, you apply the maxim “Epressio unius est exclusion alterius” meaning, “The explicit mention of one (thing) is exclusion of another.” Even in the United States, age is not included among what Constitutional lawyers called “Suspect Class.” The same is true in The Gambia Constitution. Those who have argued that section 63(1)(b) was discriminatory did not say what age they considered not discriminatory. The fact of the matter is that whatever age they would have considered as the cut-off age, those below the cut-off age could argue that they too were being discriminated against. Of course, it is foolish to not set age limits (floor) on positions of responsibility. In the United States, there are laws against age discrimination but they are statutory and not constitutional provision. Section 33(4) of The Gambia constitution is what I like to refer to as “The Equal Protection Provision or Clause” of The Gambia Constitution.
Another point to lay to rest that flawed argument is that the “floor” under section 62(1)(b) is thirty years which is rationally related to the state’s interest in making sure that mature persons occupy positions of responsibility. Now, if anyone wants to argue that five or ten or fifteen or even twenty year-olds should be allowed to hold public offices of great responsibilities, please make the case. Where great responsibility is accorded an officer holder, a good law usually sets the “floor” in terms of age to hold such an office, and almost never sets the “ceiling” on age. And again, the reason being, you want wise and mature men and women to hold public offices because experience has shown that for the most part wisdom comes with age.
As I am writing this article, recommendations are being reviewed to amend the Constitution. I am stunned by the inaction of my Christian brothers and sisters in political process. Have they not learned anything from the former regime? Not long ago our religious freedoms were under threat. If there is a topic or an issue in which Gambians need to get involved in and not leave it to chance, it is what is about to take place regarding the Constitution. Gambians have only one means of protection for their rights and that is the constitution. No other person: father, mother, brother, sister, son or daughter or any entity can protect your rights. You either get involved to protect your constitutional rights or you leave it to others to take or limit your rights. It pains me a great deal to know that majority of Gambians are not aware of the importance of what is about to take place.