Rene,

The issues you raised are fundamental. A Constitution can be a guide to
action or mere declaration of intention. However, as you said, a
constitution is meant to be the supreme law. Needless to say, a law that
cannot be enforced is no law at all. A Constitution, therefore, is the
fundamental law of a land.

What then is the relation between a  constitution and political power? It
all depends on the nature of the constitution. Constitutions have essence,
form and origin. A constitution cannot be separated from the nature of the
society which gave birth to it. A monarchical constitution could either
legitimise the absolutism of the monarchy or accord rights to the people to
determine their manner of government, save the abolition of the monarchy. In
that sense, the monarch remains supreme and sovereign whilst those who
administer the day to day affairs of a State become accountable to both the
monarch and those who elect them. This was the case under the 1965
Constitution before The Gambia became a republic.

A republican constitution disposes of monarchical rule and must of necessity
vest power in the people. Hence, a republican constitution should establish
all avenues for the people to exercise power by determining who is to manage
their affairs and exercising checks over them by reserving the power to
remove them from office whenever they so desire. This makes democracy an
indispensable factor in republican existence.  Democracy has an
institutional component, as well as a +ACI-thought+ACI- component.

In short, one can have all the institutions of representation and the means
to ensure that the people are consulted without the people being aware of
the power they have and the latitude they possess in exercising their power.

Democracy, therefore, requires both the raising of the awareness of the
people to be conscious of their supremacy as the sovereign authority in the
land just like monarchs had sovereign authority, as well as the creation of
institutions which are designed to safeguard precisely such an authority.

What has happened in many places, including Africa, is the inadequacy of
effort to raise the awareness of the people to be conscious of their power
and the building of the institutions which guarantee their authority to
determine their manner of government, as well as the establishment of
institutional and procedural safeguards to ensure that the authority they
render to their representatives is utilised to promote their interest and
general welfare.

Consequently, over the years those who assumed power had the tendency to
exploit the lack of awareness of the people and evolve constitutional
provisions that had monarchical inclinations. In short, the best environment
for the drafting and putting into force a republican constitution is where
the drafters are fully committed to democratic principles, and those who
manage the affairs of the State fully recognise the sovereignty of the
people and have no inhibition in opening up a national debate where the
people participate in scrutinising and helping in the consolidation of the
provisions.  The type of power structure which prevails when a republican
constitution is being drafted does dilute the nature of such republican
constitutions. For example, the U.S. Constitution of 1789 had a provision
legitimising slavery. The 1970 Constitution of The Gambia had 36 chiefs
electing 5 members of the House of Representatives who could be removed from
office by the President by simply removing them from their offices as
chiefs. The 1997 Constitution has the Indemnity Provisions.

Of course, those who introduce in republican constitutions the concept that
only one party is the legitimate party that should rule a country are
clearly legitimising the permanence of a monarchy. This is clearly against
the letter and spirit of a republican constitution under which no monarchy
or monarchical constitutions should prevail. Power to determine
representation should absolutely be exercised by the people.

Furthermore, the concept of a president for life is a monarchical principle.
Such a concept should also be alien to a republican constitution. One may
also add that having a president who has absolute power to appoint and
dismiss cabinet members without giving any explanation is also a monarchical
principle. It gives the executive unchecked authority in determining how
departments of state are to be managed and transform all members of cabinet
into servants of a president who can be removed for disloyalty and not
necessarily for inefficiency and corrupt practices. Such cabinet members,
therefore, become servants of the controller of executive power instead of
owing loyalty to the people.

Suffice it to say that some of those who control executive power disregard
all constitutional authority and negate any possibility of changing them by
relying on the will of the people. In recent developments in Ivory Coast,
the head of state was relying on the issue of citizenship to deprive a
former prime minister of that state opportunity to consult the people, even
though all African heads of state talk about African unity and the oneness
of the African people everywhere. It is such intolerance and attempt to
perpetuate oneself in power under any pretext that leave no room but the use
of the very instrument they utilise to retain power to remove them. The
practice, however, is that those who remove them also end up legitimising
their absolute hold on power as of right because of might. This has
undermined the process of growth of republican constitutions in Africa. In
fact, constitutions have rarely been consulted in many countries  as an
instrument for managing the affairs of a State. Even members of the legal
profession have had the tendency to consult them only when they are relevant
to cases filed in court. This is also so for most countries in the world.
The people are hardly exposed to such instruments.

It is our era which has to make the clean break between monarchism and
republicanism+ADs- between constitutions as declarations of intent and
constitutions as political, administrative and judicial map of how our
countries are to be governed according to our will as a sovereign people.

There is absolutely no doubt that if constitutions are truly rooted in the
republican spirit of regarding the people as the sovereign authority of the
land+ADs- if all the other institutions and principles established by the
constitution are designed to safeguard the rights, interest and welfare of
the people+ADs- if the people are fully conscious of their power and the nature
of these institutions and fully participate in the working of those
institutions, we can definitely create a peaceful political order under
which political leadership would be determined through the ballot box
without fear or favour, affection or ill-will. Under such an order, all
those who hold office will first see themselves as representatives of the
people.

In short, political parties would serve as mere instruments which bring
people who share a common conception of how the economy, political, cultural
and social life of a country can be organised to ensure greater liberty,
dignity and prosperity for the people but not as a club or members of a
lodge designed to safeguard an exclusive interest.

If Africa moves towards this direction with speed, we will clearly be
leading the world in matters of governance. People in many parts of the
world hardly know what their constitutions say. Now let us proceed to the
concrete questions about the Gambian constitution.

Rene, you asked: +ACI-Given that there are two alternative choices in changing a
government, either through a democratic process or an act of revolution, is
there any possibility that we could effect political transformation and
change within our constitutional framework?+ACI-

Let us visit the constitution to find out what it says in principle. Section
1 reads:

+ACI-(1) The Gambia is a Sovereign Republic.
+ACI-(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.+ACI-

Section 26 asserts that:

+ACI-Every citizen of The Gambia of full age and capacity shall have the right,
without unreasonable restrictions-
+ACI-(a) to take part in the conduct of public affairs, directly or through
freely chosen representatives+ADs-
+ACI-(b) to vote and stand for elections at genuine periodic elections for
public office, which elections shall be by universal and equal suffrage and
be held by secret ballot+ADs-
+ACI-(c) to have access, on general terms of equality, to public service in The
Gambia.+ACI-

Section 39 also adds that:

+ACI-(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.
+ACI-(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.
+ACI-(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.+ACI-

Section 42 establishes the Independent Electoral Commission and section 43,
subsection (1) (a) gives the Commission responsibility for:
+ACI-(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+ADsAIg-

Section 43, subsection (2) asserts that: +ACI-The Commission shall announce the
results of all elections and referenda for which it is responsible.
+ACI-(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.+ACI-

Section 60 adds that: +ACI-(1) Subject to the provisions of this section,
political parties may be established to participate in the shaping of the
political will of the people, to disseminate information of political ideas
and on political, economic and social programmes of a national character,
and to sponsor candidates for public elections.+ACI-

Section 60, subsection (3) adds that+ADs- +ACI-The number of political parties shall
not be limited by law and every citizen of The Gambia shall have the right
freely to choose whether or not he or she will become a member of a
political party and which party he or she will support.+ACI-

Political parties are also required not to be +ACI-formed or organised on an
ethnic, sectional, religious or regional basis+ACI-, according to subsection
(4).

Furthermore, according to subsection (8), +ACI-Any registered political party
that intends to contest any election shall deliver to the Commission on or
before nomination day a copy of its manifesto containing, among other
matters, a clear explanation of the party's programme for national
development.+ACI-

Section 100, subsection (2) asserts that:

+ACI-The National Assembly shall have no power to pass a Bill -
+ACI-(a) to establish a one party state+ADs-
+ACI-(b) to establish any religion as a state religion+ADs-.....+ACI-

Section 208 asserts that:

+ACI-All state owned newspapers, journals, radio and television shall afford
fair opportunities and facilities for the presentation of divergent views
and dissenting opinion.+ACI-

Section 212, subsection (3) indicates that:

+ACI-All the people of The Gambia shall be entitled to their ethnic, religious
and cultural values which do not disturb the unity or cohesion of the
State.+ACI-

Finally, section 214 asserts that:

+ACI-(1) The Gambia shall be a democratic state dedicated to freedom, peace,
progress, prosperity and justice.
+ACI-(2) The people shall express their will and consent as to who shall govern
them and how they shall be governed, through regular, free and fair
elections of their representatives.
+ACI-(3) The State shall be guided by the principles of decentralisation and
devolution of governmental functions and powers to the people at appropriate
levels of control to facilitate democratic governance.
+ACI-(4) In the composition of the Government, women shall be fairly
represented.
+ACI-(5) The Government, with due regard to the principles of an open and
democratic society, shall foster accountability and transparency at all
levels of government.+ACI-

Hence, Rene, it should be clear from this that the constitutional provisions
have established a foundation for the people to determine their manner of
government and for political contest to take place among people who intend
to be their representatives.

If transformation is to be peaceful, two factors must obtain. One factor is
that the existing government must respect all these provisions and open up
for the people to hear all views and select their representatives as they
deem fit, as the constitution says to guarantee +ACI-participatory democracy
that reflects the undiluted choice of the people.+ACI-

The second factor is the enlightenment of the people to such a level that
they have the capacity to vote massively against a leader who aims to retain
monopoly of power irrespective of their will. Under such circumstances, even
if there is rigging there is generally a consensus that a given leader has
lost thus provoking mass uprisings as we had witnessed in Philippines and so
on.

Without these two factors, coups d'etat and guerrilla warfare by few
combatants in the name of the people have led to the change of political
leadership and not necessarily to the empowerment of the people. This is an
issue Africa has to confront in the 21st Century by our perseverance to
ensure that the people are so enlightened and organised that no one needs to
serve as their intermediary in taking their authority from those who try to
usurp and monopolise it as self made saviours. We must ensure that they the
people become their own political saviours.

This is the first point. Let us move to your second question.

Your second question: +ACI-With respect to the economy, and all the reviews that
have been made, some of which are quite disheartening, is it within our
constitutional purview to set up an independent council of economic
advisors?+ACI-

The constitution establishes representative institutions. In short, people
are to select representatives through whom they purportedly govern. Of
course the executive has authority under section 80 to constitute any public
office. It reads:

+ACI-Subject to this Constitution and any Act of the National Assembly, the
President may constitute any public office for The Gambia and make
appointments to such office and terminate such appointments.+ACI-

Section 81, subsection (2) adds that:

+ACI-The principle advisers on professional and technical matters in all the
departments of the Government shall be professionally qualified persons.+ACI-

The members of the National Assembly also have powers under section 77,
subsection (2) to inquire into important national matters. It reads:

+ACI-The National Assembly may request the President to attend a sitting of the
National Assembly for the discussion of a matter of national importance.+ACI-

Your observation, therefore, is pertinent. In fact, the principle of
democratic participation calls for the involvement of all the people in one
form or the other in the administrative life of society. And constituting
think-tanks or committees of experts to review certain policies or help in
the formulation of policies would constitute a prudent way of administering
departments of state.

This is the second point.

Let us move to your third question which reads: +ACI-Is it also within our
constitutional setting, that members of parliament, either singularly or in
committees, can sponsor alternative policies, budgets, or other national
policy issues for consideration by the house, as a substitute for that which
the government proposes?+ACI-

Section 101 of the constitution states that:

+ACI-(1) Subject to the other provisions of this section, a Bill or motion may
be introduced in the National Assembly by a member of the Cabinet or by a
member of the National Assembly, and the National Assembly shall give
consideration to Bills and motions so introduced.+ACI-

Yes, members of the National Assembly may introduce Bills or motions.
However, a motion or Bill requires  majority support before it is passed.
Where National Assembly members vote on a partisan basis, the party in the
majority could always defeat a motion or Bill introduced by others. It is
also important to bear in mind that Bills dealing with +ACI-imposition of
taxation or the alteration of taxation .....+ACI-  or  +ACI-..... the imposition of
any charges on the Consolidated Revenue Fund or any other public fund of The
Gambia or the alteration of any such charges....+ACI- as prescribed in section
101, subsection (4) must be +ACI-..... introduced into the National Assembly by
the President.+ACI-

You also did mention these profound statements: +ACI-These representatives
should be able to dispense with such  responsibilities freely, irrespective
of party affiliation, and should be guided only by their conscience and what
is in the national interest. They should have the prerogative to either
support or against their party's positions on national issues, and should do
so as a matter of principle and at the behest of their conscience.+ACI-

I must say that this concurs with the letter and spirit of section 112 of
the constitution which reads:

+ACI-The responsibilities of the members of the National Assembly shall include
the following:-
      +ACI-(a) all members shall maintain the dignity of the National Assembly
both during the sittings of the National Assembly and in their acts and
activities outside the National Assembly+ADs-
       +ACI-(b) all members shall regard themselves as servants of the people of
The Gambia, desist from any conduct by which they seek improperly to enrich
themselves or alienate themselves from the people, and shall discharge their
duties and functions in the interest of the nation as a whole and in doing
so shall be influenced by the dictates of conscience and the national
interest.+ACI-

This is why it is important for the people to be fully aware of the duties
of their representatives. In that way, they would be able to select those
who are best capable of transforming principles into practice. This is how
matters stand.

Greetings.

Halifa.

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