As the debate continues around our desire as a country to build a new constitution, we must put things in their proper context, cut out the noise and focus on the issue at hand.
The bottom line issue is this; Adama Barrow has no legal mandate to draft a governing document for the people of The Gambia. The constitution of the country must be drawn up in consultation with the people, in whom the sovereign authority of the land resides. Anything short of that is wrong and should be rejected by all.
This fundamental truth is why there was a need to form a Constitutional Review Commission (CRC) through an act of parliament as the first step towards initiating that process. Even when we had a military governing council that suspended the 1970 constitution and ruled the country by decrees between 1994 and 1996, a constitutional review commission was set up alongside the National Consultative Committee to consult with the people in drafting the 1997 constitution, the same constitution that we are seeking to replace. After the consultations were done and the draft for the 1997 constitution was drawn up, Jammeh and his allies tampered with it, removed what they did not like and replaced them with provisions that gave more powers to the executive and had a rubber stamp assembly approve the amendments that later passed in a referendum giving us the undesirable and abusive 1997 constitution. Barrow is trying to replicate that same model.
Although it is true that the executive can propose amendments to the constitution and kickstart a parliamentary process, drafting an entire constitution at cabinet level is a fundamentally flawed process, especially when the citizens and other stakeholders such as civil society organizations, have not been consulted.
As part of their consultations, the CRC met with the president and his cabinet back in 2019, here is what the president said in that meeting. “As Cabinet, we are also citizens of this country, given a big responsibility to run the affairs of the country. I think we have a lot to contribute. We will not interfere with your work, but we have our opinions; we have our proposals so that we can also be heard just like other Gambians.” (Foroyaa, 2019)
According to Ebrima Sillah, then Minister of Information, “We looked at more than 23 different clauses in this [2020 Draft] Constitution that we as cabinet submitted to the CRC as part of our position probably that could be considered for either review or improved on.” (Point, 2020)
Although we are not privy to all submissions made to the CRC by citizens or institutions in response to the issue document, as those submissions are largely private, later revelations made clear what the objections were at cabinet level. The term limit for the presidency was the most contentious, and it ranked highest on the cabinet’s list of objections. The president’s allies in parliament were in on that objection and they voiced it publicly. In fact, every other issue raised as grounds for objection were mere window dressings. The desire to have Barrow perpetuate himself in power with even more executive powers was the single most important issue to them.
In “Chapter XX – Miscellaneous” of the CRC report, the following was stated:
689. During the public consultations process, there was near public unanimity that the
term of the President should be limited to 2 terms of 5 years each, thus making a total
of 10 years altogether, whether consecutive or otherwise. The Gambian population,
clearly wearied of the experience of long Presidential tenures in the past was vocal that
they do not wish to have any person serve in the Office of President for more than 10
years irrespective of how competent or progressive the person may be. The CRC was
mindful of the following 2 issues: the first is for the existing term of the incumbent
President to commence from the date he assumed office in January 2017; the second is
for the incumbent’s term of office to be reckoned from a period upon or after the coming
into force of the Draft Constitution. Research has revealed that this subject has been one
of the most difficult and divisive issues for many modern African constitutional
developments. Some constitutional review bodies chose to steer away from the subject
by leaving it open and, therefore, subject to judicial interpretation. Others, like Kenya,
chose to confront the issue and indicate a clear path forward and away from judicial
interpretation. The former has invariably resulted in political uncertainty and
instability, while the latter has seen through a smooth transitional constitutional order.
After careful consideration of public opinion on this subject and based on research, the
CRC provided a transitional measure in the proposed Draft Constitution that the
incumbent President’s term of office shall be reckoned to commence from the date he
assumed the Office of President. In that context, therefore, he can only serve for one
more term after his existing term of office expires thereby giving him a total of potential
10 years in office as President of the Republic of The Gambia.
690. The transitional provision on the term of the incumbent President was again raised during the second round of public consultations. An overwhelming majority of participants considered the provision to be a good one that should usher in a new era of Presidential term limit. In fact, during the second round of public consultations, only one individual spoke against the provision and strongly argued that the incumbent President’s term of office should be reckoned from the date of the coming into force of the Draft Constitution. One institution made the same argument. (Constitutional Review Commission, 2020)
One can safely conclude that the “one institution” cited in the report is the cabinet at the time the consultations were being made.
On September 22, 2020, the Constitution Promulgation Bill 2020 was rejected at the National Assembly after it was tabled by the Minister of Justice Dawda Jallow. The cabinet’s position was clear, they did not want the CRC Draft constitution 2020 to pass through the motions in the National Assembly to a referendum. This was clear from the tabling, when the Justice minister had nothing to say about the government’s desire to have a third republic ushered in, he just fulfilled the bare formalities. The President, whose legacy depended on replacing the repressive 1997 constitution with a more progressive one never uttered a word in support of the draft. All that was left was for his allies in the National Assembly to get the message and vote down the bill at the first opportunity killing any chances of making it back to the people in a referendum.
This is no surprise, because according to surveys, the overwhelming majority of Gambians supported a term limit to the presidency and wanted the current president’s current term to count as his first.
In a survey conducted in November and December 2019 by the International Republican Institute (IRI), “88 percent of citizens support the inclusion of presidential term limits in the new constitution. Fifty-seven percent cited this as a main reason for turning out to vote in a potential referendum.” (International Republican Institute, 2020)
With such enthusiasm and clear desire to curb presidential powers, if the draft was allowed to pass through the Assembly, it was certain to be adopted in a referendum. To avert that scenario, the National Assembly was the last stand, so the president rallied his forces and succeeded in killing the will of the people.
What followed that disappointing betrayal of the people was a series of consultations and negotiations in Abuja, Nigeria, headed by the regional body ECOWAS in hopes of reviving the draft constitution. The idea was to have all political players iron out sticking issues before the draft is revived in order to reach a consensus in the subsequent National Assembly debates.
Instead of reintroducing the b2020 draft and have members of the National Assembly make the agreed upon amendments before voting to pass it to a referendum, Adama Barrow and his cabinet went ahead and drafted a whole new cut and paste constitution that gave exceedingly excessive powers to the executive while curtailing rights of citizens and eliminating all accountability measures. They dishonestly cite the Abuja consultations as the consultations they engaged in prior to drafting a new constitution.
All stakeholders, from political parties to civil society organizations deny ever being consulted regarding a new draft constitution. The general population were certainly not consulted.
So, instead of arguing about what the content of the Barrow Draft is, or which provisions are better than the 1997 provisions, we should ask ourselves, should the will of The Gambian people be subverted to be replaced by the impositions of one man’s desire for power?
Why would Adama Barrow, his Justice Minister Dawda Jallow and by extension his cabinet, think for a second that they can subvert the collective voice of sovereign citizens, and expect their own power grabbing bid to be embraced by the same citizens in return for their insult?
Enough already of letting greedy and self-serving individuals take us for fools and claim our sovereign powers for themselves only to wield it as tools of abuse against their perceived enemies and political opponents.
This is beyond partisanship. Political parties as well as civil society voices have all expressed their objection to this new draft and the National Assembly Members, especially those in the opposition, must follow suit and throw this garbage into the garbage bin where it truly belongs.
Bibliography
Constitutional Review Commission, T. (2020). REPORT OF THE CONSTITUTIONAL REVIEW COMMISSION ON THE DRAFT CONSTITUTION FOR THE THIRD REPUBLIC OF THE GAMBIA. Kotu: Constitutional Review Commission.
Foroyaa. (2019, May 20). Foroyaa. Retrieved from http://www.foroyaa.net: https://foroyaa.net/president-barrow-wants-cabinets-input-in-crc-consultation/
International Republican Institute, T. (2020). New Poll: Gambians Support A New Constitution. Banjul: International Republican Institute.
Point, T. (2020, September 30). The Point Newspaper. Retrieved from http://www.thepoint.gm: https://thepoint.gm/africa/gambia/headlines/cabinet-disagrees-with-23-clauses-in-the-draft-including-term-limit#google_vignette
Mankajang 