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by Alagi Yorro Jallow.Fatoumatta: There may not be an opportunity to subject the constitutional confabbing with former Nigerian President Goodluck Jonathan and a select group of unelected politicians on intense debate or interrogation to bring alive the Draft constitution rejected in our hallowed chamber. One burden and anxiety that pervades the thinking of most of our unelected politicians and some civil society activists to a parley with the former Nigerian President Goodluck Jonathan on the 2020 Draft constitution’s fate that may eventually be submitted to the executive and the Legislature for consideration or rejection.
Some elected politicians have declined the constitutional Confab’s participation in both Abuja and Banjul, respectively, and cited the Draft constitution’s plethora of intellectual and emotional equilibrium that overwhelm few the political class genuinely concerned about whether Dr. Joanathan led constitutional mediation, as well as negotiation, may not become another festival or a political diversion.
Fatoumatta: There is also the unwritten and understated anxiety relating to the Constitutional talk’s timing since we have less than ten months to the Presidential election—the level of civil society activists and unelected politicians with illusions about the Constitutional discussions. We knew the limitations of both Abuja and Banjul parley. Still, We felt that they utilize their platform not to advance the Gambian people’s cause and moderate the divisive and opportunistic tendencies of those politicians that have consistently held the Gambian economy and politics hostage.
Fatoumatta: The Constitutional talks started when we realized that some of the unelected delegates had fixed and unbendable positions. Some researched their roles and came with a teetering position. Some rightly or wrongly suspected a hidden agenda and decided to maintain the status quo. Some came to showcase themselves to the Government as people the Government can do business with and consciously positioned themselves as Ambassadorial and Ministerial materials.
However, what bothered most of the Constitutional talks delegates is how to translate their efforts into reality. Some of them were concerned about the continued bashing of the fundamental law of the land as illegitimate.
Fatoumatta: I am of the firm view that it is redundant to keep canvassing that the 1997 Constitution of the Republic of the Gambia (as amended) is an illegitimate document. If the said legal charter is unlawful, all the political structures in place, including all elections, are illegitimate and illegal. For example, it also means that all Commissions and even those members of the Constitutional Review Commission (CRC) set up under the 1997 constitution, and appointed by a President who is a product of illegitimacy, are also engaged consciously in an illegitimate venture unless they say they want to cure illegitimacy.
Fatoumatta: My other concern is resolved around the preamble to the Constitution itself. They claim that the 1997 Constitution tells a lie about itself by claiming that the Gambian people met and gave themselves the 1997Constitution, and to cure it, the Constitution must be subjected to a referendum. While there is merit in this assertion, almost all of us have derived one benefit or the other from the 1997 Constitution. We have relied on the Constitution to secure freedom and other services for the Gambian people. Some politicians ran elections based on the 1997 Constitution. It stands to reason that the imperfections and complaints relating to the Constitution can be cured and or managed within the context of an imperfect arrangement.
However, there is no perfect Constitution, even if an autochthonous Constitution like ours. The fact that our Organic Law by its nature is indigenous does not mean that the wise men and women who framed it are vested with God’s omnipotence or bestowed with the ability to take care of all possible eventualities. This explains why in most jurisdictions with Written Constitutions, amendments are now and again made to attempt to infuse new life into the Constitution and make it relevant to societal needs. Even in a Constitution, as in Great Britain, where the Constitution is not written, various effects are always being made to modernize it to take care of its developments. The reason for this is that as the society is dynamic and laws should reflect and therefore be in accentuation to societal development, care must be taken that the Constitution is the primary law, is from time to time clothed with new garb that will make it reflective of the aspiration of the society.
Fatoumatta: What then should we do with the outcome of the Constitutional talks led by former Nigerian President Goodluck Jonathan with those an unelected politician? What draft amendments or resolutions will the Constitutional talks provide, which shall be the accurate recording of all the decisions reached by the mediation team of Dr. Joanathan. We hope it provides that the Final Report, which shall be a Draft lead to the drafting of issues of the Draft, advise and the Government on the legal framework, legal procedures, and options for integrating the decisions and outcomes of the constitutional talks into the draft Constitution and laws of the land.
Fatoumatta: It is, therefore, disingenuous to clothe the constitutional talks with mystical and mythical powers and sovereignty. Are the options clear? Separate contentious issues that have administrative flavor and cluster them into Government dockets. Those that have policy flavor will be clustered in the same manner. The recommendations that will lead to legal changes be in one docket, and the drivers will straddle all tiers of Government. Those changes requiring a constitutional amendment will segregate and appropriate drafts by appropriate government levels forwarded to the National and State Assembly.
Fatoumatta: If there are one or two weighty issues that require a referendum, the National Assembly should be encouraged to amend the Constitution and provide for a referendum. It will be suicidal and irrational to subject a legal document over several issues to a referendum of YES or NO. It means that if a citizen disagrees strongly with one item out of several recommendations, the citizen may likely vote NO and kill the entire document.