Thursday, October 29, 2020

CRC Chairperson Justice Jallow Debunks Critics

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Chairperson of The Gambia Constitutional Review Commission said on Thursday that it was unfortunate that a tiny minority of critics have levelled the claim that the Draft Constitution was plagiarized.

He said: “It is unfortunate that a tiny minority of critics have levelled the claim that the Draft Constitution is plagiarised. The CRC, with its team of experienced draftspersons and international consultants/drafters, has not given any credence to such claims and essentially view the claims as merely stoking emotions to back up the critics’ rejection of the Draft Constitution.”

“Indeed there have been those that never said anything good of the CRC from the time of its inception. For them, it was personal.”

Addressing a press conference, the learned Supreme Court judge said the word “plagiarise” relates essentially to copyrighted work that is protected and is used without the rightful authority.

The man, whose job is to interpret constitutional provisions said: “No Constitution in this world is copyrighted and that’s for a good reason. Every Constitution, including the Constitution of the USA that has been touted as a model by some critics, has drawn inspiration from some one or more constitutions or other written literature. International experts on constitutional law advise reliance on best constitutional models for the development of new constitutions.”

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“ We see the best example of such encouragement in the Website called “Constitute.com” which collects and collates the constitutions of the world for purposes of serving as a reference to constitutional builders and researchers.”

Chairperson Jallow added that it is perfectly acceptable and indeed encouraged in the legislative drafting world that drafters of laws may draw inspiration from other written laws by adopting specific provisions thereof or adapting such provisions to special circumstances.

He added: “This practice is non-controversial, well except in The Gambia. One only has to review various Commonwealth constitutions to see evidence of adoptions or adaptations. The Constitution of Kenya drew much inspiration from the Constitution of South Africa and was effectively the most modern on the African Continent at that time (2010). The Constitution of Kenya adapted and, in some instances, made better the South African constitutional provisions that it adopted or adapted. The 2010 Constitution of Kenya has been hailed as a forward-looking Constitution on the African Continent whose development had had the benefit of domestic, UN and other international expertise input.”

The Gambia shares the same Commonwealth tradition with Kenya and other Commonwealth countries. Constitutionally, The Gambia has more in common with Kenya, South Africa, Ghana, Nigeria, Sierra Leone, Uganda, Zimbabwe, Zambia, Tanzania, Malawi, Botswana, Namibia, Lesotho and Liberia than it has with Senegal or other French-speaking countries, he noted.

He said: “I mention these Commonwealth countries specifically because the CRC has studied the Constitution of each and, where appropriate, has drawn inspiration from them as circumstances required having regard to The Gambia’s own special circumstances. The Report accompanying the Draft Constitution is instructive on this.”

He added the CRC has not blindly adopted or adapted constitutional provisions from elsewhere; noting it thoroughly reviewed and applied them in The Gambia’s own national circumstances, especially having regard to the opinions expressed by members of the public during the public consultations. He said it is from such sources that international best practices are gleaned.

He said: “Within the Commonwealth we see a number of laws, including constitutional provisions, that are similar or the same – referred to in judicial terms as being in pari materia. There is judicial value in this, in that courts are able to consider the decisions of other foreign courts on laws that are similar or the same to assist with deciding on matters before them.”

“The decisions of foreign courts in relation to the laws of a similar or same nature may not be binding on the local courts, but they can have a persuasive effect in deciding a case.”

The constitutional history of The Gambia, he said, shows that the 1970 Constitution drew a lot of inspiration from the Jamaican Constitution of 1962 which it adapted; adding the 11 Chapters of the 1970 Constitution are essentially the same as those of the 10 Chapters of the Jamaican Constitution.

He said: “Similarly, Chapter III of the 1970 Constitution was adapted from Chapter III of the Jamaican Constitution; the minor differences are in the areas of protection of persons detained during a period of public emergency, which the Jamaican Constitution did not have. Similarly, the Jamaican Constitution had no provision on prohibition of slavery and forced labour which the 1970 constitution adapted from the European Convention on Human Rights.”

He said in a similar vein, the 1997 Constitution of the Republic of The Gambia drew enormous inspiration from the Constitution of Ghana.”

He added: “That is constitution-building! Trying to denigrate the toil and hard work of the CRC on this issue has been most unfortunate.”

He said the Civil Marriage Ordinance, 1910 of Sierra Leone was adapted by The Gambia through the Civil Marriage Act, 1938 and by Kenya through its Marriage Act 1962 (revised in 2012) .

He said: “The majority of the provisions in these legislations are the same, with The Gambia adopting verbatim most of the provisions of the Civil Marriage Ordinance of Sierra Leone.”

He added Kenya’s Evidence Act 1963 was adopted by Nigeria in its Evidence Act 1990 (now repealed and replaced by the Evidence Act 2011). The Gambia’s Evidence Act 1996 largely adopted Nigeria’s Evidence Act 1990, he noted.

He said The Gambia Nationality and Citizenship Act 1965 was partly adapted by Sierra Leone in its Citizenship Act of 1973.

He said the Gambia Criminal Code and Criminal Procedure Code were modelled on similar statutes of Kenya which, in turn, drew inspiration from similar legislation in Nigeria; the latter adapted its laws on the subjects from similar laws from Queensland (Australia).

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