By Ousman A.S. Jammeh (Author of The Constitutional Law of The Gambia, 1965-2010)
The task of reviewing the New Draft Constitution of the Republic of The Gambia, 2020, as a National legal and political blueprint is a duty call for all to share our thoughts as equal stakeholders. The Gambia has been tested in the Constitutional traditions practiced elsewhere with varying degrees of success and failures. However, the first twenty-two years of the Second Republic is best characterized as a constitutional infamy underpinned by fear, rather than by responsible and inclusive governance.
It is therefore central to this conversation to carefully analyze the influence of these borrowed models of constitutional governance architecture with modifications which will hopefully meet our bona fide aspiration as a people who wish to agree consensually. It is fitting to congratulate the CRC for their hard work, as well as for their efforts to give us their best in the form of a New Draft Constitution 2020.
This drafters captured some important issues of concern to Gambians ranging from limited Presidential mandate of two five-year terms, improved legislative oversight and checks on Executive Branch, and to some extent, Judicial appointments, the composition of the Electoral Commission, land tenure and management of natural resources and environment. Issues of youth empowerment, gender, human and social rights, citizenship, public services, security services, local government, civic education, and Independent Bodies among other aspirations which Gambians yearned for more than two decades are also covered.
The Presidential system of Government, which traditionally follows the French Republican system or that of the U.S. Republican Constitution of 1789 with different mutations are the preferred choices in Africa. Many former British Colonies however choose their own unique brand of U.S. Presidential system with significant modifications in preference to the Westminster Parliamentary system of the United Kingdom. Preference for this U.S. model, was arguably, to ensure stability at the top in order to make meaningful socio-economic progress.
Consequently, it is also important to share different views with the CRC as we look forward to the validation process including a referendum, which may, hopefully translate the New Draft Constitution into to our Third Republican Constitution. In the same vein, the opportunity to engage in this exercise with an open, critical, responsible approach to an unpleasant debate including some inconvenient truths to review the work of the CRC. The Commission’s work product is considered an objective outcome of the wishes of Gambian people based on wide-ranging thematic consultations with all stakeholders in country and in the Diaspora. While these are commendable efforts, there is need for advancing equally objective views about other acceptable best practices in constitutional practice, expectations and conventional outcomes.
However, Republican Presidentialism and secular governance are not and cannot be isolated from the realities of local circumstances, values and ethos which are relevant for effective intermediation of our social and collective management of public affairs as equal citizens. The Republican values of popular participation in government, civic affairs and private sector activities are citizen driven. When we first had the privilege of reviewing the legislation that created the CRC, in December 2017, and while it was generally commendable, it too suffers from certain oversights short of the threshold of inclusive objectivity. This is understandably so, because often, legislative intent and policy are meant to translate the subjective views of a government into action despite the best pretensions of objectivity.
While it is moot to revisit these tenuous aspects of the CRC Act, 2017, the implementation of the legislation remains a work in progress as we move into the validation phase of the Draft Constitution. Needless, section 22 (1) of the CRC Bill, 2017, which was not enacted has proven to be too expensive. It reads: “The President shall, within sixty days of receiving the Constitution and the report under Section 21 (1), transmit a copy thereof to the National Assembly”. It took six months to complete that stage of the validation. This omission can be attributed to the National Assembly.
It is equally important to revisit the shortcomings of an “imperfect document” with the hope of finding an informed consensus before a referendum to validate the Draft constitution. While the CRC espouses the values of integrity, professionalism and transparency, subjecting its product to scrutiny is part of an accountability process for all The Gambians. This is also a quality control exercise, because, in doing so, we expect it to rise above parochial sentiments by treating other views however critical with respect, and not with contempt. Moreover, it is a timeless truth that differing to other views in management of public affairs is a good measure of tolerance, humility and wisdom. The ideal is therefore not a perfect document for a perfect country as the CRC Chair acknowledged, but because it is also undeniable that no man-made constitution can aspire to perfection.
Therefore, we have looked at a few provisions with a different opinion to be shared in the court of public opinion and the democratic market space. These include issues relating to the Executive, Legislative and Judicial arrangements especially inter branch checks as the bulwark against a repeat of a paternalistic stewardship of government by another overarching executive branch. Citizenship, Land and natural resources, Public Service and role and functions of some Oversight bodies require similar scrutiny. While it its largely prescriptive, as a typical feature of post-Independence British Constitutional instruments, and despite much elaborate issues in319provisions some of which could have been left to future enabling legislation.
The Presidency and inter Branch Checks.
The issue of residency as a qualification or disqualification of citizens to run for President in the form of a long residency requirement of three years preceding a Presidential election is disingenuous and at best discriminatory. Article 93 (1) (c)which defines ordinarily resident in The Gambia violates the equality clause of the Constitution affording different treatment to citizens. Alternatively, residency of no more than one year is understandable. Firstly, the rational is difficult to understand because there are many potential candidates who may not be as informed of local circumstances beyond the peri-urban areas, while more informed diasporas are adept with local affairs on a real time basis. Secondly, the economic importance of the hard-working Diaspora cannot be disregarded nor underestimated. Thirdly, why the reduction to three year of residency, because the former regime had a similar retrogressive clause to deny some Gambians the remote possibly of returning home, talk less of daring to contest for the Presidency. Certainly, a more progressive provision than Article 93 (1) (c)is imperative. It must be reconsidered in the interest of fairness and equity. Sub-sections 1 (f) and (3) of this provision are equally disturbing because the latter clearly debased the quality and qualification of the eligible candidature for the Presidency by elaborating that the person’s private sector experience will count irrespective of what he or she did, if he had a basic senior secondary education.
More importantly, on the issue of Inter-branch checks, which is fundamental to a Presidential system of government as a preferred model, the inherent mistrust of the people to leave so much power in a few hands is evident. A natural caveat to delegated authority in public law, is its vulnerability to a false premise that the persons exercising delegated power will not abuse it. Therefore, while there are several provisions alluding to the need for “diversity” which is imperative, it should have been clearer as will be demonstrated. Equally, the executive authority vested in the President should not be elevated above the realm of the metaphysical. Power corrupts, absolute power, corrupts absolutely, is an adage that is valid today than ever.
Indeed, it is correct to assert that for the most part, the Second Republic provided a tragic experience of the unconstitutional excesses of an Executive President. Our fears of an “Imperial Presidency” echoed since our sovereign victory in 2017 are well founded. Therefore, leaving this to chance in the new dispensation, will be imprudent. Fortunately, the new checks and scope of the limits of the mandate and other confirmatory and consultative requirements on the powers of the President are perhaps the most effective checks in this Draft, especially in Section 115 (2).However, the notable exemption of the choice of the Vice President in Section 110 (1) and (2)from the same scrutiny, as the rest of the Cabinet, from the National Assembly’s confirmatory process defies logic and consistency. It too, deserves to be revisited in the upcoming debate by the National Assembly.
That said, subjecting the President to legislative scrutiny and confirmation of his nominees as Cabinet Ministers is equally commendable. However, these provisions could be qualified by inserting a “national character” clause in the following provisions namely Sections 81 (3) 278 (1) 260 (1), 279, 281, to further empower the National Assembly to hold a President to respect “diversity” with a much broader check list including regional, geographical and agender balanced pedigree. Arguably, a strong National Assembly is the best protector and informed guardian of the National character in public appointments especially in a transitional phase of national healing. The Gambia was ruled, rather than being responsibly governed for much of the last two and half decades, which is an unfortunate legacy which we are yet to fully reconcile with.
Furthermore, it is not too late to recall our earlier argument for a “running mate”. To validate this point, there is need for an objective best practice because it is evident that the overwhelming majority of current Anglo-Saxon Republican Constitutions in Africa have provided for a “running mate” out of informed wisdom. The fact that Ministerial appointees are subject to parliamentary scrutiny and approval, renders the exclusion of the choice of Vice President from the same scrutiny, illogical at best. In the absence of a running mate, it is only prudent that the candidate or nominee for Vice President under section 110 (2) should be subjected to the same scrutiny as all other Cabinet Ministers under section 115 (2).
In fact, the obvious reality of a sudden vacancy in the Office of President, offers a compelling reason to have a formidable person of good character, competence, judgment and integrity as Vice President. This omission could invariably leave us with a Vice President who is ill prepared or incompetent, assuming the role of President, but without commanding any respect from the broader national constituency as a fit and proper person for that role. This provision needs to be revisited because of the foregoing reasons. We urge the National Assembly to push for its modification for consistency with similar Cabinet nominations.
We have also interrogated the inter-branch checks in the provisions touching on the Legislative Branch. This is undoubtedly the foremost oversight and largest representative and elective body with the broadest appeal to “national character”. It is therefore prudent to vest the National Assembly with clear oversight roles by ensuring that the Executive does not fall into delinquency despite enumerated guarantees in making certain appointments into public offices. The capitulation of the majority in the legislative branch for most part under our current Constitutional experience facilitated or abetted executive lawlessness despite a few critical minority voices before 2016.
Yet, it is equally disturbing to note that confirmations and National Assembly approvals of Executive Nominations are severely restricted time wise. For example, while the President has 45 days to nominate Member of Cabinet, the National Assembly has 14 days to confirm or reject a nomination. Furthermore, Section 135 (3) (a) did not only limit the National Assembly to 14 days to approve a nomination but goes on to validate a Nomination as “deemed” confirmed in Section 135 (4)in the absence of decision after 14 days. This is a reaffirmation of an Imperial Presidency if the time limit for conducting these important selection processes are limited to 14 days because the National Assembly cannot be expected to conduct a serious background check or evaluation of any candidate in less than 30 days, and despite the Assembly’s duty to provide reasons for rejected nominations within 3 days.
This unhelpful provision will apply to many other important offices not least to Judges of the Supreme Court and the Members of the Electoral Commission among others. In fact, it will be prudent if the same confirmation process by the National Assembly applies to Service Commissions under Sections 168, 278, 279, and281 for a Monitoring Body for Public Enterprises, the National Lands Commission under Section 261 (11) and Internal Security Service Commission under Section 292 respectively. Indeed, Section 135 (5) is a perfect provision for amplification by inserting the imperative provision for respect and adherence to the “National Character” by the National Assembly in every confirmatory proceeding by its Public Appointments Committee. This should also apply to the appointment of all Ambassadors and Head of Diplomatic Missions abroad.
Arguably, more vigilance is required now to avoid aiding and abetting our collective mis-governance under abusive legislations which destroyed the little that was left of the original checks in the 1997 Constitution. Beginning in 2001, the absurdity of legislations which made it into our statute books as formal laws requires strong and effective checks to avoid similar retrogressive legislations under a new dispensation. Manipulation of the National Assembly by the executive is of recent memory. Indeed, Section 91 (1) (d) of the 1997 Constitution, which originally disqualified a person from Membership of the National Assembly, was selectively amended among a few others, since 2017. This enabled some current Members of the Assembly to retain their seats, despite moving to the independent bench in the Assembly.
Thankfully, the New Draft has reintroduced in Section 141(1) (h)a new mutation of the original Section 91 (1) (d)of the current constitution. It reads: The Office of a Member of the National Assembly becomes vacant (a), (b) ……. (h) having been elected as a member of a political party, he or she voluntarily resigns from that political party, joins another political party or opts to sit as an independent member. This hitherto questionable and selective amendment introduced by the current administration, is now reversed, credit to the CRC.
Effective inter-branch checks in this regard, requires a National Assembly to restrain an overbearing Executive which may seek to undermine our fundamental constitutional principles, freedoms, property and land rights, inclusion and other values as has been the case since 1997. Likewise, the counterbalancing power of recall of Members of the National Assembly in the 1997 Constitution, which is retained in the New Draft Constitution, in a more streamlined form is equally commendable.
Finally, on the issue of the term limits and its operative provisions, we should be vigilant to ensure that there is no room for ambiguity or misinterpretation post ratification about the scope of the two five-year mandates. The National Assembly may wish to be enact this provision in the strongest imperative words about the Presidential term limit to avoid any attempts of prolongation. Regrettably, Africa’s record on this issue demands eternal vigilance.
Sections 190 (1) (2) and (3) (why limit this to the Supreme Court and not GCA
The third issue regarding inter-branch check relates to the Judiciary. Once again, while its autonomy is important, it legacy especially in the sunset days of former regime need no further elaboration. It failed us advertently by commission and omission and even earned some of itskey protagonists infamous titles such as “mercenary Judges”, by effectively compromising valued independence and reputation. Public perception of the judiciary suffered a major setback largely because of an overbearing executive which acted with spineless impunity as the judiciary kowtowed out of fear.
Therefore, a new role of the National Assembly in the appointment process of some superior Court Judges is not only desirable but is in fact inadequate. The power of Judges, and, for that matter the Justices of the Supreme Court, to invalidate Acts of the National Assembly, requires a counter measure to ensure that those who preside in these Courts are concurrently selected and appointed by the Executive and Judicial Service Commission in conjunction with the National Assembly. We therefore submit that all Judges of the Supreme Court and the Court of Appeal ought to be subjected to the same appointment and confirmation process including all internal elevations to the Apex Court. That way, we can count on the Judiciary to ensure that all candidates are thoroughly screened at all levels of entry by the National Assembly. Again, Kenya did exactly that under its 2010 Constitution without exception.
Chapter IV -Citizenship: Sections 14 to 22
The thorny issue of citizenship remains an important, if not, a controversial one too, because of the obvious challenges associated with emigration and immigration in our recent history of misrule. Suffice to say that the growing Gambian Diaspora is effectively outnumbered by the net flow of immigrants from the West African Sub Region in the last three decades. The fact that this Constitution has classified citizens as natural born citizens or by descent is apt. However, while dual citizenship remains a necessary hazard of twenty first century global reality, our local realities calls for a new construct. Nothing therefore should deter a natural born citizen of The Gambia from enjoying their full rights of citizenship including elective offices whether inside or outside The Gambia.
Furthermore, it should be of concern that the CRC decided to open citizenship to aliens born in The Gambia who have lived in Gambia before 31 December 2019 to apply for citizenship by registration rather than through naturalization in Section 21 (a) of the New Draft. Chapter IV on citizenship further calls for special scrutiny because it is disheartening to note that while Diaspora citizens are being disempowered, a disingenuous citizenship clause in Section 21 (a) opens our citizenship to several thousand ineligible residents whose countries do not require them to renounce their citizenship just because they chose to reside in The Gambia. It states in part: An Act of the National Assembly may make provision for-
(a) Registration as a citizen of The Gambia of a person who, on or before the 31 December 2019, was born in The Gambia to non-Gambian parents, if the person had, since his or her birth, lived in The Gambia.
The above provision is a complete opposite of the citizenship requirements under Section 17 which deals with naturalization as a perfect and legitimate mechanism to acquire Gambian citizenship at a time of ones choosing, but not en masse, by an enabling legislation. We are fully aware of the effect of net emigration on generations of Gambians especially since 1994, and the obvious imbalanced immigration from the West African sub-region especially from our immediate neighboring States in the OMVG cluster States.
Therefore, Section 21 (a) is a perfect “amnesty” to facilitate mass acquisition of Gambian citizenship with much ease than through the naturalization route. This has obvious consequences, not least, in the mostly densely populated country in West Africa. Moreover, none of our immediate neighboring countries facilities mass acquisition of citizenship with such ease and consistent patterns of inward migration have shown that Gambians are not attracted to those countries in any significant numbers. Moreover, the Regional ECOWAS Protocol on free movement of people is an adequate guarantee for those communities to live and work in The Gambia with full legal protection. Therefore, the status quo must be maintained.
Presidential Appointments into Public Bodies with oversight and regulatory functions.
Another important issue which calls for a scrutiny are the pervasive powers of appointments of the Chairpersons and Members of the numerous Service Commissions by the President in consultation with the PSC. For example, Section 273 (2) (a) gives the President an exclusive appointing authority for all these offices without National Assembly scrutiny is unhelpful.
Likewise, Section 278 (1)gave the President the power to appoint virtually all Heads of State-Owned Enterprises with a mere consultative requirement with the PSC, but without National Assembly approval must necessarily raise genuine concerns about unmerited patronage which we experienced for much of last twenty-five years. This should be revisited. This has a great scope for undeserved patronage, abuse and incompetence in the hands of a President without a fair and balanced ethical compass. Moreover, the role of the National Assembly to ensure effective policing and bona fide respect for “diversity” and the “national character” is imperative to avoid revisionist tendencies we are witnessing with little regard for public opinion about character and past records in public service.
This further confirms the urgency for a robust restraining mechanism in the new dispensation as the New Draft Constitution is presumably the best reflection of the wishes of Gambians. However, the above provisions are not progressive enough for ensuring Presidential accountability, which requires that such important public offices be constituted after broader consensus in the selection process from the widest and diverse pool of candidates of good character and competence. The National Assembly must therefore be empowered to provide this oversight.
Similarly, provisions relating to judicial pensions, retirement age of seventy-five, and the multiplicity of Service Commissions and Independent Bodies calls for special reflection in their current form in the New Draft. Research has confirmed that no other former British Colony in Africa retires judges at seventy-five years, including Kenya, which attracted a lot of goodwill from the Gambian CRC. All these add to the cost of large Government, in this Constitution, which could significantly undermine effective dynamism, renewal, rejuvenation and competitive efficiency in public sector management, as well as creating an irredeemable financial burden on a debt-ridden economy.
Most successful emerging States outside Africa transformed with lean, qualitative, not large bureaucracies including a large pension burden with a few selective beneficiaries in public service. Rwanda and Mauritius being examples. Even in more affluent Singapore, Judges retire at sixty-five and not on full salaries. Low resource allocation from critical public services and infrastructure only bloats an inefficient bureaucracy because the State, and not the private sector, remains the largest employer. The effect is evident today in the lives of the most Gambians who regard the elites as more of economic predators than transformative leaders.
As we borrow from progressive constitutional models in the Commonwealth, blind imitation could be unhelpful. Kenya has more than 40 million people, and accordingly, having a multiplicity of Service Commissions is justified. The same cannot be said of The Gambia. The number of Service Commissions cannot be reasonably justified because Kenya has a highly devolved government under its 2010 Constitution, and even so,ismuch more endowed economically. Paradoxically, while we have adopted their numerous Service Commissions, we did not replicate the terms and conditions of service of its Judiciary including pensions and retirement age of the Judges of her Superior Courts. Similarly, while Ghana has a more developed economy than The Gambia, it has prudently combined the functions of an Anti-Corruption Commission, the Ombudsman and Human Rights Commissions into one outfit known as Commission for Administrative Justice and Good Governance.
This can be easily replicated to save millions of Dalasi of our limited fiscal resources to help provide better public infrastructure, qualitative education and other social services. Serious socio-economic transformation is not determined by too many Public Institutions with high-sounding names, but by the quality of life that impacts on the ordinary citizens in their daily struggle to eat decent meals, improved food and personal security, clean water and sanitation, affordable energy and good roads. The Service Commissions like the Teachers and Health Services Commissions can be merged into one with strong technical sub-Committees to deal with their core mandates. The PSC should not be made redundant by confining its mandate to the narrow administrative cadre. Section 110 (D)-(1) of the Constitution of Singapore, provided for the replacement of Education, Police and Civil Defence Services Commissions with Personnel Boards in 1998 to perform these functions of the PSC.
Furthermore, the National Assembly has too few support staff to justify a National Assembly Services Commission and likewise the Local Authorities Services Commission. Just because there is the PSC and JSC, does not justify another expensive drain on the exchequer. The more tax revenues that goes into remunerations of a “large government” especially direct charges on the “Consolidated Revenue Funds” the less, is left to provide for citizens as the larger stakeholders to benefit from meaningful public services.
On a different note, there is an evident conflict of interest for the Members of a defunct CRC to serve as Members of the Constitution Implementation Oversight Commission. While this is another commendable Kenyan practice, none of its Members were drawn from the erstwhile Kenyan Constitutional Review Commission which drafted the harmonized Constitution of Kenya 2010. Again, these provisions must be revisited during the validation process.
Land, Environment and Natural Resources Commission in Sections 256 and 257
Land and Natural Resources as defined in the Draft Constitution at Sections 254 (1), 255 (2)promotion of agriculture, and tellingly, the creation of the Land, Environment and Natural Resources Commission in Sections 256 and 257 respectively calls for scrutiny. Assuming we want to be more objective and equitable to all land-owning communities in The Gambia, the notion of local ownership of such resources and a fair share of other natural resources allocation is imperative. The definition of ownership is at once problematic and suffers an ambiguity by same token. The extension of the remit of the National Lands and Natural Resources Commission in Section 257 (1) (g) i.e.: monitor and have oversight responsibilities over land use planning throughout the country, while commendable, falls short of the reality. A clear provision abrogating any form of discriminatory and imbalanced legislation relating to land use and ownership between different parts of the country should be more emphatic. We are now experiencing serious tensions in this domain due to inherent double standards with the propensity for even more tensions because of the troubling legacy of the State Lands Act 1991.
The National Assembly must now ensure local representation in this Commission because local knowledge of land, environment and natural resources is paramount. The destruction of Coastal communities by sand mining and unregulated fishing activities have been treated with scant attention by State regulatory and oversight bodies with spineless impunity for much of the last twenty-five years. The current National Lands Commission established in September 2018, remains a façade at best. It is yet to issue a single policy statement or position despite recent and potentially violent tensions about land administration in the Kombo areas. This is a clear example of dysfunctional institutional liability on the exchequer as their core mandates continue to be paradoxically usurped by their own appointing authority.
On a different note, we wish to reiterate a significant issue of Diaspora voting. It is inimical to democratic empowerment to deny natural born citizens certain basic rights including that of full participation in the affairs of their country of birth because their parents chose to emigrate elsewhere. The limited right of enfranchisement to vote, but not to be voted for, has unfortunately been circumscribed by the CRC despite expensive consultations with the large Gambian Diaspora mainly in Western Europe and North America. The failure to embrace this progressive trend of overseas voting as a mandatory and an inalienable right of citizens abroad with “immediate effect”, in the 21st Century is indefensible. This omission, which is borne out of certain trepidations rather than informed wisdom, is the perception that most overseas Gambians are anti-establishment. Bissau Guineans and Senegalese have voted overseas including in The Gambia for the longest time, and it is difficult to justify why Gambians in the developed world were denied this basic civic right fifty-five years after Independence.
To conclude, while this should be considered a limited opportunity to address some issues of mutual concern before the Draft becomes our supreme law, we must reflect upon our domestic realities as a poor and heavily indebted country. Secondly, by being mindful of the reputation of the elites in the power dynamics of a disproportionately large government, and finally, about how inequality in the power structures increases corruption via elective clientelism, the bureaucracy, patronage and elite capture and domination in politics and the economy. The New Constitution will serve us better, if the new power dynamics envisaged, addresses gaping inequality, promotes reforms in land, environment and natural resource ownership, manages and promotes inclusion, respect for diversity and national character, ensures meritocratic bureaucracy through a lean and affordable government and to maintain state institutional autonomy.
In the interests of space and economy of time, we could not exhaust all the provisions, because others equal to the task, have brilliantly dealt with them. Nevertheless, the issues raised in this review require serious rethink by the public, the National Assembly and civil society, and all stakeholders as we enter the most critical phases of the validation of the New Draft Constitution 2020. A constitution is not exclusively meant to address purely public legal and political issues, but one intended to address a more nuanced disequilibrium and inequities in economic, social and inter-communal relationships in a country. Failure to balance these relationships could render the best written constitution inimical to peace, progress, inclusion, security and stability. While these are by no means exhaustive, this conversation calls for prudence and vigilance especially by the National Assembly as a shared responsibility in pursuit of making The Gambia a better place for all.
10 September 2020