THE CHIEF JUSTICE SPEAKS FOR ME

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By Foday Samateh

The most important news in The Gambia since the election happened last week. It’s not the Attorney General’s bombshell news briefing on the freezing of 88 bank accounts, 131 landed properties, and 14 companies belonging to or directly associated with the exiled despot. Nor was it Lawyer Awa Sisay Sabally’s applause-worthy call on President Barrow to appoint without any further delay a Vice President. It was something that didn’t receive the same level of attention as the above. Nonetheless, it was the ultimate news of this political transition.

At the national stakeholders’ conference on justice and human rights at Kairaba Beach Hotel, Chief Justice Hassan Jallow affirmed that, in the light of many amendments that could affect the 1997 Constitution (the current Constitution), the state intended to draft a new Constitution. One news outlet quoted him as saying, “There is a strong case for the drafting of a new constitution under the leadership of a new group of experts set up by the state.” Reading the words that are in bold (the emphasis are mine), I was overcome at once with ecstatic relief. With a gleeful heart and bated breath, I crowed, “Hallelujah! God bless the Chief Justice!”

Given the defects of the current Constitution and the deliberate dilutions it suffered at the behest of the upended regime, the need to draft a new one should have been an obvious foregone conclusion. The fact that it hadn’t been until the Chief Justice’s revelation should have been the biggest scandal for the new government. In the run-up to the election, the Coalition included a constitutional review in its reform agenda. The Memorandum of Understanding didn’t expound on what this ambiguous term would entail. Two things, however, implied an overhaul.
First, the central agreement of the Coalition was that their candidate for President would serve only three years in office to carry out a transition of democratic reforms, followed by a fresh election. Since that candidate was to be elected for a five-year term as required under the current Constitution, the cleanest, and probably the most legitimate and justifiable, way to accomplish this agreement would be to draft a new Constitution that would come into force in three years. With the new Constitution adopted in three years, the current one would cease to be in existence, and the current five-year term of the President would be curtailed to three years without anyone having to engage in any convoluted tampering with an already battered Constitution.

Second, almost all Coalition figures and their outspoken allies during and after the election kept promising how governing would be different in the third republic. And right after Barrow was sworn into office, the new administration began claiming that we are now in the third republic. To the extent that it matters, we aren’t in the third republic. We are still in the second republic. Barrow is the second president of the second republic. A new Constitution will usher in the third republic. An ordinary transfer of power through an election under an existing Constitution cannot ring in a republic. Otherwise, the United States would have surpassed 40 republics when it’s still in its first.

Those factors notwithstanding, the Coalition turned out to have something different in mind. Barrow, at his first press conference, after he took office, was asked if the new government planned to write a new Constitution. He responded that they would only make amendments to the current one. You can imagine my disappointment. (For me, replacing the current Constitution with one that’s far superior must be the dominant issue of this transition.)
Why the Coalition never called for a new Constitution outright defied logic. I became upset at the body as a whole, but more so at its two most influential wings. Though several opposition parties had come together to form the Coalition, the key players in real terms were UDP and PDOIS. They are also the only opposition parties with substantive but clashing positions on the current Constitution. Their rivalry over it began from the beginning of the second republic. To PDOIS, the current Constitution is essentially good, if not great. In or outside of the Coalition, PDOIS, to my knowledge, hasn’t called for a new Constitution. The party can always provide a long list of great provisions in the current Constitution in their defense of it. Nevertheless, all in all, they are wrong, but at least consistent.
To UDP, on the other hand, the current Constitution was to all intents and purposes the despot’s Constitution. All the reason their failure to call for a new Constitution demands more than the charge of inconsistence. The party’s taciturnity on the matter borders on hypocrisy. It’s rendered more unconscionable by the fact that while Barrow technically ran as an independent, his political home remained UDP. This, in addition to the fact that they were the largest party in the Coalition, gave them more sway on this question. So I was left confounded by their seemingly newfound faith in a set of amendments to remedy the current Constitution. I even wondered whether gaining power finally has given them second thoughts about reining in the imperial presidency and establishing a democracy on separation of powers with checks and balances. Why would they entrust the President with powers that they rightly didn’t want to be vested in the despot? I wondered still further if they now disagree with Lawyer Lamin J. Darboe’s erudite observation that, “Undoubtedly, [the current] Constitution permits the legal mismanagement of Gambian public life. With its hollow protections, it would still be an instrument of violence, if only potentially, even in the most benign of hands. It has no place in a proper democracy!”

The case against amendments alone goes beyond the stubborn fact that too many amendments needed to be carried out. The most obnoxious parts that must be expunged from the nation’s Constitution — paragraphs 11, 12, 13 and 14 of Schedule 2 (the so-called Indemnity Clause) — are themselves indemnified from any amendments either by the National Assembly or by a referendum thanks to paragraph 17 of the said Schedule. These paragraphs confer absolute blanket amnesty on the despot and the entire regime of the Armed Forces Provisional Ruling Council (AFPRC) for any decision or action they took during the military rule, which might include stealing millions from our national treasury and engaging in extra-judicial killings. Hence my utter disappointment when the Coalition stated their position on the current Constitution. It’s all too clear that amendments alone wouldn’t suffice. They wouldn’t and couldn’t undo these monstrosities of Schedule 2.

The most obscene thing about the referenced sections of Schedule 2 is its arrogance and moral turpitude. The military junta overthrew the elected government, albeit an ineffectual one. They launched multiple Commissions of Inquiry into that government in the name of “accountability, transparency, and probity.” They made so much noise about “rampant corruption” that had occurred in that government. And then, lo and behold, they turned around saying never mind all that. All Presidents, National Assemblies, and Courts must hereby be denied forever the legal authority to do to the junta what the junta did to the preceding government. Why wouldn’t they want their own example be applied to them? Why what’s good for the goose not good for the gander?

It should be noted that advocating for a new Constitution mustn’t be misunderstood as arguing for the entire current Constitution to be junked. Just as the current one largely kept the framework of the 1970 Constitution and still contained significant changes, the new one will emulate similar but nobler objective. I may even hazard a guess that the new Constitution will preserve about 70 percent of the current one. Properly done, however, the 30 percent difference will make a world of real difference between constitutional democracy and constitutional dictatorship. Let’s consider the case of the Chief Justice as an example. Whether one liked the appointment of Hassan Jallow or not, we must all bear in mind that just as Barrow appointed the justice all by himself under the current Constitution, Barrow can remove the justice anytime all by himself. The constitutional requirement that the President must consult the Judicial Service Commission is a bureaucratic waste of time by way of meaningless rigmarole. The Commission’s advice is, strictly speaking, a matter of mere formality. It’s non-binding in any shape or form. Is this what we want? For one person, however conscientious that person may be, to have that much power? And we wonder why we don’t have an independent judiciary? Presidents mustn’t consult at all any Commission whose authority is subservient to the President’s. The consultation regarding the appointment of judges should be made to the National Assembly and the National Assembly’s vote to approve or disapprove should be binding. And judges must not be removed except by impeachment for unlawful conduct. That way, judges cannot be appointed or removed whenever a President feels like it.

Even if we feel rest assured that Barrow and future Presidents would never be anything like the despot, we shouldn’t leave so much of our fate at the mercy of their discretions. For instance, Barrow’s failure or refusal to appoint a Vice President after four months in office may not be violating the letter of the Constitution, but it’s totally contrary to its spirit. It’s also not just a cavalier attitude toward complying with the law, it puts the line of succession to the highest office in the land at risk for no good reason. Worse still, appointing someone who, for whatever unfair and undemocratic requirements, is disqualified from holding the office of Vice President to oversee the Vice Presidency isn’t only a display of insouciance toward the Constitution, but also an apparent act of violating the oath to uphold the Constitution without fear, favor, affection or ill will.

Talking about not trusting people in power to always do the right thing, one of my longstanding beefs with the current Constitution is the National Assembly’s ability to amend the so-called non-entrenched clauses. Like elsewhere, our experience has shown that politicians always claim to be acting in the national interest, but, far too often, they behave on partisan motives. Even when they truly act in the national interest, such actions are hardly divorced from their partisan interests. Politicians will always be politicians. They will almost always use whatever power is at their disposal to advance their own partisan interests. The amendments to the current Constitution proved that the drafters were wrong to assign the National Assembly the power to amend the Constitution save the entrenched clauses. And the entrenched clauses cannot remain functionally sacrosanct if their force can be undermined by the amendment or abrogation of related, supporting, or underlying clauses. As the supreme law of the land, everything in the Constitution should be deemed consequential. If they are not, they shouldn’t be in the utmost law. If they are, they should be beyond the grasp of the momentary passions or partisan motives of politicians. Yes, the power to make laws is invested in the National Assembly. But the one law they must not make is the law that gives them the power to make laws. The entire Constitution must be entrenched. No clause or paragraph or even punctuation mark must be amended without a referendum. The people must have their say. That’s the only assurance to protect the Constitution from being perverted by self-serving, power-grabbing politicians.

There are many other reasons to draft a new Constitution. Among them, the current one is poorly put together. It lacks the coherence and elegance a great national document deserves. To back up this contention, I must rely once again on Lamin J Darboe’s perceptive conclusion: “In The Gambia, [the current] Constitution is devoid of serious artistic beauty due mainly to the apparent absence of any real intention to ground the polity in an 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.”

It’s, therefore, gratifying to know that the new government had a change of heart. It’s also reassuring that the source of the news was the Chief Justice. And even more reassuring, he did more than share word about the plan to draft a new Constitution. He justified both the necessity and wisdom of such an undertaking. The importance of this is just too great. Monumental, in fact. That’s why the Chief Justice spoke for me. We now have the chance to establish the third republic that seeks that elusive equilibrium between security and liberty. We must institute a government that has all the power to protect the rights of the good folks of Kiang. At the same time, that government must have no power to set aside at will the rights of the good folks of Kiang. Then, we can celebrate our Constitution and our Republic.


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