Rejoinder to Lamin J Darboe
Re: The Constitutional Review Commission was Lawfully Constituted
The Constitutional Review Commission (CRC) was inaugurated on June 4 by Pres. Adam Barrow. Soon after Lawyer Lamin J Darboe contended that the CRC was unlawfully constituted in a piece laden with flowery language. Yet in the entire piece Lamin did not spell out any act or process based on law that points to the illegality of the composition of the CRC. I wish to contend the contrary to say that by the CRC Act, the president had lawfully constituted the CRC.
Lamin first impugned the nomination and appointment of the Commissioners by claiming that the AG, TANGO, NYC and the Gambia Bar Association had no nominating authority hence their ‘nomination’ of Commissioners was unlawful. As he rightly stated the power to nominate the Chair and Vice Chair are vested in the Minister of Justice while the nomination of the other nine members was vested in the president ass per Section 4 of the Act. In terms of the appointment of the commissioners, this power was exclusively vested in the president in Section 5.
It appears Lamin’s contention is that those aforementioned organizations nominated the commissioners contrary to the Act. But the issue that Lamin must focus on is the process of nomination on which the Act was silent. The Act did not spell out how the president should nominate and appoint, i.e. what procedure should he follow. It only says in Section 5(2) and (3) that in making the appointments the president must consider certain factors such a diversity or values or status, etc of the persons to be appointed.
This provision therefore begs the question as to how then would the president nominate his nine people? Because the Act is silent on this, it means the president has the discretion to employ any means to nominate. He could unilaterally identify individuals on his own or he could consult with other stakeholders to submit names to him directly or through his Ministry of Justice or through some other channel.
I think it was therefore wise that the president did exactly that when the Ministry wrote to various stakeholders such as the Gambia Bar Association, TANGO and the National Youth Council, as far as I know, to ask them to provide three names out of which the president would nominate one. Consequently when those three names were submitted, it became clear that a selection was made out of them. Thus it can only be said that these were the nominees of the president in line with the Act.
Hence I think Lawyer Lamin Darboe was merely reading the Act from a mechanical point of view but did not consider the whole gamut of the process. For example TANGO was requested to submit three names and only one was finally nominated. Thus it would be wrong to say it was TANGO that nominated its candidate. Rather whoever chose from the three did the final nomination of that single person.
Lamin also impugned the appointment of the Chief Justice or his designate as the Chair of the Commission that it undermines the separation of powers principle. The position of chair and vice chair is stipulated in the Act under Section 4(1)(a) and (b) respectively. It says the chair of the CRC shall be the Chief Justice or a judge of a superior court. The vice chair is to be legal practitioner of at least ten years standing. Lamin says such appointment undermines separation of powers. I disagree.
In the drafting of a constitution for a country there is no better candidate to chair that process that a legally minded person, and for that matter the legal mind that holds the highest legal position hence the Chief Justice. The contention that the CJ will undermine separation of powers has not been made clear by Lamin even when he attempted to refer to some case laws and other sources which I found irrelevant to the subject.
Going through CRCs around the world one could see various patterns in which sitting or former judges or independent legal practitioners were appointed as chairs or vice chairs. Hence there is no universal rule as to who chairs the CRC. Here are examples. In 2011 when Tanzania set up its CRC, Pres. Kikwete appointed the former AG as Chair and the former Chief Justice as Vice Chair. In Ghana, former president Atta Mills constituted the CRC in 2010 and appointed an Emeritus Professor of Public Law as its chair. In India a retired Chief Justice chaired the CRC. Hence why cannot the Gambia have its Chief Justice, sitting or retired chair the CRC?
But more importantly the Chief Justice or his designate neither nominates nor appoint himself. Secondly the Chief Justice as chair or vice chair is leading a group of people who are all independent from many backgrounds such that the idea of the chair interfering or manipulating the work of the CRC is far-fetched. Any member can resign when such manipulation is attempted by the chair. Thirdly as Chair of the CRC, how would the CJ undermine or influence the other organs of the state such as the Executive and the Legislature since separation of powers relates to the three arms of the State?
Therefore how a CJ as chair of the CRC would conflict with separation of powers has not been explained by Darboe. But understanding what constitutes separation of powers, it is hard to see how such appointment is indeed an issue there. The potential risk one can reasonably allude to might be that the CJ may interfere with the work of the CRC. But then Lamin did not explain how the CJ could undermine the independence of the CRC or cause undue influence in the work of the CRC?
In fact the independence of the CRC has been guaranteed in the Act under Section 7 that in the execution of its function the CRC shall not be under the direction or control of any person or authority. Therefore how can any authority or person, even if such person is a member of the CRC interfere with the independence of the CRC? Lamin did not elaborate on this issue!
On the lack of parliamentary oversight in the nomination and/or appointment of the commissioners, this cannot be a reason for the unconstitutionality of the CRC. This is simply because the Act did not give such powers or functions to the National Assembly in the first place hence such powers cannot now be claimed by anybody. While this is a valid observation, it should have come earlier before the bill was approved by the National Assembly members themselves.
So either the Government deliberately failed to widely share the bill to seek public input or citizens did not actively engage in the process so as to raise this genuine issue of parliamentary oversight. Now that we got to this stage we cannot cry over spilt milk. In fact the NAMs themselves failed the Gambia when they had the opportunity but did not raise that issue so that they could have the power to vet who becomes a member. Unfortunately they just went ahead to approve regardless.
In conclusion I think the charge that the CRC was unlawfully constituted as per the Act is untenable. I contend strongly that the CRC was lawfully constituted.
For he Gambia Our Homeland
Madi Jobarteh
