COMMENTARY BY HALIFA SALLAH, PART 9
Incontrovertible evidence has been given to prove beyond doubt that the Gambia has always had a constitution which is mundane but did not negate the right to religious belief and practice.
The 1965 and 1970 Constitutions did not arise as a result of consultation with the citizenry on content. The citizens just participated in referenda to accept or reject readymade texts.
It was the coup of 1994 that led to suspension of key portions of the Republican Constitution thus transforming the Gambia into a quasi-monarchy.
From day one of the coup we called for the restoration of the Republic and the sovereignty of the people. Four developments were considered to be significant if the restoration of the Republic and the sovereignty of the people were to become a reality. The process of Constitutional Review, Electoral Review, Registration of voters and Elections had to proceed in proper sequence according to a time bound schedule. We saw it as our role not only to contribute to the process but also to monitor whether the activities were proceeding according to schedule. We also continued to monitor the governance environment and made observation on how it could be improved pending the transfer of power to an elected government.
Since there could be no Republic without a Republican Constitution the first most important task was the Constitutional Review process.
I will review how the process started and proceeded to expose the outcome. The emphasis is to show what factors are considered in the Constitution building process and how the concerns of faith-based group rights find their way in the text of a mundane Constitution that bars the establishment of any religion as a state religion.
The Instrument Establishing the Constitutional Review Commission came into being on 31st March 1995 when the AFPRC promulgated the Constitutional Review Commission Decree. The Commission comprised
‘’(a) a Chairman who shall be a Judge of the Supreme Court or other higher court of equivalent status in a Commonwealth country or a legal practitioner of at least ten years standing;
(b) eight other persons to be appointed by the Council.’’
They were given the following terms of reference which the people should focus on to know whether they have fulfilled their role or not by weighing the content of the Constitution of the second Republic against the mandate of the drafters:
‘The Terms of reference were incorporated in Section 5 of the Decree. It reads:
“(1) The terms of reference of the Commission shall be
(a) to formulate proposals for a Draft Constitution for The Gambia taking into account:
(i) the Constitution of the Republic of The Gambia, l970 for purposes of determining its adequacy or otherwise for the good governance of The Gambia;
(ii) Laws passed after the enactment of the Constitution of 1970 whose provisions or part thereof merit inclusion in the draft Constitution;
(iii) Views and comments of members of the general public including professional and other bodies and associations;
(iv) Matters which in the Opinion of the Commission are reasonably related to this Section;
(v) Such matters as may be referred to it by the Council.
(b) Submit to the Council a draft Constitution which shall form the basis of a new Constitution for The Gambia; and
(c) to present a report of their Activities which shall contain recommendations and such other matters that merit consideration by the Council.’’
They were given three months to perform their task. The following principles were also laid for the commission to bear in mind when conducting its work:
“Principles to be embodied in the Draft Constitution
6. The Draft Constitution referred to in Section 5 (b) shall, inter alia, contain matters that relate to:
(a) The sovereignty, territorial integrity and independence of The Gambia; emphasizing their inviolability.
(b) The definition and acquisition of Gambian citizenship.
(c) The entrenchment of provisions relating to the respect for and protection of fundamental human rights and freedoms and universal adult suffrage.
(d) The establishment of a national institution with adequate funding to – carry out a continuous civic education process among the people with emphasis on their empowerment to the people to enable them participate meaningfully and effectively in determining the political and social economic governance of the country, in an atmosphere that gives full expression to the will of the people.
(e) The encouragement of the growth of the spirit of tolerance and multiculturalism among Gambians.
(f) The establishment of a multi—party democratic system of Government.
(g) The establishment of an Independent Electoral Commission that will guarantee free and fair elections and an orderly succession to Government.
(h) The creation of viable political institutions that will guarantee the independence of the judiciary and clearly demarcate the division of responsibility among the Executive, Legislature and the Judiciary with appropriate checks and balances.
(i) The equitable distribution of national resources among the division and within the provinces and the various sectors of the national economy for orderly development of the country.
(j) The creation of an effective local Government system that allows full participation of the people in the administration of their localities;
(k) The entrenchment of provisions that banish the formation of political parties based on religious, cultural and ethnic lines or any considerations which may induce divisive political activity, or the promotion of unpatriotic and non— national interests.
(1) The formulation of mandatory provisions that require the Accountant General and the Auditor General to render accounts on the public finances with appropriate sanctions for non—compliance.
(m) The formulation of provisions for the enforcement of probity, accountability and transparency in public office, protection for public property, public funds and other public assets, against abuse of office for whatever purpose with a view to eliminating the conditions that nurtured corruption in The Gambia for the past 30 years, with appropriate sanctions.
(n) The recognition of the need to instil in the Youth the noble principles of patriotism and probity in public life, and to make provision for rendering of compulsory national service by the youth in the 2nd cycle and tertiary institutions as their contribution toward the development of the country.
(o) The creation of adequate conditions for the defence of the country against all forms of aggression and interference both from within and outside the country by the Armed Forces of The Gambia.
(p) The inclusion of the provisions of Decree No. 30 on National Goals and Objectives to the extent that they do not overlap or conflict with other principles mentioned earlier, but with the view to giving full effect to those prescribed National Goals and Objectives with special emphasis on the empowerment of the people particularly in the development of the private sector as the engine of growth for national development.
(q) The formulation of guidelines for the establishment of a unique, clean and responsive private sector.
(r) The making of provisions for the enforcement of the provisions of the Constitution.’’
THE INCLUSION OF FAITH FAITH-BASED GROUP RIGHTS IN THE 1997 CONSTITUTION
How are Muslim and Christian faiths catered for in the 1997 Constitution? Are the safeguards adequate or inadequate? What reforms are relevant to faith-based groups? What is the way forward in Constitution building in terms of balancing the powers of religion and the powers of the state?
To be continued