THE LAW REFORM COMMISSION AND THE 1997 CONSTITUTION (Part 3 )
The Controversy, The Doubts and The Facts
ON THE PREAMBLE OF THE CONSTITUTION
It was on 22 April 1996 that FOROYAA started to publish the provisions of
the draft Constitution in order to encourage a debate before a referendum
scheduled for 7 August 1996. The date of the referendum was later adjusted
to 8 August, 1996.
The 1970 Constitution did not have a Preamble. The draft Constitution,
however, came up with a Preamble.
We will first recall what we wrote on 22 April, 1996 and then proceed to
show the difference between the Preamble embodied in the draft Constitution
and that which is contained in the approved Constitution. There is a major
difference which calls for an amendment
Our introductory remarks went as follows:
+ACI-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.
+ACI-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.
+ACI-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.
+ACI-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.
+ACI-The draft Constitution has twenty three chapters. The first chapter
establishes the Republic. The second chapter deals with the supremacy of the
Constitution to all other laws and provide guidelines of how to defend it.
Chapter 3 defines citizenship. Chapter 4 establishes fundamental rights and
freedoms. Chapter 5 deals with elections and the establishment of political
parties. Chapter 6 deals with the office of President and his or her
executive powers. Chapter 7 deals with the National Assembly and its law
making powers. Chapter 8 deals with the Judiciary. Chapter 9 deals with
Finance. Chapter 10 deals with the Ombudsman. Chapter 11 deals with the
Public Services. Chapter 12 deals with the Police Force and Prison Service.
Chapter 13 deals with the Armed Forces. Chapter 14 deals with the Land
Commission. Chapter 15 deals with the Local Government System and the place
of traditional rulers. Chapter 16 deals with the National Youth Service
Scheme. Chapter 17 deals with the National Council for Civic Education.
Chapter 18 deals with the establishment of Commissions of Inquiry. Chapter
19 deals with the Media. Chapter 20 deals with principles that should guide
the establishment of state policies. Chapter 21 deals with code of conduct
for public officers. Chapter 22 deals with ways of changing the
Constitution. Chapter 23 deals with appointments and resignations, as well
as how we are going to move into the Second Republic.
+ACI-FOROYAA shall try to explain what is in each of the chapters of the draft
Constitution in a series of booklets.
+ACI-HISTORY OF THE DRAFT CONSTITUTION
+ACI-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 +ACI-no taxation
without representation+ACI-. 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.
+ACI-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+ADs- 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+ADs- that we have to
live together as a Gambian people and cooperate to determine its economic,
social, cultural and political life.
+ACI-The birth of the sovereign republic of The Gambia called for the
enlightenment of the people so that they would 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.
+ACI-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.
+ACI-To ensure the empowerment of the people in The Gambia, a National
Consultative Committee was established 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 reviews 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.
+ACI-On 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 of the 1970 Constitution and the views and
comments of members of the general public, including professional
associations.
+ACI-The Commission was established on 20 April, 1995. It submitted its report
in November, 1995.
+ACI-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 they reflect our common will.
Notwithstanding, his tory 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.
+ACI-PREAMBLE
+ACI-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.
+ACI-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.
+ACI-The Draft Constitution for the Second Republic contains the following
Preamble:
+ACI- +ACI-In the name of God, the Almighty,
+ACI- +ACI-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.
+ACI- +ACI-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.
+ACI- +ACI-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.
+ACI- +ACI-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.
+ACI- +ACI-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.
+ACI- +ACI-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.
+ACI- +ACI-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.+ACI-
+ACI-This is to be the Preamble of the Constitution of the Second Republic. Do
you have any objection? It is your duty to decide.+ACI-
This is what we wrote on 22 April, 1996. Let us now turn to the Preamble of
the approved Constitution:
TO BE CONTINUED
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