Published in FOROYAA of 14-17 June, 1999
OUR REVIEW OF THE CONSTITUTION
We have published the content of the Preamble of the Draft Constitution
prior to its approval. After the draft Constitution was discussed, the
Constitutional Review Commission invited proposals for its review prior to
the referendum. Apparently, the government also had its own agenda. It also
scrutinized the draft and seemed to have made its own input which is
reflected in some areas which we will point out as we go along. The Preamble
is no exception.
The question now arises: What portion in the Preamble of the approved
Constitution is different from what appeared in the first draft of the
Constitution?
Before addressing this question, it is necessary to emphasise that the 1970
Constitution did not have a Preamble. We pointed this out in our Memorandum
to the Constitutional Review Commission. Our position went as follows:
+IBw-JURIDICAL FOUNDATION OF THE SECOND REPUBLIC
+IBw-First and foremost, when a people come together to prepare a fundamental
instrument which shall be an embodiment of their collective will, it is
imperative for them to state the precise aims and objectives of their union
which shall constitute the foundation on which the letter and spirit of
their fundamental law shall rest. This is what is called a preamble. This
constitutes the kernel of a republican constitution. The 1970 constitution
lacked this kernel...... The constitution of the Second Republic therefore
needs a preamble to guide its letter and spirit. I therefore recommend the
following formulation:
+IBw-PREAMBLE
+IBw-All peoples have a right to live as equals in independent countries and
freely determine their political, economic, social and cultural status
through their collective will. All countries are entitled to unity,
sovereignty, political independence and territorial integrity. All peoples
are entitled to prosperity, liberty, security, democracy and justice. The
Gambian people recognise and respect these rights and have waged a vigorous
and unrelenting struggle throughout the ages, to assert our right to self
determination in order to ensure our collective liberty, dignity, security
and prosperity. In order to safeguard and enlarge these gains, which are so
vital to our existence as a sovereign people, we the Gambian people hereby
establish The Constitution of the Republic of The Gambia.+IB0-
This is what we recommended in our Memorandum entitled +ACI-History In The
Making+ACI- addressed to the Constitutional Review Commission prior to the
releasing of the first draft Constitution.
In our Memorandum, we have presented the concept of preamble serving as the
kernel of a constitution+ADs- that it provides the fundamental principles on the
basis of which the body of a constitution is built.
On the other hand, scholars of jurisprudence do also give a similar
conception of preambles minus the emphasis. For such scholars the lack of a
preamble is not necessarily a juridical defect. A preamble is not seen to be
part of the constitution but statements which announce the coming into being
of the constitution.
In that respect, one could say a preamble is not a part of the heart and
flesh of a constitution. It is simply an embodiment of its spirit.
A Preamble is an introductory remark or prelude which explains the sources
of authority of the constitution and its fundamental objectives or precepts.
It seeks to reflect the origin and intentions of the constitution.
If we take these fundamental principles of jurisprudence as a foundation of
our analysis to analyse the preamble of the draft Constitution and the
approved one, we will be able to make the following deductions:
In both the draft and approved Constitutions, the following paragraph can be
found, which seeks to explain the origin of the Constitution. The portion
reads:
+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-.
This seeks to affirm that the Constitution is a by-product of the will of
the Gambian people.
Furthermore, the preamble affirms certain principles. Let us examine some of
the principles conveyed by the draft and approved Constitutions.
First and foremost, it is indicated in both the draft and approved
constitutions that +ACI-This Constitution provides for us a fundamental law
which affirms our commitment to justice, probity and accountability.+ACI-
Secondly, both affirm +ACI-..... the principle that all power emanates from the
sovereign will of the people.+ACI-
Furthermore, both assert that +IBw-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-
Both add that +ACI-This Constitution guarantees participatory democracy that
reflects the undiluted choice of the people.+ACI-
Both the draft and approved Constitutions expound on the principle of
separation of powers of the different arms of State by asserting that: +ACI-The
functions of the arms of government have been clearly defined, their
independence amply secured with adequate checks and balances to ensure that
they work harmoniously together towards our common good.+ACI-
Finally, both the draft and approved Constitutions conclude by affirming the
status of the Constitution as a +ACI-beacon of hope for peace and stability in
our society and the good governance of The Gambia.+ACI-
According to the fundamental principles of jurisprudence, all these
objectives and principles which feature in the Preamble of the draft and
approved Constitutions could only serve as mere declaration of intention. In
short, one could not rely on them to empower any individual, exercise any
authority, impose any obligation, restrain any activity, defend any right or
redress any wrong.
According to such scholars of jurisprudence, what is really significant is
not the preamble of a Constitution, which has no force of law, but the
provisions which stand after the introductory remarks. Such provisions
provide concrete sources of authority, rights, duties and mechanisms for
enforcement and redress.
The AFPRC may not have been fully conscious of the fact that a preamble
cannot be relied on to establish a position. They, therefore, sought to
include in the Preamble a propaganda statement which had no juridical value,
which did not appear in the draft Constitution that was prepared by the
Constitutional Review Commission, but featured in the approved Constitution.
This statement deserves to be obliterated from the approved Constitution.
Let us now quote the whole Preamble of the approved Constitution and then
point out the portion which did not feature in the draft Constitution and
was subsequently added Constitution:
+ACI-In the name of God, the Almighty,
+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-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. The sovereign people of The Gambia
therefore endorsed the change of government on 22nd July 1994 to rectify
such evils.
+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-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-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-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-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-
If one refers to the preamble of the draft constitution and compare it with
the preamble of the approved constitution, one would notice the following
formulations.
THE FORMULATION OF THE DRAFT CONSTITUTION
This is how the second paragraph of the draft constitution is formulated:
+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.+IB0-
THE FORMULATION OF THE APPROVED CONSTITUTION
On the other hand, the second paragraph of the approved Constitution reads:
+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. The sovereign people of The Gambia
therefore endorsed the change of government on 22nd July 1994 to rectify
such evils.+IB0-
Hence, it should be clear that the portion which was added to the first
draft by the Council is as follows:
+IBw-The sovereign people of The Gambia therefore endorsed the change of
government on 22nd July 1994 to rectify such evils.+IB0-
Apparently, because of the lack of understanding of the juridical status of
preambles, the Council may have thought that by sneaking such a position
into the preamble they were actually legitimising their coup. A coup d+IBk-etat,
however, can never be a constitutional act. It is an act which is done
without asking for the consent of the people.
A republican constitution is rooted in what is established in the body of
the 1997 Constitution and which is of significance. Section 1, subsection
(2) reads:
+ACI-The sovereignty of The Gambia resides in the people of The Gambia from whom
all organs of government derive their authority and in whose name and for
whose welfare and prosperity the powers of government are to be exercised in
accordance with this constitution.+ACI-
Since the approved Constitution has stated in no uncertain terms that all
power must emanate from the sovereign will of the people, to retain a
sentence in the preamble which gives the impression that the people endorsed
what had been done without being consulted would be indefensible from a
juridical point of view. This portion, therefore, has no place in the
Constitution.
Secondly, the statement which follows the opening of the second paragraph
needs careful scrutiny. The statement reads:
+IBw-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.+IB0-
A Constitution is meant to have a time honoured validity. If it is to serve
many generations, one cannot utilise terms such as +ACI-the recent past+ACI-.
Colonialism constituted self perpetuating rule. Some would consider the
past, as well as the present regime, as self perpetuating.
The Preamble may be amended as follows, to take cognisance of the defect of
self perpetuating rule:
+ACI-The Constitution guarantees participatory democracy that reflects the
undiluted choice of the people and affirms our commitment to eradicate all
forms of self perpetuating rule which gives rise to abuse of office and
related vices which negate the total welfare of the Gambian people.+ACI-
ON THE OPENING OF THE PREAMBLE
The Preamble of the draft and approved Constitutions started as follows:
+IBw-In the name of God, the Almighty+ACI-
Many religious persons may find it contradictory to go into the body of the
Constitution only to discover the following provisions. Section 100 states,
among other things, that:
+ACI-(2) The National Assembly shall have no power to pass a Bill-
+ACI-(a) to establish a one party state+ADs-
+ACI-(b) to establish any religion as a state religion+ADs-
+ACI-(c) to alter the decision or judgment of a court in any proceedings to the
prejudice of any party to those proceedings, or deprive any person
retroactively of vested or acquired rights,
+ACI-but subject thereto, the National Assembly may pass Bills designed to have
retroactive effect.+ACI-
Section 60, subsection (4) also adds:
+ACI-No association shall be registered, or remain registered, as a political
party if
+ACI-(a) it is formed or organized on an ethnic, sectional, religious or
regional basis+ADs-
+ACI-(b) its internal organization does not conform to democratic principles+ADs- or
+ACI-(c) its purpose is to subvert this Constitution or the rule of law.+ACI-
Since the Constitution has taken a secular character, it is ironic that it
starts by giving the impression that it is deriving its authority from a
deity. This contradiction needs to be resolved.
These are the key points to be considered in amending the preamble of the
approved Constitution.
Let us now move from the spirit or the declaration of intention of the
Constitution and move to the flesh.
CHAPTER 1
Before we can talk about a people there must first be a country. This is
precisely the reason why the opening chapter of the Constitution is to
establish the Gambian nation and define its status. Chapter 1, section 1,
therefore, states that:
+IBw-The Gambia is a sovereign republic.+IB0-
What then is a sovereign republic? In our Memorandum to the Constitutional
Review Commission, we indicated that a sovereign republic must have four
fundamental pillars. It has to have a right to sovereignty, political
independence, territorial integrity and national unity. The portion reads:
+IBw-THE ESTABLISHMENT OF THE REPUBLIC
Once the purpose of the establishment of the union is declared, a juridical
instrument should proceed to establish the union.
Chapter 1 of the 1970 Constitution did establish the foundation of our
union. It states
+ACI-Gambia is a sovereign Republic.+ACI-
+IBw-However, it did not state where sovereignty shall vest nor did it state
what sovereignty entails. The constitution of the Second Republic should
state where sovereignty shall vest. It should also state what it entails. I
therefore recommend the following formulation.
+IBw-DECLARATION OF THE REPUBLIC
+IBw-The Gambia is a sovereign Republic. Sovereignty shall vest in the people.
The right of the people to determine the political, economic, social and
cultural status of the country through their collective will is inviolable.
+IBw-The unity, sovereignty, territorial integrity and political independence of
the country is inviolable. It is the collective responsibility and the
unrelinguishable duty of all Gambians to safeguard the sovereign rights of
our country and people.+IB0-
The 1970 Constitution simply stated in Chapter 1, section 1 that The Gambia
was a sovereign republic, full stop. It did not elaborate where power lies.
The 1997 Constitution could only be ahead of its predecessor by defining the
basis of power in a sovereign republic. It states the following in Section
1, subsection (2):
+IBw-The sovereignty of The Gambia resides in the peoples of The Gambia from
whom all organs of government derive their authority and in whose name and
for whose welfare and prosperity the powers of government are to be
exercised in accordance with this constitution.+IB0-
Subsections (3) and (4) also read as follows:
+IBw-3. (1) The National flag shall be a flag of the design set out in schedule
1.
+IBw-(2) The National anthem shall be the anthem in use immediately before this
constitution comes into force.
+IBw-4. This constitution is the supreme law of The Gambia and any other law
found to be inconsistent with any provision of this constitution shall, to
the extent of the inconsistency, be void.+IB0-
Chapter 1 is the foundation of the Constitution. It provides pillars for all
the other provisions and all provisions that are inconsistent with it should
fall. The drafters of the 1997 Constitution seemed to have been very
conscious of this fact. They took note of the fact that a constitution is a
citizens' contract. It is a pact between equal citizens. It gives content
and form to the will of the people. Once that content and form are
established, they should not be capable of being violated without the direct
or indirect expression of the will of the people.
This is precisely the reason why the Constitution becomes supreme to all
other laws. It is, therefore, no accident that after establishing that the
people are sovereign the Constitution proceeded to establish the supremacy
of the Constitution. During the time of the coup, decrees had supremacy over
the Constitution. Under the 1997 Constitution, the process had to be
reversed. It was to make the constitution supreme.
Therefore, Chapter 2 establishes the supremacy of the Constitution. The
provisions under Chapter 2 are as follows:
+IBw-4. This constitution is the supreme law of The Gambia and any other law of
The Gambia and any other law found to be inconsistent with any provision of
this constitution shall, to the extent of the inconsistency, be void.
+IBw-5.(1) A person who alleges that
+IBw-(a) any Act of the National Assembly or anything done under the authority
of an Act of the National Assembly+ADs- or
+IBw-(b) any Act or omission of any person or authority,
+IBw-is inconsistent with or is in contravention of a provision of this
constitution . may bring an action in a court of competent jurisdiction for
a declaration to that effect.
+IBw-(2) The court may make orders and give directions as it may consider
appropriate for giving effect, or enabling effect to be given, to such a
declaration and any person to whom any order or direction is addressed shall
duly obey and carry out the terms of the order or direction.
+IBw-(3) The failure to obey or carry out any order made or direction given
under subsection (2) shall constitute the offence of violation of the
constitution and
+IBw-(a) shall, in the case of the President or Vice-president, constitute a
ground for his or her removal from office in accordance with section 67+ADs- and
+IBw-(b) any other person who is convicted of that offence shall be liable to
the penalty prescribed by an Act of the National Assembly.
+IBw-6. (1) Any person who
+IBw-(a) 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+ADs- or
+IBw-(b) aids and abets in any manner any person referred to in paragraph (a),
+IBw-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.
+IBw-(2) All citizens of The Gambia have the right and the duty at all times to
defend this constitution and, in particular, to resist, to the extent
reasonably justifiable in the circumstances, any person or group of persons
seeking or attempting by any violent or unlawful means to suspend, overthrow
or abrogate this constitution or any part of it.
+IBw-(3) A person who resists the suspension, overthrow or abrogation of this
constitution as provides in subsection (2), commits no offence.
+IBw-7. In addition to this constitution, the laws of The Gambia consists of
+IBw-(a) Acts of the National Assembly made under this constitution and
subsidiary legislation made under such acts+ADs-
+IBw-(b) any orders, rules, regulations or other subsidiary legislation made by
a person or authority under a power conferred by this constitution or any
other law+ADs-
+IBw-(c) the existing laws including all decrees passed by the Armed Forces
Provisional Ruling Council+ADs-
+IBw-(d) the common law and principles or equity+ADs-
+IBw-(e) customary law so far as concerns members of the communities to which it
applies+ADs-
+IBw-(f) the Sharia as regards matters of marriage, divorce and inheritance
among members of the communities to which it applies.+IB0-
TO BE CONTINUED
----------------------------------------------------------------------------
To unsubscribe/subscribe or view archives of postings, go to the Gambia-L
Web interface at: http://maelstrom.stjohns.edu/archives/gambia-l.html
----------------------------------------------------------------------------
|
