Commentary on the Landmarks in the 2020 Draft Constitution of The Gambia

While the Final Draft Constitution generated many controversies from the public, it also lay before us tremendous opportunities to map out a durable constitutional compact from the ongoing transitional justice process. Former British judge, Lord Denning once wrote, ‘the law never stands still. It goes on space. You have to run fast to keep up.’ Inspired by this universal truth in the continuous evolution of the law, these essay series highlight some of the significant transformations that the Final Draft Constitution 2020 seeks to usher in Gambia’s constitutional history.

Following the defeat of President Yahya Jammeh in 2016, the country immediately embarked on a massive constitutional reform, citing the numerous amendments made to the 1997 Constitution since its adoption and the palpable desire to set the country on a secure constitutional democracy. After lengthy and unprecedented public consultations, the constitutional reform agenda gave birth to a long-awaited ‘New Constitution’, which was submitted to His Excellency President Adama Barrow on 30 March 2020 in accordance with Section 21 of the Constitutional Review Commission Act, 2017.

These essay series are intended as a modest contribution to the ongoing constitutional dialogue and to bring out the major landmarks in the Final Draft by identifying the significant additions from the perspective of constitutional democracy and human rights. By landmarks, I refer to those major additions that have immediate and significant ramifications on the existing state architecture from the legislature, the executive, the judiciary, and individual rights. These analyses proceed on the theory that the basic essence of a constitution is to prevent tyranny and ensure efficient delivery of socio-economic services, on account of the state’s central role of safeguarding the dignity of individuals. Equally, a Constitution must empower the government to effectively and efficiently deliver its functions to the citizens. The content of the Final Draft has ever since provoked different reactions, with mixed feelings of hope, national accomplishment, and skepticism. Some of my learned friends at the Bar have rightly described it as ‘a very ambitious constitution’ while few skeptics have described it as ’carbon copy’ of the 2010 Kenyan Constitution.

There seem to be some element of truth in all these reactions if one considers the lofty visions of the Final Draft and the obvious similarities, almost word for word in certain provisions, with the 2010 Kenyan Constitution. However, even though a Constitution is supposed to derive its uniqueness from the views and aspirations of the people, it remains an instrument of governance that is usually grounded in universal values and principles that cut across countries, people, geography, and time. Such values may include democratic pluralism, administrative fairness, separation of powers, transparency, accountability, and human rights. The importance of these values in the Final Draft should remind us of the consequences of their absence in the affairs of a state. One just needs to follow the testimonies of witnesses before the truth commission to appreciate the gruesome price paid by many Gambians in a state of constitutional disregard. Therefore, some of the values can be seen as responses to the recent past of the country.

In the interest of providing a counter to this ‘plagiarism of the Kenyan Constitution argument’, I must state that when position papers were submitted by individuals and organisations, some of these papers explicitly asked the Commission to adopt certain provisions from other Constitutions including the Kenyan Constitution. If the commission copied some of these sections, it was because the commission took into consideration the views of the Gambian people, as it is obligated to.  

It is only natural that I commence this reflection with  certain core values that underpin the Final Draft noting the fact that the framers have set the basic structures of the draft Constitution on certain core values. Foremost, the Preamble. It provides that we give ourselves and future generations ‘this Constitution as a beacon of hope, stability and national unity, progress, peace, and prosperity.’ Section 1 (1) maintains the democratic pluralism of The Gambia and beautifully put to rest the contentious secularism debate under sub-section (2) with the consequence of guaranteeing fair treatment of all faiths. In addition to these democratic values, Chapter 3 is dedicated to ‘national values and principles.’ It is my view that the inclusion of these values in the operative texts or provisions of the Final Draft indicates the real effects that are intended to bear on the conduct of the state and the people. They strengthen the guiding principles in the Preamble. This reflects a departure from the 1997 Constitution, wherein the national values are subsumed in the Directive Principles of State Policy with a caveat that they are not justiciable. However, section 11 of the Final Draft provides that national values bind all state organs, local government authorities, public officers, and all persons where they interpret, enact, or make public policy decisions.

On leadership, Section 24 of the Final Draft enumerates the virtues of ‘desirable leadership’ in public offices requiring a commitment to integrity, accountability, transparency, respect for the rule of law, dignity, and selfless service to the public interest. The rationale for the inclusion of these virtues in public administration means that the framers do not rule out the fact that the change of government in 2016 may not automatically end the complicit culture that transforms seemingly good leaders into unaccountable tyrants.

Professor Charles Fombad argues that to ensure that the good people put in public offices do not become the tyrants and dictators we abhor, constitutions must be devised that do not only promote constitutionalism but also guarantee accountability and responsibility. Therefore, the above principles do not only serve as benchmarks to ensure accountability of public offices, but they also impose constitutional commitments of selfless service by the leaders towards the general public from whom every leadership derives its legitimacy.

The next analysis will focus on the elaborate and extensive bill of rights in the Final Draft. It is often said that a bill of rights may occupy a small portion of a Constitution, but it has the potential to safeguard individuals from tyranny on the basis of universal standards and benchmarks.  

Constitutional Change and Amendment: Are we restrained by ourselves or other people?

The precommitment theory by famous Norwegian political theorist, Jon Elster presupposes that the acquisition of greater choice, and freedom, is not always desirable (Elser, 1979). At a later stage, one might need to limit himself to a certain course. This denies him the option to choose a specific act or course and thus provides for rationality as time goes by; one may think that X is the right course now, but worry that when the opportunity to choose Y arises, one might choose Y instead. This makes choosing Y impossible, more difficult, or less likely to allow for the prevalence of rationality regardless of intervening factors.

From independence, most countries in Africa have had their Constitutions changed or amended so as to accommodate new ideals and values. The Gambia is no exception to this. But what constitutes change? Where does the authority to bind people of these changes come from? It is one thing for A to bind himself and another for a group of people to be bound my Constitutional provisions. Two notions are already well known; First, a Constitution binds everyone, including the minority. Second, Constitutional commitments are vague. Free speech, and rule of law are examples. This vagueness comes in two spheres; committing a right with one hand and making it all together more problematic and impossible to achieve. This makes Constitutions contentious and political documents. The Constitution of The Gambia reads “We the People.” because it was enacted by the majority but it somehow is taken as the general will of the people only because the majority endorsed it.

"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." - Preamble of the 1997 Constitution

The division in Constitutional amendments are not internal but rather, they are divisions between the majority and the minority. Constitutions that are strong, will always bind generations to come to the ideals and values of those that came before them without their vote or consent.  As stated by George Washington to the framers of the US Constitution, “I do not think we are more inspired, have more wisdom, or possess more virtue, than those who will come after us” (Ackerman, 1991) It is not clear to me why one generation is at liberty to bind a future generation but what I do know is that it is possible for a particular generation to want to continue practicing the ways and appreciate the values of the past.

The interesting argument here is not just the mere fact that Constitutional commitments are binding on everyone including the minority who didn’t consent to the change in the first place; rather the commitment would be to bind other people who would challenge another person’s view. Those that drafted the Constitution may not worry about their own acts or omissions in certain times instead they would be worried about others who don’t even share the same values as them. The Constitution commitment then “changes from a technique of simple self-binding into a restrain on opposition to certain contested political values”. Society will always disagree both in “calm” and “lucid” moments, hence, the viewpoint that commitments are entrenchments of partisan politics” (Waldron, 1998). This then makes Constitutional commitments anti-democratic which further raises a “counter majoritarian difficulty” so long as it holds back the popular will of the people.

Considering the question of who makes a Constitutional commitment, it is expected that the majority that consents to the ethos of the Constitution are cognisant of what it is that they have agreed to commit to. A commitment to Constitutional rights such as free speech is vague and abstract. Interestingly, Justice Marshall has pointed out that hate speech laws should be focused “on the nature of the ideas expressed, rather than on the likely effects of the expression”.[1]  There is however a difficulty in applying this distinction. A person that is committed to free speech is bound to accept or reject it without realising the practicability of the right. This is where judicial review comes in.  By committing to the right to fair trial, “the people” of The Gambia consented to the use of strict rules of evidence that would offer a frustrating position to any prosecution.  An argument that the people that drafted or supported the right to fair trial understood this implication would be a difficult one.

This makes the commitments of Constitutional rights misleading as people in most cases are bound to obey these Constitutional commitments without knowing the consequences of the Constitutional commitment in question. But was this commitment made with full consent? It’s only fair that this question is asked. By binding ourselves to the commitments of the Constitution, we are also binding ourselves to the interpretation of judges who are not answerable to the people for their acts and also independent from any sort of influence from any authority or person. This then draws the conclusion that Constitutional commitments and judicial review have the same problems; they are both undemocratic. 

The case for Constitutional change and amendment is not as clear-cut as most people think. Because Constitutional commitments bar the pursuit of the popular will, it first of all makes us not self-binding to the Constitution and secondly, those who committed to the Constitution will never fully understand what they have committed to.

One point that was reached by Alexander Bickel is that “courts principles are required to gain assent, not necessarily to have it” (Bickel, 1986). This assent could be seen “in a rather immediate foreseeable future”. Bickel concluded by stating that in the event the assent does not materialise, the power of the people to overturn an interpretation of a constitution that they did not consent to “is how and why judicial review is consistent with theory and practice of political democracy” (Bickel, 2390. Hence, should a Constitution claim some inherent power to have a moment where it can say without a preceding legal order, there has to be some theory of constituent power? If so, does The Gambia need formal or substantive theory of Constitutional change or amendment?         

[1] Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11, [2013] 1 S.C.R 467.

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References

Alexander Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (2nd edn, Yale University Press, 1986)

 Bruce Ackerman We the people, vol. 1: Foundations, (Havard University Press, 1991). 

Jeremy Waldron, “Precommitment and Disagreement” in Constitutionalism: Philosophy Foundations (1998)

Jon Elster Ulysses and the Sirens (Cambridge University Press, 1979).

Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11, [2013] 1 S.C.R 467

Sanford Levinson (ed.), Responding to Imperfection: the Theory and Practice of Constitutional Amendment (Princeton University Press, 1995)

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Maria Saine is currently pursuing a masters degree in Law at Trinity College Dublin.