The U.S Constitution’s First Amendment: Could It Be A Mutual Compromise?

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The U.S Constitution’s First Amendment: Could It Be A Mutual Compromise? 

By Pa Louis Sambou

Since the publication of the draft Constitution, the infamous section 1(1) has proven to be the most popular (or unpopular) depending on whether one is in favour of a republican democratic Constitution or opposed albeit not overtly expressing their true loathing of the former.

Never has a single word [secular] in the history of our post colonial existence been debated and argued over so much by so many or exercised so many for so long and so vociferously. Whether it is an innocent misconception or a calculated mischaracterisation, in the end, the architects and drivers of the unnecessary weaponisation and toxification around what it actually means to be a secular republic do have something to answer for. The explanations and ‘justifications’ being given by the CRC members in response to questions on the issue are ones which most no doubt find deeply lamentable and beneath any public office on the land. With hesitance, I must say that the CRC are not covering themselves in glory at all around this issue.

If anyone still doubts the validity of the cliché: “we live in a post truth world” then clearly you have not had the benefit of the CRC lectures on secularism. For a start, I would not recommend them but, if one is that curious and inclined then I would recommend keeping a healthy dose of salt handy – you might need it. The public are really not as naive as the CRC assumes.

So far, the CRC are yet to offer any convincing explanation as to why fundamental aspects of the draft Constitution are closer to Yaya Jammeh’s vision when he unlawfully declared The Gambia an Islamic state than those of the Gambian people when they voted him out of office in 2016. The mandate given by s.6 CRC Act was clear and well defined. Why was such departed from? This is the key question which the CRC ought to address. The obfuscations, creative explanations and alibis under which they seek convenient shelter are simply built on shifting sand and, not supported by even a scintilla of evidence. There is of course no intention on my part to impugn the motivations of the Commissioners but I guess people will form their own conclusions in that regard.

In a more recent CRC lecture on secularism, it was suggested by the CRC that: “…the word secular does not have to be in a Constitution for the Republic to be secular…” citing the United States (US) Constitution in a bid to talk up the so called ‘safeguard’ at section 151(2)(b) of the draft Constitution. Now let’s examine these comparisons in some detail. The first amendment in the US Constitution states:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”

Section 151(2)(b) of the draft Constitution states: “The National Assembly shall not pass a Bill – to establish any religion as a state religion…”

The guarantee under the first amendment of the US Constitution unlike section 151(2)(b) of the draft Constitution is not just limited to preventing the occurrence of one single event (establishment of a state religion) but rather it safeguards against the pursuit of an objective (respecting an establishment of a religion or prohibit free worship) a restriction which is wide enough to prevent any such legislation which seeks to do anything to further the course of religion (any religion) as well as restrict the same. However, far from guaranteeing any such safeguard section 151(2)(b) of the draft Constitution which cannot even safeguard itself against erasure does not prevent the National Assembly passing laws to further religious causes or restrict the practice of a particular religion. It may as well not even exist at all – is safeguards against nothing whatsoever. If any of you is familiar with the famous (infamous) Irish ‘backstop’ in the EU / UK Withdrawal Agreement 1, section 151(2)(b) is as much a trap as the Irish ‘backstop’ was.

To be perfectly clear, section 151(2)(b) will not stop the National Assembly passing a law to fund the construction of any place of worship, impose a particular religious curriculum in state, Christian and private schools, impose a particular dress code or attire for state employees or even the general public whilst in a public place, dictate how religion is practiced, when to fast, when to pray and the list goes on. It does not prevent the National Assembly from passing a law to censure, restrict worship / religious activities of any particular religion or even shut down places of worship or a religious institution, confiscate burial grounds and the list goes on. Bearing in mind the proposed introduction of a parallel Shariah legal jurisdiction, a State religion would have already been established (in all but name) under this draft Constitution once it passes. This is not a mischaracterisation but a point of fact.

If this draft Constitution passes in it’s current form, our religious freedoms which we currently enjoy will diminish and be subject to the discretion of politicians just like the right to protest and free assembly is currently only exercisable subject to Police approval thanks to our ‘progressive’ Supreme Court. Under this draft Constitution the National Assembly can pass a version of the Public order Act to police religious activities. After all, the CRC Chairman was one of the judges who ruled twice to uphold and maintain the unconstitutional Public Order Act to suppress the right to lawful protest. The same Justice Jallow QC is now asking you to trust him with your religious rights with his Shariah courts and you really want to give him the benefit of the doubt. Such nativity could cost us so dearly and, by the time we realise it we will be queuing for Police permits for those basic things we currently take for granted eg. burying our dead, attending religious rituals or even playing music etc.

The nativity which befell us to trust Jammeh at his word created a spiderweb which took 22 years to undo. The CRC draft in it’s current form, if passed, will take generations to undo if ever. Do not be deceived by the sombre words and caveated assurances. They’re empty, not supported by any evidence and are fancifully suspect. Believe them, you’d believe anything including the bonkers theory that the earth is flat.

All in all there lies a solution somewhere. The first amendment of the US Constitution, this was an idea mooted by the CRC themselves after-all, so lets have it. Why not? It doesn’t have the word “secular” and it is water tight enough to prevent ‘mission creep’.

The CRC, by their own admission have so much admiration for the US Constitution so, here comes a mutually acceptable compromise. The wording of the first amendment of the US Constitution can be used verbatim to substitute s.151(2)(b). Surely, this should satisfy the secular-phobics who according to the ‘classified intelligence’ available to our dear CRC Commissioners are so scared of the word “secular”, they will cause civil unrest if the CRC dares to introduce such a ‘dirty’ word into the draft Constitution.

Accommodating this compromise, as well as satisfying both sides it will also save the CRC the rigmarole of having to craft contradicting explanations, justifications and obfuscations likewise save the general public the pain and anguish of having so consume the far fetched creative alternative facts they come up with each time an attempt is made to address a question: “Why is the word secular not in the draft Constitution?”

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