In the second part of his presentation at the PDOIS European Branch AGM in London held on Saturday, September 21 2024, Halifa touched on the constitutional building process. He said currently, there is a constitutional crisis which is seen as an impasse. He told the PDOIS European Branch members that, by making it a subject of discussion, they have triggered a debate.
_THE NEED FOR A NEW CONSTITUTION:_
He reminded members that the process of constitutional reform started in 2017. His position was very clear. “Unlike the 1997 constitution, the1970 constitution was overthrown. That is why the coup makers created a constitutional review commission (CRC) to review the 1970 constitution and come up with a draft. That is the 1997 constitution.”
This constitution, he said, was not overthrown in 2016. Nonetheless, it should not have existed because of certain provisions which he pointed out as follows: “If you look at the preamble of the 1997 constitution, it is saying Gambians supported the coup d’etat. It is still there. In reality, a preamble is not part of a constitution. Another provision is Schedule 2 (70) which gives the then AFPRC and its government immunity to whatever they have done during their tenure in office.”
Obviously with such provisions, Halifa said, the 1997 constitution is not a document that should exist, especially after 2016.
_THE CONSTITUTIONAL REVIEW PROCESS:_
If you have a constitution in operation and not overthrown which says no law should be made that is in contravention to it, that constitution then is supreme, Halifa noted. To change it, its dictates had to be referred to. The dictates are in the form of entrenched clauses which can only be changed through a referendum, and non- entrenched clauses without a referendum. So his proposal was; “why not look at the provisions that needed change and see which are entrenched and non- entrenched, then the reform process based on that. Instead, a Constitutional Review Commission (CRC) was created in 2018. It was charged with the responsibility of a new draft constitution within 18 months. It requested an extension of six months to which the 2018 CRC Act provided for. A draft was submitted to the president in 2020. The president submitted it to parliament for the promulgation of a new constitution. Parliament indicated what its procedures were with regards to the introduction of bills.
“When a bill is introduced, that is the first reading. In the second reading, only the principles of the bill will be discussed which requires three quarters majority to pass, not the content. By supporting the principles, that does not mean one agrees with the content. That should have been understood. After the second reading, the bill goes to the committee stage. It is at the committee stage that witnesses are invited to give their opinions, examine the document clause by clause and come up with a recommendation. After the recommendations, it is the report and consideration stage where clause by clause will be announced.” That is how parliament works, Halifa explained. That did not happen and obviously, the bill should not have stopped at the second reading, he said.
_THE CONSTITUTIONAL IMPASSE:_
Halifa gave his advice on what should be done with what is now before us and is seen as the cabinet draft. Those arguing for it to be discarded, he warned that is not a mature decision. He explained just as the government has the right to craft its own version of a constitution, so does the parliament, at committee stage, also has the right to scrutinize the draft. Whatever may be controversial, they can object to it and ask for amendments. He said that is what should be done. While in the interim, opinions can be stated and taken into consideration at the committee stage. Then at the consideration stage, they will make their recommendations. If the majority disagrees to such a draft document, what remains will possibly be only a few contentious clauses. National Assembly members then will examine whether those clauses are entrenched or non-entrenched. If non-entrenched, prepare another bill for their amendment. If entrenched refer to a referendum. This he said will bring us back to his initial position in 2017.
Instead of a whole constitution being shelved, what may be agreed upon and settled for is enactment in different pieces. Halifa concluded his presentation with a plea to Gambians. He hopes as Gambians; “we will teach each other but also learn from each other. The constitution is what defines and governs us.”
