OUR REVIEW OF THE 1997 CONSTITUTION (Part 2)
Decree No. 1, therefore, became the supreme law of the land. The courts were
to give supremacy to decrees in the interpretation of the 1970 Constitution.
The Constitution and all other laws were to be interpreted with such
modification, adaptations, qualifications and exceptions as may have been
necessary to bring them into conformity with the decrees.
Sovereignty, therefore, resided ion the Council. All organs of the State
were to derive their authority from the Council. This negated the letter
and sprit of a republican constitution which of necessity must accord
sovereign authority to the people from whom all organs of the State must
derive their authority.
The negation of the 1970 Republican Constitution and the republic, as a
result of the coup, is what gave rise to the need for the restoration of a
republican constitution and a Second Republic to replace the machinery which
came into being as a result of the coup d'etat of 22 July 1994.
The decision for the drafting of a Second Republican Constitution did not
drop from the sky. It has a history. It is necessary to review this history
before going into the details of the 1997 Constitution.
Students of Gambian history would recall that those who took over power on
22 July 1994 did not indicate when the sovereign right of the people would
be restored. The demands for a timetable intensified in September and
October, 1994. Consequently, on 24 October 1994, the Chairman of the Council
announced a four year timetable. This was unexpected and did not earn the
Council any trust or credibility nationally or internationally.
The Council, however, took note of the concerns raised at home and abroad
and decided to establish a National Consultative Committee on 13 December
1994 and accorded it with the mandate to review and even revise the
Transition Programme of October, 1994.
We have decided to include an excerpt from a memorandum we addressed to the
National Consultative Committee on the Programme and Timetable for
Transition to Democratic And Constitutional Government in The Gambia dated
26 December, 1994, which is of relevance to the subject matter. It helps to
throw light on the essence of constitutional review. We will publish the
full text at the proper place in our historical analysis of PDOIS' and
FOROYAA's role during the Transition Period. The relevant portion of our
memorandum reads:
"THE CONCERNS OF GAMBIANS AS A SOVEREIGN PEOPLE
"While there can be a people without a government, there can be no
government without a people to govern. Herein lies the reason why the
interest of the people must be put at the centre of any discourse
concerning the issue of governance.
"It is evident that independent sovereign republics are products of the
struggles of people to assert their right to self determination. The
concept of self determination embodies the notion that sovereign republics
belong to their peoples;that they, the people, have right to determine their
destinies.
"Suffice it to say, rights connote the expression of legality, and legality
is an expression of authority derived from instruments providing for its
existence. This is precisely why the birth of sovereign republics came with
constitutional instruments establishing the sovereign status of such
republics. Such constitutional instruments define qualifications for
citizenship, spell out the fundamental rights and freedoms of
citizens,establish representative institutions and stipulate the
qualifications and duties of those representatives, as well as their mode of
selection and removal, indicate how representatives are to administer a
country,define the role of the administrators of laws, the public servants,
as well as explain how foreign policy is to be conducted.
"Hence, the administration of a sovereign republic is inconceivable without
a constitutional or legal framework elaborating on all the structures and
functions required for its running. These provisions should be known to all
citizens of a country before they can be considered to know their civic
rights and duties.
"Civic education in its most skeletal form embodies the sensitisation of the
people to know all the structures and functions associated with the
management of the affairs of their country and their role in the building
up and operation of those structures to ensure the realisation of their
needs and aspirations. This implies that there can be no proper civic
education or transition to democratic constitutional existence without the
establishment of a constitutional instrument which would embody the nature
and characteristic of the mode of government of a country.
"Of course while constitutions may be similar in form they may not
necessarily tally in content. For example, some constitutions do establish
birth as a criterion for citizenship;others do emphasise the origin of
parents and grandparents as a precondition for citizenship;some do
guarantee the 16 and 18 year olds the right to vote,while others put the
voting age at 21. Some do permit a 21 year old to be a head of state, while
others put it at 30 or 35 years. Some give authority to a head of state to
appoint ministers, Justices of high courts, heads of public
institutions,etc., while others make it a requirement to get the approval of
representative institutions. Some constitutions make provisions for members
of representative institutions to appoint ministers. Some constitutions
make provisions for Presidents and members of representative bodies or
assemblies to be removed from office for misconduct and maladministration;
others enable representatives to legitimise misrepresentation. Some
constitutions give Presidents the absolute powers to contract
treaties;others make it conditional for treaties to be ratified by
representative bodies before they become binding. Some give representatives
immunities from criminal and civil proceedings;others make them subject to
such proceedings like all other citizens. Some constitutions reserve the
right to appoint judges to a judicial commission;others vest the power to
appoint judges in the President.
"Hence, it is clear that there is much elasticity in the construction of the
provisions of constitutions. Constitutions can be made to truly ensure the
empowerment of the people and the accountability of representatives and
thus bar maladministration or minimise it.
"Hence, those who see the existence of constitutions as obstacles to
effective administration of a country may not yet be acquainted with the
right constitutional framework or are yet to be honest enough to realise
the inefficiency, arbitrariness, unpredictability and the personalisation of
the decision making process which is associated with rule according to the
unknown and ever changing wishes of any given authority.
"Hence, it is indisputable that constitutions are indispensable instruments
which enable the running of the affairs of a sovereign republic
predictable,consistent and scrutinizable by the citizens of a sovereign
republic.
"Hence, the putting in place of a constitutional arrangement is of
fundamental concern in determining the longevity and programme of the
transition period. Your Consultative Committee must try to get an idea
whether all key players in this transition equation deem the 1970
Constitution to be adequate or whether there is need for constitutional
reform. It should be able to get an idea as to how long it will take to
carry out constitutional reforms and what institutions would be required to
effect them. This is one important consideration. Let me move to the
second.
"Bloodshed and strife have taught human beings that if countries fail to
establish systems which will enable their peoples to have a sense of
belonging, irrespective of tribe, race, religion, gender or other
sectionalist consideration, they are bound to disintegrate. This is
precisely the reason why enlightened humanity had discovered that the best
way of ensuring that sectionalist interests are not defended by force at the
expense of the vast majority is to empower the people to determine their
manner of representation. In this respect, human kind had discovered no
better or effective instrument in determining or changing representation in
a peaceful way, than a free and fair voting system.
"Suffice it to say, if the people of a country have no other concern in
casting their votes but to select representatives who will administer a
country to protect the dignity, liberty and prosperity of each and the
general welfare, warfare based on tribe, race, religion or other
sectionalist considerations is likely to be minimised or averted. Hence, a
transition to a democratic and constitutional existence is inconceivable
without a free and fair electoral system.
"Hence, every enlightened Gambian should be concerned that a free and fair
voting system is in place and known to the people before there can be a
genuine transition to democratic and constitutional existence.
The National Consultative Committee did revise the four year timetable
downwards to two years as proposed by the vast majority of people who
participated in the consultative exercise. A Constitutional Review
Commission was established by Decree No 33 on 31 March 1995. It is
important to throw light on the composition and terms of reference of the
Commission by referring to Decree No. 33. The relevant portions are as
follows:
Section 3 established the Commission as follows:
"There is hereby established a Commission to be known as the Constitutional
Review Commission which shall comprise such persons and perform such
functions as provided for in this Decree.
Section 4 indicated the composition of the Commission as follows:
" (1) The Commission shall comprise:
"a) a Chairman who shall be a Judge of the Supreme Court of other higher
court of equivalent status in any Commonwealth country or a legal
practitioner of at least ten years standing.
"b) nine other persons to be appointed by the Council.
"2) The Chairman and other members of the Commission shall be appointed by
he Council.
Section 5 dealt with the terms of reference of the Commission as follows:
"5 (1) The terms of reference of the Commission shall be
"(a) to formulate proposals for a Draft Constitution for The Gambia taking
into account:
"(i) the Constitution of the Republic of The Gambia, 1970 for purposes of
determining its adequacy or otherwise for the good governance of The Gambia.
"(ii) Laws passed after the enactment of the Constitution of 1970 whose
provisions or part thereof merit inclusion in the draft Constitution.
"(iii) Views and comments of members of the general public including
professional and other bodies and associations.
"(iv) Matters which in the opinion of the Commission are reasonably related
to this Section.
"(v) Such matters as may be referred to it by the Council.
"(b) Submit to the Council a draft Constitution which shall form the basis
of a new Constitution for The Gambia and
"(c) To present a report of their activities which shall contain
recommendations and such other matters that merit consideration by the
Council."
Section 6 dealt with the principles to be embodied in the draft constitution
as thus:
"6. The Draft Constitution referred to in Section 5 (b) shall, inter alia,
contain matters that relate to:
"(a) The sovereignty, territorial integrity and independence of The Gambia
emphasising their inviolability.
"(b) The definition and acquisition of Gambian citizenship.
"(c) The entrenchment of provisions relating to the respect for and
protection of fundamental human rights and freedoms and universal adult
suffrage.
"(d) The establishment of a national institution with adequate funding to
carry out a continuous civic education process among the people with
emphasis on their empowerment to the people to enable them participate
meaningfully and effectively in determining the political and social,
economic governance of the country, in an atmosphere that gives full
expression to the will of the people.
"(e) The encouragement of the growth of the spirit of tolerance and
multi-culturalism among Gambians.
"(f) The establishment of an independent Electoral Commission that will
guarantee free and fair elections and an orderly succession to Government.
"(h) The creation of viable political institutions that will guarantee the
independence of the judiciary and clearly demarcate the division of
responsibility am,ong the Executive, Legislature and the Judiciary with
appropriate checks and balances.
"(i) The equitable distribution of national resources among the division and
within the provinces and the various sectors of the national economy for
orderly development of the country.
"(j) The creation of an effective local government system that allows full
participation of the people in the administration of their localities.
"(k) The entrenchment of provisions that banish the formation of political
parties based on religious, cultural and ethnic lines or any considerations
which may induce divisive political activity, or the promotion of
unpatriotic and non-national interests.
"(l) The formulation of mandatory provisions that require the Accountant
General and the Auditor General to render accounts on the public finances
with appropriate sanctions for non-compliance.
"(m) The formulation of provisions for the enforcement of probity,
accountability and transparency in public office, protection for public
property, public funds and other public assets, against abuse of office for
whatever purpose with a view to eliminating the conditions that nurtured
corruption in The Gambia for the past 30 years, with appropriate sanctions.
"(n) The recognition of the need to instil in the Youth the noble principles
of patriotism and probity in public life, and to make provision for
rendering of compulsory national service by the youth in the 2nd cycle and
tertiary institutions as their contribution toward the development of the
country.
"(o) The creation of adequate conditions for the defence of the country
against all forms of aggression and interference both from within and
outside the country by the Armed Forces of The Gambia.
"(p) The inclusion of the provisions of Decree No. 30 on National Goals and
Objectives to the extent that they do not overlap or conflict with other
principles mentioned earlier, but with the view to giving full effect to
those prescribed National Goals and Objectives with special emphasis on the
empowerment of the people particularly in the development of the private
sector as the engine of growth for national development.
"(q) The formulation of guidelines for the establishment of a unique, clean
and responsive private sector.
"(r) The making of provisions for the enforcement of the provisions of the
Constitution."
Section 12 indicated when the report is to be completed and the draft
Constitution presented as thus:
"The Commission shall
"(a) endeavour to complete its work within 3 months from the date of its
establishment, and
"(b) present the report and draft Constitution to the Council, and the
Commission shall thereupon stand dissolved."
In a memorandum addressed to the Constitutional Review Commission, we made
the following introductory remarks which may be of significance to the
review exercise that we have decided to undertake:
"Honourable Commissioners,
"In a memorandum dated 20 April, 1995, you made it categorically clear that
the supreme task of your Constitutional Review Commission is to rely on your
expertise to coordinate the effort of the entire citizenry, in order to
evolve constitutional concepts and proposals that are relevant, workable and
enduring for the benefit of The Gambia.
"That in furtherance of such a fundamental task, you are obliged to take
into consideration the country's history of social, political, economic and
cultural development the experiences and lapses that the people have had, at
one time or the other to grapple with the solutions that were put in place
and the results of the whole enterprise.
"You also made a profound commitment to consider the present needs of the
people and their future aspirations.
"In this respect, Honourable Commissioners, one may assert without any fear
of exaggeration that you are fully conscious of your task.
"The fact that you have evolved diverse means of extracting the vital
concerns and true opinions of the Gambian people, including the invitation
extended to those who so desire to submit memoranda connotes that half of
your task is already done. The fulfilment of the other half rests as much on
our shoulders as it does on yours.
"The object of transmitting this memorandum to you is precisely designed to
discharged such a historic burden and may I add that I do so with the full
support of my colleagues in the editorial board of FOROYAA, Sidia Jatta and
Sam Sarr, to be precise.
"History In The Making
"Allow me to digress here to assert with overwhelming thoroughness the
historic significance of the task before us. This is necessary because the
task we have assumed is not an ordinary task. It is a task, the fulfilment
of which, shall consummate our dignity and worth as a people by enabling us
to knit together ever more firmly the unity of our people and inspire us
with devoted determination and vigour to build a country which can guarantee
to her people prosperity in liberty and thus earn us an honourable place
among the world family of civilised nations.
"In other words, the human being is the only living organism on the face of
the earth who has the capacity to consciously make the past to live in the
present and further consolidate it as a foundation or bedrock for the
shaping of the future. This is what enables human beings to be builders of
civilisation. Each generation bequeaths its works and ideas to succeeding
generations and thus create an ever evolving chain link between the past,
present and future.
"It is this capacity to make events to have a greater longevity than their
perpetrators which make human beings makers of history.
"Suffice it to say that even though there can be no history without events;
even though events are the raw materials on which humanity must rely to make
history, it is not just any event which is a history making raw material.
"Horses, cows and donkeys have been acting on the face of the earth for
centuries. However, their actions have not been preserved in the memory of
other animals of their kind to use it as a guide to ensure a better life for
them on the face of the earth. Conversely, the erecting of a foundation on
the basis of which the life, enlightenment, liberty, prosperity and leisure
of a generation and those yet unborn could be guaranteed or safeguarded is
enduring in the memory of unfolding generations.
"Hence, this task you are now shouldering in shaping the foundation of the
Second Republic is a history making one. All those who take part in one way
or the other in facilitating the fulfilment of such a task are part of the
makers of history.
"It is a fact that in the making of the constitution of the First Republic,
the Gambian people were relegated to be objects rather than subjects of the
exercise. We were mere recipients of a constitutional instrument from a
colonial power. Now, we have a right to be subjects of the historical
process in the shaping of the constitution of the Second Republic. We can be
part makers of our constitutional instrument. Herein lies the fundamental
significance of the exercise we have embarked on. It avails an opportunity
to a sovereign people to hammer out for themselves the juridical foundation
necessary to consolidate their sovereign existence.
"AN IDEAL, A PROVISIONAL OR BEST POSSIBLE CONSTITUTION
"A constitution is the sum total of principles and structures providing for
the existence of a state or association of people. It establishes the state
or association, defines criteria for membership or citizenship, stipulates
aims and objectives, erects structures and offices for the implementation of
aims and objectives and accords rights and duties to the citizens of the
state or members of the association.
"We now have the task to build the constitution of the Gambian people. In
this respect, the foundation and establishment of the constitution should
not be isolated from or independent of the will of the people; on the
contrary, they should be connected with, dependent on and determined by that
very will. In short, a constitution of the people is inconceivable without
popular consent. The principle that all the people must decide before a
constitution can be said to belong to a people makes the holding of a
referendum obligatory in establishing the constitution of a people....
"History, however, teaches that development or progress does not necessarily
take place under ideal circumstances. Human beings do not make history under
circumstances chosen by them. The material conditions we inherit often
dictate that we pursue what the given circumstances made achievable.
"TRADITIONALISM, IMITATION OR INNOVATION?
"Following the discourse on the proposals made in respect to the
constitution of the Second Republic, one can detect a number of trends.
"Some who see constitutions as a product of Western civilisations call for a
return to our roots. They argue that Africans must rely on what they term as
our traditional and spiritual values. However, the shortcoming in these
arguments is that none elaborates completely the nature of the state which
is to be based on these imaginary traditional or spiritual values. What is
the type of state to be established? Who would qualify to be her citizens?
"What structures should be established to promote the general welfare of the
people? Those who call for a return to our roots do not give concrete
details of what these mean in terms of constitutional provisions. Hence, it
is fair to say that the call for us to return to our traditional values is
charged with enormous sentiments and devoid of everything practical. This
discourse therefore does not take us anywhere.
"On the other hand, there are those who see constitutions as a product of
Western values, but who see nothing wrong in imitating what is available in
those countries. Such people see it as our task to survey the constitutions
in the West and assimilate their provisions in the constitution of the
Second Republic. Such people are in the habit of giving a clout of
legitimacy to their arguments by asserting that they accord with what is in
the American constitution.
"Such people see constitutions as dry legal texts instead of an embodiment
of the living experiences of a people. It is therefore necessary to show
that constitutions cannot be deemed to be a sole value system of any given
race or religion but a product of the historical evolution of human society.
"In this regard, it is important to consult world history. In his book, The
Politics, Aristotle dealt a blow at the narrow Euro-centric concept of
civilisation and politics as thus:
"The nation that live in cold regions and those of Europe are full of spirit
but somewhat lacking in skill and intellect. For this reason, while
remaining relatively free, they lack political cohesion and the ability to
rule over their neighbours. On the other hand, the Asiatic Nations have in
their souls both intellect and skill, but are lacking in spirit, so they
remain both enslaved and subject. The Hellenic race, occupying a mid
position geographically, has a measure of both, being both spirited and
intelligent. Hence, it continues to be free, to live under the best
constitutions, and given a single constitution to be capable of ruling all
other people. But we observe the same differences among the Greek nations
themselves when we compare one with another. Some are by nature one-sided,
in others both these natural faculties of intellect and courage, are well
combined. Clearly, both are needed if men are to be easily guided by a law
giver towards virtue."
"Here, it is clear that Aristotle saw himself as belonging to a Hellenic
race and not to Europe. What he thought of the European then is evidence.
"You may weigh his conceptions against what is evident today.
"Aristotle further added that:
"In the first place, there are things we cannot do without, and need itself
probably teaches us them. Secondly, when once these are available, the
process presumably goes on tending towards more comfort and greater
abundance. So we should accept it as a fact that the same process takes
place in the case of constitutional features too. That these are all ancient
is shown by Egyptian history. The Egyptians are reported to be the most
ancient people and they have always had laws and a constitutional system.
"Thus we ought to make full use of what has already been discovered, while
endeavouring to find what has not."
"Here, it is clear that constitutions do not belong to any race or region
but are products of the evolution of human societies and peoples. At
successive stages in history, peoples who are seen to be crawling behind
everyone in matters of civilisation exploited the advantages of changed
circumstances and accorded gigantic impulse to their development to the
point of outstripping those who were at the forefront before. During
Aristotle's time, the peoples of Europe were deemed to lack skill and
intellect. How true is this today?
"The answer is too evident to state. Taking note of this evolutionary
process of human societies and constitutions is precisely what motivated
Aristotle to draw the fundamental lessons that human beings should make full
use of what is known while endeavouring to find out what is still unknown.
"Suffice it to say, those who see the US constitution as a perfect model to
emulate lack the same sense of history as those who deem constitutions to be
a sole product of western traditions and values.
"History teaches that the forty two Americans who gathered in Philadelphia,
Pennsylvania in the same room where many of them sat to sign the Declaration
of Independence in 1776 to prepare for war against the British Crown did not
claim to have prepared a perfect constitution. The drafters of that
constitution might have considered a miracle that they did come up with a
constitution because of the immense disagreements which characterised their
deliberations. Most of the representatives of the thirteen states did not
want to part with the sovereignty of their states and forge a union. The
chief architect of the Declaration of Independence, Thomas Jefferson, did
not even attend. A war hero during the US struggle for independence was the
chief spokesman against ratification, and a 32 year old former
revolutionary, who later became the first Chief Justice of the United
States, John Marshal, was the chief spokesman for ratification.
"After the ratification, a delegate captivated the deliberation in the
following words:
" "It was done by bargain and compromise, yet notwithstanding its
imperfections, on the adoption of it depends whether or not we shall become
a respectable nation, or a people torn to pieces by intestine commotions and
rendered contemptible for ages."
"The constitution was indeed riddled with imperfections. John Adams, one of
the delegates, had to refrain from signing the document because it contained
provisions permitting the maintenance of slavery and did not contain a bill
of rights.
"Suffice it to say, the overwhelming prominence and powers given to the
Congress in the US Constitution as well as the creation of an executive and
judiciary were dictated more by the realities of the delegation rather than
their common understanding of the doctrine of the separation of powers.
"In short, the US has a bicameral Congress comprising of a Senate and House
of Representatives. Representation in the House of Representatives is based
on the principle of equal number of people, equal number of representatives.
In this way, small states have less representatives than bigger states. Some
delegates wanted to apply the same principle to the Senate. However, the
delegates of the smaller states saw that if representation was proportional
to size, they would not have a voice in the Congress. Through that struggle
it was agreed for there be equal number of Senators for all states
irrespective of size. Here representation in the Senate has departed by the
democratic principle that equal number of people shall have equal
representatives. However, it served the purpose of 18 century USA. Without
this compromise, one may wonder whether the constitution could have ever
been ratified.
"The lesson is clear. The US constitution like any constitution in the world
is a product of the historical realities of its framers. It has its
advantages and disadvantages. It is not meant to be a dogma to follow to the
letter in the framing of every constitution in the world. The speech
delivered by 87 year old Benjamin Franklin in support of ratification at the
Convention corroborates such a conclusion. It reads:
" "Mr President, I confess that there are several parts of this constitution
which I will not at present approve, but I am sure I shall never approve
them. For, having lived long, I have experienced many instances of being
obliged by better information or fuller consideration, to change opinions
even on important subjects, which I once thought right but found to be
otherwise. It is therefore that the older I grow, the more apt I am to doubt
my own judgement and pay more respect to the judgement of others.
"I doubt too, whether any other convention we can obtain may be able to make
a better constitution. For when you assemble a number of men to have the
advantage of their joint vision, you inevitably assemble with those men all
their prejudices, their passions, their error of opinion, local interest and
their selfish views. From such an assembly can a perfect production be
assembled?" Asked Benjamin Franklin.
I am sure all those whose minds are faithful to truth when they see it would
answer in the negative.
Benjamin Franklin therefore concluded in a rather ironical manner:
"Thus I consent, Sir, to this constitution because I expect no better, and
because I am not sure that it is not the best."
Of course, twenty six major amendments have been put into force since the
birth of the US constitution to correct its imperfections. The struggles
still continue through judicial review to give interpretation to its
provisions.
Hence, in our endeavour to build a new constitution for the Second Republic,
we have the duty to be innovators and not imitators. Of course, this does
not mean that we should reject the experiences of others; on the contrary,
we should rely on the principle of grasping what is known and endeavouring
to know what is yet unknown. This is what noble peoples have done throughout
the ages.
George Madison, who is known as the father of the US constitution, had to
acquaint himself with the writings of the Greeks and Romans to prepare for
the Convention. The doctrine of the separation of powers of different
operators of the state, the issue of checks and balances, as well as rule of
law, can be found in the writings of Aristotle.
Hence, knowledge should be seen as the property of human kind. There are no
super races or super peoples. We therefore have as much right to learn what
is known and endeavour to contribute our quota in unearthing and unravelling
what is yet unknown.
However, before proceeding with our endeavour, it is significant to draw
brief lessons from US history which are of relevance to the exercise we are
embarked on.
It is important to note that when the US constitution was being framed, the
population of the US stood at three million. The thirteen colonies lay on a
stretch of 1,300 kilometres. There were no modern systems of communication.
Horses had to be relied on. The terrain was rough. Hence, it took months to
travel from one end to the other. Hence, compared to our situation today,
one must admit that we are accorded an immeasurably greater advantage. Your
Commission was able to consult with people throughout the country in a
matter of a month. Hence, we have the duty to produce what is not inferior
to those produced by others. This is the first point.
A HISTORICAL PERSPECTIVE
Since our objective is to create a constitution for the Second Republic
which is relevant, acceptable, workable and enduring, there is nothing more
relevant than to examine how the constitution of the First Republic came
into being, lay bare its nature and characteristics and then draw relevant
lessons from the facts to shape the constitution of the Second Republic. In
this regard, it is important to note that the emergence of the 1970
constitution is not a historic accident. It was a historical necessity which
was irresistible.
The Gambia, as we know it today, is a historical product. Its juridical
history reveals that before the colonial period, there existed definite
systems of government. Colonialism could only come about by negating the
juridical foundation of such state and impose that of the colonialists. It
follows that the negation of colonialism was inconceivable without the
eradication of its juridical foundation and arising and development of a new
juridical instrument which accords with the changed circumstances.
Our task, therefore, demands a survey of the succession of juridical
instruments which culminated in the birth of the 1970 constitution. This
will enable us to grasp fundamental lessons from the political history of
the country which would be of relevance in shaping the constitution of the
Second Republic.
It is important to indicate in passing that even though the memorandum did
carry out a survey of the succession of juridical instruments since the
colonial period, it is beyond the scope of this review to go into all that.
However, it is useful to draw lesson from the 1965 and 1970 Constitutions
before going into a review of the provisions of the 1997 Constitution in
comparison with the 1970 Constitution.
It goes without saying that the 1965 Constitution was not a republican
constitution, but a derivative of a system based on constitutional monarchy.
The essential concerns are as follows:
THE INADEQUACIES OF THE 1965 CONSTITUTION
A truly independent nation must have power concentrated in the hands of
nationals. The leaders of such a nation cannot be under the direction and
control of any foreign power or state. The territorial integrity of such a
state must be preserved. Under the 1965 Constitution, Gambia was still under
the control of the British monarch. Section 32 of the 1965 Constitution
stated that There shall be a Parliament which shall consist of Her Majesty
and a House of Representatives.
It was the duty of the Governor General to appoint a Constituency Boundaries
Commission to determine the boundaries of constituencies. Section 62 stated
that The executive authority of The Gambia is vested in Her Majesty.
Subsection (2) stated that +-Subject to the provisions of this Constitution,
the executive authority of The Gambia may be exercised on behalf of Her
Majesty by the Governor General, either directly or through officers
subordinate to him.
Section 63 stated that There shall be a Prime Minister who shall be
appointed by the Governor General.
Section 66 stated that The function of the Cabinet shall be to advise the
Governor General in the government of The Gambia and the cabinet shall be
collectively responsible to Parliament for any advice given to the Governor
General by or under the general authority of the Cabinet.
Section 70 indicated that The Prime Minister shall keep the Governor General
fully informed concerning the general conduct of the government of The
Gambia and shall furnish the Governor General with such information as he
may request with respect to any particular matter relating to the Government
of The Gambia.
According to Section 60, The Governor General may at any time prorogue or
dissolve Parliament.
Subsection (4) reads: In the exercise of his powers to dissolve Parliament,
the Governor General shall act in accordance with the advice of the Prime
Minister provided that if the Prime Minister advises a dissolution and the
Governor General considers that the Government of The Gambia can be carried
on without a dissolution and that a dissolution would not be in the interest
of The Gambia, he may refuse to dissolve Parliament.
In short, there are a thousand and one provisions to show that The Gambia,
under the 1965 Constitution, was a constitutional monarchy where the leaders
still owed allegiance and obedience to the British monarch. This is
precisely the reason why we maintain that The Gambia was on the road to
political independence in 1965, but did not fully get there. Some political
and constitutional developments had to take place before The Gambia could
become a sovereign republic.
The first step that was taken after 18 February 1965 was to consult the
Gambian people to find out whether they were ready to become a sovereign
people. This was why a referendum was held on 30 November 1965 to find out
whether the people wanted a Republican Constitution and move away from
constitutional monarchy. It needed a two thirds majority of registered
voters to stand. 61,568 voters voted yes. 31,921 voters voted no. The two
thirds majority could not be obtained. Hence, The Gambia could not become a
sovereign republic because of the ignorance of the voters.
The leaders who should have enlightened the people to know that what they
were asked was whether they should govern themselves, have power to elect
representatives and remove them instead of having a monarch whom they could
not remove peacefully.
Clearly if people knew that a sovereign republic meant that power belongs to
them that those who exercise it must do so on their behalf, with their
consent and in their interest, they would have certainly voted yes.
The political parties at the time were struggling for power. Each was ready
to undermine the other from leading the country. Consequently, they forgot
the task of national liberation. For five years, after 1965, The Gambia
remained a constitutional monarchy. The Governor General was Sir Farimang
Singhateh.
On 22 April 1970, another referendum was held. 133,787 voters were
registered. 84,968 voters voted yes. 35,638 voters voted no. The two
thirds majority was obtained and The Gambia became a sovereign republic on
24 April 1970.
The 1970 Constitution stated categorically in Chapter 1 that The Gambia is a
sovereign republic. This simply means that The Gambia has a right to
sovereignty that no foreign power or state would have authority to manage
the affairs of The Gambia. It also means that The Gambia had political
independence meaning that no foreign power or state would determine who was
to manage the affairs of the Gambian people and what form of government the
Gambian people would decide for themselves.
Thirdly, it means that the country has a right to territorial integrity and
therefore no foreign power or state should encroach on the territory of the
Gambian people.
Fourthly, it means that the Gambian people have a right to national unity
since each Gambian owns The Gambia. Therefore, all Gambians have a right and
duty to defend her interest.
Section 60 empowered the people to elect members of the House of
Representatives. To safeguard the sovereignty of the people section 59 of
the 1970 Constitution stated that No person shall be qualified to be
nominated for elections or appointed as a voting member of the House of
Representatives... if at the date of his (her) nomination for elections ....
if he (she) is by virtue of his (her) own act under any acknowledgement of
allegiance, obedience and adherence to any foreign power or state.
There was, therefore, a complete rupture with the British monarch. This is
precisely the reason why we maintain that 24 April 1970 is when The Gambia
became a sovereign entity, a sovereign republic.
Constitutionally, the country belongs to us. The 1997 Constitution
elaborates on what is stated in Chapter 1 of the 1970 Constitution by
asserting that The Gambia is a Sovereign Republic that 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.
This simply means that we collectively own The Gambia. No one has a right to
govern this country without our consent. Those who have our consent to
govern this country are not our monarchs, but our employees. They have a
duty to serve us and we have a duty to scrutinise their service, maintain
them if we are satisfied and remove them if we are dissatisfied. This
requires maturity and honesty on our part.
It is in this spirit that we are undertaking the review of the 1997
Constitution in response to the invitation extended by the Law Reform
Commission.
TO BE CONTINUED.
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