By Manding Darboe
Number one, I am not a lawyer or a constitutional lawyer for that matter.
The Gambia Constitution was not violated by His Excellency Adama Barrow’s Coalition Government in any way shape or form. What happened was a “PROCEDURAL-SNAFU” rather than a constitutional violation which should not be misconstrued as an intentional constitutional violation by His Excellency Adama Barrow’s Coalition Government. Informed constitutional scholars do posit that articles of the constitution be analyzed based on two criterion references; (1) The intention of the constitution and (2) The spirit of the constitution.
When it comes to matters dealing with the constituent, one should never be quick to use one’s own words to describe anything without relying on the actual words of the constitution verbatim. Therefore, I have culled and reproduced the pertinent sections of the constitution;
Part 3: SECTION 100 Legislative and Other Powers of the National Assembly and Section 226 Alternation of this Constitution.
CONSTITUTION OF THE REPUBLIC OF THE GAMBIA, 1997
CHAPTER XII AMENDMENT OF THE CONSTITUTION
SECTION 226 Alternation of this Constitution
(1) subject to the provisions of this section, an Act of the National Assembly may alter his Constitution.
(2) Subject to subsection (4), a bill for an Act of the National Assembly under this section shall not passed by the National Assembly or presented to the President for assent unless-
(a) before the first reading of the Bill in the National assembly, the Bill is published in at least two issues of the Gazette, the latest publication being not less than three months after the first, and the Bill is introduced into the National Assembly not earlier than ten days after the latest publication; and
(b) the Bill is supported on the second and third readings by the votes of not less than three quarters of all the members of the National assembly.
But wait! Don’t make a conclusion yet before you read:
PART 3: LEGISLATIVE AND OTHER POWERS OF THE NATIONAL ASSEMBLY
As I said before, informed constitutional scholars do posit that articles of the constitution be analyzed based on two criterion references (1) The intention of the constitution and (2) The spirit of the constitution. In doing so, please pay attention to the spirit and the intention of the same constitution in Part (3), Section 100, in paragraph (c) and the spirit and the intention of the same constitution in Part (3), Section 100, in paragraphs (7).
CONSTITUTION OF THE REPUBLIC OF THE GAMBIA, 1997
PART 3: LEGISLATIVE AND OTHER POWERS OF THE NATIONAL ASSEMBLY
Section 100
(1) The legislative power of The Gambia shall be exercised by the
National Assembly and assented to by the President.
(2) The National Assembly shall not pass a Bill-
(a) to establish a one party state;
(b) to establish any religion as a state religion; or
(c) to alter the decision or judgement of a court in any proceedings to the prejudice of any party to those proceedings, or deprive any person retroactively of vested or acquired rights, but subject thereto, the National Assembly may pass Bills designed to have retroactive effect.
(3) Where a Bill passed by the National Assembly is presented to the President for his or her assent, the President shall, within thirty days, assent to the Bill or return it to the National Assembly with the request that the National assembly reconsiders the Bill; and if he or she requests the National Assembly to reconsider the Bill, the President shall state the reasons for the request and any recommendations for amendment of the Bill.
(7) No Act of the National Assembly shall come into operation until it has been published in the Gazette, but the Act or some other Act of the National Assembly may provide for the postponement of its coming into force.
Therefore, the spirit and the intention of the constitution are clear with regards to Legislative and Other Powers of the National Assembly.
Clearly what happened was a “PROCEDURAL-SNAFU” that should have been caught by National Assembly members before the first reading of the Bill in the National assembly as clearly stipulated in Section 226, subsection (2) paragraph (a). They should not have even start to vote on the bill without ensuring that the Bill was published in at least two issues of the Gazette, so it is a “PROCEDURAL-SNAFU” (which is their fault) rather than a constitutional violation by His Excellency Adama Barrow’s Government. In my view, the Coalition should not be blamed for this. This is National Assembly’s problem, so let them go back and fix this problem as is provided for in the same constitution in Part (3), Section 100, in paragraph (3). This is why we need a seasoned, informed speaker in our National Assembly to avoid a blind leading the blind as was the case in Yahya Jammeh’s 22 years of misrule.
Ends
Agreed, but only up to a point. The Government’s current efforts to amend the letter of the Constitution might not have amounted to a violation of … well, the letter of the constitution. But most certainly, it may have violated the spirit of the constitution, which is that, in relation to the Gambian Constitution, the Government must not only confine its action to those things sanctioned by it, and refrain from doing those things forbidden by it, the Government must also act, and BE SEEN to be acting according to due process and for proper purpose – in the interest of the community as a whole including the interests of accenting, and dissident citizens alike.
Due process and for proper purpose are especially important in the context of a Constitution that is written (ie can be found in one document) – this makes it more akin to a rule book than to, say the British constitution that is found in more than one document; making it more flexible and therefore amenable to amendments possibly based only on “principle” – but I suspect even here, due process and for proper purpose are still of the essence. If that is the case, then for all constitutions including rules-book constitution American, and Gambian Constitutions, and unwritten once like the UK one, any purported attempt at amendment without due process, or meeting “for proper purpose test” can easily be seen as an attempt at usurpation, or abrogation of sorts.
Therefore, taking my own own case as an example, and despite my unreserved preference to see Mrs Tambedou succeed as VP, these fact also represent undeniable hurdles that have to be grappled with at the national level.