Alagi Yorro Jallow
The Constitutional Review Commission Act was assented to by the President on 11 January 2018 and published in the Gazette on 24 January 2018.The CRC Act was first introduced as a Bill in the National Assembly on 11 Decembe,2017. It is now law for a new Constitution to replace the 1997 Second Republican Constitution to pave a new era in governance to the Gambia’s Third Republic, governed by a Third Republican Constitution. The CRC has an eleven-eminent member commission Chaired by Justice Cherno Sulayman Jallow, QC of the Supreme Court of the Gambia and nine other members nominated by the Justice minister and appointed by the President Adama Barrow. I once again applaud President Adama Barrow, commend and congratulate the eleven eminent members of the Constitutional Review Commission to draft a new legal system for the Third Republic giving Gambians a truly a homegrown and people-driven constitution.
I am for constitutional change, but it must be done properly. Changing the Constitution without full debate and deliberation, uninformed by study and analysis of the impacts of our governance options, and without following the right procedures will be disastrous for the Gambia. Let us ponder how best this can be achieved and not rush the country into a new Constitution by 2019. We are not going to make it for 2019 if we are indeed up for a truly new and democratically made Constitution.
Politics is a part of our broader democracy, let us practice democracy truthfully and responsibly. The new Constitution is too important to be left to mere politicking. This is the most common denominator of our collective aspirations as a people. This new Constitution is too important to be left to lawyers; it is too important to be left to journalists; it is too important to be left to politicians, economist or, sociologist alone it is too important to be left to any single unit of the nation, not even the President and his Cabinet ministers.
This Constitution must, as much as possible, must speak to the broadest interests of the people as a truly people-driven Constitution since the Gambia attained independence in 1965.
The rushed approach is against the principle of participatory Constitution-making that is universally accepted in democratic Constitutionalism. The Constitution Review Committee must not be rushed if they are to produce a People-Centered or People-Driven Constitution for the Gambia.
I believed, the new Constitution should not come in the absence of debate on key fundamental principles and issues of good governance, human rights and civil, economic, social, environmental and political liberties.
There is a great divide on issues such as presidential term limits, electoral systems, campaign finances in elections, accountability of leaders, powers of the president, reduction of presidential powers aim of ensuring that power is commonly distributed through subjecting leadership to legal restraint that replaces the rule of men with the rule of law; that a presidential candidate must receive 50 percent plus one of the valid votes cast for the candidate to be declared winner and the provision of a running mate to a presidential candidate. The balance between central and local government powers, foreign policy, energy and natural resources, budget and finance, the media, corruption, diaspora, security and many more. The process to build consensus on these and any other pending issues must include serious dialogue and debate.
We have a nascent democracy and as Gambians, to make collective decisions, politics will always introduce debates between and among us. These debates must produce productive outcomes that bind us and not divide us. I know that we are all in agreement over the single goal of giving ourselves a new Constitution. Gambians are however divided on the means. Nevertheless, the nation must move forward.
It must reflect and aspire to deliver the greatest assurance to the greatest majority of our people, if not all.
While we anticipate, the new Constitution guarantees our rights, and safeguards against various abuses, even the best of constitutions cannot ordain prosperity and requisite welfare of all citizens in the absence of individual and collective resolve to foster harmony and development, requires not only diligence, but a sense of duty and responsibility to our country from all Gambians.
However, as a product of a historical moment – the ouster of a dictatorship and the experience of the President Yahya Jammeh regime – People-Centered or People-Driven New Constitution is justified. Among others, the 1997 Constitution, we have a Constitutional dictatorship, ‘tyranny of numbers’ in our National Assembly agenda against the minority, and a system of ‘tyranny of the masses’ : a presidency that has consolidated most governmental powers and consequently separation of powers has been seriously compromised; a presidential system that is unable to accommodate the demands of the peace process, security and keeps some institutions perpetually inefficient; and, finally, intensified sustainable development and social justice challenges, including persistent poverty and inequality.
When President Adama Barrow was elected ,I excited that a Constitutional change could finally happen. I and most Gambians would like to see in a new Constitution some form of parliamentary system of governance, and an expanded Bill of Rights to include explicitly rights of minorities, children, youth, persons with disabilities, and women.
But now I advise caution. We will squander this opportunity if a Constitutional change is not done properly, a People’s Centered Constitution will not be achieved. In governance and policy making, as it is in medicine, the first rule must be to do no harm. Right now, we could be on the road to inflicting serious harm to our country and its future. One Constitutional lawyer friend of mine maintains that the Constitution-making process needs to be looked at as a class of democracy. He wishes there be as many debates and dialogue forums as necessary to build a mutual understanding of the issues, dynamics and challenges the Gambia faces. To rush is not conducive to this kind of dialogue and debate. The Govt and all stakeholders need to give chance and bring the process closer to democratic realities.
Based on studies conducted at the Harvard John F Kennedy School of Government, it was designed as a guidebook on how to change the Constitution. Among others, participants of the seminar explained why past and recent charter change attempts have ended the way they did – when outcomes were successful, when Constitutional change was done illegitimately and only caused harm, and when it failed.
There are three lessons from the Gambia historical experience on Constitutional change or adopting a new Constitution.
First, it must be done transparently, in a participatory and inclusive manner. This is exemplified through the 1997 Constitution, adopted through a referendum, representatives from civil society sectors and the opposition who went all over the country for consultations on Constitutional convention, was drafted by an 11-member Constitutional commission, chaired by a Ghanaian justice and including British, American and Malawian lawyers, prepared a draft new Constitution in 1995. A national referendum on the draft Constitution was held in August 1996.
Second, the President must not be too involved and allow the Constitutional convention or Constitutional Review Committee to do its job without interference. Well the 1997 Constitution was originally drafted by a Ghanaian legal consultant but then President Yahya Jammeh hijacked the process and we ended up with an illegitimate outcome. This is very draconian and dictatorial. Democracy means that Constitution-making must involve as many actors and stakeholders as possible.
Moreover, there should be serious civic education or Constitutional happenings, events alongside the Constitution-making process, the citizenry must be aware of the process. The Gambia’s Constitution-making process should not be far less vibrant than that of the Constitution 1997.
Third, the Constitutional procedure ordained by the Constitution must be strictly followed and not manipulated to ensure a pre-ordained result. Our leaders and politicians are mainly concerned that the Gambia should have a new Constitution before the expiry of President Barrow’s term to avoid going into elections with this same highly contested Constitution. It is a genuine concern but there are other ways out of this dilemma. What may these be? How could the nation find alternatives to rushing the new constitution? How should we come to these alternatives? These all are significant but puzzling questions to ask we now and in the coming months.
However, the best mode of changing the Constitution or adopting a new Constitution is still through the Constitutional convention route. It may be costlier but Govt can afford it and Govt should spend for it, the Constitution being the most important law of the land. On costs, in another context but in that the Govt has money, a lot of money; in my view, the Govt can certainly afford a constitutional convention during the process of debates and submission of memoranda by citizens.
Again, all the independent resource persons should agree that the Gambian people must seriously study and deliberate all options. Although Constitutional law is not an exact science, Gambians must still seek to be evidence-based in making decisions on the economic provisions and the form of government to be chosen, and the bottom line is the impact of the constitutional changes on the everyday life of every Gambian people and the priority issues affecting the country.
Fundamentally, there must be also be no conflict of interest in the drafting of a new Constitution. Politicians and career politicians must not dominate in the process as the result could be contrary to national interest otherwise, it will lose legitimacy. Moreover, a Constitution that comes out in such a process will be seriously impaired with illegitimacy from the very beginning; it will be aborted at birth.
The railroading of a new Constitution will render it illegitimate. When political fortunes changed, as it surely will, the future leaders and the people will quickly revoke such a charter. Such a Constitution is the recipe of disunity, of instability. Let’s not go there. That’s the sure way of not changing the1997 Constitution to a new Third Republican Constitution.