By Bubacarr Drammeh
One of the incongruous sections of the draft constitution is Section 134. The said Section addresses the composition of the National Assembly. It stipulated in Subsection 2 that the “National Assembly shall comprise the number of persons specified in Schedule 2, representing the constituencies therein specified.”
SCHEDULE 2 provides that: For purposes of election to the National Assembly, the members shall be elected from the following constituencies –
(a) 53 persons elected from single member constituencies as demarcated by the Independent Boundaries and Electoral Commission;
(b) 14 women, 2 elected from each administrative area; and
(c) 2 persons, elected by persons with disabilities from amongst the members of the federation representing such persons.
The total number of representatives in the National Assembly as per schedule 2 would be 69. This number excludes the speaker and the deputy speaker. I do believe that this number superfluous for a small country like The Gambia. The controversy with Section 134, in my opinion, is that the Drafters are validating unequal protection of the law in the name of affirmative action. They have constitutionalized discrimination against men in the name of affirmative action. They have treated a position of privilege for every Gambian citizen as a position of right if you are a woman or if you are disable. In fact, this provision seems to convey the message that women and people with disability are too incompetent or marginalized that they cannot run for office and be elected.
The reasoning advanced for having such a provision is that we have few women elected every term, thus we want women to be represented. By this analogy, one may argue that we have few Christians elected in a ninety percent Muslim population. To avoid the passage of laws that would not reflect the position of Christianity, the constitution, in addition to all the protection accorded to free exercise of religion, should stipulate that we must elect twelve Christians. Another problem with this reasoning is that those elected to office are not elected to represent men or women, able or disable, youths or the elderly. They are elected to represent their constituents and the interest of their constituents. Section 134 seems to suggest that these elected representatives do not consider women when they are deliberating; or that they represent everyone but women, thus, a need to create a specific quarter for women. what a preposterous proposition!
Every administrative area has several constituencies. Each constituent would be represented by an elected member. Why must the electorates, in addition to voting for their elected representatives vote for 2 additional women in every administrative region? This proposition presents the following issues.
- Section 135 provides for the qualification of members of the national Assembly. The qualifications are (a) be a citizen of The Gambia (b) be at least 21years (c) senior secondary school certificate or equivalent and is able to speak the English language (d) declare your assets. Are these women required to meet these qualifications? If yes, this has reinforced the unequal protection argument. As a woman you can run for a seat in your constituency or for an administrative representations position. But if you are a man, you can run only for a position in your constituency. The only reason a man is barred from running for an administrative position is because he is a man not because he is inept, unscrupulous, corrupt, etc.
If no, why must members of the National Assembly be subjected to different qualification when they all have equal voting rights and participation right in the National Assembly?
- Section 137 provides for the election of members of the National Assembly. The said section stated that the general election of all the members of the National Assembly shall be held on the same day as an election to the Office of President. Since the twelve positions created exclusively for women are elected position, political parties are allowed to nominate a woman to run for the position. Consequently, political parties would now have the luxury to nominate a woman in an administrative area and nominate men in the constituents of the same administrative area. Thereby creating more unequal representation. Even though Section 82(6) stated that it shall not be construed but Section 82 will not be a bar to political parties with respect to nomination of their candidates.
Schedule 2 is in contravention to the spirit and purpose of the fundamental human rights provisions of the constitution. Section 31(2) states that very person in The Gambia, whatever his or her race, ethnicity, colour, creed, gender, language, religion, disability, political or other opinion, national or social origin, property, birth or other status, shall be entitled to the fundamental rights and freedoms of the individual contained in this Chapter, but subject to respect for the rights and freedoms of others and for the public interest. The only limitation created by section 31(2) the right of other and the public interest. The constitution went on to say in Section 35 that the fundamental right or freedom … shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.
Taking part in the public affair of the state is a fundamental right in The Gambia. Section 51 stipulated that Every citizen of The Gambia of full age and capacity has the right, without unreasonable restrictions—
(a) to take part in the conduct of public affairs, directly or through freely chosen representatives;
(b) to vote and stand for elections at genuine periodic elections for public office, which elections shall be by universal and equal suffrage and be held by secret ballot; and
(c) to have access, on general terms of equality, to public service in The Gambia.
This is the spirit of the constitution. The only time a right can be justifiably limited is that it must be in the interest of the public and subject to respect for the rights and freedoms of others. This limitation must be done by law, it must not be unreasonable, and it must be the less restrictive means to achieve the purpose. A law must meet these requirements to be considered valid. It is irrational in my opinion that the drafters, having put in place these requirements to protect people’s right, would in turn stipulate in the constitution that twelve seats in the National Assembly must be preserve for women only. This provision is unreasonable, and it is not the less restrictive means to achieve the purpose.
It is unreasonable because the National Assembly is one of the co-equal branch of government. It is a political office that every Gambian must have access to irrespective of one’s gender. The constitution must provide for equal access and opportunity for all. The constitution must proscribe any obstacle that would estopped any citizen from participating. The elected officials are representing every person in their constituency including women. The position is open for everyone including women. To reserve twelve seats for women because they are less represented or in the name of affirmative action, is to treat the National Assembly as an institution designed to represent certain citizens. Thus, by this analogy, we should create a portion for minority religions as well.
The argument that this is no inequality, it is affirmative action doesn’t make the provision reasonable. Affirmative action initiatives should be via an executive policy or an act of National Assembly, not a Constitutional Provision. The Constitution must always remain neutral between the genders by proscribing discrimination of any form. In doing so, affirmative action policies or laws must now pass the rigorous constitutional scrutiny before they could be allowed to take effect. The constitution should always be the basis of which we could decide whether an affirmative action is too affirmative. It is important to note that affirmative action initiatives are meant to be temporary. Once the intended purpose(s) is achieved, the act or policy should be discarded.
It is not the less restrictive means because the constitution has stipulated in section 53 that (1) Women are accorded full and equal dignity of the person with men. (2) Women have the right to equal treatment with men, including equal opportunities in political, economic and social activities. Further the constitution has in Section 83 provided that every political party shall promote gender equity in selecting candidates for election. Thus, women are given the same opportunity and access to run for office like their men counterparts. The electorates have the right to choose a candidate they believe would best represent them. The constitution should never impose male or female representatives on people. The constitution should never create a position in the co-equal branch of the government just for men or women. This provision is akin to for example, to the constitution stipulating that out of the fifteen ministers, five must be women; or out of the seven Justices of the Supreme Court, three must be women. The irrationality of such provision is no different to the current proposed provision.
Another mean that could be employed is to enable the National Assembly to be able to invite women’s right activist or any person who will be affected by a proposed bill, to go to the floor of the house and give testimony as to why the bill should or should not be passed.
I will conclude by saying, all people are equal under the laws of The Gambia and should be treated accordingly. Simply having people of different gender in the National Assembly does not necessarily mean diversity of opinion. People of the same gender are not necessarily the same in opinion or even culture. If women are reluctant to run for office, the cause is less likely to be oppression and discrimination than a lack of political will, a myopic believe that Gambians will not vote for women, and perpetual victimization. This constitutional provision sweeps these issues under the carpet and perpetuate fraud upon the very group it is designed to help.