By Yankuba Jallow & Nelson Manneh
Justice Cherno Sulayman Jallow, the Chairperson of the outgoing Constitutional Review Commission (CRC), on Thursday October 1st told the press that the new Draft Constitution does not make any provision for gay marriage.
“I thought we had trashed this out properly during public consultations and laid it to rest. But there seemed to be new sermons on the subject,” he said.
When the CRC published the first Draft Constitution in November 2019, the drafters replicated Section 27 of the 1997 Constitution, in it.
Section 27 of the 1997 Constitution provides the following: “Men and women of full age and capacity shall have the right to marry and found a family.”
This created an uproar with many claiming that the Draft permitted gay marriage because Subsection (2) of Section 27 indicates that ‘‘marriage shall be based on the free and full consent of the intended parties” without specifying who those parties were.
“From a legal standpoint, we did not think so as the provisions of the Section should be read conjunctively and not disjunctively. But nonetheless we sought to clarify the provision better. Hence Section 54 in the new Draft Constitution and there were no issues with that provision during the second round of public consultations,” he said.
“Frankly, I cannot analyze this subject better than how Foroyaa Newspaper did in their Editorial of 28th September 2020. The truth and fact are that Section 54 of the Draft Constitution cannot by any stretch of legal interpretation, be interpreted as permitting gay marriage. The irony though is that with the new Draft Constitution now halted on its tracks, we are stuck with Section 27 of 1997 Constitution. That is enough said,” Jallow told the press.
For the purpose of clarity for our readers, we reproduce the Foroyaa Editorial of 28th September 2020:
‘‘Foroyaa Editorial of 28th September 2020’’
‘‘The Draft Constitution and Same Sex Marriage’’
‘‘Section 27 of The 1997 Constitution states:
“Right to marry:
(1) Men and Women of full age and capacity shall have the right to marry and found a family.
(2) Marriage shall be based on the free and full consent of the intended parties.”
Clause 54 of the draft Constitution states:
“A man and a woman of full age and capacity have the right to marry and found a family and as such, marriage shall be based on the free and full consent of the man and the woman.”
‘‘The CRC decided to make it impossible for anyone to give any interpretation to the right to marry by indicating that a man and woman have a right to marry by using the indefinite article and further based their marriage on free and full consent by using the definite article.’’
‘‘In the first phrase, an indefinite article is used to introduce the concept of marriage between a man and a woman, thus limiting the number of people entering the marriage to one pair.’’
‘‘Furthermore, the second phrase introduces the definite article by indicating that such a marriage between the pair shall be based on the full consent of the pair.’’
‘‘Anybody who gives any other interpretation of this Clause must be seen to be guilty of ignorance or deception.’’
‘‘Suffice it to say, marriages are officiated based on law. Muslims have the Muslim Marriage Act. Christians have the Christian Marriage Act and the State has the State Marriage Act. There is no law in the Gambia that talks about Same-Sex Marriage Act. All those who are giving sermons against Clause 54 of the draft Constitution should be asked why they did not give sermons against Section 27 of 1997 Constitution which the Jammeh administration brought into being, and which is still the Constitution of the Republic. Nobody had ever indicated that Section 27 could be relied on to promote same-sex marriage.
Ignorance is the road to national distrust, disunity and retrogression.’’
‘‘Gambians should always bear in mind that an intellectual without conscience is a virtual criminal. Such an intellectual would promote truth as falsehood and falsehood as truth.’’
For the information of the reader, the Draft Constitution failed to get the required threshold of votes at the National Assembly for it to be read and heard the third time when some Lawmakers and members of the public began giving their own interpretation of the Draft Constitution on gay and lesbian rights to marriage in the Gambia.