Monday, October 19, 2020

Is The 1997 Constitution A Sacred Or Mundane Text?

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COMMENTARY BY HALIFA SALLAH PART 5

Context is a derivative that influences content in a constitutional review exercise. The focus of this intervention is to unravel the web of confusing exchanges which polluted the debate on constitutional reform masterminded by the likes of the Demagogue who entered into a terrain they have little acquaintance of and are therefore not lost but would like to take the masses with them on a fishing expedition without fishing gears. Instead of accepting the bareness of his arguments and apologise to enable me to change my approach, he prefers to cover up unpleasant facts with common sense platitudes and diversionary references to NADD, The Coalition and other unrelated issues so as to dismiss any attempt to proceed with the debate on the constitutional review process to prove that the contradiction which arose between some Muslims and Christians was due to default in knowledge based on types and essence of constitutions. I will not be distracted but will in another terrain deal with NADD and the Coalition. We will see who will hang their heads in shame.

One cannot malign against a person and still claim to have respect for him. One cannot be serious about love for truth and still evade and further call on others to evade dialogue to reach the unalloyed truth. This tragicomic approach to national discourse aimed at shaping the destiny of a people is not helping the image of the Demagogue. If he admits that demagogy has no place in a constitution building process of a sovereign people and concurs that we remain vigil in defence of our birth rights as sovereign Gambian citizens irrespective of our ethnolinguistic origin, religions, gender, birth or any other characteristics I would have rested my case. However, to propose that we amputate the dialogue, after I had called on the University students to invite us to clarify matters on secular constitutions and other constitutional matters, in an academic domain, is to propose that ignorance be left to triumph over truth. The debate about Constitution building is not about philosophy.

The debate is to gain clarity on the type and content of a Constitution and further elucidating where the human rights of citizens start and end and where their group rights, including freedom to hold a religious belief and practice one’s belief, start and end in a Republican Constitution. This is what has been distorted.

The Demagogue should be ignored. The Head of the Islamic Council must be following this debate. The whole Muslim and Christian Communities are following this debate. I will achieve my purpose of uniting the two communities to build consensus in pursuing their group rights under the Constitution. If I fail to do so then the demagogue would have every right to question my competence.

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Allow me to reiterate that everybody has equal right to participate in the making of the Constitution and no one has the right to dictate what the CRC does.

We will now proceed to guide Gambians who have no knowledge of the types and origins of constitutions to have greater clarity on the context and content underlying the nature and characteristics of Constitutions which I have made incontrovertibly evident in my manuscript “The Juridical foundation of the Republic.”
The question now arises: Is the 1997 Constitution a Sacred or Mundane document?
Let us revisit the text to get an answer.

Section 1 Subsection (1) of the 1997 Constitution reads:
“The Gambia is a Sovereign Republic.”

Did this come from any of the holy books? The answer is in the negative.
Subsection (2) adds:

“The Sovereignty of The Gambia resides in the people of The Gambia from whom all organs of government derive their authority and in whose name and for whose welfare and prosperity the power of government are to be exercised in accordance with this Constitution.”

The Constitution says that all authority must be derived from the people of the Gambia. Who are the people of the Gambia? They are the citizens of the Gambia, irrespective of ethnolinguistic origin, religion, gender, place of birth, descent or any other difference.

Is this authority given to the Gambian people from a sacred book? The answer is in the negative.

Section 4 of the Constitution reads:

“This Constitution is the supreme law of The Gambia and any other law found to be inconsistent with any provision of this Constitution shall, to the extent of the inconsistency, be void.”

Is this from any holy book? The answer is in the negative. Can a state with such a constitutional provision be defined as a state based on the teaching of a given religion? The answer is in the negative.
Section 60 adds:

“No association, other than a political party registered under or pursuant to an Act of the National Assembly, shall sponsor candidates in public elections.
(2) No association shall be registered or remain registered as a political party if—
(a) it is formed or organised on an ethnic, sectional, religious or regional basis;
(b) its internal organisation does not conform with democratic principles;
or
(c) its purpose is to subvert this Constitution or the rule of law.”
Are these provisions from any holy book? The answer is in the negative. Hence the 1997 Constitution is not a sacred document. It is mundane and temporary not sacred and eternal. It is man and woman made and changeable by man and woman. This is in fact buttressed by Section 100 of the constitution which reads:

“( 1) The legislative power of The Gambia shall be exercised by Bills passed by the National Assembly and assented to by the President.
(2) The National Assembly shall have no power to pass a Bill –
(a) to establish a one party state;
(b) to establish any religion as a state religion;
(c) to alter the decision or judgment of a court in any proceedings to the prejudice of any party to those proceedings, or deprive any person retroactively of vested or acquired rights, but subject thereto, the National Assembly may pass Bills designed to have retroactive effect.”

Could such a provision be engendered by a holy book? The answer is in the negative. This confirms that the 1997 Constitution is of mundane origin. It could be amended by the National Assembly and has explicitly restrained the National Assembly from declaring any religion as a state religion.

Interestingly enough, the Demagogue had sworn without any protest or reservation to defend the provisions of a mundane constitution without fear or favour, affection or ill will as a government Minister.

What type of state has the 1965, 1970 and 1997 Constitutions created? How is that state called under constitutional law? How do religious groups ensure that their freedoms of belief and worship are protected and not trampled upon under mundane constitutions is what should be the subject matter of the debate that the Demagogue should have helped to interrogate if he was not engaged in miseducation of the youth and a divisive pinprick calling for a separation of the Christians and Muslims of our dear motherland, the homeland of all the Gambian people irrespective of their divergences. These are the questions I will now proceed to answer.

Read part 6 https://foroyaa.net/constitutional-law-and-the-type-of-constitutions-of-the-gambia/

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