Rejoinder – ‘Open Letter to President Adama Barrow: Resubmit the Bill for a referendum and let the people decide’

Having read the above captioned publication by DUGA, Right2Know, Team Gom-Sa-Bopa and Gambia Participates  which was published on 2 October 2020, I thought it necessary to share a few thoughts. 

It is perhaps a good idea to address a few myths before addressing the substantive issues:

The publication represents that “the majority of Gambians agreed in unison, that the 1997 Constitution, as it exists, is unfit for purpose given that it had been amended, and watered down 58 times…”

With such a bold claim, the only reason advanced by the author to substantiate such claim that the 1997 Constitution is “unfit for purpose” was that it had been “amended 58 times”. 

One would imagine that the author has a good grasp of the subject of which they speak and in which case it won’t be unreasonable to expect a much better substantiation of such claim than a fourteen character phrase which adds no value whatsoever to the claims. 

Every Constitution caters for its amendment and if an amendment was such a terrible thing then I wonder why this is. 

I will draw the author’s attention to section 226(2)(b) and (4)(b) of the 1997 Constitution which mandates a 75% support of all National Assembly Members for amendment of any constitutional provision. 

However, in their favoured historical draft Constitution, at section 303(3)(a), such amendments require a much lower threshold of 66.6% in which case if the author’s reasoning for their strong desire to have the 1997 Constitution repealed is attributed to the number of times it was amended then, I wonder why their preference is the historical draft Constitution which is designed to encourage amendments. Irony, unlike the historical draft Constitution is certainly not dead.

The author also implied in the publication that in 2016, the Coalition:

“…promised us new beginnings, starting with a new constitution, and a Third Republic.”

The Coalition did promise “constitutional reform” but, I am sure the author will agree that this isn’t the same as “a new Constitution”. 

As a matter of fact, the proposition has always been to have a thorough amendment of the 1997 Constitution until the former Attorney General Tambadu came up with his grand bourgeoisie scheme (not literally). 

Therefore, as a matter of incontrovertible fact, and for the record, a “new Constitution” was never a policy proposal ever sold to any voter by the Coalition in 2016. 

The author also hinted that somehow, justice for the TRRC victim participants is contingent on the draft Constitution passing stating that:

“It is clear that we have now had to contend with dashed expectations that reforms cannot be effected  as expected. These include justice for the victims of human rights violations who have been neglected,  and are likely to fall victims again despite the existence of a transitional justice agenda firmly being  anchored in a Truth Reconciliation and Reparations Commission (TRRC).”

It has been claimed in so many quarters that the 1997 Constitution prevents Jammeh’s victims from getting justice and I hope I am not wrong in extrapolating the same from the author’s above reference to the TRRC etc. but, assuming I’m not, I am not aware of any provision within the 1997 Constitution which is beyond the legislative authority of the National Assembly except for those prohibitions in section 100(2) which states that: 

“The National Assembly shall not pass a Bill – (a) to establish a one party state; (b) to establish any religion as a state religion; or (c) to alter the decision or judgement of a court in any proceedings to the prejudice of any party to those proceedings, or deprive any person retroactively of vested or acquired rights, but subject thereto, the National Assembly may pass Bills designed to have retroactive effect.” 

For the avoidance of doubt and as can be noted, nothing within the aforementioned prohibitions is relevant to transitional justice. 

Now, what could those frequently lamented barriers to transitional justice be? 

Section 69 which pretty much immunes former President Jammeh from “criminal and civil proceedings” likewise Schedule 2, paragraph 13 which pretty much prohibits any inquiry or proceedings into unlawful conduct or omissions leading up to the 22 July 1994 Coup and up to the time democracy was restored — which of course are of the sort which are relevant to transitional justice and the TRRC victim core participant cohort. 

Furthermore, schedule 2, paragraph 17 states that the “National Assembly shall have no power to pass a Bill to amend or repeal” the above-mentioned transitional ‘immunity’ at Schedule 2(13) of the 1997 Constitution. 

Are the above barriers beyond the legislative powers of the National Assembly to amend or repeal? It’s very tempting to ascribe a straightforward ‘yes’ or ‘no’ response to what may seem a simplistic question but, I hope you’ll appreciate that such is perhaps not something helpful on this occasion. Let’s deal with these barriers one after the other shall we?:

Section 69 Immunity (former President Jammeh between 25 January 1997 – the day he left office)

Even though this immunes Jammeh from “criminal or civil proceedings” for events which occurred during his Presidency, it isn’t an absolute immunity — section 69(3) mandates that such can be revoked in the case of criminal matters following a vote on a motion to that effect which is supported by a minimum of two thirds (which is a total of 37) of the National Assembly Members. 

Therefore, as a matter of both fact and law, the sitting government has the discretion and the Constitutional authority to revoke such immunity at anytime. 

Schedule 2(13) Immunity (AFPRC junta & their associates etc. from Coup planning – 25 January 1997)

Unlike section 69 above, this immunity does not cater for its revocation. However, as it is not an entrenched provision, it can therefore be repealed by the National Assembly through a private member’s Bill or a government sponsored Bill. 

I have not lost sight of the fact that schedule 2(17) states that such cannot be repealed but, this prohibition has no force of law in my opinion because it does not fall under the parameters of matters at section 100(2) over which legislative authority shall never be exercised. 

Therefore, it can be safely established that the intention of the prohibition at schedule 2(17) is not to serve as a safeguard against Parliamentary excesses but, to bind Parliament (the National Assembly), something which runs contraflow to the Constitutional law doctrine of Parliamentary sovereignty and the Constitutional law dictum that ‘no Parliament can bind a future Parliament’. So, quite clearly and contrary to popular belief, this barrier to transitional justice isn’t an immovable one at all. 

Believe me, it’s not my intention to rub it in and, I say this with no delight whatsoever in the fact that the CRC fantastically crashed the much lauded Constitution building process but, here’s the thing: the National Assembly has the power to render the above deeply lamentable immunities historical just like it democratically exercised the Constitutional authority to render the draft Constitution historical.

Without intending to ramble on any longer than is necessary of course I would address a theme in your publication which appears to suggest that the draft Constitution is a better framework in comparison to the existing 1997 Constitution on the subject of human rights. 

With all due respect, this is a misconception. Please note that under the 1997 Constitution, the State is allowed to restrict no more than five fundamental human rights: 

·       the right to life (section 18(1));

·       Right to Personal Liberty (section 19(1));

·       Protection from Deprivation of Property (section 22(2)); 

·       Freedom of Speech, Assembly etc. section 25(4)); and 

·       Freedom of the Media (section 209). 

However, under the now historical draft Constitution, draft section 36 allowed the State to limit all of the above fundamental human rights as well as twenty-five additional others including political rights at draft section 53, the rights of women at draft section 55 and the rights of children at draft section 56 which as a matter of fact the State currently has no authority to limit under the 1997 Constitution. This is just a tip of the iceberg. 

My apologies for being the bearer of bad news but, having thoroughly examined, the draft Constitution, I did not find anything on the facts and substance to support the proposition that it is better than the 1997 Constitution in terms of human rights. 

Besides, any such law passed or sustained pursuant to the 1997 Constitution e.g. the Public Order Act, sedition laws etc. are reinforced and rendered even much more difficult to legally challenge by the legal effect of draft section 36. As if these aren’t bad enough, legal safeguards under the 1997 Constitution to the effect that: 

·       An Islamic State will not emerge by virtue of an amendment to an unentrenched provision;

·       no one will be denied employment, access to facilities etc. on grounds of their religious belief;

·       Non – Muslims will not be subject to Shariah law;

·       Judges not qualified in the Common law will not be appointed to sit as judges in the Common law courts among others are fundamental safeguards which are guaranteed under the 1997 Constitution but which the historical draft Constitution proposed to strip away. 

It must either be your position that the above is satisfactory in which case your credentials are undermined beyond redemption or, you perhaps do not fully appreciate the legal effects of the legal framework whose praises you sing in which case the flawed premise of your publication should be given a generous pass and, the entire publication given no weight whatsoever. 

Your publication also used, as contrary argument in favour of the historical draft suggesting that it enjoys “the will of the people” and thereby implying that it enjoys popular support even though there exists no evidence to support such a claim. 

However, assuming you’re right, you must be implying that because the historical draft enjoys popular support, it must therefore be good. Let’s put this logic to the test, shall we? Yaya Jammeh started murdering and maiming our people from as early as 1994 but, yet enjoyed popular support for over 20 years and, by your logic he would be an awesome leader, won’t he?   

Now, let’s unpack your claims (which were very emotive but unfortunately not factual) in contrast with the facts so far established, if you’d kindly permit. It is established and in very authoritative terms that: 

·       the 1997 Constitution, whilst in need of improvement is not “unfit for purpose” as you alleged;

·       Whilst the Coalition in 2016 promised Constitutional reform, they did not promise a “new Constitution” as you alleged;

·       Contrary to your assertions, reforms can be pursued in spite of the voting down of the now historical draft Constitution; 

·       Contrary to your assertions, transitional justice and the interests of the TRRC victim cohort is not prejudiced by the voting down of the now historical draft Constitution; and

·       Contrary to your assertions, the now historical draft Constitution is by no stretch of any legal interpretation a better legal framework in comparison to the 1997 Constitution.

From the substance of your publication and in light of the above, it is conclusively established that your concerns and reasoning for lamenting the voting down of the now historical draft Constitution is informed (or perhaps misinformed) by understandable misconception and deeply flawed assumptions. 

I must add that I do not mean this in a pejorative sense at all; I say this with utmost respect for your position in these matters despite the terrible weakness of such position. 

From the conversations I have had with most who still insist on pushing for the historical draft Constitution issue to be reopened, their position is that, the draft Constitution, if passed will make it easier for President Barrow to be removed from office. 

Although you have not expressed this view in your publication but, it is my general observation and assessment as a nonpartisan citizen, of the spirit which drives this ‘resurrection’ cause. 

A Constitution built with an individual, political and strategic considerations in mind, quite frankly deserves to remain in history and rightly so. 

The now historical draft Constitution was deeply flawed, terribly unsafe and a source of very unhealthy rancour of unprecedented proportion. 

Its democratic and Constitutional voting down by the National Assembly restored sanity at last. Long may such sanity last. 

There is absolutely no plausible argument whatsoever why such a divisive subject deserves being reopened; reopening such may be in the interest of a few but, certainly not in the national interest. Therefore, the latter must prevail and, we frankly need to move on. 

By Pa Louis Sambou