Introduction

In April 2016, the late Solo Sanding was arrested and allegedly tortured to death for demanding electoral reforms in The Gambia. Arguably, his death sparked a new form of revolution in The Gambia and the ultimate end to dictatorship. Three years later, The Gambia still struggles to realize Solo’s dream. The Gambia deserves electoral reforms, among the many needed reforms, to end self-perpetuation and corruption. Although desperately needed, The Gambia must continue to ascribe to the rule of law in effecting system change.

Election laws will invariably impose some burden on individual voters. The provisions—whether it governs the registration and qualifications of voters, the selection and eligibility of candidates, or the voting process—inevitably affects at least to some degree individuals right to vote and the right to association for political ends. Consequently, if courts are to subject every provision to strict scrutiny would limit the State’s ability to make election equitable and efficient. Thus, a court considering a challenge to election law must consider the character and magnitude of the asserted injury to the individual’s right to expression and association. A court must then evaluate the precise interests advance by the State as justifications for the burden the new law imposed. To render judgment, a court must not only determine the legitimacy and strength of each of those interests but also consider the extent to which those interests make it necessary to burden the plaintiff’s rights.[1]

In contrast, when election law imposes only reasonable, nondiscriminatory restrictions on a voter’s right to expression or association, the State’s important regulatory interests are generally sufficient to justify the restrictions.[2]The general principle is election laws will be liberally construed in favor of citizens whose right to vote they tend to restrict, to avoid depriving voters of the right to vote—[3]Though a topic for another time, this is the reason why I still hold the view that diaspora Gambians must have the right to vote in every presidential election as part of essential players in our presidential politics.

Validity & Operation of Term Limit

The issue which arises is the validity, construction, and operation of constitutional or statutory “term limits” provisions. The proposed CRC Draft Constitution introduces a term limit for the office of the presidency, which Gambian welcome.[4]

There is a distinction between the words “term” and “tenure.” “Term,” as applied to a public office, refers to a fixed and definite period of time. “Tenure,” on the other hand, is the time the appointee serves in office; the tenure of the person holding an office may vary from the term of office, and, depending on the circumstances, the tenure can be shorter or longer than the officer’s term.

Importantly, the majority of Gambians agreed that the provision should apply retroactively because of our shared experience.[5]However, a change in law has the potential to affect many people. Those affected need to know when the new law will go into effect whenever the legislature or the courts modified existing laws.[6]As a general principle, it is black letter law that statutes operate prospectively and judicial decisions retroactively.[7]For example, in early 1960, U.S. Supreme Court departs from this general principle to avoid extending the Warren Court’s criminal procedure decisions that have the effect of freeing numerous criminal defendants.[8]Subsequently, the Court adopted a discretionary approach to adjudicative retroactively in the civil context. In Chevron Oil Co. v. Huson,[9]the Court states:

First, the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed. Second, it has been stressed that ‘we must weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.’ Finally, we have weighed the inequity imposed by retroactive application ….[10]

Yet, the above theories deal with legislative or judicial modification of existing laws and not constitutional amendments. In Lucas v. Forty-Fourth Gen. Assembly of State of Colo.,[11]U.S. Supreme Court addressed the constitutionality of the amended provision of Colorado’s apportionment after a referendum. Specifically, Colorado’s Amendment no.7. The Court held that it did.

The Court ruled that the State cannot deprive an individual’s constitutionally protected rights because a nonjudicial remedy (initiative or referendum) exits.[12]The Court emphasized that “[a]n individual’s constitutionallyprotected right to cast an equally weighted vote cannot be denied even by a vote of a majority of a State’s electorate, if the apportionment scheme adopted by the voters fails to measure up to the requirements of the Equal Protection Clause.”[13]A citizen’s constitutionalrights can hardly be infringed simply because a majority of the people choose that it be.[14]

Similarly, in Bates v. Jones, the United States Court of Appeal for the Ninth Circuit was faced with a similar issue. The Court has to decide the constitutionality of  California proposition 140. In that case, the plaintiffs contend that the lifetime term limits in California’s Proposition 140 violate their federal constitutional rights. The Court disagreed. Here, the plaintiffs seek to vindicate their right to vote for the candidate of their choice and the asserted right of an incumbent to again run for his or her office.[15]

The Court concluded that Proposition 140’s impact on these rights is not severe. The Court agreed with the State’s position that “term limits on state officeholders is a neutral candidacy qualification, such as age or residence, which the State certainly has the right to impose.”[16]Nonetheless, the restriction of Proposition 140 was prospective and not retroactive. Importantly, the Court held that the lifetime term limits do not constitute a discriminatory restriction. “Proposition 140 makes no distinction [based on] the content of protected expression, party affiliation, or inherently arbitrary factors such as race, religion, or gender. Nor does the Proposition’ limit [ ] political participation by an identifiable political group whose members share a particular viewpoint, associational preference, or economic status.'”[17]

Therefore, the Cabinet’s argument that the CRC term limit provision discriminates against the president is untenable. Facially, the requirement is nondiscriminatory, and the impact of its application on voter’s rights is not severe. Just like California voters, The Gambian people perceived term limits for the presidency as a means to promote democracy by opening up the political process and restoring competitive elections. Even though this is their choice to make, it must comport with the dictates of the 1997 Constitution.

In State ex rel. Mirlisena v. Hamilton Cty. Bd. of Elections,[18]Ohio’s Supreme Court stroke down part of a constitutional amendment for a term limit because the provision applies retroactively. The Court held that although “the people of Cincinnati resoundingly spoke on the issue of term limits for councilpersons, and that their judgment on that issue would not be disturbed, stressed that the voters could not constitutionally make the term limits retroactive.”[19]The Ohio Const. Art. II, § 28, provides, in pertinent part, that the general freedom of assembly shall have no power to pass retroactive laws. Since the amendment provided for a retroactive application, the Court observed that the enactment violated Art. II, § 28 of the Ohio Constitution.

To conclude, the Gambia’s case is factually similar to Ohio. Chapter VII, Article 100(c) of the Constitution of The Republic of The Gambia, 1997, reprinted 2002, states that the National Assembly shall not pass a bill “to alter the decision or judgment of a court in any proceedings to the prejudice of any party to those proceedings, or deprive any person retroactivelyof vested or acquired rights ….” To the extent the proposed schedule in the Draft Constitution makes the term limit retroactive, it certainly contradicts the 1997 Constitution.

Therefore, the Gambia needs her citizens to play a crucial role in 2021.

[1]Bates v. Jones,131 F.3d 843, 846–47 (9th Cir. 1997)

[2]Am. Jur. 2d, Elections § 3.

[3]Id.

[4]SeeCRC Final Report on The Draft Constitution

[5]Id.

[6]See Jill E. Fisch, Retroactivity and Legal Change: An Equilibrium Approach, 110 HARV. L. REV. 1055, 1057 (1997) (“The general principle that statutes operate prospectively and judicial decisions apply retroactively is a

matter of black letter law . . . .”); see alsoNelson Lund, Retroactivity, Institutional Incentives, and the Politics of Civil Rights, 1995 PUB. INT. L. REV. 87, 87 (“Legislatures declare in general terms what the law shall henceforth be, while courts resolve disputes by declaring the specific effects of preexisting general laws.”).

[7]See Rivers v. Roadway Express, Inc.,511 U.S. 298, 311-12 (1994) (“The principle that statues operate only prospectively, while judicial decisions operate retrospectively, is familiar to every law student ….” (quoting United States  v. Security Indus. Bank,  459 U.S. 70, 79 (1982)) (internal quotation marks omitted)).

[8]See, e.g., Escobedo v. Illinois, 378 U.S. 478, 490-91 (1964) (holding that the Sixth Amendment right to counsel attaches when a person becomes a criminal suspect); Gideon v. Wainwright, 372 U.S. 335, 335-45 (1963) (giving constitutional right to a lawyer in criminal cases); Mapp v. Ohio, 367 U.S. 643, 655-57 (1961) (extending Fourth Amendment exclusionary rule to states).

[9]404 U.S. 97 (1971)

[10]Id.at 106-07 (citation omitted) (quoting Linkletter v. Walker, 381 U.S. 618, 629 (1965)).

[11]377 U.S. 713 (1964)

[12]Id. at 736-7.

[13]Id.

[14]Id.

[15]Bates, 131 F.3d at 846–47.

[16]Id.; see alsoBurdic v. Takushi,504 U.S. 428, 433 (1992).

[17]Seesupra note 14.

[18]67 Ohio St. 3d 597, 622 N.E.2d 329 (1993)

[19]Id.

As the continent prepares myriad platforms and forums to commemorate Africa Liberation Day on May 25, former Presidential Affairs Minister and International Speaker, Momodou Sabally is set to participate in programmes intended for enlightenment and inspiration of young African minds.

A leading Angolan Economics and Finance journal, Mercado, will feature analysis by the prolific author and motivational speaker, alongside great thinkers and officials from several countries, to be published,  May 25. The journal which has already made previews available online prior to their official publication date, quotes Sabally as stating that “Birth rates and the youth-population dividend all portend a brighter future for Africa as innovation in modern technology (especially ICT) powers the continent to leapfrog the development process.”

Commenting on the challenges presented by the COVID-19 pandemic, Sabally avers that while pundits predicted massive death rates and  suffering for the continent, “the prophets of doom and gloom are all aghast at the very low rates of infection and death on the continent even as the coronavirus ravages developed countries like America and Italy. Instead, we have found the first plausible cure for COVID-19 emerge from Madagascar even as Senegal celebrates the invention of the fastest COVID-19 test kit at the lowest price.”

On the same day at 5.30 pm (GMT), Sabally will join a panel of distinguished scholars including Dr Ameena Ali and renowned historian Hassoum Ceesay on the theme “Reflections On Africa Day”. The panel will be hosted by GRTS anchor Ebrima Baldeh, who is currently pursuing graduate studies at New York University in the United States. 

It could be recalled that Mr. Sabally recently addressed young African leaders (through video conferencing) on the theme “Institutional Management” with specific emphasis on communication, accountability and relevance. The audience of young leaders comprised youth from different African countries and diverse backgrounds, professionals in various fields and university students.

I had intended to remain silent about the recent Senegalese military incursion into Jarra Soma or somewhere around there last week; but after being bombarded with multitude of messages from friends and acquaintances asking for my thoughts, I decided to make a brief statement on the provocative incident(s).

I have nonetheless noticed so many new voices of Gambians protesting about these incidents for their contempt to our sovereignty and frequency along our borders but often trivialized and justified by the Gambia government in order to cover up the illegal escapades.

It however goes to prove that given the nationalistic propensity of our citizenry, it will be naive to assume that the longer these Senegalese troops remain occupying our country the more likely Gambians will accept the ill-conceived political and economic “symbiosis” being gradually imposed on us. Gambia is not Guinea Bissau and we fully-well know what France is up to.

To say that their combat-fitted military patrol had lost their navigation bearing and strayed into the Gambia when earlier reports disclosed their intention to confiscate wood/logs from Gambian loggers until the youth in the immediate vicinity demonstrated a concerted resistance against them is an excuse for the dupable. The last time they attempted a similar infiltration, the situation degenerated into a stand off between them and a lightly-armed detachment of the Gambia Armed Forces until the authorities had to swiftly intervene and force the marauders to withdraw. More of these mischiefs have been registered including another recent one at the TransGambia Bridge which again required our authorities to intercede and settle the altercation; but the most offensive so far was the so-called hot pursuit of an innocent Gambian found in his house around Basse, where a heavily armed Senegalese security cell that had illegally crossed our borders, forcefully entered into the “suspect’s” premises, shot and arrested him before bundling off the poor fellow back to Senegal.

To add insult to injury, witnesses had reported the trespassers bragging about arresting along any member of the Gambian police or armed forces who would have attempted to stop them in their illegal act. There were none in the village, anyway. Was that not textbook agent-provocateurs on steroid?

Of course, our defense minister Shiekh Omar Faye tried to spin the lawlessness, justifying it on a dubious security pact signed by Senegal and Gambia that licensed them into such thuggery. Gambian forces dare not conduct such operations into Senegal no matter the seriousness of any defense agreement signed between the two states.

In fact, hot pursuit, also known as “fresh or immediate pursuit”, means a close continuous pursuit of a fleeing suspected lawbreaker or hostile military force especially across territorial lines. That definition in no way corresponds to what happened when foreign thugs in uniform, found a man/suspect in his house in a friendly country and shot and arrested him for a crime he was later exonerated of all its charges. The level of high profile criminal that will warrant a hot pursuit wouldn’t be easily found innocent by any serious court, much more on the suspect’s first appearance before a judge. No matter how the defense minister spun it, the whole operation was unlawful while the victim, later released, went with his injuries and having nowhere to complain about the injustice. He could have been killed just like Harona Jatta of Kaninlai and justified by our unconscionable judases.

However, I heard that the commander of the Farafeni Barracks this time deployed soldiers to Jarra to confront the Senegalese-armored-patrol unit that had left before their arrival. Video footage of the unit in the village showed a well equipped, battle-prepared force surrounded by an angry confrontational crowd. Like I said earlier, the excuse that they wandered off into Gambian territory is just another fox and bull story.

Yes, the last time they committed a similar provocation in the Kombos resulting in a tense logjam with the members of the Gambia Armed Forces, Gambian authorities again dismissed it with the lame excuse that the heavily armed combatants crossed into the Gambian village to pay a curtesy call to a senior religious leader. Dumb excuse!

I want to once again reiterate my counseling to the Gambia Armed Forces command to be wary of these calculated provocations. They mustn’t be nudged into a confrontation with these ruffians; the only feat they are looking for is to spill Gambian blood since they invaded our country for no justifiable reasons in 2017. They have seized all the army’s heavy arsenals and took them away to Senegal, leaving our troops with only light weapons and are still bent on nettling them into a fight that they will certainly win, ultimately giving them the legitimacy to indefinitely occupy the country.

The GAF PRO Major Sanyang in his interview with the Fatu Network made it clear that the contents of the defense agreement signed by the Barrow and Sall governments on the hot pursuit issue in particular was beyond his expertise. That is essentially another way of conveying the limited understanding of his superiors about what was signed in Dakar or even the terms and conditions of deploying these savages in the country.

They shouldn’t ever be bothered by the insignificant backseat-drivers calling them cowards and all sorts of names for not doing something foolish. In other words, they shouldn’t be lured into a fight they cannot win. That is simple military science. To get into a fight, the soldier must be assured winning it or inflicting maximum damage to the enemy; although unforeseen circumstances can always alter the dynamics in the battlefield.

I don’t expect any change in the helplessness of the GAF under this government; but hopefully the next Gambia government will provide them with the autonomy and vital combat training to resist these kinds of military banditry that is not fought by conventional means but by modern gorilla tactics. The GAF have been recognized worldwide for their special peacekeeping skills; so the next training objective should be geared towards the establishment and reinforcement of a formidable and disciplined force in gorilla warfare. All these intimidating armored personnel carriers and heavy caliber machine-guns can easily be neutralized by a well trained gorilla-fighting unit, especially within one’s own terrain and one’s special advantage of home support.

In the event of another incursion, which will doubtlessly occur again and again, let the statehouse call Dakar and settle it between Mackey Sall and Adama Barrow. They know what they secretly signed together. And if our lawmakers and politicians are too chickenhearted to ask for the contents of the  document/agreement which I can guarantee bore no legality, why kill or die for it? Any bastard who die for it will die for nothing. They will merely shift the blame on the victims for starting the trouble and perhaps reward the killers with promotions; after all, the lifeline of this new Gambia government is directly wired to the seat of President Mackey Sall in Dakar.

Senegalese troops will never be crazy to stray into Mauritanian and Malian territories much more to conduct an illegal hot pursuit across their northern and eastern frontiers. They have been looking for Gambian blood and will never stop until they quench their thirst of it.

Unless we know what it exactly entails, maybe we should start considering the possibility of taking this illegal arrangement to the ECOWAS or international courts.

Thanks for reading. Eid Mubarak.

Samsudeen Sarr

New York City

The history of politics in Salikenni cannot be written without a major segment dedicated to the exploits of the late Dr. Lamin Naffa Saho. Dr. Saho [8th August 1944 – 6th May 2007] was a Gambian political scientist, leading politician, and statesman. 

He attended Salikenni Primary School, and Armitage High School, in McCarthy. Dr. Saho obtained teaching certificate from the Yundum College in 1964.

From College, he was awarded scholarship by German government to pursue his Bachelors, Masters and PHD in political science at Bochum University in Germany. He completed his PHD in 1975, and returned to the Gambia with his family, and joined politics.

As a Youth activist, he established Youth\Community center, health centres, and brought many community projects to Central Badibou with his German friends. 

As a politician, Dr Saho, strived to salvage and empower his people, and making sure that they lived a dignified life. Out of his service to his community, he earned the title “Naffa”.

“Naffa” is a Mandinka word meaning benefit. Lamin was foundational in defining his constituency’s spirit of community development , self-determination, and political tolerance. 

Dr Naffa Saho had a socialist orientation. He always emphasized that Gambia would develop only if the people are selfless, and care for the common good. He believed strongly that it is necessary to be virtuous and generous, and he regularly attended religious services. He erected a Mosque at his compound in Sukuta. 

Dr Saho was in his mosque reading Surah Ya-ssin [Chapter 36 of the Holy Quran] when he received information that his wife gave birth to a baby girl. He continued reading the chapter, then rushed to check on them at the hospital. He named the child after the chapter; Yassin. Yassin is now a Law graduate in the United Kingdom. Dr Naffa Saho retained a strong faith in Allah until his death in Birmingham, UK.

He was passionate about academic excellence, moral uprightness and environmental protection. He had uncommon appetite for intellectual discussion. He emphasized the need for self-actualization, hard work and go-getter lifestyle. He detested idleness and unproductive conversations.

One of Dr Naffa Saho’s notable traits was his humility, respect, care for the less previledged and determination to secure sustainable development in the Gambia. 

His wife fondly remembers Dr. Saho for his generosity. Aja Ndela Singhateh [Daughter of, Sir Farimang Singhateh, the first Gambian Governor of our country]: Ndela  recalls that she once asked him to give her money to buy somethings for herself; Dr Saho told her that she had to wait till another time because he did not have  enough cash at hand. Minutes later, he was approached by one ‘Oustass [Islamic Teacher] for financial assistant, he handed the man some money. When Ndela asked him how he managed to have helped this guy after telling her that he was not having enough money, he responded with these words: “This dude has family to take care of, and that he deserved to be helped with a sense of urgency. Your request was important too, by the way, but you can wait until tomorrow.”

Some of his close associates tells me that, Dr Nafa Saho had helped his political opponents more than his cronies. 

According to his first child, Fatoumatta Saho, Naffa Saho loved reading and writing. He kept his dark black Afro hairs neat at all times. At his leisure, he  would narrate stories about his early life to his family. He was always on the move

He liked driving around the city, going to the Parks to unwind and chill out with his family. 

“My relationship with my father was special. I had the best dad. He loved his family. I was never embarrassed to talk to my father about things that I wouldn’t be embarrassed talking to my mother about.” – Fatoumatta. 

In 1982, Dr Lamin Saho contested for the Central Badibu parliamentary seat as candidate for the  PPP against Opposition Sheriff M Dibba of NCP. This was a an epic clash of titans between two great sons of Salikenni.

Political pundits say, there’s something spectacular and unique about Central Badibou constituency. The founder of NCP, was the prominent candidate in this constituency from independence up to 1982. 

Dr Saho defeated Sheriff Dibba in that hotly contested election in 1982 with a small majority of 95 votes, but went on to consolidate his grip on the constituency. In the subsequent 1987 Parliamentary election, he won the Central Badibou seat again and became the minister of Information and Tourism.

Dr Saho pioneered politics of development in his constituency. An accomplished Parliamentarian, he was widely admired among the people of Badibou. His efforts proved vital for many development initiatives in Central Badibou. 

In 1988 he was asked to resign by President Jawara over his decision to change the sequencing of how national news was read in local languages, at Radio Gambia. On the day he left Jawara’s cabinet, Dr Saho met a handful of people from his constituency in his house, grieved and frustrated. He told them these hope-reassuring words: “Look, President Jawara only removed me as a Minister, but I still retain my parliamentary seat. Only you, my people, can remove me from the House of Parliament through election”. 

Author: Buba S Njie,

Director of Political Department, at Sahel Network TV.

Bubacarr Drammeh, former State Attorney in The Gambia, will be the Graduate student speaker for the University of Washington School of Law Graduate class of 2020. The University of Washington is ranked No. 10 on the U.S. News & World Report’s Best Global Universities rankings list and No. 2 among U.S public institutions.

“Alhamdulillah! I do not have enough words to describe how I am feeling. All I can say is that I am delighted, honored, and humbled to have been nominated to be the graduate student speaker for this incredible cohort. My colleagues, my professors, and the learning environment have all contributed to my advancement in every aspect of my life. This, I believe, is their way of telling me we believe in you and we want the world to know about it.”

Due to Covid-19, this year’s graduation will be held virtually on June 7^that 10pm GMT. This will be the first virtual commencement ceremony the university has ever held in its 158 years history.

Also, Mr. Drammeh set to be honored by the Sustainable International Development Leadership at the University’s Graduate Programs and Visiting Scholars Recognition Event on Friday, June 5^th, for the leadership he has demonstrated throughout the course of his studies.

“Again Alhamdullilah! A lot of people have believed in me and supported me throughout this academic journey. My parents will constantly tell me that they are praying for me; my family in the USA has been great; my wife has been amazingly supportive; and Musa Camara, someone I considered a godfather, would constantly check on me with his words of wisdom and encouragement. I believe that the support system structed by the school helped me in attaining this recognition. The faculty is arguably the best faculty in the entire university. Finally, none of this would have been possible without the constant support of one faculty member, Prof. Jennifer Lenga-Long. A great scholar, an outstanding adviser, and a better human being. No one has ever had a positive impact in my life than Prof. Long. In fact, I secretly call her my mother.”

Mr. Drammeh will be graduating with a Masters Degree (LL.M) in Sustainable International Development Law. It is the first graduate program at a U.S law school to focus on international development law. The program focuses on human rights promotion and rule of law, supporting sustained development and economic growth, and preserving natural resources.

Introduction and Scope of my Review

In March 2020, CRC submitted its final draft of the 2020 constitution to President Barrow. Politicians, legal scholars, students, and ordinary citizens all shared their sentiments about the new document. The majority of Gambian supported the final draft; the draft is said to be the most progressive and inclusive document in the country’s history. I support the draft constitution, but I hope the National Assembly will further interrogate the draft and make the necessary adjustments.

The scope of my comments, therefore, will cover the final draft submitted to President Barrow. Even so, given the enormity of the task that the review of the draft implies, my comments focus on some, but not all, probable key areas of concerns in terms of compliance with contemporary human rights and the rule of law standards. Importantly, my comments do not constitute a full and comprehensive review of the draft, nor the entire legal and institutional framework concerning the protection and promotion of human rights in The Gambia.

As it turns out, constitutions do permit the prolixity of a legal code.i The amended U.S. Constitution is roughly 8, 000 words. In contrast, the South African Constitution is around 43,000 words.ii Clearly, in drafting a new constitution, the framers are faced with a choice between two broad approaches to constitutional drafting: (1) a “framework-style” approach, or (2) the “codified” approach.iii The former provides only general textual guidance as to the meaning or operation of a particular constitutional norm; the latter provides far greater details or specificity regarding the intended meaning and function of relevant constitutional standards.iv The CRC’s draft constitution appears to adopt the “codified” approach. Still, in contemporary constitutions, there is a clear trend toward longer or more codified constitutions.
Nonetheless, I contend that The Gambia should have opted for the framework style approach. I will discuss my reasons infra.

The argument for the codified approach is that it attempts to use the formal process of constitutional design to constrain judges to consider the intent of framers in resolving particular tangible constitutional controversies. On the other hand, the framework-style approach gives broad discretion to judges to shape constitutional meaning. In short, by implementing the codified approach, the framers implicitly assume at least some degree of distrust toward judges as constitutional
1

interpreters. In contrast, the other is based on a high degree of faith, or trust, in judges as partners in the process of constitutional design.

Comments on the Final Draft

On July 22, 1994, the Gambian military toppled a legitimate government. The military juntas suspended and abrogated the 1970 Constitution. As such, the 1997 Constitution is devoid of public consultation or popular opinion. The 1997 Constitution gave birth to the second republic. Because the 1997 Constitution is still the supreme law of the land, any amendment to the said document must conform to section 226.

First, while the draft constitution contains a lot of positive and progressive provisions, the retroactive application of the proposed two-term limit potentially violates section 100(c) of the 1997 Constitution. As argued by Lawyer J. Darbo, section 100 prohibits National Assembly (“NA”) from passing laws that “deprive any person retroactively of vested or acquired rights ….” Granted, the 1997 Constitution empowered NA to pass legislation that has a retroactive effect. However, such powers are heavily qualified. Thus, I would agree with my learned senior that retroactive application of the two-term limits is problematic and an affront on substantive due process. To me, the provision is not discriminatory but ultra vires and unconstitutional as applied to affected persons.

The CRC cannot, through legislative fiat, alter protected vested rights under the 1997 Constitution without a coup and suspension of the current constitution. The CRC Act, among other things, tasked the commissioners to review and draft a new constitution. But, it is the NA that must introduce a bill to amend the current constitution. In doing so, NA must conform to the dictates of the 1997 Constitution. Unlike President Jammeh, we do not have the luxury of a suspended constitution— the ousting of President Jammeh in the 2016 presidential election is not the equivalent of a 1994 military coup.

Second, Lawyer Darbo strongly criticizes the CRC for what he described as a “copy and paste” of the 2010 Kenyan Constitution. However, several legal scholars in the Gambia came to CRC’s defense and argued that plagiarism is not applicable in constitutional review. Without holding brief for Lawyer Darbo, his argument is not that CRC could not borrow or take inspiration from other documents. Without reinventing the wheel, CRC should have used its own choice of word as other countries did. The U.S. constitution draws inspiration from many early forms. Yet, the drafters, except for the 8th Amendment, did not resort to verbatim copy and paste. The framers of the U.S. Constitution copied Section 10 of the English Bill of Rights of 1689 nearly verbatim. The framers intended to prohibit excessive bail or fines and cruel and unusual punishment.
1

I do not care if CRC regurgitates another country’s constitution as long as its principle is applicable in The Gambia and the citizens approved of it. The law does not define plagiarism—it is not a criminal or civil offense but certainly illegal if it infringes on intellectual property rights. First, plagiarism is about norms, customs, and expectations, which vary significantly in context. For example, President Barrow, like most presidents, if not all, utilizes speechwriters. Hopefully, no one thinks that the politicians that use speechwriters are taking credit for every word (though they do have personal responsibility), which pushes their conduct outside of most concepts of plagiarism. On the contrary, hiring someone to write your dissertation or using another’s without acknowledgment is entirely unacceptable. In the two scenarios, the conduct does not differ, but the norms or expectations do.

Therefore, since I believed that Lawyer Darbo has a legitimate point, I think an appropriate or relevant question should have been whether CRC justified in spending D116M when allegedly, it substantially copies and paste their work. I think the jury is still out on this matter.

Third, as explained supra, the draft is very long, and the framers adopted the codified approach of constitutional drafting. I sincerely believe that The Gambia needs a framework style approach to constitutional drafting. Based on our shared experience and history, The Gambia needs a living document that will develop alongside the needs of the society, withstand the test of times, while at the same time providing a more flexible tool for the government. The idea is associated with the view that contemporary society should take into account when interpreting vital constitutional phrases.v

Thus the concept “the living Constitution” is a characterization and not a specific method of interpretation. Justice Brennan and Judge Posner have expressed this general view. In Missouri v. Holland, 252 U.S. 416, 434 (1920), Justice Holmes remarked that:

With regard to that we may add that when we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation. The case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago.
1

Moreover, Section 45(2)(e) of the Draft Constitution guarantees the right to a speedy trial. Yet, the draft did not encapsulate the concept of judicial review/constitutional review. I believe it is time for the High Court (as a trial court with original jurisdiction) to have original jurisdiction regarding the interpretation of any provision of this constitution, including but not limited to a question of law during any trial.

This would save time and promote judicial efficiency. The Court of Appeal would have the opportunity to review including but not limited to the decision of the High Court on any question of law. The Supreme Court, of course, if a petition for review is a grant, will review if an interpretation is wrong. If the Supreme Court declines to grant a petition for review or refuse to take a case that is certified by the COA, this will send a strong signal to the parties that may be the interpretation is correct.

To ask that the Supreme Court resolve a constitutional question, at the same time, ask a trial court to stops a trial (especially in a criminal case) that may very well violate the right to a speedy trial. It is only in the Gambia where a simple misdemeanor case can take years. For a serious felony, the accused risk serving the maximum sentence in pretrial condiment before the trial ends. See NIA 9 trial case.
Fourth, I believe the draft fell short of acceptable international practice when it expressively fails to state in Section 41(2)(d) that excessive bail or fines should not be imposed. As a basic tenet of democracy, the presumption of innocence, all accused should have a constitutional right to bail if appropriate.

Furthermore, NA should revisit the writ of habeas corpus. To state that even in the case of a rebellion, the extraordinary writ cannot be suspended, is worrisome. Also, Section 69, the equal protection clause, states that all persons are equal before the law. But subpart (3) explicitly excludes certain categories from this protection. Thus, it makes no sense to carter an entire section for women’s rights in the constitution, nor imposes 14 women on the electorates to NA.

Under the principle of equal protection, how do we reconcile and harmonize the mandatory election of women to NA with Section 69? It is not unheard of for courts to upheld legislation under the theory of reverse discrimination of systematically disfavored or marginalized groups. Unlike South Africa, the Gambia has no laws that intentionally discriminate against women. The situation in The
1

Gambia can best be described as “desperate impact” and not “desperate treatment.” Therefore, an Act of NA is more suited in advancing the plight of women and other disfavored groups and not the constitution to avoid frequent amendment.
Fifth, any Gambia that has the right to vote should equally have the right to be voted for. The draft should require NA to draft legislation, with all deliberate speed, allowing diaspora Gambians to vote in the presidential election. Because an impartial judiciary is fundamental to the rule of law, especially in the framework style approach, the tenure of judges should be protected. But, to maintain the principle of separation of powers and check and balance, I think NA should remove the pension of judges from the draft and tackle it through legislation.

To protect the right of every citizen to be tried by a free, independent and impartial judges, it is, therefore, not only the best policy, but for the security of the rights of the people, and every citizen, that the judges should hold their offices during good behavior. And that they should have decent remuneration ascertained and established by an Act of NA.
Finally, in the spirit of separation of powers, judges should be removed from office either through (1) JSCvi investigates complaints of judicial misconduct and incapacity and may privately admonish, suspend, censure, retire, or remove a judge. The commission’s decisions are subject to review by the Supreme Court, or (2) Judges may be impeached by a majority vote of the NAM and removed by a two- thirds vote of the NAM for the trial of impeachments.

Written by:
Sarjo Barrow, Esq.

Endnotes

i Cf. McCulloch v. Maryland, 17U.S. 316, 407 (1819) (Marshall, C.J.).

ii It serves as an inspiration for modern African constitutions.

iii See, e.g. , Tom Ginsburg, Constitutional Specificity, Unwritten Understandings and Constitutional Agreement , Univ. of Chicago, Public Law Working Paper No. 330 (2010), available athttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=1707619; Mila Versteeg & Emily Zackin, Towards an Alternative Theory of Constitutional Design (Feb. 2, 2014) (Unpublished manuscript, on file with the University of Maryland).

iv Cf. Versteeg & Zackin, supra note 3.

v Winkler, Adam. A Revolution Too Soon: Woman Suffragists and The “Living Constitution”. 76 NYULR 1456, 1463 (“Based on the idea that society changes and evolves, living constitutionalism requires that constitutional controversies, in the words of Justice Oliver Wendell Holmes Jr., “must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago.”)

vi JSC should comprise of independent panel (with term of office) and not sitting judges, other practicing lawyers to avoid conflict of interest.