THE ROLE OF LAWMAKERS IN CONSTITUTIONAL REFORM AND THE TRANSITIONAL JUSTICE PROCESS IN A DEMOCRATIC REPUBLIC

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Lecture at 3rd Solo Sandeng Memorial Lecture by Hon. Mariam Jack-Denton, Former Speaker of the National Assembly

The primary role of the National Assembly (Parliament) in any country is, of course, to enact legislation, perform oversight, in other words serve as a check on the executive branch, appropriate funds as well as serve as representatives of the people. Moreover, the institution and functioning of parliament itself has special importance in a reconciliation process, for the following reasons:

Firstly, Parliament is the national debating Chamber where different views, interests and concerns can find expression and be steered towards solutions for the common good. This is a two-way street: the people relay their wishes and opinions to their representatives, who in turn seek to share with and explain to those they represent the outcome of the parliamentary debate. As part of this interaction, Parliamentarians fulfil a role as opinion leaders who can initiate and steer public debate on pressing issues and can play an effective role in the promotion of tolerance, reconciliation, and peace. Of course, all of this may not be realistic in the early aftermath of a dictatorship. In such cases, Parliament may not be effective or, if one is still in place, it may be seriously weakened and limited in its capacity to respond to the challenges of reconciliation like ours in 2017. (December, 2016 to April, 2017). Ensuring the presence of an effective Parliament is clearly a challenge in most, if not all, transitions, and highly relevant to any reconciliation process. In this regard, making the Parliament into a national platform for a free and open exchange of views is an important sign that reconciliation is under way.

Secondly, if the National Assembly is truly reflective of society, parliamentary debate and its outcome will stand the best chance of being endorsed by the people. This means that men and women should have an equal say in the management of the country’s future. Often this point may require special action to ensure that women’s chances of obtaining a position in Parliament are enhanced and to guarantee that in Parliament, responsibilities are shared equally between men and women. Unfortunately, in The Gambia, the composition of Parliament is not balanced and leaves much to be desired for the moment. Moreover, an all-inclusive reconciliation process means that all sectors of society, particularly those most affected, have an opportunity to take part in the decision-making process.

On the specifics, Parliamentarians, in a democracy and post-dictatorship like ours in 2017, have a very significant role to play in advancing reconciliation. The establishment of the Truth, Reconciliation and Reparation Commission (TRRC) in 2017 was a transitional justice mechanism enacted by the National Assembly, focusing on the investigation of patterns as well as specific instances of human rights abuses and violations committed between the period July, 1994 and January, 2017. The Commission operated in a victim-centred manner and concluded its work with a report containing conclusions and recommendations.

The TRRC had helped to establish the truth about the nature and scale of past violations of human rights and humanitarian law, and to serve as a guard against nationalist or revisionist accounts of the past. It has fostered accountability of perpetrators by collecting and preserving evidence and publicly identifying those responsible. 

The TRRC in its detailed report recommended victim reparation programmes and necessary legal and institutional reforms. It had also provided a public platform for victims to address the nation directly with their personal accounts, and served as a catalyst for public debate on how to deal with the past and how to ensure a better future – the “NEVER AGAIN” mantra. And this can cultivate, and in some instances cultivated reconciliation and tolerance at the individual and national levels as witnessed in the TRRC proceedings.

On constitutional and other legal reforms, the National Assembly plays a crucial role in every step of such reform process. Precisely, the legislative power of the State is vested in the National Assembly by Bills passed by the National Assembly and assented to by the President. This power is fundamental in every democratic State, especially in post-dictatorship regimes where usually the Constitution and other laws may have been weakened in favour of the dictator such as in our scenario where the Constitution was butchered (over 52 amendments) and many draconian laws enacted to support, abet, and sustain the Jammeh regime. It is against this backdrop that the new government in 2017 had the agenda to draft a Constitution as well as promulgate progressive laws to accompany the transitional justice programme of the State for a New Gambia.

Effectively, the National Assembly passed three key legislations that I may termed as the bedrock of our constitutional and other legal reform processes, notably: the National Human Rights Commission Act, 2017 (NHRC), the Truth, Reconciliation and Reparations Commission Act, 2017 (TRRC) and the Constitutional Review Commission Act, 2017.

Fortunately, the TRRC and the NHRC respectively stood the test of time and worked well in unearthing the past human rights violations (TRRC) and instituted a preventive mechanism for future human rights violations (NHRC). Unfortunately, chief of the reform process, that is the Constitution (Promulgation) Bill, 2020, could not sail through in the National Assembly.

Precisely, as a requirement of section 226(2) (b) of the 1997 Constitution, the Fifth Legislature of the National Assembly witnessed the tabling of the Constitution (Promulgation) Bill, 2020 (in other words the CRC Draft Constitution) by the Government in 2020. However, the Bill stalled in the National Assembly at the Second Reading Stage because it could not win the three-quarters support of all members of the National Assembly as required by section 226(2)(b) of the 1997 Constitution. Notwithstanding this setback, the Government may decide to come back to Parliament to revive the process of promulgating a new Constitution for our Republic that the CRC worked so hard and diligently to produce as the basis of ushering a new Constitutional Order. Thus, the role of the National Assembly in getting us a new Constitution is still fundamentally relevant and necessary.

On the principles of Transitional justice, it is the field that has developed as a response to this dilemma. The aim of transitional justice is to confront legacies of abuse in a broad and holistic manner, encompassing criminal, restorative, social, and economic justices. It recognises that a responsible justice policy must include measures that seek to achieve both accountability for past crimes and the prevention of new ones. It also recognises that the demand for criminal justice is not absolute, but instead must be balanced with the need for peace, democracy, equitable development, and the rule of law.

The widely held reality is that countries, like The Gambia, recovering from periods of mass abuse face the almost certain prospect of flawed justice. In a significant number of cases, transitional governments are effectively forced to choose between justice and the continuation of peace, or justice and the maintenance of democracy. Even where such threats are less prominent, the massive scale of past abuse, the weakness of our laws, the adoption of amnesty laws, and severe limitations in relation to human and financial resources often make ordinary justice impossible: invention and compromise become dual imperatives. This is where the Government and the National Assembly found itself in 2017. Thus, the National Assembly had to enact the TRRC Act to set the ball rolling for an effective transitional justice system. Similarly, critical legislations such as the Criminal Offences and the Criminal Procedure Bills were introduced to ensure a complete reform of our criminal legal system. I understand these Bills are at an advanced stage in the legislative process for enactment.

I am equally aware that the National Assembly has passed the Prevention and Prohibition of Torture Act, 2023. This is a milestone achievement in our efforts to promote human rights and uphold the rule of law in the country. The Act provides the legal framework for the prohibition, prevention, and punishment of any form of torture and other forms of cruel, inhumane, or degrading treatment in The Gambia, and provide penalties aimed at ensuring accountability for acts of torture.

“Finally, I understand that the National Assembly will be conveningan Extra-Ordinary Session this month to consider and pass two prominent legislations aimed at furthering the transitional justice mechanism, that is (1) the enactment of a Special Prosecutor’s Office and (2) the enactment of a Special Accountability Mechanism law, all to give finality to the TRRC Report for justice and accountability,” she expounded. 

In conclusion, it is evident that these roles of Parliament in our democratic State have highlighted the significance of Parliament in our Constitutional and Legal Reforms as well as in our transitional justice process that we all fought for, especially Solo Sandeng who has been the sacrificial lamb of this process. Parliament must therefore not relent in its collective pursuit in furthering the transitional justice mechanism as per its legislative, oversight and representative functions. This is the social contract for which they were elected. 

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