Present, interested, and wielding the veto: why The 1997 Constitution of The Republic of The Gambia is an irredeemable instrument of violence and democratic paralysis
As a national document, the constitution of a democratic society must settle public power in a manner that avoids concentrating authority in any one segment of a political system. In no small way, the 1997 Constitution of The Gambia comprehensively failed this basic test. Notwithstanding theoretical delineations between the traditional arms of a democratic polity, and the Constitution’s self-serving claim of separating power, the reality is completely different. Not only are the Legislative and Judicial branches accorded inferior status in the Constitution by making both ultimately answerable to the Executive, critical independent agencies necessary to the proper functioning of a democratic society are all similarly degraded. In a nutshell, meaningful national power is entirely concentrated in the Presidency. In the most benign hands, such concentration of public power can only erode the freedoms essential to creating and nurturing a democratic society. In addition, there are express contradictions between key Constitutional provisions, as well as considerable fluff in need of pruning from such a vital document. The penchant for amending the Constitution is no less troubling. Accepting that a polity with weak institutions cannot ensure accountability under the best constitution, there is nevertheless a compelling need to retreat from the brazen amalgamation of public power in one branch of government, and this by the supreme law of The Gambia. This paper seeks to argue for the sensible allocation of public power by the proper demarcation of Constitutional authority between fully independent and internally self-governing branches of government. It also calls for efficacious independent agencies, an internally coherent, rationalised, shorter, and more democratically robust document.
Even a cursory examination of the architecture of The Gambia’s overall legal regime exposes the dual anomaly of laws that are differentially applied on the one hand, and laws that internally conflict, are incoherent, schizophrenic even, on the other. In and of itself, differential application of laws may not connote their inherent unsoundness, or necessarily that of the prevailing legal regime. However, systemic incoherence of a legal regime in terms of conflicting provisions on the same issues present a more profound challenge to the meaningful existence and survival of any nation that prides itself as a plural democracy anchored in the separation of powers under the rule of law. In the hierarchy of law, it is common currency that the constitution of a nation sits at the apex. In The Gambia, that state of affairs is expressly enshrined in the actual text of The 1997 Constitution of the Republic of The Gambia (the Constitution)as a supremacy statement over all other law (section 4). Notwithstanding its claim, the Constitution does not meaningfully separate power. By deliberate design, it concentrates power in the Executive to the detriment of pluralism and accountability. Its labyrinthine structure virtually guarantees conflict between provisions touching on the same matters.
However viewed, this is a matter of great concern, but some observers may retort that its systemic difficulties support the contention that there is nothing anyone can do except sit out the political dispensation responsible for the state of affairs referenced above. In other words, no matter how beautifully crafted, law that will continue to be either differentially applied, or not applied at all, present no compelling case for reform as long as its underlying political system holds sway. About beauty and law, not many are likely to accuse the Constitution of aesthetic excellence.
Even granting the plausibility of the contention that systemic Constitutional reform is impossible under the current political dispensation, there is nevertheless the need to engage the issue with a view to raising awareness as a prelude to requisite reform when that opportunity inevitably presents itself in the course of time. This discussion is also germane because no challenge is more profound to national cohesion and survival than a Constitution that serves only the interest of a fraction of the overall polity, in this case the Executive. “At the heart of any failed state is a constitution that is not performing – either because the balances its drafters struck between competing demands on the document were wrong, or because the machinery, will and resources to make it work are woefully inadequate” (The Gazette 2012). This existential point cannot be overemphasized!
As a national document, the constitution of a democratic state must settle public authority in a manner that avoids concentrating power in any one segment of a political system. In no small way, the Constitution comprehensively failed this basic test. Notwithstanding theoretical delineations between the traditional arms of a democratic polity, and the Constitution’s self-serving claim of separating power, the reality is completely different. Not only are the Legislative and Judicial branches accorded inferior status by making both ultimately answerable to the Executive, critical independent agencies indispensable to the proper functioning of a democratic state are all similarly degraded. In a nutshell, meaningful national power is entirely concentrated in the Executive. In the most benign hands, such a state of affairs can only erode the freedoms essential to creating and nurturing a transparent and accountable government.
Additionally, there are express contradictions between key Constitutional provisions, as well as considerable fluff in need of excision from the document. The penchant for amending the Constitution is no less troubling.
Accepting that a polity with weak institutions cannot ensure accountability under the best constitution, there is nevertheless a compelling need to retreat from the brazen amalgamation of public power in one branch of government. This paper highlights the perfectly legal, if irrational, concentration of national power in the Executive, and argues for its sensible allocation by the proper demarcation of Constitutional authority between fully independent and internally self-governing branches of government. In similar vein, it also calls for efficacious independent agencies, an internally coherent, rationalised, shorter, and more democratically robust document.
Even where the call for a properly balanced Constitution is heeded, the recognition must nevertheless remain that no matter how beautifully crafted, and appropriately balanced, law has no capacity for self-implementation. It relies on the responsiveness of a political system to the rule of law, both as abstract doctrine, and a reliable instrument of practical governance. “Worldwide, constitutional setups are in a state of flux. As states across the Middle East, Africa and Asia look for successor arrangements to dictatorship, minority rule or anarchy, the pressure on new constitutions to provide a stability that can be hard-wired into the foundations of the state is immense” (The Gazette 2012)
In The Gambia, the Constitution is devoid of serious artistic beauty due mainly to the apparent absence of any real intention to ground the polity in objectively verifiable rule of law. This may be attributable to the fact that the political midwives of the Constitution were also present at the critical juncture of its creation. As they were interested, had absolute power, and wielded the veto, the resulting product was way short of the minimum standards a document like a national constitution must acquire to pass the requisite test of balance and neutrality, a document, so to speak, that can serve as a fitting legacy for posterity.
Unsurprisingly, what resulted is a document with immense potential for violence against the citizen, and of stalemate and paralysis in governance. A crisis, any crisis in governance is therefore only solvable via the agency of raw power, not through the more sublime avenues of political and legal negotiation in a public environment equally responsive to the legitimate needs of all its members. Undoubtedly, The Gambia’s “…successor arrangements to dictatorship …” is yet to materialise. Its current Constitution cements dictatorship in spectacular fashion!
The preamble and its claims
Although not strictly a constitutional provision, the preamble offers a roadmap of how a particular nation intends to manage its public life with its supreme document as guide. It is like the mission statement of an organisation, an encapsulation of the values that underlie a particular system as are expressly articulated in the constitutional text. The preamble of the US Constitution states: “We the people of the United States, in order to form a more perfect Union, establish Justice, insure domestic Tranquillity, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America”. This preamble is anchored in language that evinces neutrality, inspiration, and equality. Cognisant of the fact that no system is perfect, the American Constitution, in the fullness of time, came to represent most of these values for all Americans. Widely recognised as the trailblazer in this area, the preambles to the constitutions of such diverse countries as India, South Africa, The Gambia, even Zimbabwe, all commence with “We the people …”
For present purposes, the so-called “drafters” of the Constitution got it wrong from the preamble. Other than that the preamble is too long and incoherent, it is astonishingly prefaced with “In the name of God, the Almighty”. For a secular, multi-faith Republic, this clearly religious statement should have no place in the Constitution. The preamble also personalises the Constitution by justifying the forceful overthrow of the previous government, as well as needlessly demonising that government, and in the process projecting a less-inclusive national document. Recognising the sharp philosophical differences over the legitimacy of the forceful change of government in 1994, there is nevertheless the need to craft a national document that speaks to all Gambia.
Clearly, paragraphs 1-3, and 7-8, of the preamble, have no place in the Constitution and are better removed in any reform. Although significant and properly in the preamble, paragraphs 4-6 must nevertheless be extensively reworked to provide focus as to what values The Gambia wants its fundament law to project. What must always be remembered is that in themselves, words do not perform the task of good governance and democratic accountability.
Rule of law and the separation of powers
Considering its length, this discussion makes no attempt to rewrite the Constitution provision for provision, or even Chapter for Chapter. Fundamentally, the idea is to examine its architecture to highlight the design flaws that must be rectified when the opportunity for requisite reform comes along. Consequently, the focus is on the basic ingredients that must go into a modern democratic constitution to pass the crucial test of separated powers. The demand for the separation of public power is premised on the need to ensure the liberty of the person. Writing in 1788 as Publius, in The Federalist Papers, James Madison contended that “the accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny” (The Federalist No. 47). According to Madison, and relying on Montesquieu, that “oracle” on the separation of powers, “the preservation of liberty requires that the three great departments of power should be separate and distinct” (ibid).
The proposition that no society can even begin to approach completeness in the absence of explicit rules which are understood by, and applicable to all, without distinction, is unassailable. Stated differently, there is compelling truth to the contention that no society can meaningfully endure in a climate where lawlessness pervades the spirit of its public life. As a concept, the rule of law is one of those political and governance principles whose ostensible embrace, by dictators and democrat alike, makes it susceptible to perverse interpretation and the confusion naturally attendant to that abuse. Suffice to say that as the sanctity and the dignity of the person is directly implicated, the rule of law is a practical freedom and human rights concept open to objective validation, and as such, virtually any observer is capable of deciphering its presence or otherwise in a particular country.
Some thinkers who considered the concept argue that a cardinal element of the rule of law stands for the proposition that no person should be “punishable except for a distinct breach of the law established in an ordinary manner before the ordinary courts of the land” (Papworth 38). As the doctrine is substantive in nature, the point cannot be overemphasised that the rule of law is not about the promulgating process of law adhering to the formalistic niceties of bringing legislation to the statute books. The rule of law also advances the proposition that no person is above the law, that “every person whatever be his/her mark or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals” (Papworth 39).
In the foregoing is the clear suggestion that a fundamental prerequisite of the rule of law is the separation of public power. Simply put, the entity that promulgates a law should not at the same time interpret and enforce it as that may tantamount to inventing a formula for arbitrariness and abuse.
Regardless of geographic location, the timeless issue for Gambians must of necessity address the question of how the public space is organised along the lines of live and let live. There is no need to dilate on the fact that no meaningful and durable security is possible in a public environment devoid of the oxygen of the rule of law.
In the absence of demonstrable commitment to the rule of law, is it possible for the Constitution to meaningfully separate public power?
From the onset, the Constitution presents a challenge for even the theoretical underpinnings of democratic pluralism. Amendments since introduced made the document a complete disaster! The Constitution effectively emasculated the Judiciary, and the National Assembly, by reducing these constitutional pillars of the state to mere appendages of the Executive through the unjustifiable centralization of all power in the President. Its general thrust is inimical to both the doctrine of the rule of law, and the concept of power separation.
The Constitution’s convoluted nature denotes a glaring manifestation of its perverse intent. In a tragic way, this may ordinarily constitute a blessing in that under properly mounted challenges against routinely arbitrary Executive conduct, the courts would struggle to anchor sensible and defensible decisions on significant questions in this highly compromised and labyrinthine document. It stretches the boundaries of common sense to argue that the Constitution separates power in the way that term is properly understood. The preamble is not an enforceable part of a constitution, and even where it ordinarily constitutes a true reflection of the letter, and spirit, of the main document, it is utterly perverse to assign power separation to Gambia’s extant Constitution on mere preamble claims.
On any sensible separation of public power in a democratic society, one branch of government cannot legitimately claim complete dominance over the others. Where public power is adequately separated, the hiring and firing functions across different branches of government must be decoupled to avoid a concentration of power in one hand. Under both constitutional theory and practice in a proper system of democratic governance, the appointer can become functus officio in cases where his hiring power traverses constitutional demarcations.
In other words, the Executive should have no authority whatsoever to fire either National Assembly Members, or judicial officers ranging from Magistrates, to Justices of the Supreme Court. In similar vein, constitutionally envisaged independent agencies like the Independent Electoral Commission, and the Ombudsman, must reside outside the purview of presidential influence. This is not to suggest these categories of officers are exempted from legitimate control mechanisms, but that they ought to be protected from the capriciousness of an almighty Executive. Once appointments are made in these areas, the President must have no sole removal powers.
On a straight application of the doctrine of separation of powers, the President can have no authority to fire a member of the National Assembly. Perversely though, the Constitution permits this through a deliberate loophole allowing party leaders to fire elected members of the National Assembly. It must be emphasised that this is far from a theoretical possibility. The power is actual, and it has been used on numerous occasions since 1997. If the President felt sufficiently threatened, this is the surest legal route to eliminate recalcitrant parliamentarians without consequence. On a large scale, such conduct will likely trigger a constitutional crisis and a power struggle, but with national power so heavily centralised, the bet should be on Executive victory.
Although it is unclear how section 91(1)(d) got into the Constitution, it fits the adage ‘hard cases make bad law’. In the First Republic, the tendency for elected parliamentarians to jump parties was frequent. “This cross carpeting revealed a very selfish and opportunistic streak in politics … Many rightly consider it a contradiction of the voters’ mandate. If a victorious candidate wishes to cross carpet, he should seek a fresh mandate from the electorate” (Jallow 2013: 410-411). Considering the forgoing was a perspective from higher up the Government then, there is an apparent consensus on the question of cross carpeting. “The opposition parties – NCP, GPP, GPDP and PDOIS – were quick to criticize the PPP’s decision to readmit Saidywan. They condemned it as a flagrant disregard of our rules and Constitution and a total lack of principle. It was not a surprise reaction” (Jallow 2013: 574). No matter how frequent the incidence of cross carpeting, there is no justification to solve it with a Constitutional provision as draconian as section 91(1)(d). Is it not the case that in seeking a cure for a minor issue like cross carpeting, the mandate of the electorate can now be so cavalierly vitiated by party leaders?
No less of a concern is the direct Executive control of the National Assembly through the very colonial instrument of nominations to the legislature. There is no question that nominated members boost the President’s numbers in the National Assembly but that effect may be marginal when divorced from real control of the legislative body. In the Constitution, the National Assembly comprises 53 members, with “five members nominated by the President” (see 88 (1) (b)). This is of course inherently anti-democratic and unfair, but its real problem lies elsewhere. According to section 93(1) of the Constitution, “the Speaker of the National Assembly and the Deputy Speaker shall be elected by the members of the Assembly from among the nominated members”. By this mandatory Constitutional provision, the President exercises direct control over the National Assembly as he has the only realistic power to terminate the services of the Speaker by rescinding his nomination. “Unless he or she sooner dies or resigns, the Speaker and the Deputy Speaker shall vacate their respective offices … if he or she ceases to be a member of the National Assembly” (section 93(3)(a)). This provision not only flies in the face of the separation of powers but as well delivers the National Assembly ‘lock, stock, and barrel’ to the President.
Even the Judiciary is not exempted from the centralization of national power in the Executive. By section 141 (2)(c) of the Constitution, “ a judge of a Superior Court … may have his or her appointment terminated by the President in consultation of the Judicial Service Commission”.
To appreciate the subtle if legal subjugation of the Judiciary, to the Executive, it is vital to disentangle the architecture of the management structure at the former. Doubling as the administrative head of the Judiciary, the Chief Justice sits both as a High Court Judge (section 131(1)(a)), and as a Justice of the Supreme Court. At section 138(1) of the Constitution, the President has the legal authority to appoint the Chief Justice “after consultation with the Judicial Service Commission”. Second only to the Chief Justice in the administrative hierarchy is the Judicial Secretary, “who shall be appointed by the President on the advice of the Judicial Service Commission” (section 143(3)).
What is the basic appointing criteria regarding Superior Court judges other than the Chief Justice? Committed to leaving nothing to chance, the Constitution provides an explicit answer. “All other judges of the Superior Courts except the judges of the Special Criminal Court shall be appointed by the President on the recommendation of the Judicial Service Commission” (section 138(2)). But the exception regarding the appointment of judges of the Special Criminal Court is nonsensical, and may be attributable to the Constitution’s convoluted nature. Section 134(4), amended in 2001, clearly provided that “the members of the Court shall be appointed by the President in consultation with the Judicial Service Commission”. Unquestionably, section 138(2), and 134(4), speaking to the same issue, are worded in diametrically opposed ways and are clearly irreconcilable, a testament to the fact that even the Constitution’s quality controllers cannot keep abreast of all its connected provisions.
Considering the ostensibly heavy consultation the President must engage in with the JSC in the appointing process of Superior Court Judges, and the Judicial Secretary, it is imperative that the composition of this central body on judicial appointments be properly scrutinised. In both appointments to, and removals from, the JSC, the President is the predominant player. “The members of the Commission, other than the members referred to in subsection (a) and (f), shall be appointed by the President in consultation with the Chief Justice and subject to confirmation by the National Assembly” (section 145(2)).
Continuing with 145(6), there is yet again a clear demonstration of the President’s stranglehold over the JSC. A member can be removed “for any other cause”! In reality, there is no ex officio member of the JSC considering that even the representative of the Bar must be nominated by the Attorney General, a Cabinet appointee who holds his position at the exclusive pleasure of the President. As for the member of the JSC to be “nominated by the National Assembly”, the Speaker, a Presidential appointee who heads the Legislature, is duty-bound to facilitate that transaction. For any Party member of the National Assembly thinking of opposing the President’s choice for membership of the JSC, there is the threat of expulsion, and the small matter of 91(1)(d) of the Constitution to exercise a sobering restraint on any potential wild journey from sheepish compliance with “orders from above”, a widely appreciated euphemism for Presidential directives outside the ambit of lawful commands. As for JSC members coming under sub-sections (a), (b), (c), and (e), of section 145, the President has undiluted power over their fate.
Intricately connected with the Constitutional architecture of the Judiciary is the pivotal question of how a judge of the Superior Courts is actually removed from office. Considering several suffered summary termination over the years, it is by no means trivial to investigate what removal mechanisms there are in the Constitution. When former Chief Justice Abdou Karim Savage was removed, questions were raised about the Constitutionality of the manner of his termination. Those who considered his removal unlawful because repugnant of the Constitution relied on section 141(5), and the process delineated in subsections (6)-(9). According to section 141(4), “the Chief Justice, a Judge of the Supreme Court, the Court of Appeal and the High Court and members of the Special Criminal Court may only be removed from office for inability to perform the functions of his or her office, whether arising from infirmity of body or mind, or for misconduct”.
Even accepting section 141(4) as the preferable basis for removing a Superior Court judge, there appears to be two separate mechanisms to effecting the actual termination. On the one hand, there is the National Assembly route clearly articulated in section 141(5)-(9) that apparently excludes the Executive from any role in the removal of a Superior Court Judge. It is vague and difficult to see how the delineated process may be practically triggered in the ordinary run of events.
On the other hand, section 141(2)(c) states that “a judge of a Superior Court:- may have his or her appointment terminated by the President in consultation with the Judicial Service Commission”. Whether this is the actual intent of section 141, it is the route exclusively utilised in the frequent termination of the services of Superior Court judges. Disturbing as it may be, and even whereas a defence was never launched on its validity by the Executive, it appears that a Presidential termination of the services of a Superior Court judge lies within the letter of the Constitution. Needless to say, it is repugnant to the doctrine and actuality of the separation of powers, and an affront to the rule of law. Nevertheless, it is not per se illegal, and if only for this reason, it must not survive a reform of the Constitution considering the pivotal significance of the Judiciary in a plural democracy.
Thank you Mr. Darbo and well done, you touched the nerves. As a matter of urgency we should go back to drawing board immediately to correct these errors of most fundamental instrument of our nation.