National Assembly voted down CRC Draft! Why? Was it because it did not make us more democratic than its predecessors? Was the process both undemocratic and unconstitutional or simply party-political power play?
Independent Gambia cannot claim rich history of constitutionality. At the dawn of independence/Republic, former President Jawara did not call for People to Develop a National Constitution, instead he adapted the colonial governance charter used on The Gambia with notable adaptations. For instance, the 1962 constitution was adapted before commencement of self-governance in 1965 to eliminate the role of Governor General and replace with Prime Minister. Upon referendum in 1970 the role of Prime Minister was adapted to President. During these times Bathurst also was officially changed to Banjul. Our judicial system remained intertwined with Queen’s Privy Council until 1997. Upon independence (or republic) The Gambia never took step to let the sovereigns decide the rules (CONSTITUTION) of their nation. The government simply adapted the colonial rules as the governing rules. This deficiency is not unique to only The Gambia yet it is one of the principal reasons in many nations particularly Africa responsible for constitutional instability. Each administration writing their own constitution and/or constitutional amendment at almost every legislative session in order to be able to make another law is as good as no constitution.
A constitution of an Independent Democratic Republic is people’s contract to their representatives defining the terms of governance. Like any contract all parties are expected to adhere or face the consequence(s). The sovereign people are the owners of a national constitution. It is (and should be) executed on their behalf and for their good as prescribed within. The government do not own the constitution. Ideally government shouldn’t be able to change a word/phrase/clause/provision much less write-out a replacement. Any constitutional material amendable solely by the National Assembly should come as an Act of National Assembly rather than a constitutional provision. Everything in the national constitution should only be ultimately changeable by the consent of the majority of the sovereign people of The Gambia. The government is mere agents/representatives of the people – not masters. Up until after the suspension of the 1970 Constitution by the 1994 military coup, the sovereign people of The Gambia were never involved in the development of this primary governance contract document. Although electors approved the 1997 Constitution our involvement in the development processes never met democratic standards of majority consent.
The primary goal of our struggle to remove Yahya was ‘to make The Gambia a Functioning Institutional Democracy’. We also promised to ‘strive to always do the right things and in the right ways’. To make The Gambia a functioning democracy would, for obvious reasons, require a constitution that prescribed as much. Unquestionably we wanted and needed a new constitution if we are to usher in a functioning democratic dispensation. Unfortunately, National Assembly authorizing Barrow to form CRC to draft a constitution for our nation is both unconstitutional and undemocratic. It is unconstitutional because The 1997 Constitution did not state that government can replace the constitution at any time of their chosen. Some reason that because National Assembly as elected law makers have an authority to do as such. This is a complete misunderstanding (or lack of knowledge) of democracy and constitutionality. National Assembly derived her authority from the constitution and not the other way around. National Assembly cannot (and should not) set their own governing rules. The sovereign people set up the governing rules and roles for the NA through the constitution. We have never given them authority to commission the writing of a replacement constitution. National Assembly cannot do what’s not authorized by the constitution. This is what is called LIMITED GOVETNMENT. Representative government can only work within the 4-corners of the constitution. Anything outside those 4-corners stated or not (explicit or implicit) is left out for the sovereigns – people of The Gambia. Development of a new national constitution is one such things not mentioned by the 1997 Constitution. Consequently, only the sovereign people of The Gambia can rightfully change or replace the whole damn thing at any time of their chosen with or without reason. For the people to legitimately embark on such task, as almost anything in democracy, the majority consent is inexcusably required. Democratic majority consent is neither acquired by inviting hand pick members from the communities to a workshop/conference nor through trekking to selected village ‘banatabs’. Majority consent is established through a free, fair and well sensitized electorate election. The NA/Barrow/CRC processes failed to meet these standards hence unconstitutional and undemocratic. This means we didn’t do things rightly as we promised during the thick of our 22-year struggle.
On the question of developing a constitution that will make our country a better functioning democracy (at minimum) more than its predecessors, the CRC Draft failed abysmally. The CRC draft is essentially a plagiarized copy of 1997’s with few sweeteners. What is democracy? At the very minimum, democracy is ‘people governing themselves’. What should that mean in The Gambia? It should mean people’s government at each defined geographic and socio-cultural stratum:
Banjul/National Government with about 35% governance authority: they should be responsible of such things as National borders, Foreign Relations, Trade, Citizenship & Naturalization, National infrastructure, Inter Regional/Divisional Commerce, etc.
Divisional/Regional Governments with about 30% of governance authority: they should be charged with almost the entire state police powers – health, welfare, moralities, education, law and order, safety, divisional infrastructure, etc.
District Governments with about 20% authority: they ought to have some fraction of state police powers
Municipalities with 15% of authority: responsible of all municipal functions
This is what functioning institutional democracy could look like in The Gambia. Governance authority strip from Banjul and send to the peripheries. Each level of government will be elected and removed by appropriate electorate. All elected representatives placed on some term limit. Such stratification of governance should offer needed oversight and administrative controls. National resources should be proportionally appropriated and prescribed by the constitution. All levels of government must exhibit democratic features of 3-co equal separate functions of executive (implementation/execution), rule/law makers and adjudication/arbitrators. This will usher democracy across our land. It will foster vertical accountability through oversight and encourage horizontal competition. Those 2 naturally inbuilt elements will bring about the needed prosperity. The rural-urban population drift will also be checked. Removal of less effective representatives (or corrupt agents) will be much simpler and easier because it will hopefully be a localized issue. Personally, I favor bicameral legislature in Banjul/national government. It fosters additional layer of scrutiny. The structuring, organization and composition of such additional body will be a topic for another day. As is the case of CRC draft – rearranging words, copying and pasting from older versions of our constitutions won’t make us more democratic. Furthermore, leaving Banjul intact as is, is the biggest impediment for democratic dispensation in The Gambia. Mild or soft mannerism of one leader (or any number of agents) over another is as well not a factor of functioning democracy although our socio-cultures/traditions appreciate well behaved people. The CRC draft is also too-noisy just like its predecessors. From Chapter 5 to the end almost none of those chapters are constitutional material as could be appropriately legislated as NA acts. Such unnecessary noises expose the constitution to constant amendments at almost every NA legislative session to enable making of another law. This renders constitutionality almost none existence.
The Way Forward: Dissolve CRC and shelf the CRC draft at the National Museum. We should start all over again but this time in the right ways – constitutionally and democratically. We should also come up with a product that enhance our democracy more than it is. The only legitimate government role in the right ways is facilitation. The National Assembly should appropriate necessary funding. The appropriate government agency (or create a temporary unit for the specific purpose) to mobilize a National Democracy and Constitutional Development Conference of Stakeholders (NDCDS). From that point the stakeholders should sensitize communities on the subject, IEC help conduct referendum for a replacement constitution at a determined time, upon approval organize/create constitutional development committee/task force (CDC/TF), additional community sensitization, write-up, stakeholder review, community review and approval/disapproval referendum. That constitution is the people’s! The approved constitution will be handed to all 3-co equal branches of government(s) by the Chair of The Constitutional Development Committee/Task Force (CDC/TF) and they will swear to uphold and defend the people’s contract.
For The Gambia Ever True
Burama FL Jammeh