STATEMENT BY THE CHAIRPERSON OF THE CONSTITUTIONAL REVIEW COMMISSION Justice Cherno Sulayman Jallow, QC (JSC) ON THE OCCASION OF THE PUBLICATION OF THE DRAFT CONSTITUTION OF THE REPUBLIC OF THE GAMBIA, 2020
Tuesday, 31st March, 2020
Distinguished Ladies and Gentlemen of the Media,
On behalf of my colleague Commissioners and the staff of the CRC Secretariat, I am profoundly honored and gratified to welcome you to another historic dialogue with the Constitutional Review Commission. Today’s dialogue takes a different format because it is going to be done online and should be very interactive as most of you will be joining us online through Skype, WhatsApp, Zoom and by sending text messages to the numbers already shared with you. This Online Media Dialogue is necessitated by the outbreak of the contagious global Pandemic (COVID-19), which has made all public gatherings virtually impossible. Besides, we need to also comply with the restrictions in the emergency Regulations promulgated by the Government to curb the spread of Covid-19 in The Gambia.
- Truly, from the onset, we have had many interactions during which we updated you on issues pertaining to the CRC assignment of developing and delivering a new Constitution for The Gambia. We cherish and highly appreciate the mutual cordiality and partnership we have had since the establishment of the Commission in June 2018. You have played your part professionally within the spirit of our mutual partnership by imparting relevant information to the public in general. We are extremely grateful and satisfied with the partnership which has enabled all of us get to deliver a new Constitution for the Republic of The Gambia.
- Ladies and Gentlemen in the media, the purpose of this CRC Online Press Conference is to inform the Gambian Public through you that the CRC has finalised the Draft Constitution and submitted it to HE The President of the Republic yesterday Monday 30th March, 2020 as required by the CRC Act, 2017. Meanwhile, the Commission will continue to be in place until one month as stipulated in the CRC Act “after the date of enactment by the National Assembly of the Bill introducing the Constitution”. We are also required to attend the National Assembly, if needed, to clarify any matter and/or answer any questions the Hon. Members of the National Assembly may seek of us. We remain ready to fulfil our statutory obligations as required.
KEY STRATEGIC METHODS TAKEN TO ARRIVE AT THE CONCLUSION
- As regards the methodology adopted by the CRC to arrive at its decisions that informed the drafting of the new Constitution, I will quote extensively (with necessary modifications) from my Statement of yesterday which I made during the submission of the Draft Constitution to HE The President.
“As enshrined in CRC Act of 2017, the CRC has devised and employed numerous strategies to involve and allow Gambians to actively participate in developing a durable Constitution that will take onboard their wishes and aspirations.
The CRC has throughout the performance of its functions and exercise of the discretionary powers vested in it under the CRC Act, adhered to the statutorily established functions and exercised its discretionary powers in a fair and balanced manner, bearing in mind at all times matters that it considered to be in the best interest and future of The Gambia. I made sure of this as Chairperson. Indeed from the inception of our work, I made sure that the ground rules were properly established and agreed upon. Our role as Commissioners was to facilitate public opinions, play the role of the devil’s advocate by ensuring the full coverage of all angles to an issue, make an assessment of what was essential or fundamental for inclusion in the Draft Constitution, and ensure a properly and effectively drafted Constitution that left little to no room for interpretation or uncertainty. Personal beliefs were eschewed and kept out of the decision-making process.
The processes and procedures adopted in developing the Draft Constitution are articulated in detail in the Report submitted to HE The President along with the Draft Constitution. Suffice it to say, however, that the CRC approach from the inception of its work had been to utilise all available practical platforms to afford Gambians and other stakeholders the opportunity to participate in the Constitution-building process. The platforms included face-to-face public consultations, focus group discussions, written submissions on the Issues Document, online surveys, household surveys, face-to-face discussions with other stakeholders (including the 3 organs of State, relevant Government Ministries, Departments and Agencies, civil society groups, faith-based organisations, specific interest group associations and individuals), and review of media debates (including social media). In essence, … these consultation platforms represented the first of their type and magnitude in constitutional development in the history of The Gambia [and provided unprecedented opportunities for citizens and other stakeholders to directly participate in the building of their new Constitution to replace the 1997 Constitution].
While ultimately the CRC Act empowered the CRC to exercise its judgment on what it considered appropriate, the CRC gave enormous credence to public opinion, recognising that Constitution-building must be centred on the people to be governed by the Constitution to give it the legitimacy to stand out as a credible and generally accepted instrument; hence the CRC’s motto of transparency, inclusiveness, representation, participation and ownership. Our own direct interface with the Gambian people (both at home and abroad) and other stakeholders, has been an eye-opener to the circumstances and needs of the people and provided us the opportunity to consider constitutional development in our context in its broadest perspective. We are enormously grateful to our citizens for the active interest they had developed in the constitutional review process from the commencement of our assignment and, perhaps even more importantly, the ideas they contributed to the development of their new Constitution. We, the Commissioners, drew inspiration from them and, without the ideas they so graciously shared with us, and sometimes with emotion and strong passion, the Draft Constitution would not have been of the quality we believe it is. Non-citizens and other stakeholders (within and outside the country) who contributed ideas to the CRC had equally made a huge positive difference to the work of the CRC.
Constitution-building is a serious business. But it is also a herculean task, especially when the drafters of the new Constitution are confronted with tons of wishes and aspirations for inclusion in that Constitution. When Your Excellency tasked us to review the 1997 Constitution, you were emphatic about the need to develop a Constitution that will serve the test of time. This, therefore, required us to take a serious look at key constitutional issues relative to the present and future generations. In other words, what is best for this country today and going into the future so that both the present and future generations are governed by the same rules, and such that an amendment of the Constitution will only be necessitated by the most exceptional of circumstances. To achieve this within a period of 18 months was not easy and required many long days and nights to get us to this day. We remain forever grateful to the Almighty God for giving us both the strength and the commitment to achieve this for our country and as our leaders expected of us.
When the CRC published the first draft of the proposed Constitution in November 2019, it had 3 objectives. The first was to give Gambians and other stakeholders the opportunity to determine whether the wishes and aspirations they expressed to the CRC during the first round of public consultations had been properly addressed and, where any of those had been omitted, for the CRC to explain its reasons for the omission (exercising the authority vested in it under the CRC Act). The second was to afford further dialogue on matters that could be clarified better and ensure a better Draft Constitution. The third was to invite opinions on new important elements that the Draft Constitution could usefully provide. We achieved all 3 objectives and exercised proper discretion in that regard. The participants in the second round of public consultations were actively engaged with the CRC and our process of constitutional development was further enriched.”
What’s new in the Draft Constitution?
- The Draft Constitution contains 319 sections divided into 20 Chapters and several Parts. In the assessment of the CRC, the Draft Constitution represents the generality of the wishes and aspirations of the Gambian people. Each Chapter addresses a different issue, although in some instances certain Chapters have a correlation with provisions contained in other Chapters. In order to ensure clarity and prevent inconsistencies, appropriate sectional and cross references are made. The Draft Constitution that we are publishing today is an embodiment of the hopes and aspirations of the people of The Gambia.
- I will cite a few examples of the new elements contained in the Draft Constitution since the publication of the Consultation Draft in November 2019 and receipt of opinions thereafter.
- Chapter 1 (in sections 1 to 6) recognises that The Gambia is a Sovereign Republic and a multi-party democratic State. A new provisions has been added to declare that The Gambia comprises people of different faiths, and each faith is to be respected and treated fairly, without any discrimination. In essence, section 1 of the Draft Constitution retains section 1 of both the 1970 and 1997 Constitutions by simply declaring The Gambia as a Sovereign Republic. It also retains section 100 (2) (b) of the 1997 Constitution which prohibits the National Assembly, amongst other things, from enacting any law establishing any religion in The Gambia as a State religion. Furthermore, section 12 declares that culture and respect for ethnic and religious diversity is the foundation of the nation and the cumulative effect of the Gambian people and nation. Accordingly, the provision (amongst other things) obligates the State to “recognise and protect ethnic and religious diversity of The Gambia in which all faiths are treated fairly to ensure peaceful co-existence between all ethnic and religious groups”.
- Section 49 (under Chapter VI) of the Draft Constitution guarantees freedom of conscience, religion, thought, belief and opinion. It has been modified to ensure that an individual’s manifestation or practise of his or her religion is not subject to interference by the State or any other person or authority. Under section 88 (5) (b) (Chapter VIII), provision is made that the President cannot exercise any power to establish any religion as a State religion.
- We have also inserted a new section 4 on National Symbols, comprising the National Flag, National Anthem, Coat of Arms and the Public Seal. These are considered to be very important symbols that all Gambians should identify with. With respect to the National Days, we have identified the specific dates to ensure clarity.
- Chapter VI addresses the protection of Fundamental Human Rights and Freedoms which is a key feature of any democracy. This Chapter provides for fundamental human rights and freedoms in sections 31 to 73. On the freedom of expression, the previous provision that effectively removed from protection the uttering of abusive or threatening speech or writing causing feelings of ill-will, disaffection or hostility has been removed. The CRC, upon reflection and carefully considering representations received, formed the view that it was not necessary to curtail the freedom of expression in that regard.
- In addition, a new provision has been included on the right to fair administrative action. This, amongst other things, declares that a person has the right to be given reasons in writing in respect of any action taken against him or her.
- With respect to the election of President under Chapter VIII, the period within which Presidential election is to be held before the term of the incumbent President expires has been increased from 3 weeks to 6 weeks. The CRC considered that some element of flexibility was necessary to allow for unanticipated eventualities. The President is given a free hand to nominate and appoint his or her Vice President, which must be within 14 days after assuming office. However, Ministerial appointments are subject to National Assembly confirmation. In order to ensure that the confirmation process is not politicized to frustrate a Presidential nominee, Chapter IX (on the Legislature) has been modified to require confirmations to be made within a prescribed period of 14 days. Where it decides not to confirm a candidate, it is obligated to provide its reasons to the President in writing within 3 days of that decision. Any failure in this regard shall deem a candidate to be approved. Furthermore, the National Assembly is to be guided by certain established principles, which include respecting the qualifications and disqualifications contained in the Constitution, respecting the guiding principles specified in respect of an office for which confirmation is required, exercising good judgment without concentrating on differences of ideology, belief or political party affiliation, and treating candidates for confirmation with respect. In essence, the role of the National Assembly in any confirmation process is to aid and assist the President without necessarily impeding the President.
- In Chapter XIII (on Public Finance Management), new provision is made prohibiting the imposition of taxation and giving it retroactive effect. Every tax imposed must have a prospective effect, not otherwise.
- The Chapter on the Public Service has been revised and better streamlined to avoid repeating certain provisions in respect of the various service commissions established under that Chapter. In a similar vein, the Chapter on National Security has been revised slightly to reduce the composition of the National Security Council and remove from membership of the Internal Security Service Commission the Heads of the relevant security service institutions; this is designed to ensure transparency and better governance.
- It is important that the general public read the entirety of the Draft Constitution against the proposed Consultation Draft that was published in November 2019 to see the other specific areas where changes have been effected. The CRC has made further technical amendments of a drafting nature to ensure better internal consistency.
- I, once again, thank all our partners on this journey and join our citizens in hoping for a future guided by the wishes and aspirations enshrined in the Draft Constitution.
- Thank you.