Tuesday, October 20, 2020

Separation Of Power Of Religion And Power Of The State Under Section 100 Of 1997 Constitution Does Not Mean Destruction Of Religion

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POLITICAL COMMENTARY BY HALIFA SALLAH, PART 8

Constitutions do not drop from the sky. They speak the language of context and content. They are not amorphous like philosophy. They are concrete instruments. They have their genesis and developmental path which could be traced and understood. The 1965, 1970 and 1997 Constitutions are organically linked. The Demagogue’s reference to a philosophy called secularism is not followed by giving us the template of the Constitution of the subscribers to that philosophy. Gambians are not confronted with a debate on philosophy. Citizens are confronted with the task of building an instrument that would safeguard their liberty and prosperity. The faith-based groups are confronted with the ask of determining how the power of religion and the power of the state should co-exist without negating the space or religious belief and practice and the unity of nation and by extension the people comprising it.

Allow me to pause and pose these questions to the Demagogue since he is unapologetic of his attempt to divide the Muslim and Christian Communities in the Gambia and has been waging an unholy propaganda for the Muslim community to pay a deaf ear to any discourse on matters of concern to both communities.

What would be called a state that is bound by Section 100 of the 1997 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.

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(2) The National Assembly shall have no power to pass a Bill -_

{a} to establish a one party state;

{b} to establish a religion as a state religion;

{c} to alter the decision or judgement 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”.

Of courses, a Constitution that does not provide room for any religion to be established as state religion clearly separates the power of religion from the power of the state. This form of the state has a name in jurisprudence which will be revealed later.

Does this mean that the state that separates power of religion from the power of the state as provided for under Section 100 of the 1997 Constitution aims to destroy religion?

Section 25 (1)(b) and (c) of the same 1997 Constitution answers the question as follows:

“(1) Every person shall have the right to –

(b) freedom of thought, conscience and belief, which shall include academic freedom;

(c) freedom to practice any religion and to manifest such practice;

This is an entrenched clause which cannot be amended without a referendum. In fact, the secular state of the Gambia has the following provisions in the criminal code in defence of religion.

Section 117 of the Criminal Code reads:

“Any person who destroys, damages or defiles any place of worship or any object which is held sacred by any class of persons with the intention of thereby insulting the religion of any class of persons or with the knowledge that any class of persons is likely to consider such destruction or defilement as an insult to their religion, is guilty of a misdemeanor”.

Section 118 of the Criminal Code adds:

“Any person who voluntarily causes disturbance to any assembly lawfully engaged in the performance of religious worship or religious ceremony is guilty of a misdemeanor”.

Section 119 reinforces the other provisions as follows:

“Every person who, with the intention of wounding the feelings of any person or of insulting the religion of any person, or with the knowledge that the feelings of any person are likely to be wounded, or that the religion of any person is likely to be insulted thereby, commits any trespass in any place of worship or in any place of sepulcher, or in any place set apart for the performance for funeral rites or as a depository for the remains of the dead, or offers any indignity to any human corpse, or causes disturbance to any person Assembled for the purpose of funeral ceremonies, is guilty of a misdemeanor”.

Section 120 of the Criminal Code further buttresses the following:

“Any person who, with the deliberate intention of wounding the religious feelings of any person, utters or writes any word, or makes any sound in the hearing of that person or makes any gesture in the fight of that person, or places any object in the sight of that person, is guilty of a misdemeanor, and is liable to imprisonment for a term of one year”.

How then are separate faith-based group rights catered for in a Republican Constitution?

Let us take the Constitutional development process in the Gambia as case study.

TO BE CONTINUED.

Read part 9 https://foroyaa.net/gambia-as-case-study-in-balancing-the-powers-of-religion-and-the-powers-of-the-state-in-constitution-building-inclusive-of-human-and-group-rights/

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