FOROYAA's REVIEW OF THE DRAFT CONSTITUTION OF THE SECOND REPUBLIC
Book One
INTRODUCTION
The draft Constitution is now public property. It belongs to each Gambian who
makes the effort to know its contents. He or she who does not know the
fundamental law, which establishes his or her country and spells out how its
economic, social, cultural and political life should be determined, is yet to
be an enlightened citizen of a sovereign republic.
This is precisely the reason why FOROYAA has taken up the task of producing the
provisions or chapters of the draft Constitution in a series so that each
Gambian will be able to know its contents.
For the information of the reader, the draft Constitution is not yet the
fundamental law of the land. It has to be subjected to a referendum on 7 August
1996.
The referendum will determine whether the Gambian people want the provisions of
the draft Constitution to be their fundamental law or not. Once approval is
given by the people the Constitution will become law upon the swearing in of
the first President of the Second Republic. An election Decree is to make
provision for the election of the first President of the Second Republic and
the National Assembly.
The draft Constitution has twenty three Chapters. The first chapter establishes
the Republic;
The second chapter declares the supremacy of the Constitution to all other laws
and provide guidelines of how to defend it; Chapter III defines citizenship;
chapter IV establishes fundamental rights and freedoms; chapter V deals with
elections and establishment of political parties; chapter VI deals with the
office of President and his or her executive powers; chapter VII deals with
the National Assembly and its law making powers; chapter VIII deals with the
Judiciary; chapter IX deals with Finance; chapter X deals with Ombudsman;
chapter XI deals the Public Services; chapter XII deals with the Police Force
and the Prison Service; chapter XII deals with the Armed Forces; chapter XIV
deals with the Land Commission. Chapter XV deals with the Local Government
System and the place of traditional rulers; chapter XVI deals with the
National Youth Service; chapter XVII deals with the National Council for Civic
Education chapter XVIII deals with the establishment of Commissions of inquiry;
chapter XIX deals with the Media., chapter XX deals with principles that should
guide the establishment of state policies; chapter XXI deals with code of
conduct for public officers; chapter XXII deals with ways of changing the
Constitution; chapter XXIII deals with appointments and resignations, as well
as how we are going to move into the Second Republic.
FOROYAA shall try to explain what is in each of the chapters of the draft
Constitution in a series of booklets.
HISTORY OF THE DRAFT CONSTITUTION
Under colonialism, The Gambia was a colony of the British monarchy. The people
paid taxes but had no right to determine the economic, social, cultural and
political life of the country. Gambian patriots like Francis Small laid the
cornerstone of democracy by promoting the slogan "no taxation without
representation". This means that those who pay taxes should have a say in
determining who is to manage the money to provide public services. The
struggle of the people to have a say in determining how the affairs of the
country is run gave rise to the establishment of local councils, political
independence and a sovereign republic. in 1970.
When The Gambia became a sovereign republic, it should have been made clear to
the people that all organs of government should derive their authority from the
people; that as a sovereign people who own their country, they are to determine
its economic, social, political and cultural life and safeguard its political
independence, territorial integrity and national unity. It should have been
made clear to the people that we cannot divide The Gambia into the original
states and clans which existed before colonialism inhabited by members of the
different language groupings; that we have to live together as a Gambian people
and cooperate to determine its economic, social, cultural and political life.
The birth of the sovereign republic of The gambia called for the enlightenment
of the people so that they will elect those who would manage national wealth in
the public interest. This enlightenment was not enhanced in the First
Republic. The government of the First Republic was overthrown on 22 July,
1994.
Once a government is overthrown through a coup, the vacuum must be filled
without the consent of the people. This is what gives rise to provisional or
care taker governments pending the establishment of a government chosen by the
people.
To ensure the empowerment of the people in The Gambia, a National Consultative
Committee was established on 7 December, 1994 to work out a timetable for
transition to the Second Republic under which all organs of government shall
derive their legitimacy from the authority of the people. The national
Consultative Committee submitted its report on 27 January, 1995. It
recommended a two year timetable. Constitutional and electoral review were to
take place between February and July, 1995. This was to be accompanied by
civic education. An Independent Electoral Commission was to be established in
August which was to witness the promulgation of the electoral laws.
On the 31 March, 1995, the Constitutional Review Commission Decree was put in
force. The Commission was given a mandate to formulate proposals for a draft
Constitution for the Gambia by taking into consideration the adequacy or
inadequacy of the provisions 1970 Constitution and the views and comments of
members of the general public including professional associations.
The Commission was established on 20 April, 1995. It submitted its report
November, 1995.
Going through the draft constitution, one can conclude that Justice Gilbert
Mensah Quaye and his team did take into consideration the concerns of diverse
sections of Gambian society. It is now our duty to dissect the provisions and
determine whether it reflects our common will. Notwithstanding, history shall
treasure the actions of those who worked diligently to help the Gambian people
to carve an instrument which shall be an embodiment of their collective will
pending the establishment of a government chosen by the people.
PREAMBLE
When a people come together to form an association, they must have reasons for
coming together. These reasons are summed up in the preamble of the
constitution.
A Republican Constitution should be a sum total or embodiment of the collective
will of a people. The preamble of a constitution captures the letter, spirit
or reasons which compel a people to come together to establish a Republic. The
draft Constitution for the Second Republic contains the following preamble:
"In the name of God, the Almighty,
"We the people of The Gambia have accomplished a great and historic task. We
have had our say on how we should be governed. For this Constitution contains
our will and resolve for good governance and a just, secure and prosperous
society.
"Our hopes and aspirations as a people were reflected in the enthusiasm and
zeal with which we embarked on the task of nation building on the attainment of
independence. The self-perpetuating rule of the recent past, however, soon
gave rise to the abuse of office and related vices which negated the total
welfare of the Gambian people.
"This Constitution provides for us a fundamental law, which affirms our
commitment to freedom, justice, probity and accountability. It also affirms
the principle that all power emanates from the sovereign will of the people.
"The fundamental rights and freedoms enshrined in this Constitution, will
ensure for all time respect for and observance of human rights and fundamental
freedoms for all, without distinction as to ethnic considerations, gender,
language or religion. In acknowledging our fundamental rights we also affirm
our duties and responsibilities as citizens of this Country.
"This Constitution guarantees participatory democracy that reflects the
undiluted choice of the people . The functions of the arms of government have
been clearly defined, their independence amply secured with adequate checks and
balances to ensure that they all work harmoniously together toward our common
good.
"As we usher in the Second Republic and beyond we give ourselves and
generations of Gambians yet unborn this Constitution as a beacon of hope for
peace and stability in our society and the good governance of The Gambia for
all time.
"In this spirit, we continue to pledge our firm allegiance to our beloved
Country and pray that the Great God of Nations will keep us all ever true to
The Gambia."
This is to be the preamble of the Constitution of the Second Republic. Do you
have any objection? It is your duty to decide.
THE ESTABLISHMENT OF THE REPUBLIC
Once a Constitution explains the precise reasons for establishing a Republic in
a preamble, it proceeds to establish the Republic.
This is why Chapter 1, section 1 of the draft Constitution proceeds to
establish the Republic and explains who is to be the supreme authority of the
land. It reads:
"l) The Gambia is a Sovereign Republic."
"2) 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 powers of government are to be exercised in
accordance with this Constitution."
The Gambian people are to be the supreme authority of The Gambia. Do you agree
with this?
THE INSTITUTION OF REPRESENTATION
It is clear from chapter 1 that sovereignty resides in the Gambian people.
They own the country and power belongs to them. All organs of government must
derive their authority from the people. They are supposed to promote the
people's liberty and prosperity.
How then are people to exercise their authority to establish organs of
government? Can all the people in The Gambia meet everyday to discuss how they
are going to make laws to govern their relations and the operation of all
institutions in the country? Can they assembly daily to discuss how to build
the schools, hospitals and other public services we need. The only thing to do,
therefore, is to elect people from our ranks who will be entrusted with the
responsibility of managing public wealth and affairs in the public interest.
This is why Chapter 5 explains who is mature to participate in the process of
determining who is to represent the people and how each is to express his or
her will to determine the leaders of the country. This is what it states:
"REPRESENTATION OF THE PEOPLE
"PART 1: THE FRANCHISE
"39. (1) Every citizen of The Gambia being of eighteen years or older and of
sound mind shall have the right to vote for the purpose of elections of a
President and members of the National Assembly, and shall be entitled to be
registered as a voter in a National Assembly constituency for that purpose.
"(2) Every citizen of The Gambia who is a registered voter shall be entitled to
vote in a referendum held in accordance with this Constitution or any other
law.
"(3) Every citizen of The Gambia being of the age of eighteen years or older
and of sound mind shall be entitled, in accordance with the provisions of this
Chapter and any Act of the National Assembly providing for such elections, to
vote in elections for local government authorities and traditional rulers in
the area in which he or she is ordinarily resident."
The draft Constitution establishes elections as the tool to determine
representation, and 18 years as the minimum age to participate in elections.
Do you agree?
HOW ARE ELECTIONS TO BE CONDUCTED?
To ensure that a voter is not subjected to any pressure through intimidation or
inducement, section 40 of the draft Constitution states:
"All public elections and all referenda voting shall be by secret ballot.
Are you opposed to secret ballot?
Suffice it to say, elections cannot take place without electoral laws being
made. Hence, under the draft Constitution, section 41 states:
"Subject to the provisions of this Constitution, an Act of the National
Assembly may make provision for giving effect to the provisions of this Chapter
and, without prejudice to the generality of the foregoing, may provide for
"(a) the registration of voters for the purposes of public elections;
"(b) voting at, and the conduct of, public elections and referenda;
"(c) the duties of public officers in connection with the registration of
voters and the conduct of public elections and referenda;
"(d) equal access to public facilities and the media by candidates at public
elections."
Are you opposed to elections being conducted according to prescribed electoral
laws known to the people?
If elections are to be free and fair, a body has to be established to supervise
them to ensure that they are conducted according to the law.
Chapter 5, Part 2, establishes an Independent Electoral Commission.
FUNCTIONS OF THE INDEPENDENT ELECTORAL COMMISSION
Section 42 (1) states:
"There shall be an lndependent Electoral Commission for The Gambia which shall
be part of the public service."
Section 43 states
" (1) Subject to the provisions of this Constitution, the Independent Electoral
Commission shall be responsible for -
"(a) the conduct and supervision of the registration of voters for all public
elections and the conduct and supervision of all public elections and
referenda;
"(b) the conduct of the election of a Speaker and a Deputy Speaker;
"(c) the registration of political parties;
"(d) ensuring that the dates, times and places of public elections and
referenda are determined in accordance with law and that they are publicised
and elections held accordingly;
"(e) ensuring that candidates in elections make a full declaration of their
assets at the time of nomination.
"(2) The Commission shall announce the results of all elections and referenda
for which it is responsible.
"(3) In the exercise of its functions under this Constitution or any other law,
the Commission shall not be subject to the direction or control of any other
person or authority."
Are you opposed to elections being supervised by a body which shall not be
subject to the direction or control of any authority?
Section 42 sates:
"(2) The members of the Commission shall be a Chairman and four other members.
"(3) The members of the Commission shall be appointed by the President in
consultation with the Judicial Service Commission and the Public Service
Commission.
"(4) Subject to the provisions of this section, the members of the Commission
shall be appointed for a period of seven years and may be re-appointed for one
further term;
"Provided that three of the first members (who shall be chosen by lot) shall be
appointed for lesser periods than seven years in order to provide continuity
within the Commission."
Is it sufficient for the President to consult the Judicial Service Commission
and Public Service Commission to appoint a member of the Commission? Should
the National Assembly not have to approve the appointment after an enquiry?
Furthermore, should members of the Commission be given two terms of seven years
when there is no limit to the term of office of President and when the
President is to do the reappointment?
WHO IS DISQUALIFIED TO BE A MEMBER OF THE COMMISSION?
Section 42 (5) states:
"A person shall not be qualified for appointment as a member of the Commission
if -
"(a) he or she is a member of the National Assembly;
"(b) he or she is, or has at any time during the two years immediately
preceding his or her appointment, been nominated as a candidate for election as
a member of the National Assembly
"(c) he or she is, or has at any time during such period of two years been, the
holder of any office in any organization that sponsors or otherwise supports,
or has at any time sponsored or otherwise supported, a candidate for election
as a member of the National Assembly or of any local government authority or if
he or she has actively identified himself or herself with any such
organization.
"(d) if he or she holds an office in the public service other than as a member
of the Commission or the staff of the Commission;
"(e) if he or she has been convicted in any country of an offence involving
dishonesty or moral turpitude."
Do you have any objections to the criteria for membership?
TO BE CONTINUED
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