By Sarjo Barrow, Esq.[i]
Introduction and Scope of my Review
In March 2020, CRC submitted its final draft of the 2019 constitution to President Barrow. Politicians, legal scholars, students, and ordinary citizens all shared their sentiments about the new document. The majority of Gambian supported the Final Draft; the Draft is said to be the most progressive and inclusive document in the country’s history. I support the Draft Constitution, but I hope the National Assembly will further interrogate the Draft and make the necessary adjustments.
The scope of my comments, therefore, will cover the Final Draft submitted to President Barrow. Even so, given the enormity of the task that the review of the Draft implies, my comments focus on some, but not all, probable key areas of concerns in terms of compliance with contemporary human rights and the rule of law standards. Importantly, my comments do not constitute a full and comprehensive review of the Draft, nor the entire legal and institutional framework concerning the protection and promotion of human rights in The Gambia.
As it turns out, constitutions do permit the prolixity of a legal code.[1] The amended U.S. Constitution is roughly 8, 000 words. In contrast, the South African Constitution is around 43,000 words.[2] Clearly, in drafting a new constitution, the framers are faced with a choice between two broad approaches to constitutional drafting: (1) a “framework-style” approach, or (2) the “codified” approach.[3] The former provides only general textual guidance as to the meaning or operation of a particular constitutional norm; the latter provides far greater details or specificity regarding the intended meaning and function of relevant constitutional standards.[4] The CRC’s Draft Constitution appears to adopt the “codified” approach. Still, in contemporary constitutions, there is a clear trend toward longer or more codified constitutions.
Nonetheless, I contend that The Gambia should have opted for the framework-style approach. I will discuss my reasons infra.
The argument for the codified approach is that it attempts to use the formal process of constitutional design to constrain judges to consider the intent of framers in resolving particular tangible constitutional controversies. On the other hand, the framework-style approach gives broad discretion to judges to shape constitutional meaning. In short, by implementing the codified approach, the framers implicitly assume at least some degree of distrust toward judges as constitutional interpreters. In contrast, the other is based on a high degree of faith, or trust, in judges as partners in the process of constitutional design.
Comments on the Final Draft
On July 22, 1994, the Gambian military toppled a legitimate government. The military juntas suspended and abrogated the 1970 Constitution. As such, the 1997 Constitution is devoid of public consultation or popular opinion. The 1997 Constitution gave birth to the Second Republic. Because the 1997 Constitution is still the supreme law of the land, any amendment to the said document must conform to Section 226.
First, while the Draft Constitution contains a lot of positive and progressive provisions, the retroactive application of the proposed two-term limit potentially violates Section 100(c) of the 1997 Constitution. As argued by Lawyer Lamin J. Darbo, Section 100 prohibits National Assembly (“NA”) from passing laws that “deprive any person retroactively of vested or acquired rights ….” Granted, the 1997 Constitution empowered NA to pass legislation that has a retroactive effect. However, such powers are heavily qualified. Thus, I would agree with my learned senior that retroactive application of the two-term limits is problematic and an affront on substantive due process. To me, the provision is not discriminatory but ultra vires and unconstitutional as applied to affected persons.
The CRC cannot, through legislative fiat, alter protected vested rights under the 1997 Constitution without a coup and suspension of the current constitution. The CRC Act, among other things, tasked the commissioners to review and draft a new constitution. But it is the NA that must introduce a bill to amend the current constitution. In doing so, NA must conform to the dictates of the 1997 Constitution. Unlike President Jammeh, we do not have the luxury of a suspended constitution—the ousting of President Jammeh in the 2016 presidential election is not the equivalent of a 1994 military coup.
Second, Lawyer Darbo strongly criticizes the CRC for what he described as a “copy and paste” of the 2010 Kenyan Constitution. However, several legal scholars in the Gambia came to CRC’s defense and argued that plagiarism is not applicable in constitutional review. Without holding brief for Lawyer Darbo, his argument is not that CRC could not borrow or take inspiration from other documents. Without reinventing the wheel, CRC should have used its own choice of word as other countries did. The U.S. constitution draws inspiration from many early forms. Yet, the drafters, except for the 8th Amendment, did not resort to verbatim copy and paste. The framers of the U.S. Constitution copied Section 10 of the English Bill of Rights of 1689 nearly verbatim. The framers intended to prohibit excessive bail or fines and cruel and unusual punishment.
I do not care if CRC regurgitates another country’s constitution as long as its principle is applicable in The Gambia and the citizens approved of it. The law does not define plagiarism—it is not a criminal or civil offense but certainly illegal if it infringes on intellectual property rights. First, plagiarism is about norms, customs, and expectations, which vary significantly in context. For example, President Barrow, like most presidents, if not all, utilizes speechwriters. Hopefully, no one thinks that the politicians that use speechwriters are taking credit for every word (though they do have personal responsibility), which pushes their conduct outside of most concepts of plagiarism. On the contrary, hiring someone to write your dissertation or using another’s without acknowledgment is entirely unacceptable. In the two scenarios, the conduct does not differ, but the norms or expectations do.
Therefore, since I believed that Lawyer Darbo has a legitimate point, I think an appropriate or relevant question should have been whether CRC justified in spending D116 millions when allegedly, it substantially copies and paste their work. I think the jury is still out on this matter.
Third, as explained supra, the Draft is very long, and the framers adopted the codified approach of constitutional drafting. I sincerely believe that The Gambia needs a framework-style approach to constitutional drafting. Based on our shared experience and history, The Gambia needs a living document that will develop alongside the needs of the society, withstand the test of times, while at the same time providing a more flexible tool for the government. The idea is associated with the view that contemporary society should take into account when interpreting vital constitutional phrases.[5]
Thus, the concept “the Living Constitution” is a characterization and not a specific method of interpretation. Justice Brennan and Judge Posner have expressed this general view. In Missouri v. Holland, 252 U.S. 416, 434 (1920), Justice Holmes remarked that:
With regard to that we may add that when we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation. The case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago.
Moreover, Section 45(2)(e) of the Draft Constitution guarantees the right to a speedy trial. Yet, the Draft did not encapsulate the concept of judicial review/constitutional review. I believe it is time for the High Court (as a trial court with original jurisdiction) to have original jurisdiction regarding the interpretation of any provision of this constitution, including but not limited to a question of law during any trial.
This would save time and promote judicial efficiency. The Court of Appeal would have the opportunity to review including but not limited to the decision of the High Court on any question of law. The Supreme Court, of course, if a petition for review is a grant, will review if an interpretation is wrong. If the Supreme Court declines to grant a petition for review or refuses to take a case that is certified by the COA, this will send a strong signal to the parties that may be the interpretation is correct.
To ask that the Supreme Court resolves a constitutional question, at the same time, ask a trial court to stops a trial (especially in a criminal case) that may very well violate the right to a speedy trial. It is only in The Gambia where a simple misdemeanor case can take years. For a serious felony, the accused risk serving the maximum sentence in pretrial condiment before the trial ends. See NIA 9 trial case.
Fourth, I believe the Draft fell short of acceptable international practice when it expressively fails to state in Section 41(2)(d) that excessive bail or fines should not be imposed. As a basic tenet of democracy, the presumption of innocence, all accused should have a constitutional right to bail if appropriate.
Furthermore, NA should revisit the writ of habeas corpus. To state that even in the case of a rebellion, the extraordinary writ cannot be suspended, is worrisome. Also, Section 69, the equal protection clause, states that all persons are equal before the law. But Subpart (3) explicitly excludes certain categories from this protection. Thus, it makes no sense to carter an entire section for women’s rights in the constitution, nor imposes fourteen women on the electorates to NA.
Under the principle of equal protection, how do we reconcile and harmonize the mandatory election of women to NA with Section 69? It is not unheard of for courts to upheld legislation under the theory of reverse discrimination of systematically disfavored or marginalized groups. Unlike South Africa, The Gambia has no laws that intentionally discriminate against women. The situation in The Gambia can best be described as “desperate impact” and not “desperate treatment.” Therefore, an Act of NA is more suited in advancing the plight of women and other disfavored groups and not the constitution to avoid frequent amendment.
Fifth, any Gambia that has the right to vote should equally have the right to be voted for. The Draft should require NA to draft legislation, with all deliberate speed, allowing diaspora Gambians to vote in the presidential election. Because an impartial judiciary is fundamental to the rule of law, especially in the framework-style approach, the tenure of judges should be protected. But, to maintain the principle of separation of powers and check and balance, I think NA should remove the pension of judges from the Draft and tackle it through legislation.
To protect the right of every citizen to be tried by a free, independent and impartial judges, it is, therefore, not only the best policy, but for the security of the rights of the people, and every citizen, that the judges should hold their offices during good behavior. And that they should have decent remuneration ascertained and established by an Act of NA.
Finally, in the spirit of separation of powers, judges should be removed from office either through (1) JSC[6] investigates complaints of judicial misconduct and incapacity and may privately admonish, suspend, censure, retire, or remove a judge. The commission’s decisions are subject to review by the Supreme Court, or (2) Judges may be impeached by a majority vote of the NAM and removed by a two-thirds vote of the NAM for the trial of impeachments.
[1] Cf. McCulloch v. Maryland, 17U.S. 316, 407 (1819) (Marshall, C.J.).
[2] It serves as an inspiration for modern African constitutions.
[3] See, e.g. , Tom Ginsburg, Constitutional Specificity, Unwritten Understandings and Constitutional Agreement , Univ. of Chicago, Public Law Working Paper No. 330 (2010), available athttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=1707619; Mila Versteeg & Emily Zackin, Towards an Alternative Theory of Constitutional Design (Feb. 2, 2014) (Unpublished manuscript, on file with the University of Maryland).
[4] Cf. Versteeg & Zackin, supra note 3.
[5] Winkler, Adam. A Revolution Too Soon: Woman Suffragists and The “Living Constitution”. 76 NYULR 1456, 1463 (“Based on the idea that society changes and evolves, living constitutionalism requires that constitutional controversies, in the words of Justice Oliver Wendell Holmes Jr., “must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago.”)
[6] JSC should comprise of independent panel (with term of office) and not sitting judges, other practicing lawyers to avoid conflict of interest.
1 Cf. McCulloch v. Maryland, 17U.S. 316, 407 (1819) (Marshall, C.J.).
2 It serves as an inspiration for modern African constitutions.
3 See, e.g. , Tom Ginsburg, Constitutional Specificity, Unwritten Understandings and Constitutional Agreement , Univ. of Chicago, Public Law Working Paper No. 330 (2010), available athttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=1707619; Mila Versteeg & Emily Zackin, Towards an Alternative Theory of Constitutional Design (Feb. 2, 2014) (Unpublished manuscript, on file with the University of Maryland).
4 Cf. Versteeg & Zackin, supra note 3.
5 Winkler, Adam. A Revolution Too Soon: Woman Suffragists and The “Living Constitution”. 76 NYULR 1456, 1463 (“Based on the idea that society changes and evolves, living constitutionalism requires that constitutional controversies, in the words of Justice Oliver Wendell Holmes Jr., “must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago.”)
6 JSC should comprise of independent panel (with term of office) and not sitting judges, other practicing lawyers to avoid conflict of interest.