Where is Our Constitution?

http://allafrica.com/stories/200305020006.html

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

This is not a rhetorical question. Far from it. It is dictated by thought-
provoking facts and mitigating circumstances of the current political and
legal environment in The Gambia where certain actions by the establishment
are not explained and sometimes go sadly unnoticed.

A constitution is the supreme law of every land and it encapsulates in
legal terms the values by which every society agrees to run its affairs and
set its framework in tandem with the principles of governance. The source
of all power in a state derives their validity from the constitution, which
to put it mildly is a very important document whose importance requires
certainty of its contents, it's availability and accessibility.

Increasingly, it is becoming difficult to determine with any degree of
certainty what or where is the authentic text of the 1997 constitution of
the Republic of The Gambia.

In the year 2000 when the Supreme Court was hearing the case of the UDP and
others vs. the Attorney General concerning the constitutionality of the
removal of Bishop Solomon T. Johnson as the chairman of the IEC the
question was raised by counsel as to whether the text of the constitution
that was then being used accurately reflected in language, punctuation and
format the original text of the 1997 constitution. The clerk of the
National Assembly was summoned to appear in the Supreme Court to produce
the constitution of the Gambia. He did appear and produced a document
titled, "Draft constitution of the Republic of The Gambia" and claimed that
this was the document being used in the National Assembly, which he said
did not have as it normally should, the original and signed copy of the
constitution nor did he knew where that copy should be located.

The issue was not pursued further in court for legal technical reasons and
the courts never pronounced on it. But the issue is yet to be determined.

It has now been compounded by the appearance of a newly printed 1997
constitution of the Republic of the Gambia. It is with pink covers bearing
imprints of a National Printing and Stationery Corporation.

This pink version does not appear to pass the test of validity and
authenticity, and the manner in which it suddenly appeared betrays a lot
about the real motives of the architects. It might be a litmus test for
them to see if they can get away with perhaps other amendments probably in
the offing. But the simple fact is that there is nothing under the sun
capable of justifying the unexplained departure from established procedures
relating to constitutional amendments, which were made to the original
document without justifiable reason based on law and the consent of the
people.

Readers will recall that in the case of Kemesseng Jammeh Vs. the Attorney
General two years ago, the Supreme Court upheld that the provision Act No
6/2001 purporting to amend the constitution to make The Gambia a secular
state and also the provision purporting to alter the clause in the
constitution indemnifying members of the former AFPRC were
unconstitutional, invalid, void and of no affect. But in expressed contempt
of the Supreme Court the government was undeterred. It proceeded to delete
those provisions from the text of Act No 6 of 2001.

To the surprise and consternation of members of the legal fraternity and
others with genuine concern with the state of the Judiciary, this new pink
version printed well after the Kemesseng case now contains these so called
amendments which the Supreme Court had earlier ruled as invalid and
unconstitutional and struck out of the laws of the Gambia. This defective
pink document continues to be officially circulated instead of being
withdrawn for rectifications.

Did this situation arise because of official contempt for the Supreme Court
as well as for the constitution? Or is it a highly regrettable case of
sheer incompetence on the part of the state law office.

Whatever it is, the failure to take remedial measures is a matter of grave
national concern as it still leaves Gambians who can read between the
lines, wondering where indeed is the authentic text of the 1997constitution
that we had all voted for in a referendum.

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