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
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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.
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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.
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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
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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.

By Capt. Ebou Jallo

19 May 2020

Frantz Fanon was the radicalizing catalyst in my life during my teenage years in Banjul. This black revolutionary bequeathed a lasting legacy of profound magnitude that still resonates with my dispositions in politics over the years.  Fanon was beyond Marxism or your typical quotidian socialist.  He was a serious existential phenomenologist of African identity who stumbled through Hegel and Freud during his years hanging around his friend Jean-Paul Sartre in Paris. Fanon’s vision of race and culture is apocalyptic when he announced that “the end of race prejudice begins with a sudden incomprehension.” Hence, the process of deconstructing culture discloses racism and necessitates the construction of new cultural forms.  It is important to highlight two concepts critical in Fanon’s phenomenology of race i.e. the idea of deconstruction and freedom which are operative in the works of Martin Heidegger and Jean-Paul Sartre respectively. Ontology, the question of being, is an issue for these great existential phenomenologists who dominated French thought during Fanon’s formative years in France, and their methods, particularly Sartre’s, have a lasting impact on him.

The tension between the negro and the colonials can only be resolved in a dialectical process that ends with the negation of both European colonialism and racism.  The existential negation of European episteme of the negro expressed with the ideology of Negritude becomes a dialectical bases for a violent revolt against European colonialism for Fanon.  Underlying this theory of revolution is a salient temporality that underscores the identity shifts that must severe the past, break through a radical presence and build a new future for the negro. This insight has a profound impact on the way I see contemporary society and contentious politics.  How do we breakaway from past traditions without derogating aged old wisdom that has been useful to us and yet appears anachronistic with our current condition…? This question lured me into the next phase of my life as a libertarian conservative.

The use of violence for Fanon is an indispensable decolonizing praxis necessary for the restoration of the negro dignity, identity and liberation. Violence against egregious tyranny in contentious politics is emancipatory and a categorical difference from that which ensues from the politics of hate based on identity politics.  Violence becomes ethical when the victim of oppression has to make an existential judgment between life and death with all resources available before the threat of total domination by tyranny.  Violence becomes the court of last resort in order to restore the balance of natural justice.  Fanon insists that existence for the downtrodden “does not mean embodying moral values or taking his place in the coherent and fruitful development of the world”, but rather existence is a “triumph for life” with a content soul.  One has to escape the primordial attachment to material needs and the fear of death in order to realize an authentic liberation.

True liberation for Fanon, is the realization of socio-economic improvement for the lumpen-proletariat, the lowest classes in any society.  Now this a marked difference from Marx who had absolutely no regard for the lumpen.  The presence of deep resistance within the ranks of the lumpen-proletariat against an overwhelming Western domination is the ultimate significance of Fanon’s phenomenology of racism.  Resistance is the antithesis of ‘negrification’ and liberation becomes the nascent synthesis of this dialectical process.  Does this make Fanon a race reductionist…?  I would argue that it does not because Fanon understands race as deforming and shaping both the colonized and the colonizer who happens to be black and white respectively.  Fanon’s phenomenological narrative stages a richer mode of thinking about differences in human existence within the horizon of culture.  He identifies three categories of existence, i.e. the worker, the intellectual and the lumpen proletariat who all define themselves in relation to the Western powers who ounce colonized Africa.  The worker’s existence revolves around the capacity to do labor that sustains the capitalism; the colonized intellectual is a compromised figure that mediates between the oppressed and the Western world; and the lumpen is always disposable. What unites these three categories of existence under is their common sensitivity towards a national culture: “The collective thought process of a people to describe, justify, and extol the actions whereby they have joined forces and remained strong.”

Culture and national consciousness are coterminous for Fanon.  The phenomenological structure of such consciousness as expressed through the dialectic of experience constructs a national culture of the oppressed.  Hence, a new humanism is defined and is “written into the objectives and methods of the struggle. A struggle, which mobilizes every level of society, which expresses the intentions and expectations of the people.”  Violence therefore becomes the critical mechanism in cultural formations through a process of a revolutionary struggle- “the substitution of one species of mankind by another” by an agenda of total disorder; an emancipatory creative destruction- a radical praxis that excises the root of all oppression.  A country under tyranny is an agonistic space with rigid battle lines continuously drawn between the oppressor and the oppressed both locked in a mortal combat of life and death. This is not a Hegelian master-slave dialectic nor an event for moral calculations between right and wrong but an existential struggle for cultural significance.  Once the oppressed discovers the reality of their existential condition that cognition readies them for the ultimate confrontation with the oppressor.  The corrupt tyrant will always attempt to maintain a narrative that their project saves the people from “darkness, barbarism, degradation, bestiality” and they are protecting the unfortunate from their ontological misfortune.  However, the freedom fighters will always resist with a call for radicalism that entails a soul-searching journey back to the roots of their cultural heritage.  Therefore, the liberation struggle and national culture are correlated for the oppressed.  The currency of tyranny has always been violence and force the only language that tyrants understand.  Hence, violence is a necessary mechanism in the process of emancipation from oppression; and it also sanitizes the downtrodden of their inferiority complex, lethargy and restores their self-confidence. Aluta Continua…!

We come back to express our very deep concern over the way and manner that a major national crisis continues to be handled without the seriousness of purpose and diligence that should be the hallmark of a country at war, which we all agree, is the case as in other parts of the world with the advent of the coronavirus pandemic. The message coming out of the National Assembly during their Extraordinary Session seems to have missed the point. The fight on the chamber floor should not be about asserting the legislative power but promoting a united front against COVID-19. If we all agree that to arrest the spread of COVID-19 we need to adhere to the WHO guidelines which the state of emergency helps to ensure, however imperfectly, then let us allow the state of emergency. The focus of the discussion should be on how to alleviate the resulting socio-economic hardships through a clear roadmap that goes beyond the provision of food relief and, setting out clearly the potential impact of the coronavirus on the key sectors of the economy such as agriculture and tourism, proceed to outline measures for addressing the challenges.

GFA had earlier said that we should not politicise COVID-19 because the risk of national disaster extends beyond the scope petty partisan politics. We need a national collective effort in this struggle, which should, as a priority be directed at raising public awareness and getting the citizens to play an active role in the fight. It is in this regard that our Party, GFA, in its press release of April 20 strongly urged the government to … “ start by bringing together representatives of religious and traditional leaders, political parties, trade unions, private sector and civil society to promote wider understanding of and support for the challenges and ensure a wider mobilisation of the community effort.” It is clear that this has not happened as the NAMs during their recent sitting confirmed what is already common knowledge, i.e. the persistence of a disturbingly low level of awareness of the dangers among the population. This explains the behaviour of most members of the public today. The people have a central role in this fight, and to assume that role they need to be more aware of the disease and the measures that need to be in place in order to take full ownership of the process. Unfortunately, the Government has failed to provide this space and we have not heard the National Assembly push for it either.

In the first place, no keen observer can miss the point that the Government’s own attitude, as well as its efforts so far in addressing the pandemic, are best characterised by lack of diligence as well as woeful failure to rise up to the occasion. Ineffectual communication, indeed lack of transparency altogether, maintains the nation in darkness about immediate and medium-term plans, if any, for helping the economy to recover through help to businesses, especially the sectors of tourism, fisheries, agriculture etc., in order to protect jobs and livelihoods.

And, indeed, the outbreak of the Coronavirus epidemic presents us with a multi-faceted crisis threatening lives and livelihoods on a scale we may not be able to withstand. Where, for argument’s sake, the crisis is reduced to its simplest dimension as just a public health issue, recent admission by the Health Minister before the National Assembly, speaks volumes about the precarity of our situation; Gambians are now left with no illusion about the prospects of gloom and doom facing us, unless by some miracle we can achieve a turnaround in our management of the critical health system, amidst such an appalling penchant for bare-faced thievery and diversion of public resources, so much corruption with resultant ineffectiveness. One other front opened in the crisis is in respect of the ravages of hunger and hardship brought, or worsened, by the restrictions decreed under the declared state of emergency. After much delay, the Government announced amidst fanfare its food aid programme, holding it out as its flagship relief operation. Fine, we welcome food assistance; it is still better late than never! But then, for heaven’s sake, get the foodstuffs to reach their ultimate destination, i.e. the beneficiaries’ kitchens. Leaving them littered in the McCarthy Square, or even stacked in intermediate stores located in distant regional administrative headquarters, for nearly three weeks while the people starve in their towns and villages, is callous, on top of being an indictment of the administration for its inefficiency. Why, in the first place, was it necessary to deploy the logistics and waste the energy to cart all those tons of rice and sugar with drums of oil to be displayed at the Square in Banjul. Is it that the supplier(s) have no store(s) to keep them from where they could have been collected by vehicles in an expeditious, controlled and orderly manner? Or is it another case of political showmanship reminiscent of the Jammeh era, – in very poor taste to most people?

Returning to the National Assembly, and the debate on extending the state of emergency, we remind Members that exceptional situations demand exceptional measures; we expect the NAMs to lead in this regard in their attitude to the subject presently before them for consideration. They have an important role because of their outreach capacity and the recognised positions they occupy in the constituency, which should be used to reach out to all, irrespective of political, religious and ethnic affiliation and create the inclusiveness necessary at the constituency level to allow genuine participation in the struggle against the COVID-19 pandemic. This will complement the Government’s sensitisation programme and help ensure that any support received at constituency level from Government or other donors goes to the deserving populace within the constituency. We should not allow the exploitation of the misery of our people for political or any other gain.

We continue to believe in the establishment of a National Solidarity Fund which should collect all donations given in the name of combatting COVID-19 and which will be managed in a transparent and inclusive manner to avoid the abuses we have seen. We expect the NAMs to push for the creation of such a fund and expect them, as a mark of solidarity to be among the first to make personal donations to such a fund.

Combatting COVID-19 goes beyond Government and National Assembly; it is a national challenge requiring a collective national effort. When the history of the struggle against COVID-19 gets written the role of both the Executive and the Legislature will be scrutinised and any failure on their part will be a serious indictment of the political class of this country at a time when the country needed them most.

GFA believes things can and should be done differently if we are to win the fight against COVID-19 and its socioeconomic consequences.

Before concluding, GFA wishes to express once again its deep appreciation to the health workers and other frontline actors who are working tirelessly and at great risk to themselves and their families.

Stay Safe Everybody!