[Editor’s note: This is part II of our special series titled “Constitutional Review in The Gambia: Contemporary Discussions.” The introduction to the special series is available here and Part I is available here.]

Judicial inquiry into Economic, Social and Cultural Rights (ESCRs) across the world has increasingly taken center stage in human rights discourse. In many cases relying on the progressive interpretation of ESCRs, courts have in numerous occasions found states actions inconsistent with domestic, regional and international standards relevant to the progressive realization of ESCRs. However, the major challenge courts face in addressing human deprivations have been largely due to the absence of normative domestic constitutional benchmarks to assess and measure states’ compliance with their international obligations. This has compelled courts to go beyond their traditional roles of merely interpreting positive law to venture into uncertain paths in their quest to protect and enhance human dignity. Thus, they became forums for constitutional dialogue and deliberative democracy. To that end, they have ordered: the halting of eviction orders on the basis of the right to adequate housing; states to reinstate social welfare benefits; states to reinstate essential medical programmes for the poor and required children from minority groups to be provided schools and deprived communities to have access to clean water.

On the other hand, courts in some jurisdictions declined any invitations for the enforcement of ESCRs on the basis that the content of such rights are notoriously uncertain and in avoiding ‘’purely political’’ decisions which are reserve for the executive, they have shied away from ESCRs. This school of thought is probably a steadfast servant of Lon Fuller’s polycentric effects theory. The pursuit of that theory is obviously not the essence of this contribution.

Therefore, this paper seeks to draw the attention of stakeholders in the constitutional review process to avail ESCRs their rightful constitutional positions in the new constitution as for the legitimacy of any government will be severely tested if it turns a ‘’blind eye’’ to the dire socio-economic conditions of its people. Equally, the enjoyment of ESCRs goes to the heart of human dignity which is the foundational basis for the enjoyment of all rights. The Gambia over the years relegated ECSRs as mere policy aspirations that were only pursued to meet political ends. The 1997 Constitution of the Gambia contains a bill of rights guaranteeing a limited number of ESCRs. These rights include the right to primary education, to property, and the right to join trade unions. Thus, those rights that are expressly guaranteed in Chapter 4 of the Constitution can be enforced through a judicial process in terms of article 37. Fundamental rights such as the right to food, shelter, clean water, adequate standard of living only form part of the National Objectives, and as such makes it difficult for individuals and stakeholders to hold the government of the Gambia accountable for ESCRs violations through the judicial process.

What is required of the Gambia under international human rights law is to make efforts for the progressive realisation of ESCRs. This requires the Gambia to move as expeditiously as possible towards the full realization of ESCRs, bearing in mind that certain ESCRs cannot be achieved in the short term. In General Comment No 3, the UN CESCR posits that these steps must be deliberate, concrete, and targeted as clearly as possible. It further emphasized that there are certain ESCRs that impose immediate obligations that are capable of immediate application. Thus, irrespective of resource availability ‘minimum core’ of ESCRs should be guaranteed. Therefore, guaranteeing ESCRs in the New Constitution will not only be symbolic in translating the political commitment/will to reality, but also ensure the prioritization of ESCRs in resource allocations, and will allow courts to ensure accountability for any violations. For the courts to go to the theater there should be adequate ESCRs sign posts in the New Constitution giving them directions.

To be continued…

Suggested Citation: Sainey Bah, Making Economic, Social and Cultural Rights a Reality in the ‘’New Gambia’’: Lessons from the 1997 Constitution, Law Hub Gambia Blog, 6 December 2018, at https://www.lawhubgambia.com/lawhug-net/newgambia-economic-social-cultural-rights.

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." - Preambl… — "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.

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)

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