By Bubacarr Drammeh
The national conversation prior to the 2016 presidential election was centered on the demand for freedom, the desire for democracy, the aspiration for progress, the need for better healthcare system, and the achievement of economic growth and development. The outcome of the 2016 presidential election is evidence that the change Gambians cried for was indeed real. Since the political change, this era of Gambian politics is now referred to as “The New Gambia.” The new Gambia is expected to be democratic, free and governed in accordance with the principles of rule of law. Every Gambian must make it a duty to participate in facilitating “new Gambia” to blossom to a fully matured democracy. It is in the fulfillment of building a lasting democracy that every single action of the Barrow administration — the first administration of the “new Gambia — must be scrutinized by the citizens of The Gambia.
Democracy Watch Gambia (DWG) is one of the organizations that has been very vigilant in ensuring the attainment of the promises of the new Gambia. A few weeks ago, DWG published a forty-five-page document titled The DWG Constitutional Reform Recommendation Pack. It explained in the preamble of the document the purpose of the publications as thus:
Contained within this 45 (forty-five) page document of 16,598 (sixteen thousand five hundred and ninety-eight) words is literature by the DWG which reflects our vision for progressive reform; and recommendations for meaningful holistic Constitutional reform. The ideas herein are the product of rigorous low-level consultation(s) and collective effort by our membership which we hereby present to the Government of The Republic of The Gambia through your noble Statutorily established commission (Constitutional Review Commission) as our humble contribution to the pool of ideas from which the anticipated 3rd Republican Constitution shall emerge.
The above is evident of DWG’s proactive approach in ensuring that The Gambia becomes a democratic nation. The organization believes that the Constitutional Review Commission (CRC) is a “noble Statutorily established commission” and therefore deem it fit and proper to submit a forty-five-page document that “reflects its vision for progressive reform; and recommendations for meaningful holistic Constitutional reform.” The intent and purpose of the forty-five-page document are to serve as its “humble contribution to the pool of ideas from which the anticipated 3rdRepublic Constitution shall emerge.” Which would, of course, be through the Commission recently established by the Constitutional Review Commission Act.
Few days ago, DWG published another article entitled The Constitutional Review? Commission (CRC) Act 2017: An Instrument for Democracy or Dictatorship’s Charter?The title of course captured my attention. As I began reading the piece, I found myself in disagreement with the core thesis of the piece. I will acknowledge that I concur with some of the document’s underlining principles, even though I disagree with the manner in which it arrived at conclusions. That being said, I will in this article focus on two assertions that I believe DWG got absolutely wrong. I am convinced that the assertions were not made out of malice, but a precipitation. The two assertions are embodied in the submissions DWG advanced regarding (1) the constitutionality of the Constitutional Review Commission Act; and (2) Section 21 CRC Act 2017 — Submission and Publication of the Constitution and Report & Section 22 CRC Act 2017 — Dissolution of the Commission.
With respect to the constitutionality of the CRC Act, DWG argued that since Part 1 of the CRC Act states that the Constitutional Review Commission’s (Commission) purpose is to draft a new constitution, that power “falls outside the dictates of the 1997 Constitution and, its implementation will constitute an overthrow of our Sovereign Republican Constitution.” It added that the “implementation of the Constitutional Review Commission Act 2017 will constitute a “Treason” as prescribed under Section 6 of the 1997 Constitution of The Gambia. DWG went on to conclude thus:
The existing Constitution (Section 226) has prescribed within it, a mechanism through which any alterations to it [including the one this CRC aims to achieve] can be achieved and unless there is an ulterior motive/undeclared agenda, there is no other plausible explanation why such is being departed . . .. The CRC Act is wholly inconsistent with the letter and spirit of Section 226 and therefore unconstitutional pursuant to Section 4 and worthy of a fierce challenge under Section 5.
The argument propounded by DWG raises two fundamental issues. (1) Whether the Commission’s function of drafting a new proposed constitution falls outside the dictates of the 1997 Constitution thus unconstitutional? And (2) whether implementing the CRC Act will constitute treason?
(1) Whether the Constitutional Review Commission’s purpose falls outside the dictates of the 1997 Constitution thus unconstitutional.
DWG’s entire argument of the unconstitutionality of the CRC Act is premised on the short title of the said Act (the short title can be found in Part 1 of the Act). For the purposes of clarity, I would produce a facsimile of the short title below:
An Act to provide for the establishment of a Constitutional Review Commission to draft and guide the process of promulgating a new Constitution for The Gambia and for connected matters.
From here I would like to point out that generally, the title of a statute and the preamble of a statute are not necessarily a fundamental part of a statute. They could be helpful in discerning the intent of the legislature with respect to ambiguous wordings in the statute. This notwithstanding, if a court determines that a term of the statute is clearly expressed in the part of the statute one is analyzing, the preamble or purpose may not be useful. It is a precipitation on the part of DWG to treat the short title of a statute as a fundamental part of the statute. The submissions would have caught the attention of the government of The Gambia (and of course constitutional law scholars) if it had challenged the constitutionality of a section of the Act, in this case, the functions of the Commission as provided for in Section 6 of the CRC Act. Section 6 (1) of the CRC Act states that “the functions of the Commission are to draft a new constitution and prepare a report in relation to the constitution.” The wordings of the aforementioned section are similar to the statement put forth in the short title of the CRC Act. Furthermore, the interpretation section of the CRC Act provides that the term Constitution whenever used in the CRC Act means the proposed new constitution of The Republic of The Gambia that the Commission is tasked under this CRC Act to draft. I therefore still cannot comprehend the reason DWG focuses on the short title that is less significant than the section that clearly states the functions of the Commission. It could either be that (1) the authors were not assiduous, and therefore could not see that the CRC Act has provided for the functions of the Commission or (2) the authors are of the erroneous belief that the short title of the CRC Act is inconsistent with Section 226 (8) of the 1997 Constitution. The aforenamed section provides that:
No Act of the National Assembly shall be deemed to amend, add to, repeal or in any way alter any of the provisions of this Constitution unless the title of the Act clearly indicates that intention and the Act does so in express terms.
What the above section is saying is that an Act passed by the National Assembly shall not be regarded or considered to amend, add to, repeal or in any way alter any of the provisions of the 1997 Constitution unless the title of the Act clearly indicated that the Act intents to amend, add to, repeal or alter a provision in the 1997 Constitution. This is not what happened when CRC Act was introduced. The short title of CRC Act clearly states that the Government is setting up a Commission that would draft and guide the process of promulgating a new Constitution. Thus, the CRC Act is not a constitutional amendment or repeal Bill.
Furthermore, DWG contends that the Commission having been empowered by the Act to draft a new Constitution, “falls outside the dictates of the 1997Constitution.” But it never explained how the Commission falls outside the dictates of the 1997 constitution. I have perused the 1997 constitution in its entirety, especially Section 226, but I could not come across anything that seems to indicate or suggest that the Commission’s functions of drafting a proposed constitution “falls outside the dictates” of the 1997 constitution. I would not embark on a futile journey of trying to insinuate what DWG meant by “falls outside the dictates of the constitution”, rather I would state emphatically that the Commission being empowered by the Act to draft a proposed constitution does not in any way “falls outside the dictates of the 1997 constitution.”
What the Commission is tasked to do is not different from the process a private bill or a public bill goes through prior to it being tabled before the National Assembly. Any bill whether it is a bill that sought to amend the constitution, amend any other law, or proposed a new law has to follow the procedures stipulated in the 1997 constitution of The Gambia. The 1997 constitution regulates the procedures for formal presentation of a bill in the National Assembly not what happened prior to a document being formally presented as a bill. For example, if the government want to pass a law prohibiting torture. They would first come up with a document. Prior to the presentation of the document to the National Assembly, it has no legal effect. When the government is ready to present the document to the National Assembly for it to become law, the document will progress into a bill. It is when the document becomes a bill that one would start asking the question whether the proper procedure has been followed. One such procedure could be whether the bill has been published in the Gazette? Similarly, whatever the Commission is tasked to do has no direct effect on the 1997 constitution at this stage. The Commission is merely empowered to write a document. The question whether the document follows the dictates of the 1997 constitution would only arise when its final product is presented to the National Assembly as a bill. Once the Commission ‘s work is presented the proposed new constitution as a bill, Section 226 of the 1997 constitution would set into motion. Thus, from here, anything that is done must be done in accordance with Section 226 of the 1997 constitution. Doing otherwise would fall outside the dictates of the 1997 constitution. Therefore, it is premature and tantamount to putting the cart before the horse to argue at this stage that the Commission falls outside the dictates of 1997 constitution.
Finally, on this issue, DWG submitted that “the existing Constitution (Section 226) has prescribed within it, a mechanism through which any alterations to it [including the one this CRC aims to achieve] can be achieved and unless there is an ulterior motive/undeclared agenda, there is no other plausible explanation why such is being departed.”
While it is true that the 1997 constitution has specified the mechanism through which any alteration to it can be achieved. It is specious to argue that the aim of CRC Act is to make an alteration to the 1997 constitution. There is nothing in the CRC Act that empowers the commission to make any alteration to the 1997 constitution. The Commission’s functions as prescribed in Section 6 of the CRC Act is to draft a new proposed constitution. The only time the CRC Act makes reference to the 1997 constitution is when it stipulates in Section 6 that the Commission in carrying out its functions “shall review the 1997 constitution.” Thus, the only thing the Commission is empowered to do with respect to the 1997 constitution is to review it. There is nothing unconstitutional about that. In fact, DWG categorically stated that the Commission’s power to review the 1997 constitution is within the ambit of the 1997 constitution of The Gambia. The aforesaid being the case, how is the CRC a departure from Section 226?
I submit that DWG is wrong to conclude that “The CRC Act is wholly inconsistent with the letter and spirit of Section 226 and therefore unconstitutional . . ..” The CRC Act is not in any way inconsistent with the 1997 Constitution of The Gambia. The CRC Act and the Constitution are mutually inclusive.
(2) Whether implementing the Constitutional Review Commission Act will constitute Treason?
The assertion by DWG that the “implementation of the Constitutional Review Commission Act 2017 will constitute a Treason” as per Section 6 of the 1997 Constitution of The Gambia is ludicrous. DWG postulated that since the CRC Act “falls outside the dictates of the Constitution,” its implementation will constitute an overthrow of the 1997 Constitution, therefore “constitute a Treason.” DWG reached this facile conclusion because of (1) the wrong assertion that the CRC Act is inconsistent with Section 226 of the 1997 Constitution and (2) the erroneous interpretation of Section 6 of the 1997 constitution. I will say I am perplexed. For the sake of clarity, I would produce the facsimile of Section 6 of 1997 Constitution. The said section stated that any person who –
- by himself or herself or in concert with others, by any violent or other unlawful means, suspends or overthrows or abrogates this Constitution or any part of it, or attempts to do any such act, or
- aids and abets in any manner any person referred to in paragraph (a) commits the offence of treason and shall, on conviction, be liable to the penalty prescribed by an Act of the National Assembly for that offence.
From the above constitutional provision, for anyone to be guilty of treason one must suspend, or overthrow or abrogate any part 1997 constitution by a violent or an unlawful means; or attempt to suspend, or overthrow, or abrogate any part 1997 Constitution by a violent or an unlawful mean.
The key words in the forenamed constitutional provision are violentand unlawful. It is trite law that if the language of a statute is plain and unambiguous it must be given effect UNLESS a literal interpretation would lead to absurd or mischievous consequences or thwart the manifest purpose. Cambridge Dictionary defines violent as “using or involving force to hurt or attack.” Whiles Oxford Dictionary defines violent as “involving an unlawful exercise or exhibition of force.” Cambridge Dictionary defines unlawful as “not allowed by law” or “not according to or acceptable by law.” Whiles Oxford Dictionary defines unlawful as “Not conforming to, permitted by, or recognized by law or rules.”
The CRC Act was a bill presented to the National Assembly by the Minister of Justice. The bill conforms to the provisions of the constitution that dictates how a bill should be presented to the National Assembly. The National Assembly also followed proper procedure and pass the bill. The bill was assented to by the President of The Gambia as promulgated by law. It was after all these processes that the CRC Act becomes law. This being the case, how could the implementation of the CRC Act be considered treason?
In fact, going by its own analogy, every member of DWG should be arrested and charged with treason under Section 6 of the 1997 Constitution. Section 6(b) provides that any person who “aids and abets in any manner any person referred to in paragraph (a) commits the offence of treason. DWG published a forty-five-page document titled The DWG Constitutional Reform Recommendation Pack. It said that “the ideas herein are the product of . . . collective effort by our membership which we hereby present to the Government of The Republic of The Gambia through your noble Statutorily established commission (Constitutional Review Commission) as our humble contribution . . ..” This is tantamount to aiding and abetting the Commission in implementing the CRC Act, thereby committed treason as per Section 6(6) of the 1997 constitution.
In addition, DWG commended the government of The Gambia for the enactment of CRC Act and called the Commission established by the CRC Act a “noble Statutorily established commission.” Thus, within a month, it published two pieces. In one of its piece the organization called the Commission established by the CRC Act a “noble statutorily established” and in the other, it asserted that “CRC Act is wholly inconsistent with the letter and spirit of Section 226 and therefore unconstitutional.” [DWG, however, has not admit to where it went wrong and when it realized its mistake in endorsing the “noble Statutorily established commission.”]These two contentions advanced by the same organization shows vacuity or lack of due diligence.
With respectto Section 21 CRC Act 2017 — Submission and Publication of the Constitution and Report & Section 22 CRC Act 2017 — Dissolution of the Commission, DWG submitted that: “As per the above provisions of the CRC Act 2017, the draft Constitution shall not be subjected to any public scrutiny in the form of a referendum. . .” I wonder what document DWG is referring to. It is fallacious to state or even infer that as per Sections 21 and 22 of CRC Act 2017, the would-be proposed draft constitution “shall not be subjected to any public scrutiny in form of a public referendum.” What Section 21 of the CRC Act states is that the Commission shall, upon the completion of its work, submit the proposed draft constitution with a report to the President. Additionally, it shall publish the report in the Gazetteand in any other manner as it considers fit. Likewise, Section 22 states that the Commission shall stand dissolved one calendar month after the date of enactment by the National Assembly of the Bill introducing the Constitution. In addition, members of the Commission may be called upon by the National Assembly to clarify any matter and answer any question relating to the provision of the proposed draft Constitution during the periods prior to the enactment.
Basically, once the Commission finished its work, it is mandated to do the following: (1) submit a copy to the President of The Gambia; and (2) publish its work in the Gazette and any other manner it considers fit. Once the proposed new constitution is introduced in the National Assembly as a Bill, Section 226 will set in motion. This is so because the Bill seeking to amend, alter, modify etc., (or whatever one chose to call it) the 1997 Constitution. The Bill would be debated by the members of the National Assembly and is required to follow every procedure stated in Section 226 of the 1997 Constitution including the Bill being supported by at least three quarters of all the members of the National Assembly. Once the Bill is passed by the National Assembly and assented to by the President, a referendum would be organized for the Gambian people to either accept or reject it. Additionally, Section 6 (2)(a) provides that the Commission in carrying out its functions shallseek public opinion and take into account such proposals as it considers appropriate.
I, therefore, submit that DWG’s assertion that “the draft Constitution shall not be subjected to any public scrutiny in the form of a referendum” is fallacious. In as much as I support the works DWG embarks on, I suggest it be more meticulous in its important future works in the realm of the constitutional transformation of our beloved country.