The matter concerning the Final Draft Constitution is no ordinary matter. Certainly it is not a partisan or personal matter. It must not be seen as a usual affair inside the National Assembly for which one may wish to dance to the gallery or serve some parochial interest. National Assembly Members are rather confronted with an issue in which the very life and destiny of our Republic lies.
Let our National Assembly Members refuse to listen to narratives that tell them that they have the legal authority to change the content of the Final Draft Constitution. Neither the 1997 Constitution nor the CRC Act has provided them such powers. Hence it is necessary that NAMs study these documents fully, and in addition, endeavour to understand the political basis of their powers and the circumstances surrounding the Final Draft Constitution so that they advise themselves on the right path.
For far too long, our National Assembly has betrayed this country in favour of either an individual politician or political party for which we continue to suffer. These current NAMs must not allow that tradition to continue. For example, in the 22 long years of the Dictatorship we saw how our National Assembly enacted laws like the Indemnity Act 2001 or amended various portions of our current Constitution only to produce and reinforce Dictatorship that came to directly kill human rights and accountability. In 2015 we recall how the National Assembly approved electoral reforms that imposed huge sums of money just to register a party or stand for election in total contravention of democratic and good governance norms and standards. Then in January 2017 the National Assembly once gain passed a state of emergency to unconstitutionally extend the tenure of the President and the life of the National Assembly itself thereby annulling the verdict of the people, as expressed in the 1 December 2016 presidential elections. Should the National Assembly continue to harm this Republic?
Therefore, when we get to this point when this Republic finds it necessary to create a new constitution as part of the transitional justice process to enable the country transform from a Tyranny to a Democracy, NAMs have no role and no choice but to actively facilitate that process with all of their might. The Final Draft Constitution must be seen from that context and therefore requires the NAMs to act accordingly.
A constitution of a democratic republic can only be made by the citizens of that country. There is no institution or person who has the authority to draft a constitution for a Republic other than the people themselves. Therefore, let NAMs not listen to simplistic and logical arguments that give them the feeling that as lawmakers they can make any law or have the power to change anything that comes before that. That is false.
The lawmaking powers of the National Assembly only stops at the 1997 Constitution and any other bill brought before them under the purview of Section 226 on Amendment of the Constitution or Section 152 in terms of the national budget. The Final Draft Constitution is neither a bill nor a budget under the 1997 Constitution hence NAMs must understand what is the meaning of the Final Draft Constitution in relation to their legal and political powers within the 1997 Constitution.
In the first place, when the need for a new constitution was conceived by the Government they brought a bill to the National Assembly to create a mechanism that would enable Gambians provide the content of that new constitution. This is why the CRC Act was enacted. The original CRC Bill had provided that the National Assembly should not amend the final draft constitution when it was submitted to them by the President. Yes, the bill provided that they could debate it but at the end of the day they were to approve it and send it to the IEC for a referendum, without amendments.
Unfortunately, they amended those very good provisions in that bill and replaced them by some vague provisions in the revised bill which became the CRC Act 2017 that neither said they could amend nor leave in tact. But the fact remains that the CRC was the mechanism to consult with all Gambians at home and abroad including various bodies separately such as the Executive and the National Assembly in obtaining citizens’ opinions for a new constitution. Therefore, the Final Draft Constitution as it is, constitutes the overall opinions of all Gambians for a new constitution.
In that regard, there is no authority or person, regardless of one’s position that has the legal, moral and political authority to change anything anymore in that Final Draft Constitution. Rather this is where the National Assembly should discover their historic and proud duty in being the current set of people who would validate that Final Draft Constitution and transmit it to a referendum, untouched. This is what common sense and honesty demand, if one does not have any ulterior motive. Surely not everything in the Final Draft Constitution is perfect for everyone.
If there is a chance to look at it again, there is no doubt that each and every Gambian will want to add, subtract or modify a letter, a punctuation mark or a word or a sentence again in the Final Draft Constitution. But if anyone attempts to do that then one has given oneself an overriding power to change citizens’ collective opinion, beyond and above all Gambians. This is what NAMs must recognize that despite their best intentions, they must humble themselves to appreciate this Final Draft Constitution as the people’s will and quickly facilitate its transmission to a referendum.
NAMs are not constitutional drafters, at least according to the CRC Act or the 1997 Constitution. Hence NAMs must not give themselves that role, either out of their own volition or simply because someone said any bill that comes before NAMs, they have the power to touch. The Final Draft Constitution is not a bill in the sense of a bill that is contemplated in Section 226 of the 1997 Constitution. Hence NAMs must not treat the Final Draft Constitution as any ordinary bill. NAMs are at liberty to highlight the merits and demerits of the Final Draft and raise questions to CRC Commissioners to provide clarifications as provided in Section 22(2) of the CRC Act. But they must not change anything in that Final Draft because there is no legal and political basis for them to do so.
NAMs who may oppose or support the Final Draft Constitution have the right like all other Gambians to campaign accordingly when the referendum comes. But let it be clear that the People of the Gambia are the ONLY supreme power in this country. NAMs are not the supreme power hence those who give the impression that NAMs can do anything and everything are severely misleading our representatives. If NAMs were the supreme power in the Republic they would not have been called Representatives. But they are representatives because actual power belongs to the people themselves whom they represent. Therefore, when the people make such a sovereign decision as a draft constitution, no NAM has the authority to change that. That is what is called treason, if they do!
If you are a NAM and you respect and value our people, then don’t touch this Final Draft Constitution. Rather approve and send it to the IEC for a referendum. Period.
