Fatoumatta: It is amazing that after fifty-three years as a nation we still have not decided how our country should be run. Yet at that age, one ought to have married, brought up own children and started the journey into the sunset of his life assured of a solid legacy.
As a nation, we seem to be prolonging our youth, refusing to settle down and take up the burdens of responsibility. What are we waiting for? A people – centered and a home-grown Third Republican Constitution.
Fatoumatta: Our Constitution’s internal aporia remains problematic because constitutional frameworks, as Barack Obama says in his ‘Audacity of Hope’ are designed to force people into a conversation with the hope of offering legitimate means by which people argue about the future.
Of course, for a country that deserves so much, the failure of its constitution to reflect the call of its people for an emancipatory constitutional order is particularly disappointing. Betrayed by the First and Second Republic, the Gambians had hoped for a future that would harness collective strengths and individual talents within the settings of a constitutional democracy.
Fatoumatta: But the Gambia is one-seeking trust, integration, unity and a reconciliation process that seek, to find a constitutional common ground well before drafting begins; a new constitution that can be oriented towards delivering a shared constitutional vision that will provide to all Gambians to realize cohabitation that is possible.
Fatoumatta: Unfortunately, according to legal scholar Mr. Lamin J. Darboe that the Constitutional Review Commission recently inaugurated to draft a new constitution for the Third republic “is unlawfully constituted” citing among other legal irregularities and the Attorney General’s so brazenly acted outside the permissible contours of his clearly specified authority under the Act”,this could be another legal and political obstacle of a legal order the country struggling to fulfilled since independence .
Mr. Darboe further deplored to the fact that “the Judiciary’s role as the interpreter of the law conflicts with a legislative function of such magnitude. The departmental demarcations in the 1997 Constitution of the Republic of The Gambia (the Constitution) are such that the role of the Chair, as a sitting member of the Supreme Court, seriously implicates separation of power principles and the fundamental right to fair hearing,” argued Darboe.
Fatoumatta: Almost every generation since the beginning of this nation has raised the question, in one form or another, for good reasons and bad, the concept of separation of powers was a fundamental legal and political maxim which dominated the thinking of many of the members of the legal and political circle. According to Lamin Darboe,” the decision to assign the position of Chair of the CRC to the Chief Justice, or his designate, implicates the separation of power acutely.
As a sitting member of the Supreme Court, and considering his age, Justice Cherno Sulayman Jallow QC will be interpreting the new constitution, a constitution in the drafting of which he would have played a central role for years to come. This is not healthy for democracy under the rule of law”, Lamin J. Darboe hypothesized.
Fatoumatta: Nigerian jurist, Taslim Olawale Elias once warned that writers of constitutional law have the tendency to make false prophesies, it is plausible to say though, that in the context of the Gambia, unless the inadequacies that beset its constitution are confronted and reversed, its constitutional future remains both obscure and insecure.
The Second republican 1997 constitution according to a constitutional scholar Abou Jeng “is not a people’s Constitution. It is a constitutional tragedy, a substitution of hope with despair”, he argued.
Fatoumatta, there comes a time in the life of a nation when the peoples cry on an issue and their sense of betrayal and futility lies at the hands of those they entrusted with power must surely come to an end. This is not easy, Fatoumatta, President Barrow, have the super-abundance of historical reasons, spectacular legal arguments and that of his own political considerations to give in to the demands of the Gambian people.
But regardless of what is expedient, as a leader, Adama Barrow is expected and has a duty to respect and fulfill the needs and aspirations of the people. After all, it is often an inescapable truth that Vox populi, Vox dei. (the voice of the people is the voice of God.) It is for this reason Fatoumatta, President Barrow publicly committed himself and, his Govt, deliver to the Gambians, a people-driven constitution. This way, Fatoumatta, create a new politics, a new way of doing things, a new politics!
The 1960,1970 and 1997 Constitutions all of Westminster style has been very elusive, doggy and very costly to the nation in the last 53 years. Three Presidents have inherited and placed their efforts to enact colonial vestige legal systems.
Constitutional Review Commission and similar bodies of foreign jurist inputs have been held, colossal amounts of public funds deployed, but to no avail, as at now. This time around, are we winning as expected? Dr. Abou Jeng hypothesized “A Constitution of whatever political dispensation ought to be an instrument of dialogue whose guidepost must make permissible a representation of consociational affirmation of the possibilities … to command a mission that adds voice to the condition of human suffering, and perhaps crucially, undertake to mitigate it”.
The big question is: Will the People -centered homegrown Constitution be executed as expected by WE the People of the Gambia? Fatoumatta: Political will has to be very encouraging.
Fatoumatta: ‘The U.S. Constitution is 229 years old today. On Sept. 17, 1787, the Founding Fathers signed the Constitution at Independence Hall in Philadelphia’, forged a new government for the United State with only few amendments or changes; I am reminded that only 27 amendments or changes in one Constitution: I am reminded that the 1997 Constitution was butchered double more than the US Constitution; almost 45 times: Really? Why our Constitutions without constitutionalism?
Even as we clamor for a new Constitution gathers momentum we must be careful not to forget the basic structure of the 1960, 1970 and 1997, Constitution. Why the Gambia is always at Constitutional crisis illustrated how the powers-that-be have committed what is eloquently described” Constitucide” the act of murdering and mutilating the Constitution, especially what President Yahya Jammeh administration did to the 1997 Constitution, to retain power not for the betterment of the people but to fulfill his individual egos.
The 1997 Constitution was amended almost 45 times (1997-2017). The one purpose of a constitution is to set out the fundamental conditions upon which individuals and groups within a country broadly agree to be governed. Constitutions usually provide limits to government by establishing and distributing powers between different branches, institutions or offices of the government.
Why Constitution matters? According to Justice Ramaswamy of the Supreme Court of India in emphasizing the immense importance of the constitution said that the Constitution, “unlike other Acts, is intended to provide enduring paramount law and a basic design of the structure and power of the State and rights and duties of the citizens to serve the society through a long lapse of ages. It is not only designed to meet the needs of the day when it is enacted but also the needs of the altering conditions of the future.”
What are the obstacles of our legal systems: The Constitutions: 1960 Constitution,1970 Constitution,1997 Constitution, and another legal document, the 2020 Constitution. Those constitutions contain certain fundamental basic structures that our political leaders fail to and must guard against being amended or mutilated.
At least those documents there exist features in the fundamental law which are sacrosanct include supremacy of the Constitution, unity and integrity of the State, fundamental rights, sovereign and democratic structure, rule of law, separation of powers, the independence of the Judiciary, secular character of the Constitution and Limitations on the amending power of the National Assembly.
Fatoumatta: Lamin Darboe unequivocally pointed out that the Justice minister, “so brazenly acted outside the permissible contours of his clearly specified authority under the Act. It is unclear where the selection of the Chief Justice as Chair of the CRC came from but in light of the topography of the Act, the fingerprints of the AG are all over it. On a plain reading of section 4 of the Act, it was a fait accompli without presidential input. An Attorney General ought not arrogate such power to himself!” Mr. Darboe, noted.
The most confusing part of nominating members of the CRC, Mr. Lamin Darboe indicated that “the AG acted outside the contours of his permissible authority, thus rendering his nominations void and of no legal effect. It is regrettable that the AG gathered about himself powers that are not his to project and without offering any evidence of donation. This constitutes a glaring disregard of the Act by the AG. He simply sat in his office, picked the phone and spread the pork – in US Congressional Appropriations jargon – to a select few and without color of law for he was in physical possession of a copy of the Act.”, Lamin Darboe retraced.
Fatoumatta, President Adama Barrow has launched to move a new Constitution, dusting off the shelves where his predecessors left a Constitutional Review Commission Act comprising of all homegrown eminent members to draft a people-centered constitution of the Third Republic, may bring life to our legal system, tasked to bring it to realization.
Sister Dr. Sarr and Mr. Halake: Perhaps, one of the most convoluted and tortuous argument I have ever read on Jollownews. When you compare Mr. Madi Jobarteh’s response to Mr. Lamin J. Darbo’s article, Mr. Alagi Yorro’s article is in another planet on its own; a planet, I never knew existed, by the way! Mr. Lamin J. Darbo made some persuasive arguments in his article. Whether his argument are valid is another matter altogether. Mr. Jobarteh takes a different position and try to poke holes in Mr. Lamin J. Darbo’s argument and is successful to a degree. The question is what are the arguments Mr. Lamin J. Darbo is making against the Constitutional Review Commission and what are Mr. Jobarteh’s arguments to counter Mr. Lamin J. Darbo’s arguments. The Separation of Powers argument jumps at you right from the start both arguments, but there is equally a very important if not more important argument. That is doctrine of “Delegation Of Power.” Mr. Lamin J. Darbo’s argument seems strong on the delegation of power argument but weak on the separation of power argument. Mr. Jobarteh, on the other hand, seems strong on the separation of power argument but weak on the delegation of power argument. Here is the bottom line, if the statute that created the CRC gives certain powers to the President an AG in the formation of the CRC and both or either went beyond those powers, some illegality has been committed. Even where the CRC Act is silent on some powers, that does not mean the President or the AG or both can just do whatever they feel like. That is not how things work. So one of the very important question to be answered is where is that line? This is one of the argument in both Mr. Lamin J. Darbo’s and Mr. Jobarteh’s arguments. Mr. Lamin J. Darbo and Mr. Jobarteh do not appear to adequately grasp the principle of Separation of Power. It is a principle and a great one, but it so delicate that most of the time it appears as if it does not exist at all. Now if you read a lil bit of “The Spirits of Laws” by Charles Louis Secondat de la Brede, a/k/a Baron De Montesquieu, you see what I mean. The Chief Justice chairing the CRC is not an evil at all and if it is, it is a small one. Now, Mr. Jobarteh tried to cover up a little bit of weakness in his argument where he enumerated a list of persons who have chaired CRCs. Mr. Jobarteh’s list is predominated by persons who have been former legal practitioners, but in the Gambia’s case we are talking about a sitting Chief Justice of the Supreme Court. If you read carefully, you see how Mr. Jobarteh did a good job of trying to cover up that weakness. It is not really a big deal, but I just wanted to point it out. Have a wonderful day guys and God bless you all.
You got me laughing, Mr Samba, when you mentioned “Baron De Montesquieu! I said to myself: “Mr. Samba’s mind is on fire!” – but it would be a health risk for me to follow you there at my advanced old age.
You say:
“Mr. Lamin J. Darbo’s argument seems strong on the delegation of power argument but weak on the separation of power argument. Mr. Jobarteh, on the other hand, seems strong on the separation of power argument but weak on the delegation of power argument”.
Please Mr. Darbo and Mr. Jobarteh: Mr. Samba deserves the courtesy of a reply on this point!
Dr. SARR: This point is “over-2-you”; I am too scared to respond!
Mr. Samba: “Mr. Alagi Yorro’s article is in another planet on its own; a planet, I never knew existed”.
Dr. Sarr: ” …………………………………………………………………………..”
Dida let’s learn an important lesson together. On this issue, it’s best to stay silent and listen when Samba talks.
Seconded!
Sister Sarr, you should not stay silent and listen to a fool like myself. I do not have all the answers and neither do I present to do so. I write little because I know very little, that is, if I know anything at all. I am well aware of my ignorance, believe me, sister. As you know, clarity is very important in communication. For example, If I am going to write about a topic and I want to used somethings that you wrote about on the topic, I can quote you directly or paraphrase what you wrote. If I quote you, I need to expound on the things I have quoted you and say exactly what you mean by it. The problem is quoting someone without adequate understanding of what that person is talking about. In this forum, we love to quote famous persons and persons we consider knowledgable, even if we do not know what those persons mean. Let me be clear, I do not have any problem with quotations. The problem is parroting other peoples’ thoughts, i.e., repeating them without any explanation of their meanings.
Going back to what I wrote about, reduced to its minimum, The argument between Mr. Lamin J. Darbo and Mr. Madi Jobarteh, which is one of the most important argument on this forum ever, is on the doctrine of “delegation of power” and “separation of power.” My commentary did not take a side on the debate for reasons that I may get into someday, time permitting. I will say this much though, one person is arguing from principle and the other is not. That is a very important point to take note of. Have a blessed day everyone.
I meant to say neither I do pretend (not present) to do so, i.e., have all the answers!