Wednesday, July 28, 2021

Halifa Sallah Explains Reason for Attempting to Rescue Constitution Promulgation Bill

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By Yankuba Jallow

Halifa Sallah has given a detailed explanation regarding his motion seeking to rescue the Constitution Promulgation Bill 2020 which failed to pass on the second reading at the National Assembly.

The National Assembly on the 22nd September 2020 rejected the draft constitution bill after it failed to get the required threshold to pass.

Sallah’s statement is a reaction to the Speaker’s ruling denying him the chance to move his Bill. Sallah in his speech gave detailed history of the constitutional building process starting from the Coalition 2016 formation in which he was central.

He said the National Assembly is better placed to bring back the Bill than the Executive who can only bring a new bill which requires 3 months publication in The Gazette and 10 days publication before it is introduced.

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“That will take a long time and no one is sure that it will pass,” Sallah said.

He said if the National Assembly rescinded their decision with respect to the Bill it will give them chance to discuss the Bill where consensus will be built and clarifications would be made for some of the clauses which some deputies don’t understand. 

The Member for Serrekunda said the Constitution and Standing Orders among others have no expressed provisions as to the motion he wished to make.

He said consequently the Standing Orders make provision for the Speaker to use his/her discretion when such issues arise.

Deputy Speaker Momodou LK Sanneh, who deputized for the Speaker during the sitting, after examining Sallah’s motion said the lawmaker has failed to state the urgency of the motion. In short, he denied Sallah’s wish to be allowed to make a motion.

Sallah said he respects the decision of the deputy speaker, but he said it was not right. Sallah argued that constitutional building process is urgent.

Sanneh said the Bill is dead and there is an ongoing process to reintroduce it. Sallah said the Bill could have been brought back provided the Deputy Speaker had allowed him to move his motion.

Sallah said the parliament would have had a second chance to discuss the Bill. Read Foroyaa on Friday for more on Sallah’s press conference.

Below is the verbatim motion which Sallah intended to move at the National Assembly, but the Deputy Speaker wouldn’t allow him.

“MOTION TO RESCIND NATIONAL ASSEMBLY DECISION NOT TO SUPPORT THE SECOND READING OF THE CONSTITUTION OF THE GAMBIA( PROMULGATION)  BILL 2020 ON THE BASIS OF THE  THREE- QUARTERS MAJORITY REQUIRED BY SECTION 226 OF THE CONSTITUTION OF THE REPUBLIC OF THE GAMBIA

Having regard to Standing Order 8 of the Standing orders which states: “In all cases where matters are not expressly provided for by these Standing Orders, any questions on procedure or order shall be decided by the speaker;”

Having regard to paragraph (2) which adds: “The decision made in paragraph (1) shall be based on:

a) the Constitution

b) Statute Law

c) the precedents, customs, procedures, traditions and practices of the Assembly; and

d) the precedents, customs, procedures, traditions and practices of other jurisdictions to the extent that they are applicable to the Assembly;”

Having regard to the Precedence set in allowing the motion to rescind a decision earlier made in a preceding session to be moved during a subsequent session, on a sound basis of law and precedence; 

Having regard to Section 101 Subsection (1) of the Constitution which states:

 “Subject to the provisions of this section, a Bill or motion may be introduced in the National Assembly by a member of the Cabinet or by a member of the National Assembly, and the National Assembly shall give consideration to Bills and motions so introduced;”

Having regard to Subsection (5) of Section 101 of the 1997 Constitution, which adds:

 “when a Bill is introduced into the National Assembly, it may be allocated to an appropriate committee for examination, and a report made thereon to the National Assembly;”

Having regard to Standing Order 62 Paragraph (8) which states:

 “The provision in Standing Orders 62 to79 shall apply to Government Bills, Committee Bills and Member’s Bills unless otherwise provided for herein;”

Having regard to the fact that the consideration and committee stages of a Bill as stipulated in Section 101 Subsections (1) and (5) of the 1997 Constitution are clearly stipulated and sequenced under Standing Orders 65 and 66 as follows:

Order 65: “A Bill shall be introduced by the person in charge of the Bill by handing a copy of it to the Clerk, who shall read aloud the short title, whereupon the Bill shall be deemed to have been read a first time.”

Order 66 Paragraph (1) states:

 “Following the first reading, the stages in the Assembly’s consideration of a Bill shall be –

a) Second Reading: a general debate on the Bill with an opportunity for members to vote on its general principles;  

b) Committee Stage: detailed investigation by a Committee followed by a report to the Assembly. A Bill may be committed to a Select, Standing or Special Select Committee or to a Committee of the whole Assembly;

c)  Consideration Stage: Consideration of and opportunity for Members to vote on the detailed clauses of the Bill including amendments to the Bill. Consideration stage is taken by the Assembly;

d) Third Reading: Passing or rejection of the Bill without further amendment;”

Having regard to Section 226 of the Constitution which provides for a second and third reading of a Bill aimed at altering the Constitution. 

Having regard to Subsection (9) of Section 226 which states:

“In this section-

(a) references to this Constitution include references to any law that amends or replaces any of the provisions of this Constitution;

(b)references to the alteration of this Constitution include references to the amendment, modification or re-enactment with or without amendment or modification, of the Constitution or of any provision for the time being contained in this Constitution, the suspension or repeal or the making of different provision in lieu thereof, and the addition of new provisions to this Constitution.”

Having regard to Section 226 Subsections (2), (3) and 4 which stipulate how the constitution could be altered either by a Bill passed by the National Assembly and assented to by the president “after being supported on the second and third reading by the votes of not less than Three-quarters of all the members of the National Assembly” or through a referendum before passing of the Bill and presentation to the President for his or her assent  in case of amendments of specific provisions of the Constitution:

Having regard to Section 226 Subsections (4) and (7) which restrict the power of the National Assembly to Pass a Bill altering the following provisions unless the Bill is subjected to a referendum:

“(7) Subsection (4) applies to-

(a) this section; (meaning Section 226 -my input)

(b) Sections 1 and 79 (2) (which relate to the sovereignty of The Gambia);

(c) Sections 4, 5 (I) and 6 (2) (which relate to the Constitution, as the supreme law of The Gambia);

(d) Sections 8 and 13 (4) (which relate to citizenship);

(e) Chapter IV (which provides for the protection of fundamental rights and freedoms);

(j)   Sections 39 (1),  42 (1),  47 (which  relate to elections  and  the Independent Electoral Commission);

(g) Section 63 (1) and the first sentence of section 71 (2) (which relate to the term of the President and the qualifications for Ministers);

(h) Sections 85 (4) and 160 (7) (which relate to the Director of Public Prosecutions and the independence of the Auditor-General

(i) Sections 87 and 100 (which relate to the National Assembly and the legislative power);

(j) Sections 120 (1) (a), (2) and (3), 121 (1), 123, 126 to 128, 130, 132, 133, 135 and 138 (1), (4) (which relate to the judicature);

(k) Sections 149(1) and 151 (1) which relate to taxation and the withdrawal of money from public funds);

([) Section 193 (1) (which relates to local government);”

Having regard to Section 226 Subsections (2) and (3) of the Constitution which permits the amendment of all other provisions not mentioned under Subsection (7) without a referendum;

Having regard that THE CONSTITUTION OF THE REPUBLIC OF THE GAMBIA, 2020 (PROMULGATION) BILL,2020 sought to repeal every provision of the 1997 Constitution, in its entirety, through a referendum by relying solely on Section 226 of the Constitution which does not provide for such holistic alteration of all the provisions of the Constitution through a referendum;

Having regard to Section 102 of the 1997 Constitution which states:

“In addition to the other powers conferred on the National Assembly this Constitution or any other law, the National Assembly shall have power to –

 {d)    include in a Bill a proposal for a referendum on an issue of national concern defined in the Bill;”

Having regard to Section 100 of the Constitution which states:

 “(1) The legislative power of The Gambia shall be exercised by Bills passed by the National Assembly and assented to by the President;”

Whereas, the National Assembly has all the powers to alter or facilitate the altering, repealing of the Constitution and the promulgation of a constitution in lieu of the 1997 constitution by relying on section 102 and Section 226 of the Constitution and setting new precedence;

Whereas the Constitutional Review Commission Act, 2017 is an Act enacted by the National Assembly and the President, to provide for the establishment of a Constitutional Review Commission to draft and guide the process of promulgating a new constitution for the Gambia and for connected matters;

Whereas, Section 21 of the Act orders that “The Commission shall, upon completion of its work, submit a Constitution (proposed new Constitution} and a report thereon (in originals ) to the President ;

Whereas, upon the submission of the draft Constitution and report to the President the Commission has published the proposed Constitution and report as provided for under Section 21 Subsection 2 of the Constitutional Review Commission Act;

Whereas such a proposed new Constitution cannot be promulgated without the laying of a Bill before the National Assembly aimed at altering all the provisions of the 1997 Constitution by way of wholesale repeal and enacting the clauses of the proposed new constitution by way of holistic  promulgation;

Whereas the Minister of Justice had introduced the Constitution of the Republic of The Gambia 2020 (Promulgation) Bill, 2020 for the first reading before the National Assembly;

Whereas, the Minister of Justice, did move a motion for the second reading of the Bill on 22nd September 2020 followed by a debate on the general merits and principles by the National Assembly members;

Whereas any or all the provisions of the Constitution could be amended and new provisions added to the 1997 Constitution either by passing a Constitution Amendment Bill for assent by the President or by approving a Constitution Amendment Bill for referral to the Independent Electoral Commission for a referendum, which ever provision is applicable under the terms and conditions set under section 226 of the 1997 Constitution;

Whereas the National Assembly has the sole power to consider any Bill to alter the 1997 Constitution in its entirety by remitting it to a committee which is embodied with power to take evidence, scrutinise details and recommend amendments   before the consideration of a Bill, clause by clause by the Assembly and its third reading;

Whereas Section 102 and Section 108 of the Constitution have given powers to the National Assembly to rely on its Committees and Standing Orders to provide remedy to any Constitutional vacuum in the exercise of its law-making powers;

Whereas, Section 226 of the Constitution provides for the approval on the second and third reading before any alteration of the Constitution could take place, with or without referendum;

Whereas, Standing Order 68 provides for a Bill to be referred to the Assembly Business Committee for committal to a relevant Committee, including committee of the whole Assembly, for detailed scrutiny, if the motion on the second reading is carried;

Whereas, on 22nd September 2020, the motion for the second reading of

 “ The Constitution of the Republic of The  Gambia  2020 ( Promulgation) Bill, 2020” was not supported by the  Three -quarters   majority  required by the Constitution for the Bill to proceed to the Committee stage ;

Whereas, Section 22 of the Constitutional Review Commission Act, 2017 aimed to transform the members of the Commission into subject matter specialists who would be obliged to attend Committee meetings of the Assembly to clarify any matter and answer any question relating to the clauses of the proposed new Constitution;

Whereas, an impasse has been created in the Constitutional reform process by the 22nd September 2020 Decision of the National Assembly;

Whereas, such impasse could be rolled back by rescinding the decision taken by the National Assembly on 22nd September 2020 to reject the motion for the second reading;

In the spirit of unlocking the potential in all national Assembly members to rise up to any occasion aimed at upholding  and defending the viability and integrity of the Assembly and  the supreme interest of The Gambia our home land, I move with all the solemnity and humility I could muster that this august National Assembly rescinds its decision of 22nd September 2020 to reject the second reading of the Bill Entitled “The Constitution of The Republic the Gambia 2020(Promulgation Bill, 2020;

I further move as follows:

 a) that upon rescinding its decision, the Assembly prevails on the Minister of Justice to withdraw the Bill or the motion for the second reading in order to review the provisions of the Constitution and the processes under the standing orders that are applicable in facilitating the promulgation of new Constitution and the repealing of the one in force, in full consultation with the National Assembly;

b) that the Assembly Business Committee be charged with the responsibility of assigning the relevant Committee with the task to review Section 22 of the Constitutional Review Commission Act in order to prescribe the role of the Constitutional Review Commission during the Committee stage of the National Assembly aimed at reviewing the schedule of the Bill embodying the proposed new Constitution;

c) that the Assembly convenes a special session to dispose of the Constitution of the Republic of the Gambia 2020 (Promulgation) Bill, 2020 and all other Bills within its remit in January 2021.”

THE END

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