Lawyer Ousainou Darboe Says Draft Constitution is More Progressive than the 1997 Constitution


By: Yankuba Jallow

Gambian Lawyer Ousainou Darboe said on Saturday the draft constitution is more progressive than the Constitution of the Second Republic.

He added that it has introduced new things which were not part of the 1997 Constitution.

He said the draft constitution is a product of the wide range engagement between the CRC and the Gambian community both at home and abroad.

The senior lawyer said the chapter on leadership and integrity is a reflection of best practices in other countries. He said the human rights provisions have been expanded. He added that the draft constitution gives the people the right to question a declaration of state of emergency by the President.

The veteran lawyer made this statement at a forum organised by the proprietor of Paradise FM, Haruna Drammeh. The programme held at the American International University in Kanifing on Saturday night saw the following panellists Lawyer Fatou Jawo, nominated member Ya Kumba Jaiteh, Dr. Ismaila Ceesay and Professor Abdoulie Saine expressing their views on the draft constitution.

Lawyer Dr Lamin J. Darboe said there are many contradictions in the final draft constitution.

“There are serious contradictions there – between similar provisions talking about identical issues,” he said.

Darboe said it is too bulky and packed with none constitutional provisions with several contradictions.

Darboe said constitutions are supposed to perform particular functions.

“If you look at this (draft) constitution, the way power is shared between the different branches of government does not particularly appeal to me,” he said.

The legal practitioner said he does not understand why the National Assembly should be headed by a non-elected member.

“I don’t understand why the National Assembly should be headed by a non-elected member. I thought we put that kind of situation behind us but unfortunately the Speaker of the National Assembly, if this draft is accepted, will be a non-elected member,” Darboe said.

He said he does not understand the logic of taking the Speaker from outside the National Assembly.

“That to me is retrogressive. It is not progressive. The National Assembly must be able to control its own proceedings in their entirety,” Darboe remarked.

He added: “The Constitutional Review Commission cannot impose a Speaker on the National Assembly.”

Barrister Darboe said the judiciary and the legislature have a role in the process of impeaching (removing) the President but in terms of removing a judge, the President only approves for the start of the process and when it is completed, he (the President) writes to the judge informing the person of his or her removal.

“The judiciary cannot punish itself and that is what happens in the case of removing judges. That is not fair,” he said.

Darboe argued that the pension benefits for the judiciary are far better than that of the National Assembly.

“In fact the National Assembly retirement benefits is not mentioned,” he said, adding “if the President and the superior court judges have their rights spelt out in the constitution, why will the National Assembly, a core-equal branch of government, be subjected to inferior legislation as far as retirement benefits are concerned,” he said.

The constitutional lawyer disagreed with the provision that the offices of the majority and minority leaders be made constitutional offices.

“These are internal control mechanisms. There is no reason to elevate them to a constitutional office,” Darboe said.

Darboe said there are several conflicts in the final draft constitution.

“I don’t think this constitution should be supported. I don’t think it necessarily reflects the views of Gambians,” Darboe said.

He criticised the CRC for copying and pasting the 2010 Kenyan Constitution. Darboe said there are controversies in the draft constitution. He opined that laws cannot be made retrogressively, therefore the counting of the tenure of the President cannot commence in 2017.

“I believe in the interest of the rule of law, the counting should begin in 2021. The term, if you follow the law, has to commence in 2021,” Darboe said.

The lawyer said the presence or absence of the word (with or without the word secular) does not make any difference. He said the rights of all faiths have been guaranteed.

On the participation of the Gambians in Diaspora, Darboe said once you are a Gambian whether at home or in the Diaspora you should have the right to vote and contest in elections.

Lawyer Fatou Jawo, deputy president of National Youth Parliament. Said the constitution is a progressive one compared to the 1997 Constitution. It was consultative and people’s views and aspirations have been included, she added.

She said the introduction of two-term limit, women representation in the National Assembly, rights of the youth, an independent institution like the anti-corruption commission made the draft constitution a progressive one.

“I think the CRC did a wonderful job. The (draft) constitution is the reflection of the will of majority The Gambians because the consultation was very much intense and rigorous to the extent that even the Diasporans were reached out to,” she said.

On the term of the incumbent, Jawo said the counting of President Barrow’s tenure should begin in January 2017, adding he should honour the wishes and aspirations of the people.

She opined that the absence of the word ‘secular’ does not make a difference, adding no person or authority has the power to declare the country a religious state.

Counsel Jawo opined that the Speaker should be elected from the elected members of the house and not outside.

She said youth representation is not adequately provided.

“Leaving out the young people is discriminatory,” she said.

Professor Abdoulie Saine said the draft constitution is a good one. He said the draft failed to include the term secular.

“I believe it should have included the term secular, but they took the easy way,” he said.

He said secularism protects all faiths and minorities. He added that the CRC succumbed to the general argument of the majority.

Professor Saine said the counting of President Barrow’s term should begin in 2017.

Professor Saine opined that the Speaker and the two deputy speakers should be elected from the members of the National Assembly and not outside.

Nominated member of the National Assembly, Ya Kumba Jaiteh said the draft is a progressive one adding the drafters have ousted the President’s power to nominate members of the National Assembly.

Dr. Ismaila Ceesay said the draft is a progressive document, adding it passed three stages test of legitimacy, participatory and inclusivity. He added that the provisions of the draft are better than the 1997 constitution.

Ya Kumba said the draft has provided enough protection for people of all faiths therefore it is needless to add the word secular.

Dr. Ceesay said, President Barrow should exercise leadership and accept this term to be counted as his first term.

Dr. Ceesay said there are provisions that are discriminatory to the Diaspora in terms of participation in elections.

He said the Speaker should be elected from the members of the National Assembly.