The only reason why NAMs shouldn’t change anything in the Final Draft Constitution is to avoid partisan capture of the document. That is, to make changes that would be perceived to favour one party or politician in one way or another. The consequence of touching the document therefore undermines its legitimacy and integrity. This is because those changes will now be perceived in terms of a particular party or politician’s interest.

Remember, the 1997 Constitution has been nicknamed the ‘Soldier’s Constitution’ or ‘Jammeh’s Constitution’ simply because from the very onset the AFPRC Junta interfered with the draft that was submitted to them by the National Consultative Council in 1996. Since then many citizens lost faith in that constitution. In fact, in the 1996 referendum there was a massive campaign against it as a soldier’s constitution. Twenty six years later today, people still refer to it as ‘Yaya Jammeh’s Constitution’. We should avoid our 3rd Constitution to be impugned as such.

It is obvious that parliaments do comprise several political parties. Thus in many instances issues get politicized and partisan. Thus if NAMs were allowed to touch the document there is no doubt that partisan and personal interests will surface.

Furthermore, if NAMs touch this draft, even with the best of intentions, it will dilute the citizen ownership of the document. It means from that moment, the draft constitution is no more fully reflective of the original opinions of the citizens of this country. Rather it will become a politicized constitution in favour of this or that party. That will make the draft lose its sincerity, genuineness and honour and consequently lose public confidence and ownership of it.

Therefore, let us protect the legitimacy, integrity and the sanctity of the 2020 Final Draft Constitution by preventing anyone from touching it. If we allow changes to the document that seems to favour one party or the other, there is high likelihood that some people will campaign against it as this or that party’s constitution.

Even if it gets eventually approved in the referendum, the constitution will be tainted with that mischaracterization that it is a Barrow or UDP or PDOIS or NRP or GDC or PPP or APRC constitution depending on which side had more influence on it. This is precisely the reason that we must appeal to our NAMs to rather approve the bill so that the Final Draft Constitution goes to a referendum, untouched.

Allowing NAMs to touch the document also creates the risk of promoting a No-Vote in the referendum as voters may see the draft as favoring that party or this party. If the No-Vote wins, it would mean sticking with the obnoxious 1997 Constitution hence a catastrophic failure of ensuring true system change. That means the country is still within the orbit of Dictatorship.

On the other hand, if that draft got approved anyway and becomes the substantive constitution, what that would trigger is a series of amendments in due course by any new government that comes into office with control over the National Assembly. What this means is that we will once again have to contend with an overly butchered constitution just like the 1997 Constitution. This is what will further take away the legitimacy and integrity of our Constitution, thus once again undermine national unity, national security and further polarize our society.

Therefore, let us urge NAMs to protect the legitimacy and integrity of this Final Draft Constitution and maintain the public ownership of it by not touching it but approve the bill and send it to a referendum ASAP.

For The Gambia Our Homeland
……………………………………………..
Madi Jobarteh

As a national document, a democratic constitution must settle national authority in a manner that avoids concentrating public power in any one segment of a political system. In no small way, the 1997 Constitution of the Republic of The Gambia (the Constitution) comprehensively failed this basic test.

Notwithstanding theoretical delineations between the traditional arms of a democratic polity, and the Constitution’s self-serving claim of separating power, the reality is completely different. Not only are the Legislative and Judicial branches accorded inferior status by making both ultimately answerable to the Executive, critical agencies indispensable to the proper functioning of a democratic state are all similarly degraded. In a nutshell, meaningful national power is entirely concentrated in the Executive.

Additionally, there are express contradictions between key Constitutional provisions, as well as considerable fluff in need of excision from the document.

Accepting that a polity with weak institutions cannot ensure accountability under the best constitution, there is nevertheless a compelling need to retreat from the brazen amalgamation of public power in one branch of government.

In the circumstances the contention that the Constitution suffers from democratic deficit and therefore requires ditching is not a matter for serious debate. That general agreement about its glaring shortcomings notwithstanding, the idea that any proposed replacement, no matter how mediocre and wrongheaded must be better is an objectionable tenet.

As the Draft Constitution (the Draft) wends its way through the Second Reading in the National Assembly (NA), the design flaws in the architecture of the Constitutional Review Commission Act 2017 (the CRC Act) are clearly visible. The Second Reading commenced the debates proper on the Draft and the storms it must travel through will get heavier but not heavy enough to sink this mediocre document. It must go through the full parliamentary schedule to the decisive Third Reading for interim approval or complete defeat.

Interim approval pending the verdict of the people in a referendum, or complete defeat ending its legislative journey should it fail to secure seventy five percent support in the NA. The Second Reading vote this week is therefore not a make or break but may be a harbinger of the Draft’s direction of travel going into the critical Third Reading.

Although unassailable a principle that the President cannot tinker with the Draft, it is coming before the NA as a Bill, giving that organ the Constitutional mandate to debate and amend, or throw out completely if that eventuality coincides with the required numbers of the Solons.

According to section 100 (1) of the Constitution, “the legislative power of The Gambia shall be exercised by Bills passed by the National Assembly and assented to by the President”! A further demonstration of the authority of the NA to debate and amend the Draft is articulated thus:- “… a Bill or motion may be introduced in the National Assembly by a member of the Cabinet or by a member of the National Assembly, and the National Assembly shall give consideration to Bills and motions so introduced” (see 101 (1) of the Constitution).

Indeed, Chapter XXII talks about “Amendment” and “Alteration” of the Constitution and the power to “amend, add to, repeal or … alter” is expressly donated to the NA (see 226 (8). Section 226 (9) specifically states:- “… references to the amendment, modification or re-enactment with or without amendment or modification, of the Constitution or of any provision for the time being contained in this Constitution, the suspension or repeal or the making of different provision in lieu thereof, and the addition of new provisions …”.

In the particular circumstances of the presented scenario, the intricate linkage between the Constitution and the Draft is unquestionable. “Promulgation” and “repeal” are specific words employed in the Gazette Supplement of 28 August 2020 announcing the Bill now awaiting the outcome of the collaborative enterprise between NA and the people. Clearly the Draft controls nothing as the mandated procedures are delineated in the Constitution.

The NA is the normal supreme authority in the arena of legislative scrutiny but where any process triggers a referendum, it collaborates with the electorate. Therefore the postulation that on entrenched provisions, the voters ousted “… the legislative competence of parliament” and they “… alone could amend or repeal entrenched clauses via a referendum” is an unbelievably misguided and preposterous proposition.

Without the parliamentary journey and approval, there is no avenue through which the voters can articulate their preferences on an entrenched provision and same applies to the Draft.

Similarly the contention that “… Parliament may debate, pass or reject the constitution referendum bill, but not the draft constitution itself” is nonsense of the highest order. I am not aware of anything called a “constitution referendum bill”. Once the “Promulgation” and “repeal” bill garnered parliamentary approval, the Speaker refers the matter to the IEC for a referendum (226 (4)(c). There is not and there will not be a “constitution referendum bill”.

A stitch up from the onset, the question may be moot that the Constitutional Review Commission (CRC) has the mandate to draft a proposed new Constitution but it remains a live issue that the promulgation of the document is a competence it does not have.

In Kenya, a country whose constitution the CRC extensively copied and pasted in the Draft, all members of that country’s parliament were part of the National Constitutional Consultative Forum (the National Forum). So were all members of the Commission, and the District Forums. By every measure a truly national process but the anti majoritarian mechanism shepherded by our Attorney General brought the project to its current location.

Although the idea that our nation requires a new constitution was properly conceived, the delivery mechanism selected was faulty in the extreme. Whether that was deliberate or incompetence is an open question. The authorities had the option of establishing constitutional or constituent assemblies or a constitutional commission. Ill advisedly it chose the latter with a truncated structure and clear shortcomings in the Gambian context.

A constitutional commission like the CRC “… is formed for the purpose of preparing a draft constitution for consideration or adoption by another body…”

Moreover, “Commissions are different from the legislature or the constituent assembly in at least three ways: function (they do not make final decisions on the constitution, being advisory), qualifications (primarily expert, rather than political or representative), and size (small, and therefore with different dynamics from assemblies) …”.

By every rational yardstick, the idea that the NA is bereft of competence to touch the Draft in any way is an incomprehensible proposition. The legislative domain denotes the core competence of the NA and given the Constitutional provisions earlier referenced, it has the competence in law and doctrine to make appropriate amendments to this Draft.

Indeed, the meaning around the legislative jargon of Third Reading is another authoritative demonstration of what the NA can do with this Draft. It can debate and amend as necessary before the ultimate vote at the end of the Third Reading.

And how about the end product!

“A recent comparative study undertaken by the United States Institute of Peace of nineteen constitution-making processes observed that of those processes that used commissions, these bodies did not seem to produce a better result than those using a constituent assembly or parliamentary drafting committee with experts…”.

With what the CRC ultimately produced, we know that very well in The Gambia.

It may be a long and tedious process but only a Draft amended by the NA may save this project of a hundred and sixteen million Dalasis and counting.

The chickens are truly home to roost but the knives of the Solons may save the Draft!

They have the Constitutional right to remove the excess fat from the Draft.

Lamin J. Darbo

After watching a recent Kerr Fatou Network interview with my former boss at the United Nations and current foreign minister of the Gambia, Dr. Mamadou Tangara, I found it compelling to factcheck or dissect some of the critical quintessences that, to me, had not been satisfactorily answered.

ON THE GAMBIA 2016 ELECTORAL IMPASSE: It was the first subject where Dr. Tangara was quizzed over the role he had played at the UN as Gambia’s Permanent Representation (PR), or Ambassador during that history-altering phenomenon. He explained the overwhelmingly celebrated moment by his peers in the first week following President Jammeh’s acceptance of the first election results declared by the Gambia Independent Electoral Commission (IEC) on December 2nd, 2016. That they showered him and all Gambians with all sorts of accolades for the remarkable achievement; he added that by the end of that week he attended a UN-organized ceremony in New York where the late Babatunde Osotimehin, then Under-Secretary General and Executive Director of the UNPF delivered a speech applauding the Gambians for conducting an election where the president who had been in power for 22 years accepted losing to his opponents.

He was identified in his quiet corner among the crowd and once again congratulated. However, he went on to say that with all the euphoria, he kept on warning his peers not to be hasty in celebrating too soon “considering the kind of person President Jammeh was”.

“Why?” asked Fatou Touray, the interviewer.

He attributed it to something instinctive rather than anything tangibly explainable.

I was expecting Madam Touray to further ask him whether that was before or after the IEC came up with the second controversial set of results on December 5th 2016 that prompted the subsequent chaos, but I guess she is perhaps one of those Gambians still trivializing that major issue responsible for Senegal’s involvement or takeover.

That said, most Gambians following the TRRC drama were aware of the testimony of Chief of Protocol (COP) Alhagie Ceesay who at the time was in Maryland together with former First Lady Zainab Jammeh where he had explained how days before he had learnt from her that President Jammeh had decided to challenge the results after already conceding. Naturally, Ceesay was never asked at the TRRC whether the former first lady disclosed why her husband had a change of mind or when exactly she had told him that. But again, that would have probably enlightened the world about the truth still being avoided on how the second results declared by the IEC three days after triggered the mess.

What was crystal clear however, was Alhagie Ceesay’s disclosure at the TRRC that he immediately consulted the Senegalese Ambassador to Washington DC Mr. Babacar Diagne to report the secret message from Lady Zainab. Ambassador Diagne, posted from the Gambia to America in 2014, around the time Shiekh Omar Faye was assigned there as Gambia’s Charge-d’affairs used to claim being a good friend of President Jammeh and was definitely very close to Omar Faye throughout the two years they spent together in Washington DC.

So essentially, the idea of Senegal’s involvement in our election business-an internal affairs-started well before Jammeh even came out publicly to annul the election results, thanks to Alagie Ceesay, Omar Faye, Dr. Mamadou Tangara and all the other ambassadors convinced along the way to join the unconscionable mother of all treacheries.

Therefore factoring the COP’s revelation at the TRRC whom I have always considered another Judas in the diplomatic team, PR Dr. Tangara at the time telling Madam Touray that he had relied purely on his instincts that Jammeh would eventually change his mind stinks high to heavens. Anything other than confessing how as Gambia’s ambassadors they had clandestinely worked together to mortgage our country’s sovereignty to Senegal in order to preserve their jobs was outright dishonesty.

Knowing what they knew about Jammeh’s plans to dispute the election results from December 5th the day the IEC came up with their controversial numbers to December 9th, the day he annulled the results, a leader of goodwill would have acted differently from the way Mackey Sall did by simply calling Jammeh to find out what was going on. And if possible talked him out of his intention as ECOWAS chairman if he had believed that it could create a greater problem or even result into war. Or still send Babacar Diagne his friend to him to negotiate a peaceful settlement.

But that would have allowed the nation’s transition to continue smoothly and denied Senegal and France the opportunity to put their knees on Gambia’s neck. It is also obvious that the coalition party given all their hatred of President Jammeh and his “enablers” would have never been keen in retaining any of these treacherous ambassadors whom otherwise would have gone jobless like in the cases of Pierre Minteh, protocol officer to Ambassador Omar Faye and I, Samsudeen Sarr deputy ambassador to Dr. Mamadou Tangara, the two of us who refused to betraying our country.

After all the years they had devotedly served Jammeh’s “evil government” that most of them openly denounce now, people should wonder what if it was not for their jobs why they betrayed their government. Other than being judases capable of destroying any government or leader, it will be fair to define their characters as nonbelievers of anything whatsoever who would turn against President Barrow whenever the dynamics changed against their personal interests.

So while Senegal and France had finally found the right opportunity they were for so long looking for to takeover the political and future economic destiny of the Gambia, our Judases simply realized that their job survival depended on rallying unconditionally behind Senegal to force Jammeh out even if it had necessitated waging war to destroy their country. So the whole dirty plan was hatched waiting for Jammeh to just annul the elections. Zainab didn’t know anything about the snitch COP Alhagie Ceesay she had trusted so much.

No wonder, Jammeh annulled the results on December 9th and the next morning December 10th, Senegal got the resolution passed at the Security Council demanding that he respected the constitutional will of the Gambian voters. Obviously, the whole document was already drafted waiting for submission.

I heard Dr. Tangara telling Madam Touray that as a diplomat at the UN, he was not working for anybody but the Gambian people. Really?

Like ministerial appointments, it is apparent that all ambassadorial appointments are political and as such, appointees are expected to be loyal to the head of state who offered them the job. Madam Fatou Touray may not know that and couldn’t therefore exhaust that argument.

It was in fact all their fawning cooperation that Senegal needed to justify their illegal action of interfering in what was certainly an internal affairs.

Anyway while on it, Madam Touray inadvertently exposed a lot about the minister’s confusion over international policies. When asked what he had felt about the recent coup in Mali he spontaneously condemned the junta for their action and demanded their immediate handing over of the government they unconstitutionally seized to a civilian leadership. Reiterating the same stale message from France over how the Jihadists, up north, could takeover Mali if the soldiers were not mindful. We are now aware of how radical groups including so-called Muslim extremists or jihadists are mere bandits and mercenaries funded, armed or equipped by western-nation-stock holders through their governments to render the mineral-rich nations of Africa volatile resulting in the need to have their troops on the ground but to only continue protecting and exploiting our natural resources. There are over seven major European gold-mining companies in Mali lifting billions of dollars worth of pure gold nuggets with all contracts signed through France. Familiar with the Hummingbird Gold miners, Barrick Gold, Resolute Mining, Cora Gold, to name a few in Mali? Hey, let’s not be foolish, the 5000 plus French troops in Mali are not there to protect any Malian from Jihadists like Dr. Tangara has been indoctrinated to market the deceptive concept all over the world for his French masters but for the gold reserve in the country, the fourth largest in the entire African continent.

Ironically, when Madam Touray asked his opinion about the unconstitutionality of Presidents Alasan Ouattara and Alpha Conde of Ivory Coast and Guinea Conakry respectively now contesting for third terms in office using force because their constitutional tenures limited them to two, he declined to comment on the excuse that those were internal affairs to be handled by individual nations affected. What’s the difference between the Malian or Gambian situation and those other two countries where the leaders are blatantly violating their national constitutions and killing their opponents with impunity? Yeah, Gambia is easier to bully than any of those neocolonial countries relying on France.

FOREIGN POLICY: After explaining the foreign policy of the Gambia as rooted on non-alignment, neutrality and good international relationship with all neighboring countries in particular, the same rhetoric we had echoed about the position of the APRC government at the UN, Madam Touray wanted serious answers about why Senegal now dominates us in virtually every engagement and transaction between our two countries. She listed the discrepancies in our trade, fisheries, security, energy and transportation deals where Senegal appears to benefit far more than the Gambia.

Typical of my former boss, he baffled the woman with a story, first underscoring the relationship of our two countries, hinged on the notion of “one nation in two states”. He then continued on what he said was a great agreement newly realized between Senegal and the Gambia and awaiting ratification but stalled by the COVID-19 pandemic of which he had seemed willing to elaborate on.

But he neither cataloged nor elaborated on any agreement-the Shiekh Omar Faye style-and instead took the woman on a rollercoaster ride on his days as a PhD student in France when he once represented the APRC government to a colloquium in Dakar Senegal to discuss the subject of Senegal and the Gambia co-owning the Yellitenda-Bambatenda Bridge. President Wade was then Senegal’s head of state.

At the Dakar session, the minister narrated how he had passionately condemned such an idea of Senegal coming to the Gambia to co-own any facility with us, let alone our bridge. That he had argued until the matter was taken before President Wade for arbitration who used to call him “my son”. Wondered the relevance of that in the discussion other than to promote his credentials.

But Wade, he said, emphatically supported his position sighting international law and spoke from his legal and not political portfolio as president.

He had impressed President Wade so much that, the Senegalese leader wanted to immediately hire him to work for his government. But he declined telling him how his PhD course in France was more of a priority to him at the time than any career. In the end it was all about his tough negotiating skills acquired well before even graduating as a Doctor. I believe he effectively in the process disoriented Madam Touray from her initial probes.

She appeared not to remember her question again about the dominance of Senegal over the Gambia in literally every aspect of our current political, economic, transportation, fisheries and security engagements. With the way he ultimately portrayed his tough negotiating skills, if Fatou had not lost her original bearing, I again had expected her to remind him that the bridge issue was about then, and that she was asking for answers over what is now going on. Or to catch him in his parochial game, she could have ask the minister what had happened to his earlier assertion of Senegal’s relationship with the Gambia he earlier defined as “one nation in two states” but strongly went against the bridge co-ownership in President Wade’s era. She could have still asked the Doctor how they arrived at naming the Trans-Gambia Highway Bridge the Senegambia Bridge that many Gambians believe Senegal benefits there more than the Gambia. An agreement probably worst than in a co-ownership deal!

SECURITY: To the Doctor, ECOMIG’s presence in the country is primarily to allow the new government time to finish the four-year old Security-Sector Reform (SSR) which to me is impossible to achieve.

They are in the process of downsizing the armed forces but cannot still know what to do with the “undesirables” to be weeded. They will all turn into crime, he said.

He nonetheless thinks that the security forces under the Jammeh government that he had loyally worked for for over a decade were abused and lacked the desired professionalism associated with contemporary forces governed by international standards. That almost all ranks carried by officers didn’t meet international benchmarks. Of course he had never realized that before in the decades he had served the APRC government during which he had on numerous occasions in my presence praised our armed forces for their exemplary performances in both their internal and external duties. Together with his fellow Judas ambassadors he had referred to the GAF as warriors who had kicked the butts of the “the terrorists” who had attacked the Gambia on December 30, 2014 to overthrow the APRC government he had sincerely adored then.

But the million dollar question is, who are those officers in the armed forces to replace the current senior officers in charge, starting from the Chief of Defense Staff General Yankuba Drammeh and his deputy General Mamat Cham down to all of the rest of them carrying ranks deemed undeserving by “international standards”?

The Foreign minister talked about how they are all “laughing stocks in the international community”, insinuating that their promotions could only have been possible in an APRC government.

I wonder how he rates Mamat Cham, the deputy CDS, appointed by President Barrow after being fired from the army as captain for twenty-two years but reinstated and promoted to General? Is he another counterfeit General and a laughing stock in the international community? Or is the minister waiting for the next government to succeed Barrow’s to condemned Barrow for his misguided action of reinstating and promoting Cham? That may be it.

But the APRC officers could at least be credited for their proven work in keeping the nation safe over the years and deserved to be promoted and decorated like wartime heroes showing outstanding performance and courage in field missions, that at times even exceeds that of better education soldiers.

Nobody ever questioned the competence of the late Guinea Bissau General, Ansumana Mane in the field that earned him that special rank, despite never attending any military or formal education school.

During the APRC days I have seen Gambian soldiers handling their work with excellence and professionalism that deservedly earned them promotions and medals. We promoted and decorated soldiers who stopped the rebel attacks at Farafenni and Kartong Barracks in 1996 and 1997 respectively because they did it the exact way it is taught in the best military academies.

Anyway, like stated above, I don’t expect a meaningful and fair SSR to ever happen in the Gambia. The Senegalese will be here supported by the French with the connivance of Gambia’s worst Judases until the good sons and daughters of the Gambia wake up one day and demand their unconditional expulsion.

SAMSUDEEN SARR

BANJUL, THE GAMBIA.