Gov't Tampers With 1997 Constitution; Pink Version of National Document
Circulating

http://allafrica.com/stories/printable/200305020002.html

The Independent (Banjul)
NEWS
May 2, 2003
Posted to the web May 2, 2003

By Jalamang Jammeh & Niohor Saine
Banjul

Incontrovertible evidence exists, pointing to a rash of unorthodox and
controversial amendments to some provisions of the 1997 constitution,
despite some being entrenched clauses, requiring a referendum to that
effect.

Contrary to established drafting principles, the State epitomised by the
APRC regime had proceeded with no apparent legal authority to incorporate
the provisions of ACT No. 6 of 2001, into the "pink" version of the Gambian
constitution. A relevant document secured by The Independent unimpeachably
suggests that the amendment was not shown forming an integral part of a
revised constitution but instead it is being curiously referred to as "The
Constitution of the Republic of The Gambia".

The State also made another scandalous amendment to the constitution in
brazen defiance of the Supreme Court judgement pertaining to civil suit No
4/2001, between Kemesseng Jammeh and the Attorney General. The Supreme
Court in pages 12 and 13 of their judgement struck out the amendments to
Section 1 and paragraph 13 of the 2nd Schedule of the Constitution. The
State was represented in this case at the Supreme Court by the State
Counsel. Some private legal practitioners claim they have noticed a marked
shift in the legal drafting style and called the attention of the
Draftsperson at the Department of State for Justice to advise on what is
possible in drafting laws. One lawyer went as far as sending a letter of
concern to the Solicitor General copied to the Secretary General, Office of
the President and the Speaker of the National Assembly, decrying the
unexplained departure from established procedures in terms of recent
constitutional amendments to the nation's laws compiled as the 1997
constitution.

In Kemesseng's case with the Attorney General, the plaintiff had argued
that "the purported amendment to Section 1 of the constitution contained in
the schedule to Act No 6 of 2001, purporting to substitute for that section
a new one declaring that 'The Gambia was a Sovereign Secular Republic' is
ultra vires, null and void and of no effect by reason of non-compliance
with provisions of Section 226(4) of the constitution".

The Supreme Court had upheld this argument and another that pointed out
that the legislative authority is further limited by the constitution by
way of prohibitions against the exercise of its legislative functions in
respect of specified matters. "Thus for example Section 100(2) (a) of the
constitution declares that the National Assembly shall have no power to
pass a bill to amend or repeal this paragraph of paragraphs 11, 12, 13, or
14 of this Schedule" the Supreme Court had argued.

Meanwhile according to supplement "A" to the Gambia Gazette No 10 of 31
December 2002, 35 legal notice No 10 of 2002, the Interpretation Act was
also amended quoting section 31 of this Act, empowering the president to
issue orders for the reprint of the 1997 constitution and to "insert in or
omit out" from the reprint sections, schedule or words of the said
Constitution that were inserted or omitted. This order was noted to have
been issued on December 31, 2002 although the fact that it may be backdated
was a strong possibility. However, it has been argued that this purported
act of the State has no validity.

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