By Musa Camara
Let me take off where the Constitutional Review Commission (CRC) left off on its Issues Document. It regards what the commission referred to as “Entrenchment [To be determined upon the drafting of the new Constitution].” Questions about entrenchment of the third republican Constitution should have been the first set of questions the commission should have asked in the Issues Document.
Asking these questions at the very beginning would help shape the contours of the document by determining what goes into it and what parts are left for statutory enactment by the National Assembly. Constitutions are supposed to contain timeless general principles codified into documents to provide roadmaps for societies to administer their affairs. But they should also be flexible to relegate mundane activities suited for legislative enactments. The approach the Issues Document took shows the mindset of the framers of the next constitution who seem to believed that some sections of the new constitution should be entrenched whereas other parts must not. Therefore, as we understand from the CRC, after the document is completed, it will cherry pick the provisions needing the most protection from legislative and executive dismembering. That fatal approach, borrowed from our two previous constitutions and even also from the constitutions of failed democracies around the world, is problematic and contributes significantly to the woes of our democracy.
All the provisions of the third republican Constitution must be entrenched in their entirety. This should implicate even corrections to typographical and grammatical errors. That will be the only way Gambians would guarantee against manipulations of the constituting document of their republic by unscrupulous politicians and the overreach of self-serving transient democratic majorities.
Aristotle clearly delineated the differences between constitution and law which logically should apportion clear authority to the people and their representatives to enact and make changes respectively to their legal instruments in a democracy. According to him:
A constitution may be defined as an organization of offices in a state, by which the method of their distribution is fixed, the sovereign authority determined, and the nature of the end to be pursued by the association and all its members prescribed. Laws, as distinct from the frame of the constitution, are the rules by which the magistrates should exercise their powers, and should watch and check for transgressors.
This concept is not new to even non-state actors, organizations and entities that conduct their affairs through parliamentary procedures. According to the Robert’s Rules of Order Newly Revised 10thEdition, “it formerly was common practice to divide the basic rules of an organization into two documents, in order that one of them—the constitution—might be made more difficult to amend than the other, to which the name bylaws was applied.”
In short, constitution is the sum total of all the edicts enacted by the collective identifying its memberships, setting out the principles of its unity as a political entity, the manners of selecting its leaders and setting limits on their authorities to govern, and establishing the institutions and departments within the structure of its society. Laws, in the Aristotelian sense, are enacted by the legislative bodies or people with delegated powers to act on given but limited powers and mandates. This is what in our context we could call Acts of the National Assembly. They are subordinate to the constitution and designed to carry out functions in furtherance of the constitution or mandates delegated to certain people under the supreme document. Such people or bodies must never be given mandates to change any part of the constituting document by themselves without the direct involvement of the people.
Drafters of the United States Constitution were well informed of this principle as they enshrined in Article V of their constitution which reads:
The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.
As Article V of the U.S. Constitution shows, that constitution is entrenched in its entirety to which amendments can be initiated by the Congress or State legislatures. State legislatures are deemed to be closest to the people as they call in the conventions of the people. The people at states conventions could initiate constitutional amendments. The Congress (the legislature) at no point has power to change the constitution without the people’s expressed consent through their local democratic institutions. As such, Acts of Congress are different from the Constitution. While Congress has passed tens of thousands of laws since 1788, only twenty-seven amendments have been successful in the two hundred and thirty years of American republicanism. In contrast, the Constitution of The Gambia has been amended almost fifty times in twenty years. None of these amendments involved the people in a referendum. Where a constitution requires a deliberate, multi-stage process for amendment, they are less likely to be mutilated for usurpation of power leading to dysfunctional societies or failed states.
The CRC must ensure that the new Constitution clearly states that the people have a right to change, amend or repeal any provision or the whole document when they so desire to enhance their governance infrastructure. The lesson learned from the failure of the second republican Constitution (the current Constitution) where some people have made credible arguments that the 1997 Constitution allows for only amendments to parts but not the entire document should be a pointed reminder to drafters working on the new one. Proponents of that claim rely on Schedule 2 (Paragraph 17) of the 1997 Constitution which protects the clauses (Paragraphs 11,12,13 and 14) that indemnified members of the Armed Forces Provisional Ruling Council (AFPRC) for overthrowing the First Republic in addition to its criminal and human rights violations. These amnesties prohibit the National Assembly, the courts and tribunals, commissions of inquiries from investigating any crimes committed by the AFPRC government. Tragically, it also attempts to deny the people for posterity from knowing formally and officially the truth about any injustices committed in their name or on their behalf with their resources and against them and their compatriots.
Under these provisions, the hearings of the Janneh Commission, and the Truth and Reconciliation Commission (TRRC) on the abuses of the AFPRC are unconstitutional. If their claim that the people also have no power to change the entire constitution holds water, that would have enslaved Gambians as a people (current and future) to a document they have no authority to change in its entirety. Should their position have prevailed, the people will be subjects of the constitution that is both supreme and sovereign over them.
Another glaring failure of the current constitution is that even where it allows, in Section 226, for amendments of the entrenched provisions, these can only be initiated in the legislature. It’s only after a bill has been approved by the National Assembly and submitted to the Independent Electoral Commission (IEC) could the people have a direct say in a plebiscite. The people could never initiate any changes on their own against the will of legislators and the executive which in reality elevates the representatives to lordship over the people they should serve. The new constitution should empower the people to undertake constitutional amendments against the wills, wishes and consents of both the legislature and executive branches of the government. This last resort of imposition over the governors will be preferable to armed conflicts, insurgencies or wars. The mechanism should allow citizens to collect certain signatures of valid voters for an initiative to be presented to the voters for a referendum. Where the required numbers are collected and the ballot passed in a referendum meeting the criteria set out in the constitution, it shall be deemed to have passed without requiring any consent or action of the president or the legislative body.
Under our current flawed constitution, the sovereign citizens cannot initiate or make any changes to the entrenched clauses without legislative initiatives. The general clauses are beyond their reach except when the Speaker of the National Assembly refers, under Section 226 (3), to the Independent Electoral Commission a bill amending such provisions vetoed by the president. And even when they make changes to any clauses (entrenched or general) in a referendum initiated by the National Assembly, their verdicts are, under Section 226 Subsections 3, 5 and 6, still subjected to the mercy of presidential assent. The constitution is muted on when the president declined to assent to bills passed by the sovereign citizens in referenda which opens up a lacuna for constitutional crises. What a ridiculous joke in a democracy! Such amendments should automatically take effect on a timeline say, for example, thirty to ninety days after the results are declared and the initiatives deemed to have passed the constitutional muster to become part of the constitution. A simple declaration of the results by the IEC should be sufficient for publication in the Gazette. Under the U.S. Constitution, the president plays no formal role or part in constitutional amendments. Presidential assent or participation is not required.
Under the current constitution, the legislature and the executive have power to change the general clauses without the people’s involvement—except where the president vetoed a bill passed by the National Assembly as stated above. The president and the legislature to whom the people should give the constitution can in turn remake the constitution over the people. The National Assembly and the executive give a new constitution to themselves by changing the terms of constitution in their favors. As we have seen under Jammeh and Barrow, they can exclude the people in remaking the constitution. On the other hand, the people can never make the constitution excluding National Assembly and the President—even as we embark on writing the Third Republican Constitution. It should be the other way around.
Now, let’s turn to the amendment of the constitution in a plebiscite by voters. Under the current constitution, when a referendum is called and for the results to be valid, Section 226 (4)(d) stipulates that at least fifty percent of voters must turn out to vote; and that at least seventy five percent of voters must support the bill. The current constitution allows minority of the registered voters to make changes that may be permanent to the constitution over the majority. For example, with The Gambia likely to register a million voters in the next registration exercise, under the current constitution, the fifty percent threshold means that 500,000 voters are all that are needed for a referendum to be valid. And for the bill to become part of the constitution with seventy-five percent support of the fifty-percent turnout, only 375,000 votes could make changes to the constitution. This means only a little over a third of voter can approve changes over the 625,000 majority who voted against the motion or did not turn out at the polling stations.
This must change in the new constitution. As is in the current constitution, the next constitution should require seventy-five percent turnout of all registered voters to make changes to the constitution. But for the measure to pass, it should also require seventy-five percent of voters or three fourths who turnout to support a measure to be adopted to effect changes to the constitution. For illustration, with the million voters, 750,000 voters must turnout for a referendum. Of these, 562,500 voters must support a measure to be adopted in a referendum. At all times, more than half of the voters will support a change to the constitution. Constitution must be changed only with popular demands by the majority of the people. I, for one, would not mind if the language of the constitution states that after the seventy-five percent turnout threshold is met, and support for the bill exceeds fifty percent by at least one vote — majority but not plurality — of all registered voters for an initiative to allow for changes to the constitution. This could help avoid mathematical nightmares for election officials and the citizens.
Writing a constitution that binds a people and their posterities to an enduring document is not a simple task. In order to write a constitution that would not be easily manipulated by leaders with dictatorial tendencies or political parties with transient majority the CRC must set out to drafting a more perfect document. To start with, it must delineate between the Constitution and Acts of the National Assembly by ensuring that they are not combined in a single document. Any provision it deems not worthy of entrenchment, it should consider for not putting in the constitution. On the contrary, provisions it thinks are sacred to be in the constitution, it must entrench. It will be a wishful thinking to create a document but give daggers to politicians to mutilate and expect it to survive. This simple understanding would guide the commissioners to put only the most important parts in the constitution while provisions for agencies, commissions, departments, election mechanisms, and countless others are left to the legislative assembly to modify as needs change, and time and technology evolves. Generations of citizens will correct the shortcomings of their predecessors by changing the constitution whereas legislatures correct the errors of one another’s ill-fated Acts and statues. If the CRC fails to draft such a document, very shortly and perhaps in the lifetimes of some of these commissioners, we will assemble again to rewrite another constitution when this upcoming one becomes obsolete. Presumably, some commissioners of the current constitution are still alive and living in obscurity as overwhelming majority of the Gambian people do not know or remember their names. Becoming a commissioner of a constitutional review commission is once in a lifetime opportunity, privilege and high honor, but most importantly, it’s also historic responsibility to produce an enduring document.