By Alagi Yorro Jallow

It is incredible that after fifty-five years as a nation, the Gambia still has not decided how our country should be run. However, at this age, one ought to have married, brought up your children, and started the journey into your life’s sunset, assured of a tangible legacy. 

As a nation, the Gambia seems to be prolonging her youth, refusing to settle down, and taking up responsibility. What are we waiting for? A new people-centred, homegrown Third Republican Constitution or retained the old Second Republic 1997 Constitution. 

The Gambia’s supreme legal charters (the 1960,1970 and 1997 Constitutions), all of Westminster style and designed, have been very elusive, doggy, and very costly to the nation 55 years of history. Three Presidents have inherited and placed their efforts to enact Colonial vestige legal systems. 

The Constitutional Review Commissions and similar bodies of foreign jurist inputs have been held, colossal amounts of public funds deployed, but to no avail, as at now. 

This time around, are Gambians winning as expected to win with the ” People’s Centred Constitution?

Gambian legal scholar Dr. Abou Jeng hypothesized at a colloquium that “A Constitution of whatever political dispensation ought to be an instrument of dialogue whose guidepost must make permissible a representation of consociation affirmation of the possibilities … to command a mission that adds voice to the condition of human suffering, and perhaps crucially, undertake to mitigate it”. 

The big question is: Will the People-Centred, or a Homegrown Constitution be approved as expected by WE, the People of the Gambia? Alternatively, is the political will immensely encouraging from the Draft Constitution’s sponsors to pass the Draft Constitution?

A globalised history of the United States would be only the latest twist in a continually changing narratives. Broadly speaking the United States is routinely presented as the “perfect,” the greatest nation in the world, and the embodiment of democracy, freedom, and technological progress. 

The Gambia may have intruded on the slumbering nation through prevailing narratives. The founding fathers were paranoid or maybe and ungrateful malcontents. What was their cherished Declaration of Independence apart from empty posturing? 

They groaned about the burden of taxation without representation and sovereign republicanism, but it was the English who were shouldering the legal charter’s real burden on them.

The U.S. Constitution was 233 years old last Thursday. On Sept. 17, 1787, their Founding Fathers signed the Constitution at Independence Hall in Philadelphia’, forged a new government for the United States with only a few amendments or changes; I am reminded that only 27 amendments or changes in one Constitution as old 233 years. 

I am reminded that the 1997 Constitution which is 23 years old today was bastardised and butchered double more than the U.S. Constitution; almost 60  times in a brief period: Really? Why our Constitutions are without principles constitutionalism?

Even as we clamour for a new Constitution gathers momentum, we must be careful not to forget the basic structure of the 1960, 1970 and 1997 Constitution. 

Why the Gambia is always at Constitutional crisis illustrated how the powers-that-be have committed what has eloquently described as “Constitucide” the act of murdering and mutilating the Constitution, mostly what President Yahya Jammeh administration did to the 1997 Constitution, to retain power, not for the betterment of the people but to fulfill his individual egos. 

The 1997 Constitution was amended almost 60 times (1997-2019). The one purpose of a constitution is to set out the fundamental conditions upon which individuals and groups within a country broadly agree to be governed. 

Constitutions usually provide limits to the government by establishing and distributing powers between different branches, institutions, or offices of the government.

The Gambia’s Constitutions internal aporia remains problematic because Constitutional frameworks, as President Barack Obama says in his book, primed in the New York Times best-seller ‘Audacity of Hope’ that (Constitutions) are designed to force people into a conversation with the hope of offering legitimate means by which people argue about the future.

Of course, for a country that deserves so much, its Constitution’s failure to reflect the call of its people for an emancipatory Constitutional order is incredibly disappointing. 

Betrayed by the First and Second Republic, we had hoped for a future that would harness collective strengths and individual talents within a Constitutional democracy settings.

Today, Gambians are one-seeking trust, integration, unity, and a reconciliation process that seeks to find a Constitutional common ground well before drafting begins, a new Constitution that can be oriented towards delivering a shared Constitutional vision that will provide to all Gambians to realise cohabitation that is possible.

One erudite Nigerian jurist, Taslim Olawale Elias, once warned that Constitutional law writers tend to make false prophecies. He plausibly says, though, that in the context of the Gambia’s Supreme law, unless the inadequacies that beset its Constitution are confronted and reversed, its Constitutional future remains both obscure and insecure. 

The Second republican 1997 Constitution, according to a Constitutional scholar Dr. Abou Jeng “is not a people’s Constitution. It is a Constitutional tragedy, a substitution of Hope with Despair,” he argued.

There comes a time in a nation’s life when the peoples cry on an issue, and their sense of betrayal and futility lies at the hands of those they entrusted with power must surely come to an end. This is not easy since President Barrow has the super-abundance of historical reasons, spectacular legal arguments, and his political considerations to give in to the Gambian people’s demands. 

However, regardless of what is expedient, President Barrow is expected and has to respect and fulfill the needs and aspirations of the people regardless of what is expedient. 

After all, it is often an inescapable truth that Vox populi, Vox Dei (the voice of the people is the voice of God.) For this reason, President Barrow and his government must publicly be committed to delivering to Gambians a ‘People-Driven Constitution’. This way creates a new politics, a new way of doing things, a new approach to politics!

Why the Constitution matter? According to Justice Ramaswamy of the Supreme Court of India in emphasising the immense importance of the Constitution said that the Constitution, “unlike other Acts, is intended to provide enduring paramount law and basic design of the structure and power of the State and rights and duties of the citizens to serve the society through a long lapse of ages. 

It is not only designed to meet the needs of the day when it is enacted but also the needs of the altering conditions of the future.”

This Draft Constitutions MUST contain specific fundamental basic structures that our political leaders MUST guard against being amended or mutilated. 

At least those features are fundamental law which is sacrosanct that include supremacy of the Constitution, Unity, and Integrity of the State, Fundamental Rights, Sovereign, and Democratic Structure, the rule of law, Separation of Powers, the Independence of the Judiciary, Secular Character of the Constitution and Limitations on the Amending Power of the National Assembly amongst others. 

The promulgation of a new Constitution, a People-Centered Constitution of the Third Republic, may bring life to our legal system to realisation.