Draft Constitution Section 36: Enabling People’s Exercise of Rights or Entrenching State’s Urge to Curtail Rights?

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Draft Constitution Section 36: Enabling People’s Exercise of Rights or Entrenching State’s Urge to Curtail Rights?

By Pa Louis Sambou

Just when one thinks that all bad news is exhausted, more and more nasty surprises keep emerging from the horizon. One would have expected the media and press fraternity likewise Gambian civil society to promptly zone in on this one but, approval of the draft Constitution by the latter (and passive endorsement cum apathy with respect to it by the former) suggests that they perhaps have not taken notice of what is an extremely concerning provision in the draft Constitution. I speak of section 36 of course which is a completely unprecedented constitutional concept in our jurisdiction.

Section 36, effectively states that the State can restrict and limit the exercise of any fundamental human right (except for 3 out of the 31 specific rights under part two of the draft) as long as the State passes a law for such purposes. Without any doubt, such a broad-brush provision, or anything similar to or akin to it does not exists in either the abrogated 1970 Constitution or the current 1997 Constitution.  

Now, for what purpose does such a provision exist: does it exist to enable people’s right to enjoy fundamental human rights or, is it in place to entrench the urge of the State to curtail people’s fundamental human rights?

In light of the seismic impact section 36 will have on civil liberties, the above is a reasonable question to ask but, rather unhelpfully, but for a mere passing reference to the said provision at paragraph 288, the Constitutional Review Commission (CRC) offered no explanation whatsoever in their final report in this regard. I shall resist the temptation to check on the thinking of or second-guess the motivation of the Commissioners but, certainly without opting out of conducting an objective surgical and forensic analysis of the probable consequences of such an unprecedented provision.        

Constitution drafters generally approach the issue of limitation in three approaches; starting with the most progressive and ending with the most regressive these are:

The ‘no limitation’ approach, the ‘rights – specific limitation’ approach and the ‘general limitation’ approach.

The United States Constitution exemplifies a classic example of a ‘no limitation’ approach and which is guaranteed in explicit terms as enshrined in the first amendment which prohibits Congress from legislating to regulate on matters of freedom of speech, expression and freedom of the press etc. In the case of a general limitation, the 1959 Constitution of Tunisia which subjects the exercise of fundamental rights to “conditions defined by the law” will be a very qualified candidate and no wonder until the Arab spring of 2011, civil liberties were practically nonexistent in Tunisia; in the case of The Gambia however, both the previous and current Constitutions embody ‘rights-specific’ limitations in that specific limitations were / are prescribed for the exercise of certain fundamental rights. Of these, section 25(4) of the 1997 Constitution which shields and sustains the Public Order Act is perhaps the most lamented and, one which proponents of constitutional reform hope to see the back of. My sincere apologies for being the bearer of bad news but, draft section 36 dashes such hope.  

In light of the above, some may argue that actually, draft section 36 isn’t unprecedented at all nor as adverse as being presented in this literature. For such to be a valid position, its reliance on the flawed assumption that draft section 36 is a ‘rights-specific limitation’ would have to be a valid one. However, far from it, the provision is a ‘general limitation’ which for reasons of emphasis is the most regressive and aggressive method of introducing fundamental rights limitations, something which is unprecedented in Gambian constitutional law. Suffice it to say, such an approach accords the State an overwhelming generous degree of discretion cum licence without limit to, through primary legislation limit and restrict the enjoyment and exercise of fundamental human rights than has ever been the case under any Gambian post-independence Constitution. This is an obvious regression from the current position and hence why, to those of you who for perfectly understandable euphoria and excitement passed this draft Constitution as “progressive”, I once more humbly beseech you to just think that you are mistaken.

It is perhaps helpful at this stage to interrogate the construction of the draft provision under review. In practical terms, section 36 is a gateway through which existing fundamental rights can be restricted or limited by the State through an Act of the National Assembly. Such restriction will be constitutional in so far as such is “reasonable and justifiable” wherein lies the problem. Such a legal test is open-ended and very low a threshold. A restriction can be both “reasonable” and “justifiable” but completely unnecessary and in pursuit of an objective which may not be legitimate by any stretch of any imagination. Now, using Egypt’s 1971 Constitution which had similar restriction(s) as an example, such a Constitution was similar to the draft Constitution in that it was so generous in the fundamental human rights it availed but with a convenient backdoor which availed the State a general discretion to curtail them at a later date. Therefore, overtime the State made good use of such backdoor to prohibit a plethora of subjects of public interest from critical public discourse e.g. the President’s health and private life, the Army etc. Eventually, every generous civil liberty guaranteed under the Constitution whose exercise the State loathed was curtailed by an operation of some other law. If by this point one is worried by draft section 36, then, you are right to be and, you definitely should be.

With draft section 36 in place, those generous fundamental rights in the draft would exist at the discretion of the State which can curtail them at any time. The State’s ability to curtail these isn’t the reprehensible part as Yaya Jammeh did so to his hearts delight albeit unlawfully and, President Barrow doesn’t occur to me as someone who would have second thoughts doing likewise if he had any scintilla of an opportunity, but, the reprehensible part on this occasion is that curtailment which would be unlawful today, would be lawful if the draft passes thanks to draft section 36. What a scary prospect for civil liberties.

Without any shadow of any doubt, “reasonable”(ness) and “justifiable”(ity) are very low bars to formulate as legal test to determine the constitutionality or otherwise of any laws passed by the State to restrict rights so vital to the thriving of what is an emerging and very fragile democracy. With such an open-ended constitutional formulation, one wonders in whose interest such exists, civil society or the State? I suspect the latter is the likely beneficiary.

Limitation clauses in Constitutions are generally undesirable for the simple fact that these rely on the State to determine their limits, something which is in itself problematic. However, if consideration is made for these to be in place, then they must be carefully constructed with clearly set boundaries and bar which are proportionate to the rights in question. The international standard for such are:

Necessity (is a restriction necessary?), Legitimate objective (does restriction have a legitimate objective?), Proportionality (is the restriction proportionate?). This is the ‘gold standard’.

Based on the available facts, the construction of draft section 36 is a dragnet which is so wide off the mark – it makes it much easier for the State to limit rights than for citizens to exercise or defend them; this is the case even in comparison to the restrictions in the existing 1997 Constitution which themselves leave a lot to be desired. Draft section 36 likewise its host, is anything but progressive. This isn’t my personal opinion but, rather a statement of fact based on the available facts and evidence.

My personal opinion is, that the said provision is a bonfire for fundamental human rights but, please be at liberty to discount my corruptible opinion in favor of the incontrovertible facts.

Justice would definitely not be done to the subject matter if the source of the said provision is not tracked, traced and tested. By the aforementioned borrowed phrases, trust me, I am not suggesting by any imagination that draft section 36 may have a Covid19 effect on fundamental rights and freedoms but, do feel free to hold that view if you’re so inclined. The said draft section 36 is a verbatim import from section 24 of Kenya’s 2010 Constitution. The verbatim importation isn’t an act worthy of criticism in my view and I would not berate the Commissioners for doing so but, one won’t be wrong to deem their choice of selection as being a very concerning development as such is a pitiful regression from the current state of Gambian Constitutional law on the subject matter. The first amendment of the U.S Constitution would in all honesty have been a much better pick than a provision from the Constitution of a country which has an appalling record on human rights and democracy: In 2018 Kenyan government switched off numerous broadcasters for attempting to broadcast mock swearing in ceremony of opposition leader following disputed Presidential elections, in 2017 Kenyan President threatened judges  with dismissal when they annulled the rigged election results, Following post election unrest after 2017 elections over two dozen Kenyans were killed by Police and hundreds tortured and badly injured, according to human rights watch, activists reporting abuse by Police are threatened and re-victimised by Police.

In light of the above which is just a tip of the iceberg, can anyone genuinely be of the view that Kenya is a good example for us to emulate? The CRC Commissioners’ answer to such must be in the affirmative given their choice and, it’s extremely concerning to say the least.

It has to be borne in mind that the preservation of democracy and civil liberties is reliant on constant vigilance. In the face of something as fundamentally important as the draft Constitution, we are faced with enormous issues but the conversations around which are unfortunately very small. With grave reticence, I must say that the epic incompetence and lamentable apathy of the Gambian media (with the exception of a handful) both at home and in the Diaspora in holding the CRC accountable, assisting the public’s understanding and bringing important subjects around such important matter has been and continues to be fantastically abysmal. As a libertarian, it is not in my nature to openly criticize the media, press or journalists but on this, I think something needed saying before the horse bolts, after all, the media fraternity as major stakeholders in civil society will be the biggest net losers if matters herein aren’t addressed.

I am sure there would be those who would consume contents of this piece with a dose of cynicism substantial enough to perhaps convince themselves to relegate the entire content as something which a critic of the draft Constitution would say anyway. This would be the wrong conclusion. Whilst it is not my intention to prompt anyone to ‘re-orientate’ themselves to my point of view, I am definitely strongly encouraging a much more careful and critical examination of those issues within the draft Constitution which have a bearing on fundamental human rights. The mistake made in 1996 on the hasty passing of the current Constitution must most definitely not be repeated. We must avoid such a cataclysmic mistake at all cost.

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