Contentions On The New Constitution

By Natta Mass,

The issue of citizenship has stirred the most passionate debates among us and a lot of my fellow countrymen are concerned about people being rendered stateless if the constitution takes a position that citizenship by birth cannot be automatically granted unless one of the child’s parents is a citizen.

Contrary to widely held notions, Gambian citizenship has never been automatic upon birth. Here are the current and historical provisions of The Gambian constitution on citizenship by birth;

1997 Constitution Chapter III

  1. Every person who, immediately before the coming into force of this constitution, is a citizen of The Gambia, shall, subject to this Constitution

(a) Continue to be a citizen of The Gambia;

(b) Retain the same status as a citizen by birth, by descent, by registration or by naturalization, as the case may be, as he or she enjoyed immediately before the coming into force of this Constitution.

  1. Every person born in The Gambia after the coming into force of this Constitution shall be presumed to be a citizen of The Gambia by birth if at the time of his or her birth, one of his or her parents is a citizen of The Gambia… 1997 Constitution. Revised 2001.

1970 Constitution Chapter II

(1) Every person who, having been born in The Gambia, is on 17th February, 1965 a citizen of the United Kingdom and Colonies or a British protected person, shall become a citizen of The Gambia on 18th February 1965:
Provided that a person shall not become a citizen of The Gambia by virtue of this subsection if –

Neither of his parents nor any of his grandparents was born in The Gambia; or
Neither of his parents was naturalized in The Gambia as a British subject under the British Nationality Act, 1948 © or before that act came into force.
So what the Constitutional Review Commission (CRC) is seeking, is whether we should maintain the above or amend it.

I think we are arguing from a here and now standpoint; most are concerned about the plight of those children/adults who are for all intents and purposes Gambians but will be rendered stateless if birth right citizenship is not guaranteed. Technically, those people are currently stateless. So for their sake I think we need to regularize and formally declare them as citizens without letting their plight cloud our objectivity and the need to be forward looking. The proposed constitution needs to stand the test of time and THAT requires objectivity in every way possible. Citizenship, and all its attendant privileges need safeguarding for posterity.

Yes, no one should be stateless and I’d advocate that all children born in The Gambia prior to the adoption of this constitution who have no legalized citizenship status of any other country, be conferred with Gambian citizenship for they are, for all intents and purposes GAMBIAN. All adults who came to The Gambia but have not legalized their stay, need to come forth and do so, or apply for naturalization or registration etc . to become citizens/legal residents if they so choose, that should address all current worries. Now to the future; who should qualify as a citizen? This I think the language of the constitution should be clear on.

There are innumerable scenarios by which people can be born within the shores of The Gambia when the parents have no intent on either residing or ever returning The Gambia. The children of diplomats and expatriates on technical assistance fall under such a category.

In another section of the issue document for the new constitution, there is a section asking if people of dual nationalities should qualify to hold elected office. A lot of people oppose that idea. What then if we say no to that but end up with a scenario in which multitudes of the citizens are citizens of other countries too, bearing allegiance and fidelity to those countries?

Citizenship by birth is the most automatic right for anyone to have and I TOTALLY agree. But are we overlooking the multitudes of scenarios through which one can be born in a particular country? It is a very common and ongoing practice that people travel from remote parts of our neighboring country to stay with us closer to their term so that when labor hits they are closer to a health center (kono batto/haar birr). Should those children also be citizens even though parents were born, raised and still live in Senegal? Point of note; Senegal does not grant automatic birth right citizenship.

Citizenship is about more than a birthright too; there is culture, values, beliefs etc. that define us as a people and they deserve to be preserved. Let’s look to the future and do so objectively. Safeguarding citizenship is not an advocacy for isolationism or anti-integration or as some will assume; xenophobia. Far from it, securing/safeguarding citizenship does not negate integration, the two are mutually exclusive.

On Same Sex Relationships

The other Issue raised and coming to the fore is the issue of legalizing homosexuality. There is no provision, beyond the pronouncements of Yahya Jammeh that says it is illegal to have homosexual relationships, no one gets prosecuted for it either. As it stands, no one’s sexual preference is legislated against or criminalized. What is not provided for is general acceptance of the practice and that is what ‘legalizing’ it means; there is a difference. What people do in their bedrooms is their choice, the state has no business regulating that, but our argument has taken the familiar route of “support its legalization or you are homophobic.” The either/or fallacy.

Here’s an example to contrast; polygamy in Europe and America is not an issue even though there are people of African, Asian, and Middle Eastern descent whose cultures uphold the practice. Do you hear of legalization of polygamy talks? No, in fact it’s criminal to register dual marriages in many western countries; it is called bigamy. But people can still practice it as long as they do not register the multiple marriages. It is not an acceptable standard in the Western democracies and thus relegated away from public discourse, criminalized even. In the same vain, who cares what someone’s sexual preference is as long as it is not part of our national discourse or something sought to be normalized/imposed on those who are opposed to it? Unlike western democracies we should not seek to criminalize it but “legalizing” it will tantamount to imposing it on a people, an overwhelming majority of who are opposed to it culturally, religiously and and is against every value they uphold. And we, as a society are not ready for the consequences of imposing the ‘tyranny of the minority’.

Let people who are so inclined understand that they are in a society that does not accept/embrace their way of life and respect that fact. People do not need to accept your choices for you to enjoy them, just respect the norms of the society you live in. It’s that simple. If the larger society is so intolerant that they assault someone for their choices, there should be laws against hate crime to address such issues. There, guess I’ve just earned my tag as being homophobic!

Female Circumcision

The other issue raised especially by our rural folks is the question of making female circumcision illegal. I am fully in support of discarding the practice, that’s my position, always has been. But I’m not going to let my personal views on it blind me to the convictions of those who practice it. Understanding that conviction is instrumental in finding an effective mechanism to end it. There is a right way and a wrong way to doing anything. So, again, in typical fashion, we choose the easier route; BAN IT!

Okay, now it is illegal. Next step is to enforce the law; how do we do that? How do we apprehend the culprits, what are the ramifications going to be? Those are also relevant; for what is the law if it cannot be enforced and people who transgress its bound are not punished.

We all know it is usually the girl’s grandmother in most cases who subjects them to the practice or some elderly family member and they don’t always seek the consent of the parent. So do you expect the girl child’s mother to report her own mother (the girl’s grandmother) to law enforcement for prosecution? Could be, may be even easier if the culprit is the mother-in-law. Men are rarely involved in this exclusively female domain. Are the neighbors (who largely uphold similar values) going to call law enforcement on their neighbor? Are the police going to conduct patrols to apprehend culprits? Are health centers and health service providers going to be sanctioned to report suspected cases? How are the culprits going to be apprehended?

Then comes the prosecution and sentencing; how is that court proceeding going to look like? What will the punishment be? How will that deter a recurrence? These are all important questions to ask. We can choose to diminish their significance or address them faithfully.

But before that, say one family member reports another family member for subjecting a child in the family to the practice, what will unfold in that family? Chances are that the family will break up or there will be serious bad blood, we all know how conservative our rural families are and how much they clung to their beliefs and values. So what are the consequences of broken up families in a society like ours?

Now, imagine if a daughter-in-law does that to her mother-in-law. Similar scenario, you can already see the sisters all up in their brother’s face “you going to let you wife humiliate your mother like that!” 9 chances out of 10 the man acquiesces (you know how it goes) and the marriage breaks up, children to grow up in a broken homes with stepmothers and stepfathers. What impact does that have on the wider society in the long run? Again, we can be emotional about it or be rational about it. How do we effectively enforce the law? Yaya Jammeh with all his heavy handed tyranny made it illegal but was defied. Even in Kanilai, his home village, people still practiced it.

Let’s say we deliberate and come up with effective means to enforce the law; the other scenario is that the people fear repercussions and go underground. We all know weed is illegal but people still access and smoke it, as are other drugs. So who’s to say a similar thing could not happen because of people’s deep seated convictions? Now they are underground, something goes wrong during the process. Instead of seeking professional medical help, they fear repercussions and sit on it with “traditional remedies” until it is too late.

What being rational is, in my estimation to take all these into account and come up with credible solutions, but for now, considering the limited resources and the deep seated nature of the practice, which is not entirely religious, the best approach is to teach people away from the practice. Will it take time, yes but it will be worth it until such a time that the law banning it can be fully enforced. Let’s take a cue from Senegal, in law it has been banned. But it is openly conducted and celebrated in Southern Senegal, what impact has the law had there?


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