Wednesday, May 27, 2020

Remarks By Justice Cherno Sulayman Jallow, Qc (Jsc), Chairperson Of The Constitutional Review Commission, On The Submission Of The Draft Constitution And The Report To His Excellency The President Of The Republic Of The Gambia, Adama Barrow

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Date: Monday, 30th March, 2020

Venue: Cabinet Office, Office of the President

Your Excellency, the President of the Republic

Your Excellency, Madam Vice President

Hon. Speaker of the National Assembly

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My Lord, the Hon. Chief Justice

Hon. Attorney General & Minister of Justice

Hon. Ministers for:

(i) Local Government, Lands & Regional Administration

(ii) Tourism

Secretary General

Secretary to Cabinet

Madam Vice Chairperson of the CRC

Other fellow CRC Commissioners

CRC Secretary

Researcher and our able scribe, Ndey Ngoneh Jeng

Ladies and Gentlemen

Good Morning!

Permit me, Your Excellency, to commence my remarks by thanking you personally for acceding to our request to have this time set aside to receive me and my fellow Commissioners to formally submit to you the results of our assignment as Commissioners of the Constitutional Review Commission (CRC). This has come at a difficult time for our country, but particularly for you as leader of our beautiful country, as we all grapple with the global pandemic of Covid-19 which is wreaking havoc around the world, The Gambia being no exception. We continue to pray to the Almighty God, who has power over all beings and all things, and who knows best, to deliver us and indeed humanity in general from the ravages of this virus. We also pray for your good health and strength and that of your lieutenants to do the best you can to give the country the hope our people need to persevere during this difficult time.

2. Today I am pleased, on behalf of my fellow Commissioners, to report to Your Excellency that the assignment you appointed us to perform back in June 2018 is now ready. When Your Excellency sworn into office the Chairperson, the Vice Chairperson and the 9 other Commissioners (all present here this morning) to serve as Commissioners of the CRC pursuant to section 5 of the Constitutional Review Commission Act, 2017 (“the CRC Act”), you reposed confidence in us and implored us at the same time to work diligently to execute our assignment in 2 respects: firstly, to review the 1997 Constitution of the Republic of The Gambia and write a new Constitution; secondly, to prepare a report with regard to the new Constitution. This was the fundamental purpose and object of the CRC Act as provided in section 6 (1) thereof. We were required to carry out our assignment in 18 months, with the possibility of an extension not exceeding 6 months as the CRC Chairperson may recommend and as the President may grant. The CRC was able to draft and publish the proposed Draft Constitution within the period of 18 months (which lapsed on 4th December, 2019). Your Excellency was kind in acceding to my subsequent 3 recommendations to extend the date for the submission of the results of our assignment up to 31st December, 2019 initially, then to 31st January, 2020 and finally to 30th March, 2020. This was in accordance with section 9 (2) of the CRC Act. In effect, the CRC has taken less than 2 years to deliver on its assignment.

3. In performing its functions, the CRC was required under section 6 (2) of the CRC Act to be guided by certain principles. These are (a) to seek public opinion and take into account such proposals as the CRC considered appropriate; (b) to review the current Constitution of 1997; (c) to adhere to The Gambia’s values and ethos; and (d) to safeguard and promote the following:

(i) firstly, The Gambia’s existence as a sovereign independent State;

(ii) secondly, the republican system of governance of The Gambia, which includes the country’s democratic values and respect for and promotion of the rule of law and respect for human rights;

(iii) thirdly, the separation of powers;

(iv) fourthly, national unity, cohesion and peace;

(v) fifthly, periodic democratic elections that are based on universal adult suffrage, including term limits for occupying the Office of President; and

(vi) lastly, the continued existence of The Gambia as a secular State whereby all faiths are treated equally and fairly and encouraged to foster national cohesion and unity.

4. In relation to all of these matters, the CRC Act required the CRC to afford all Gambians, both at home and abroad to the extent feasible, “the opportunity to freely express their opinions and make suggestions on matters they feel should be considered in the Constitution”. Furthermore, the CRC was empowered (where it considered it necessary) to invite persons to appear before the Commission to make representations on subject matters of their choice or on topics specified by the Commission. In the discharge and exercise of all of these functions and powers, the CRC, by virtue of section 7 of the CRC Act, was protected against the control or direction of any other person or authority; in other words, the CRC was given the desired independence to perform its functions as envisaged under the CRC Act. In addition, the CRC was empowered under section 11 of the CRC Act to establish such technical committees as it considered necessary to facilitate and assist the Commission in executing its assignment. The CRC invoked this power effectively to tap into national expertise to assist with the constitutional review process.

5. I am pleased to report, Your Excellency, that the CRC has throughout the performance of its functions and exercise of the discretionary powers vested in it under the CRC Act, adhered to the statutorily established functions and exercised its discretionary powers in a fair and balanced manner, bearing in mind at all times matters that it considered to be in the best interest and future of The Gambia. I made sure of this as Chairperson. Indeed from the inception of our work, I made sure that the ground rules were properly established and agreed upon. Our role as Commissioners was to facilitate public opinions, play the role of the devil’s advocate by ensuring the full coverage of all angles to an issue, make an assessment of what was essential or fundamental for inclusion in the Draft Constitution, and ensure a properly and effectively drafted Constitution that left little to no room for interpretation or uncertainty. Personal beliefs were eschewed and kept out of the decision-making process.

6. The processes and procedures adopted in developing the Draft Constitution are articulated in detail in the Report I will be submitting to Your Excellency shortly, along with the Draft Constitution. Suffice it to say, however, that the CRC approach from the inception of its work had been to utilise all available practical platforms to afford Gambians and other stakeholders the opportunity to participate in the Constitution-building process. The platforms included face-to-face public consultations, focus group discussions, written submissions on the Issues Document, online surveys, household surveys, face-to-face discussions with other stakeholders (including the 3 organs of State, relevant Government Ministries, Departments and Agencies, civil society groups, faith-based organisations, specific interest group associations and individuals), and review of media debates (including social media). In essence, Your Excellency, these consultation platforms represented the first of their type and magnitude in constitutional development in the history of The Gambia. No citizen can legitimately claim not to have been given the opportunity to participate in the CRC’s constitutional review process.

7. While ultimately the CRC Act empowered the CRC to exercise its judgment on what it considered appropriate, the CRC gave enormous credence to public opinion, recognising that Constitution-building must be centred on the people to be governed by the Constitution to give it the legitimacy to stand out as a credible and generally accepted instrument; hence the CRC’s motto of transparency, inclusiveness, representation, participation and ownership. Our own direct interface with the Gambian people (both at home and abroad) and other stakeholders, has been an eye-opener to the circumstances and needs of the people and provided us the opportunity to consider constitutional development in our context in its broadest perspective. We are enormously grateful to our citizens for the active interest they had developed in the constitutional review process from the commencement of our assignment and, perhaps even more importantly, the ideas they contributed to the development of their new Constitution. We, the Commissioners, drew inspiration from them and, without the ideas they so graciously shared with us, and sometimes with emotion and strong passion, the Draft Constitution would not have been of the quality we believe it is. Non-citizens and other stakeholders (within and outside the country) who contributed ideas to the CRC had equally made a huge positive difference to the work of the CRC.

8. Constitution-building is a serious business. But it is also a herculean task, especially when the drafters of the new Constitution are confronted with tons of wishes and aspirations for inclusion in that Constitution. When Your Excellency tasked us to review the 1997 Constitution, you were emphatic about the need to develop a Constitution that will serve the test of time. This, therefore, required us to take a serious look at key constitutional issues relative to the present and future generations. In other words, what is best for this country today and going into the future so that both the present and future generations are governed by the same rules, and such that an amendment of the Constitution will only be necessitated by the most exceptional of circumstances. To achieve this within a period of 18 months was not easy and required many long days and nights to get us to this day. We remain forever grateful to the Almighty God for giving us both the strength and the commitment to achieve this for our country and as our leaders expected of us.

9. When the CRC published the first draft of the proposed Constitution in November 2019, it had 3 objectives. The first was to give Gambians and other stakeholders the opportunity to determine whether the wishes and aspirations they expressed to the CRC during the first round of public consultations had been properly addressed and, where any of those had been omitted, for the CRC to explain its reasons for the omission (exercising the authority vested in it under the CRC Act). The second was to afford further dialogue on matters that could be clarified better and ensure a better Draft Constitution. The third was to invite opinions on new important elements that the Draft Constitution could usefully provide. We achieved all 3 objectives and exercised proper discretion in that regard. The participants in the second round of public consultations were actively engaged with the CRC and our process of constitutional development was further enriched.

10. We had only one regret, one we did not envisage and, frankly, did not consider would have been as contentious and blistering as it turned out to be. This was the non-use in the proposed Draft Constitution of the word “secular” in defining The Gambia as a Sovereign Republic. The debate, most unfortunately, took on a religious dimension and at times became unnecessarily confrontational. Not even the CRC was spared and we were accused of all sorts of things and vilified, sometimes in the most distasteful language. We met with the leaders of both the Christian and Muslim communities to urge restraint and dialogue between themselves. The Gambia belongs to all of its citizens and all deserve to be equally and fairly treated; that goes for all religions practised and/or manifested in this country. The CRC was never oblivious to this fact and we never took sides, whether on this or some other subject of constitutional development. While some may say that whatever we do – secular or no secular – we will be damned, the CRC remains steadfast and optimistic that all persons of all faiths will give higher credence to our long tradition of living closely together as Gambians, by safeguarding and promoting “national cohesion, unity and peace” as provided in section 6 (2) (iv) of the CRC Act.

11. I choose not to go into the details of the Draft Constitution at this presentation. The provisions of the Draft Constitution are, in my considered view, clear in their nature, scope and intent and are best understood by reading the provisions therein. We have complemented the Draft Constitution with a Report which provides relevant background information, the methodology adopted by the CRC in its decision-making processes, the issues considered, a review of the provisions of the 1997 Constitution and an analysis of the issues and the decisions taken by the CRC. In the very few areas where the CRC deviated from majority public opinion, the reasons for doing so are provided; these were explained to the people during the CRC’s second round of public consultations and the reasons given for such deviation were generally accepted. I recommend, therefore, that the Draft Constitution should be read together with the accompanying Report.

12. At this time before I conclude, I crave Your Excellency’s indulgence to permit me, on behalf of my fellow Commissioners, to place on record my thanks and appreciation to the so many people who took the journey and trekked the challenging road with us to get us here today. I will mention only a few, as I do not wish to encroach too deep into my Vice Chairperson’s Vote of Thanks for this presentation.

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13. First, I thank and commend Your Excellency, Adama Barrow, The President of the Republic for the foresight and confidence you reposed in the CRC Commissioners to undertake this monumental task on behalf of the people of The Gambia. You initiated our journey and supported us all the way. I am certain that history will be kind to you for your foresight and leadership in this regard.

14. I am grateful for the presence of the Hon. Chief Justice, Hassan Bubacarr Jallow, here with us today. The CRC Act specifically identified you as the Chairperson of the CRC, but you exercised the discretion given to you by the same Act to nominate me for appointment in your stead. I thank you, My Lord Chief Justice, for your confidence and support. I can only hope that I have acquitted myself creditably.

15. I thank the Hon. Madam Speaker for your support of the CRC. Indeed you were the first senior public official to call me, following the publication of the proposed Draft Constitution, to commend the CRC for its work and for encouraging us to continue the journey to the end.

16. I thank the UNDP for their sterling support of the CRC from inception. They helped us establish the CRC Secretariat and continued their support all the way to the end. I must single out Ms Nessie Golakai and her able lieutenants for always being there for us and for gently putting up with our seemingly endless demands.

17. Similar thanks and appreciation go the International Institute for Democracy and Electoral Assistance – to the leadership in Addis Ababa, The Hague and Sweden – for their commitment and outstanding support to the CRC, including a review of the Draft Constitution. Not only did they agree to and sign a memorandum of understanding with the CRC, they also facilitated an orientation on constitutional development for the Commissioners and the CRC Secretary, provided training to the CRC staff (including staff of the National Council for Civic Education and representatives of the media fraternity), and teamed up with our statisticians in gauging and assessing public opinions on specific constitutional issues.

18. I also recognise the great efforts and support of our 2 external consultants – Professor Dr. Albert Fiadjoe (Professor of constitutional and administrative law) of Ghana, and retired Chief Justice Willy Mutunga of Kenya. Both had assisted in steering constitutional reviews in their respective countries, with Professor Fiadjoe actually serving as Chairman of the Constitutional Review Commission of Ghana. We are grateful for their wisdom and depth of knowledge in constitutional development.

19. Your Excellency, I would not have been able to be here at this time making these remarks were it not for the brilliant, committed, hardworking and very cooperative and conscientious Commissioners you graciously gave me to work with. I had many months ago mentioned to the Hon. Attorney General privately that if I were ever to choose a team to work with, it would be this same team of Commissioners present here today. They have been sterling and outstanding in their work and demonstrated exceptional professionalism. They have been very supportive of me in leading the CRC. They have also been very patient with me, putting up with my numerous demands, sitting through long hours (sometimes beyond midnight) without complaining, and challenging me and each other, all for the purpose of achieving the best in the Draft Constitution. I thank you able Commissioners. I am indebted to, and truly very proud of, you. You did it for your beautiful country.

20. I thank Omar Ousman Jobe, the CRC Secretary, who has also been very patient with my endless demands, and for steering the administration of the CRC and jealously guarding the institution. I similarly thank Ndey Ngoneh Jeng, Researcher, who has been with us day and night and through thick and thin putting up with our demands without for once complaining. I equally thank the entire staff of the CRC who have been sterling in facilitating the work of the Commission.

21. Finally, Your Excellency, I end with someone who some may say I should have started with. But I deliberately left the best for last. And that is the Hon. Attorney General and Minister of Justice, Abubacarr Ba Tambadou. He has been my anchor from the day the CRC was established. He did everything he could to ensure that the CRC functioned efficiently and effectively. He entertained every single request I made to meet with him and discuss CRC issues. He remained committed to the CRC and facilitated us in every way within his power to facilitate. And the beauty is that, in all of these, he never ever said or asked anything that might even remotely be perceived as bordering on interference with the work of the CRC. I thank you Hon. Attorney General for being the true professional and for respecting the boundaries. Your humility and professionalism have endeared you to me and my team, and I know those positive attributes will take you far and so I pray.

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22. In proceeding to conclude, I wish to place on record that the Government of The Gambia has invested heavily in the work of the CRC with, in some cases, the full support of regional and international partners. As at 29th March, 2020, the sum of D116, 659, 774.90 has been expended in the CRC. We recognise that the CRC Act keeps us in office until one month “after the date of enactment by the National Assembly of the Bill introducing the Constitution”. We are also required to attend the National Assembly, if needed, to clarify any matter and/or answer any questions the Hon. Members of the National Assembly may seek of us. We stand ready to fulfil our statutory obligations in that regard.

23. In conclusion, Your Excellency, today I present to you the Draft Constitution 2020 and the accompanying Report. We have also prepared, though not statutorily required, an Explanatory Memorandum to the Draft Constitution. The Explanatory Memorandum is essentially a summary of the various Chapters of the Draft Constitution and should provide a quick read thereof.

24. The Draft Constitution contains 319 sections divided into 20 Chapters and several Parts. In the assessment of the CRC, the Draft Constitution represents the generality of the wishes and aspirations of the Gambian people. As I already alluded to earlier, a constitutional review process entails balancing numerous ideas and interests in order to craft a Constitution that truly represents the interests of present and future generations. This is not a mean feat, and it is precisely the reason why it is accepted that no country can boast of having a perfect Constitution.

25. A well thought out Constitution that is not only people-centred, but also involves the opinions of the people through a process of participatory democracy, should generally be accepted with its imperfections. That is simply because no matter how hard we try, no matter what brains of wisdom we assemble, no matter how well we craft language and no matter how we resolve our good intentions, there will always be those who will feel aggrieved and wished the Constitution had addressed some matter of interest, or omitted some matter that is disagreeable or had simply been silent on some matter. Some would even have wished that the Constitution was shorter or longer or crafted in some other way. That is in the nature of every constitutional development and precisely why the discretion is vested in the constitutional review body, abiding by the guiding principles set for it, to use its best judgment to develop a Constitution that, in its considered opinion, best serves the current and future interests of the country.

26. In that context, Your Excellency, it is appropriate that I refer to the quotes from Philadelphia in 1787 from 2 prominent American Leaders when the Constitution of the United States of America was being considered for adoption.

27. First, from George Washington, who said:

“I wish the Constitution which is offered had been made more perfect, but I sincerely believe it is the best that could be obtained at this time. From a variety of concurring accounts it appears to me that the political concerns of this Country are, in a manner, suspended by a thread. That the Convention has been looked up to by the reflecting part of the community with a solicitude which is hardly to be conceived, and that, if nothing had been agreed on by that body, anarchy would soon have ensued.”

28. Second, from Benjamin Franklin, who said:

“I confess that there are several parts of this Constitution which I do not at present approve, but I am not sure I shall never approve them: For having lived long, I have experienced many instances of being obliged by better information, or fuller consideration, to change opinions even on important subjects, which I once thought right, but found to be otherwise… I agree to this Constitution with all its faults… For when you assemble a number of men to have the advantage of their joint wisdom, you inevitably assemble with those men, all their prejudices, their passions, their errors of opinion, their local interests, and their selfish views. From such an assembly can a perfect production be expected?

Thus I consent, Sir, to this Constitution because I expect no better, and because I am not sure, that it is not the best…The opinions I have had of its errors, I sacrifice to the public good. Within these walls they were born, and here they shall die. If every one of us in returning to our Constituents were to report the objections he has had to it, and endeavour to gain partisans in support of them, we might prevent its being generally received, and thereby lose all the salutary effects & great advantages resulting from our real or apparent unanimity. On the whole, Sir, I cannot help expressing a wish that every member of the Convention who may still have objections to it, would with me, on this occasion doubt a little of his own infallibility, and to make manifest our unanimity, put his name to this instrument.”

29. In the same vein, the CRC commends the Draft Constitution with all its imperfections and shortcomings that may be perceived of it and urge a unanimity of minds, based solely on what is in the best interests of The Gambia, particularly of generations yet unborn, that Gambians may embrace the Draft Constitution in order to move the country along the path of genuine and participatory democracy, respect for the rule of law and fundamental rights and freedoms, and good governance that we may build a nation where collective interests, now and in the future, reign for the good of all.

30. The Draft Constitution represents the first in the constitutional history of The Gambia that is designed, broadly consulted on based on full participatory democracy, and crafted entirely by Gambians.

31. It is the hope of the CRC that the Gambian authorities that have the power and authority to take the Draft Constitution forward at its various stages receive the Draft Constitution in that respect and take full account of the conclusions and recommendations contained in the accompanying Report as representing the CRC’s rendition of the general views, aspirations and interests of Gambians as expounded by them during the 2 rounds of public consultations organised by the CRC. I also commend to Your Excellency and your Government the matters outlined in Annex 5 of the Report and the recommendations therein as representing the non-constitutional issues raised by our citizens with the hope of some resolution.

32. It is, therefore, my singular honour and privilege, on behalf of the Vice Chairperson and the other 9 Commissioners of the CRC to present and submit the Draft Constitution and the accompanying Report, in the name of the people of The Gambia and in their interest, to Your Excellency, Adama Barrow, President of the Republic of The Gambia, in accordance with the terms of section 21 (1) of the Constitutional Review Commission Act, 2017.

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