Alagi Yorro Jallow
Mamudu: A Constitution is a sacred document. Unelected ‘tangal cheeb politicians’ have no democratic and legitimate mandate to effect any amendments, modifications, and negotiate on behalf of the people about awakened the 2020 Draft Constitution from its prolonged coma. Only the National Assembly members, the people’s representatives, with some ad-hoc expert witnesses coopted in committees through the National Assembly are the legitimate body to engage in a Constitutional negotiation.
In essence, parliamentarians are the leading protagonists and the only honest people who should have been engaging in the 2020 Draft Constitution talk, bringing THE Draft into life before any prospects for a referendum.
Mamudu: In anticipation, President Adama Barrow and his government should “initiate an interface” to the National Assembly members to bring back the Draft constitution alive instead of inviting former Nigerian President Dr. Jonathan and those unelected politicians to come up with an amendment to the draft constitution. For instance, this Confab raises some questions: who are the legitimate authors to effect changes to such a document, if it exists, and whose mandate they have worked on in secrecy and not in the usual open and transparent discussions debate by members of the Confab. However, only National Assembly shall have the legitimate mandate to negotiate, amend, modify and scrutinize the 2020 Draft Constitutional document as a Draft. The only authority and or legal basis to engage in such would be mandated by ‘The People’s elected representatives is not by the unelected tangal cheeb politicians.
However, through the National Assembly Committee stage, the two sides of the aisles’ political parties reach a consensus to amend the Draft since they are the only legitimate body to change or modify anything in the Draft but not through a globe-trotting international consultant confabbing with unelected tangal cheeb political actors to rekindle the 2020 Draft.
A Draft Constitution, as we know it, is a crucial but always fragile project. In terms of design, a Constitution can only go so far as limiting the manner and scope of exercising public authority. We already know that a Constitution, at the very minimum, presupposes that its transformative superstructure can only be implemented in the context of a matching culture of compliance.
Mamudu: In a country, If we have a bunch of tangal cheeb politicians, with a tangal cheeb political infrastructure, steeped in the tradition of fraud and falsification, what it characterizes as “a culture of bad manners,” then as we know a Constitution and all its glorious innovations, may not be celebrated for its political and symbolic value, (a tool to organize government, pacify the people and earn respect and legitimacy abroad) but in terms of practical effectiveness, it may be dead and buried, shortly after enactment.
The 2020 Draft Constitution should not be descended into a contested matter or an arena of the danger of political showmanship, as this is a matter for a protagonist in politics. Nothing annoys this political season more than the tangal cheeb politicians, the ignoramuses, and wannabes that grace social and traditional media purporting to be legitimate experts in Constitutional negotiations. Just because one is a teacher, a lawyer, or so-called political activist who impersonates to be a Constitutional law scholar.
Mamudu: I also take a significant exception to this uniquely Gambian phenomenon where anyone can predict a purported politician or a so-called constitutional expert’s opinion based on the expert’s last name or his or her ethnic extraction. A Constitutional legal opinion is inherently ‘legal’ in character. The Draft Constitution is not self-enforcing. Neither are the values it promotes or asserts. Institutions give people practical significance. Prejudice, ignorance, bias, corruption, and abuse of discretion can render cosmetic all constitutional purports. Sadly, these premises mock institutional design as no institutional formulation model can shield us from the influence of inarticulate beliefs. That is why the executive’s reported claim of “discrimination” is trying to cure is indicative of a failing Constitutional project.
The failed Confab of constitutional talks led by former Nigerian President Good Luck Jonathan with some unelected political actors was a mere exercise in futility that cannot legitimately rekindle the 2020 Draft Constitution alive in ushering a new third republican Constitution. They have no legitimate mandate to do any amendment or modification to the Draft Constitution. The Confab Constitutional talks have not decided on what modalities to adopt to implement its draft resolutions. Did it propose a draft amendment to the 2020 Draft constitution or treat it as a “new Draft Constitution.” If the Confab agrees with the former case, the Draft should concede to follow the amendment process via the National Assembly. However, if negotiations consider the proposals to amount to a new Draft Constitution, the Draft posits a necessity for a referendum to adopt it. In an attempt to force that idea down members’ throat, the Draft report canvasses that we should follow the examples of countries such as Egypt, South Africa, etc., while it brazenly ignores the legal and Constitutional impediments.
Mamudu: I am opposed to treating any draft resolutions from President Jonathan’s Confab as “a new Draft Constitution” for the following reasons: It is incontrovertible that the Constitution of 1997 contains unambiguous provisions, under section 226 of the Constitution and has spelled out explicit rules to govern specific steps to follow to alter its conditions, including the adoption of an entirely new Constitution if deemed desirable. However, any alteration procedure does not envisage or recognize “referendum” as a mechanism for bringing about any change to the existing Constitution or adopting a new one. However, for any alteration to the Draft Constitution to be legitimate or credible, it must be validated by the concurrent adoption of the National Assembly and the resolution in support of 2/3 majority of the National Assembly of the where this is assented to by the President.
Mamudu: One needs not to be reminded that the Constitutional parley comprises unelected members – however, dignified or experienced they may be in their capacities – and, consequently, it lacks the powers of a constituent assembly, in the exercise of which it may propose or adopt a new constitution. In other words, the Confab, being unelected, does not derive its mandate from the sovereign will of the people and cannot claim to be speaking for Gambians. For such a defective Confab to assume such a role or purport to adopt a new Draft Constitution, as representatives of the people or under any guise, would amount to the usurpation of powers it does not possess. It cannot discharge or exercise a mandate not conferred on it by law.
If the Confab, whose members lack popular mandate and whose composition is undemocratic having been assembled in a very skewed manner by the use of a template of dubious legal or constitutional basis, purports to promulgate “a new draft constitution,” the constitutional document thereby produced would tell even a bigger lie than is being leveled against the 1997 Constitution which is being disparaged as the handiwork of the then military junta. It should also be pointed out that there does not exist any Act of the National Assembly or Rules of Procedure in the Gambia that would enable any organ or under which to conduct a referendum. No agency of government is empowered by law to carry out the same.
Mamudu: For the avoidance of any doubt, the Confab, whether at plenary or committee stages of its work, never tasked any members to propose a “draft constitution” that may be considered for adoption by “referendum” or total disregard of the existing Draft constitutional or legal order. We can, with humility, claim to know that is the constitutional talks in both Abuja and Banjul mandated to and none of its recommendations couched or reduced into a new draft constitution. On the contrary, our clear and unambiguous recommendations on the matter, which negotiations have adopted, is for any resolutions requiring constitutional changes to be channeled through the National Assembly.
Alagi Yorro Jallow