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Momodou
Denmark
11635 Posts |
 Posted - 01 Oct 2020 : 14:48:56
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The CRC Chairperson Justice Cherno Sulayman Jallow, QC states that it is true that the ongoing debate about the 'failure of the Draft Constitution' to advance to the remaining stages of the National Assembly and eventually to a referendum for the people's verdict is quite intense. He further implored on people to be patience and tolerance in that discourse.
"We at the CRC are not despondent, as we are satisfied that we have discharged the duty entrusted upon us and carefully followed the terms of reference set out for us in section 6 of the CRC Act, 2017. As a nation, we should collectively remain optimistic and work towards what is best for this country. When in trying we fall, we should get up, dust off and proceed on the positive journey of national development. We must work together in unison and avoid spewing venom the result of which can only result in negative consequences," Justice Jallow indicates. |
A clear conscience fears no accusation - proverb from Sierra Leone |
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Momodou
Denmark
11635 Posts |
Posted - 01 Oct 2020 : 16:48:56
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Vice Chairperson of the Constitutional Review Commission(CRC), Hawa Sisay-Sabally says the CRC has delivered its mandate and they are moving on.
She thanked Gambians for their tremendous efforts and says whatever type of Constitution comes out deserve to cater for the needs of Gambians, especially those in the rural areas.
"We are leaving office with our heads high up," says Hawa Sisay-Sabally. |
A clear conscience fears no accusation - proverb from Sierra Leone |
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Momodou
Denmark
11635 Posts |
Posted - 01 Oct 2020 : 17:04:29
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CRC FINAL PRESS CONFERENCE
STATEMENT BY JUSTICE CHERNO SULAYMAN JALLOW, QC (JSC) CHAIRPERSON OF THE CONSTITUTIONAL REVIEW
COMMISSION OF THE GAMBIA
Date: 1st October, 2020
Venue: Sir Dawda Kairaba Jawara International Conference Centre, Bijilo
Time: 11:00 am
Good Morning, Ladies and Gentlemen of the Press.
2. I am glad to see so many of you here today. We started together as one solid family – CRC and the media – and so shall we end. It may look like we’ve all reached the end of the journey, but that journey has just taken off on another start. So let’s not despair. The Draft Constitution that Gambians worked so hard on, expending invaluable time, energy and resources, is not dead; it has merely hit a snag and is placed in cold storage, at least for now. So if anyone here today feels depressed, I say to you lighten up, get up and dust off, have faith, and continue the quest for constitutional reform in The Gambia. That is what Gambians have yearned for and you must complete the journey with them.
3. Yes, the history books will record that the Draft Constitution was the first of its kind assigned to and prepared by an all-Gambian team of experts; it was the first of its kind that employed full and open participatory democracy to involve citizens at home and abroad to express their wishes and aspirations; and, if memory serves me well, it was the first to be ever presented to the Legislature for endorsement in order to be advanced to a national referendum. But history will also record that it was the first to be stopped in its tracks before it could be advanced to a referendum. That in itself is not, and should not be, the end of the world for us as a country. So again, let’s keep the faith!
4. When we had our last press conference on 31st March, 2020, I thought that was the last one. I commended you all for your active participation in the constitutional review process and for connecting the process to our communities. However, I have received so many requests for interviews in the last week and this week that I thought it was best to arrange one press conference to accommodate all the requests together. I hope this one does it, although some of you may just be saying to yourselves quietly “Yeah Right”!
5. I hope my Statement does not turn out to be longer than you expected. If it does, I’m sure you’ll understand and forgive me. After all, this will be our penultimate press conference with you members of the media and the ninth since the inception of the work of the CRC. We will miss you or, rather, we will miss each other. Like everything else in life, the CRC as an institution and as your regular partner must come to an end. What will be left will be for the history books.
6. When we started the journey of constitutional reform on 5th June, 2018, a day after I and 10 other Commissioners were sworn into office by His Excellency, the President of the Republic, we knew we had a daunting task. And we had 18 months within which to execute our mandate. While being fully aware that the CRC Act, 2017 allowed us to request an extension of up to 6 months, we were very clear that we were not going to abuse that privilege. We started our work without a dedicated office. We spent a month in the conference room of the Ministry of Justice and 2 months in a conference room at the Atlantic Hotel in Banjul, while carrying out our detailed assignments from our individual offices and at home.
7. When we moved into our permanent premises at the Futurelec Building in Kotu in September 2018, we had no furniture or a dedicated conference table and no air conditioning. All this while the Hon. Attorney General and Minister of Justice, the Hon. Baa Tambadou, and his Ministry were doing their utmost to ease matters for us by assigning some of their staff to assist us and pursuing all necessary measures to facilitate our work. We dipped into our private pockets to buy water, tea and snacks and also to buy cash power, so we could have some semblance of comfort to meet and discuss our assignment.
8. By August 2018 we had completed developing all our key policy and strategy documents that were eventually to guide our work for reviewing the 1997 Constitution and writing a new one. Those policy and strategy documents related to media and communication, research and documentation, public consultation, and monitoring and evaluation. In addition, we developed and completed a detailed Action Plan and a consolidated budget that were to guide our activities on specific action items with stipulated deadlines to ensure the timely completion of our assignment. The Action Plan covered, inter alia, all the strategies already mentioned as well as a desk review of the 1965 Independence Constitution Order, 1970 Constitution, and 1997 Constitution with their respective amendments, a review of constitutions of select countries and of relevant regional and international instruments.
9. In July 2018, through the benevolence of the UNDP in partnership with the International Institute for Democracy and Electoral Assistance (International IDEA), the Commissioners and the Secretary were invited to a one week orientation programme at The Hague at no cost to the Gambia Government. We had the opportunity of meeting with a broad range of international experts and discussing relevant aspects of constitutional development. They were impressed with our level of preparedness, especially with the policy and strategy documents we were developing (all of which were in draft form and being reviewed at the time).
10. By September 2018 we had developed and completed our Issues Document comprising 369 questions, inviting public opinions on each of the issues therein identified, and a leaflet on Frequently Asked Questions (FAQs) about the CRC. Later the same month, the UNDP came to the rescue and provided the CRC with necessary furniture – desks, chairs and a conference table – desk top computers, printers (including 2 heavy duty printers), stationary and filing cabinets. The Secretary of the CRC Secretariat, working with the Ministry of Justice, had already arranged for and installed necessary air conditioning from the D2 million budget allocation to the CRC. In October 2018 we recruited our first cohort of employees, which continued into November and December to have our full staff complement. By this time we were already into our seventh month in operation.
11. The CRC Issues Document was published and rolled out in early October 2018 in preparation for the direct face to face public consultations. This was followed by a pre-consultation visit by Commissioners, in partnership with the National Council for Civic Education (NCCE), country-wide to meet with and seek the support and partnership of the Regional Governors, Mayoress of Banjul, Mayor of the Kanifing Municipality, traditional Chiefs, and regional Women and Youth representatives. They all became instant partners as they each saw the constitutional review process as a necessary national endeavour that all should be proud to be a part of. Their active leadership and participation paved the way for very successful internal public consultations that commenced in November 2018 and ended in January, 2019.
12. In April 2019, we commenced our external consultations with diaspora Gambians, covering select countries in Africa (2), Middle East (1), Europe (5) and 6 states in the United States of America. Attendance and participation at all the public consultations were brisk and the enthusiasm shown for the development of a new Constitution and, above all, being part of the history of developing that Constitution was beyond description. Gambians travelled from State to State and some even travelled all the way from Canada to attend and participate in the public consultations. This was nation-building at its best!
13. The external consultations concluded in July 2019 and we immediately commenced the process of reviewing the research papers and data collected and analysed by our teams of researchers and statisticians under the able leadership of the Head of Programmes. We also reviewed the reports prepared and submitted by our technical committees on Land, Environment and Natural Resources, Media, Public Education and Communication, Public Finance Management and Constitutional Law. Each of these technical committees, including the technical committee on Constitution Drafting and Report Writing, was made up of Gambians of excellent academic backgrounds and reputable experience in their respective fields. Their love for country is amply displayed in their reports. They kept to their terms of reference and delivered!
14. After lengthy and sometimes very late meetings into the early hours of the morning, the CRC completed its proposed Draft Constitution. This was published on 15th November, 2019 for public consultation and feedback. Shortly thereafter we embarked on a second round of public consultation to inform the general public of the provisions contained in the proposed Draft Constitution and to seek their views as to whether those provisions were in line with their wishes and aspirations expressed during the first round of public consultations. In the very few areas where we had departed from their expressed opinions, we advanced our reasons for so doing. The overwhelming response country-wide was one of great satisfaction. In fact many said to us “what is in the proposed Draft Constitution is what we said to you, do not change anything”. We also received numerous written representations. All opinions canvassed with us were properly and thoroughly considered.
15. While we did not hold face to face meetings with individuals and institutions following the second round of public consultations, we found it necessary to do so with The Gambia Christian Council and The Gambia Supreme Islamic Council (each at their request). The debate of whether or not to incorporate the word “secular” in the Draft Constitution was raging and quite acrimonious. It was necessary to calm the tensions and get the 2 groups to talk to each other in that regard.
16. We then met with the 3 branches of government, beginning with the National Assembly, represented by their Select Committee on Constitutional Affairs. This was followed by a meeting on the same day with the Judiciary and, on a later day, another meeting with the Executive. We listened, exchanged views on their specific areas of concern and took down notes to deliberate further on. This was all carried out within the spirit of constitutional negotiation. We considered it reasonable to accommodate some views, but did not feel so in all cases, especially as against the overall wishes and aspirations of the Gambian people.
17. We were mindful to ensure an appropriate separation of powers between the 3 branches of government as mandated under the CRC Act, 2017. In that vein, we were able to create new provisions in the Draft Constitution that were reassuring in nature to ensure a decent relationship between the 3 branches of government, especially as between the Executive and the Legislature.
18. Our initial plan for a formal submission date of the Draft Constitution in January 2020 did not materialize as there were many requests for an extension to our deadline. As a consequence, we agreed to extend the deadline for the receipt of formal submissions to the proposed Draft Constitution to the end of December 2019. For the first time since we commenced our assignment, we agreed to take leave for the month of February, 2020 while the technical committee on Constitution Drafting and Report Writing continued to finalise the Draft Constitution (on the basis of agreed drafting instructions) and the accompanying Report for the review of Commissioners in March 2020.
19. The Draft Constitution and the accompanying Report were finalised and submitted on 30th March, 2020 to His Excellency, the President, pursuant to the requirement of section 21 (1) of the CRC Act, 2017. That action effectively ended the mandate of the Commission in so far as constitutional review was concerned.
20. Thereafter the only thing that continued to keep us in office to date was the obligation outlined in section 22 of the CRC Act, 2017. That section essentially empowered the National Assembly to request CRC Commissioners “to attend before the national Assembly to clarify any matter and answer any question relating to the provisions of the Constitution”. In the end, as you all would be aware, we were not requested to attend to clarify any matter or answer any question.
21. Accordingly, in accordance with section 22 (1) of the CRC Act, 2017, the Constitutional Review Commission will stand dissolved on 22nd October, 2020 – which is one month after the date on which the Bill introducing the Draft Constitution failed the required threshold for enactment. On that day, the CRC Secretariat and all staff and other persons employed by the Commission shall cease to function. However, the Secretary may stay in office with the approval of the Minister of Justice “for the sole purpose of preparing the Commission’s statement of accounts to submit to the Auditor General in accordance with section 20” of the CRC Act, 2017. This is pursuant to section 22 (4) of the Act. The Secretary may need to be assisted in this endeavour by a few staff in Finance and Human Resources.
22. As Commissioners, we were given a specific mandate – to review the 1997 Constitution and write a new one, and prepare a report in respect of the new Constitution. We discharged that mandate in a professional and non-partisan manner bearing in mind, particularly, that the development of a new Constitution for any country has the sole purpose of determining and crafting in appropriate language what is in the best interest of the country in the present and in the future. Admittedly, that process is not as simple as it may appear. It is fraught with problems. In a perfect system, everybody’s wish and aspiration would be taken care of, but we do not live in a perfect system and never will. The development of a national Constitution, amongst many things, requires identification and placement of priorities. It requires sacrificing in some cases one’s wishes and aspirations for the greater good, while at the same time gaining some. It requires learning lessons from the past in order to chart a bright and productive future. The ultimate goal is, to quote Reverend Martin Luther King, “to get to the promised land”, and the hope is to get there together.
23. At the CRC we were quite pleased that both the Executive and the National Assembly charted a path for our work through the enactment of the CRC Act, 2017. That Act outlined specific terms of reference for us as Commissioners. The Act specified that, in carrying out our mandate, we must seek public opinion and embody in the Draft Constitution such proposals as we considered appropriate. We were fully aware that being vested with such broad discretionary power also meant exercising the power judiciously and without any abuse whatsoever. The rules of natural justice demand appropriate judicious exercise of discretion.
24. Furthermore, the Act required us to have regard to our national values and ethos as a country. In addition, we were required to safeguard and promote:
(a) the existence of The Gambia as a sovereign independent State;
(b) The Gambia’s republican system of governance, including its democratic values and respect for the rule of law and fundamental human rights and freedoms;
(c) national unity, cohesion and peace;
(d) separation of powers;
(e) the importance of ensuring periodic democratic elections based on universal adult suffrage, including the introduction of term limit for the Office of President; and
(f) the continued existence of The Gambia as a secular State in which all faiths are treated fairly and encouraged to foster national cohesion and unity.
25. In carrying out these terms of reference (what we at the CRC consistently referred to as “our guiding principles”), we were instructed to “afford the people of The Gambia, both within and outside the country to the extent practicable, the opportunity to freely express their opinions and make suggestions on matters they feel should be considered in the Constitution”. The Act then vested us with the power to, where we considered it necessary, “invite persons, including professional, civic, political and other organisations to appear before the Commission to make such presentations as those representatives consider relevant or make presentations on topics the Commission may specify”. It also empowered us, as a mechanism to facilitate and assist with our work, to establish such technical committees as we considered necessary and provide them with terms of reference. In the performance of our functions as enshrined in the CRC Act, 2017, the Commission was declared “not to be subject to the direction or control of any person or authority”.
26. Any person who had been following our activities from inception in June 2018 until 30th March, 2020 when we formally presented the Draft Constitution to His Excellency, the President, cannot but honestly accept that the Commission had followed every rule in the rule book handed to us. We consulted the Gambian public, both at home and abroad at considerable expense, to determine their wishes and aspirations. We did our utmost to embrace in the Draft Constitution our country’s national values and ethos. We tried to safeguard The Gambia’s existence as a sovereign independent State, including its republican system of governance while at the same time embracing our democratic values and respect for and promotion of the rule of law and human rights.
27. We carefully considered the subject of separation of powers and worked to create an appropriate balance between the Executive, Legislature and Judiciary. We aimed to increase and emphasise the cohesion, unity and peace of our country, incorporating provisions that would ensure periodic democratic elections, including term limit for serving in the Office of President. We recognised the secular nature of Gambian society and created provisions that, in our considered view, would ensure the equal and fair treatment of all faiths which would in turn foster national cohesion and unity.
28. Recognising the challenges associated with constitution-building, we placed a lot of emphasis on public opinion. We felt quite strongly that we must not only seek public opinion as mandated by the CRC Act, 2017; we needed to give meaning to such opinion. We would depart only where there were justifiable reasons for so doing and, even then, we would go back to the people to explain to them where and why we departed and invite their further opinion. It was in that context that, during the second round of public consultations in November and December 2019, we explained the provisions of the Draft Constitution to our people and the reasons for them, including the reasons for departing in a few areas. They received that information, sought clarification and expressed gratitude for the work we had undertaken. Indeed quite many openly said to us “what is in the proposed Draft Constitution is our opinion, do not change anything”. Since, however, we were consulting and seeking further opinion, we had to listen to other views that eventually enabled us to finalise the Draft Constitution in the form in which it was presented to His Excellency, the President.
29. At the risk of repeating ourselves, perhaps I should summarise how we arrived at the Draft Constitution. The CRC employed different methods in consulting with the general public and gauging their opinions on the 369 issues raised by the CRC in its Issues Document, including additional issues that were independently raised by members of the public. Apart from holding open public face-to-face meetings locally and externally, the CRC also engaged the public through focused group discussions, online and household surveys/questionnaires, one-on-one meetings with various stakeholders and individuals, written responses to the Issues Document, and attendance of workshops organised by different pressure groups to receive opinions on specific matters of interest and encourage greater public participation. The CRC also considered written opinions both in the print and broadcast media, including debates on social media. In sum, the public consultation process as required under the Act was open and transparent, participatory and inclusive. Every single opinion that was canvassed with the CRC was properly considered with an open mind and within the bounds of constitutionalism, eschewing the personal views of individual Commissioners, irrespective of what constitutional theorists and reform pessimists might otherwise have the Gambian public believe.
30. In order to properly place opinions that were canvassed, the CRC engaged a team of statisticians under the Head of Programmes to ensure the quantitative and qualitative tabulation of the opinions to gauge the weight on each specific issue. The results obtained from each method employed in the public consultation process were then consolidated and averaged to determine the weight attributable to individual issues. Regarding those issues on which public opinion was either not expressed or was of minimal interest during the public consultation process, the CRC turned to research to establish international best practice on those issues, factoring in the experiences of other countries with similar legal systems as ours and relevant international law instruments of which The Gambia is a party.
31. The CRC also took into account our religious and cultural norms in full compliance with the CRC Act, 2017, which required the CRC to consider national values and ethos of The Gambia. While these were not the easiest to resolve in some instances, the CRC engaged additional expertise as necessary and applied best judgment to arrive at fair and objective decisions to guide the drafting process. In particular, the CRC established five technical committees comprising citizens with expert knowledge in the key areas of land, natural resources and environment, media, public education and communication, public finance management, constitutional law and Constitution drafting and report writing. These were complemented by in-depth research by the CRC team of Researchers and support from external institutions and individual experts.
32. Bearing in mind that it could not have developed a perfect Constitution (and that certainly was not its aim), the CRC had endeavoured to produce a Draft Constitution that was truly reflective of the wishes and aspirations of the general populace of The Gambia. Even if the Draft Constitution were to be amended today, it could not be described as a perfect document. As far as the CRC is concerned, the Draft Constitution, with all its perceived shortcomings, represented the sovereign will of the people of The Gambia sought through public consultations in accordance with our terms of reference as outlined in the CRC Act, 2017. We had not only subjected the Draft Constitution to internal domestic review; we also subjected it to external review by teams of experts. Our external assessors had described the Draft Constitution as one of the most progressive and transformational constitutions in Africa, if not in the world. As the CRC, we embarked on developing what we considered to be best for our country, with the views and aspirations of the people forming the foundation thereof.
33. The failure of the Draft Constitution to gain the required votes to move on to the next stages leading to a verdict by the people at a referendum has generated a lot of debate. We at the CRC do not seek to question parliamentary wisdom regarding the fate of the Draft Constitution. That is a political process from which we will steer away. It is, therefore, not necessarily my intention here today to get into the debate of what is or what is not or what could have been. However, for the sake of the integrity of the constitutional reform process and our own individual and professional integrity, I consider it necessary to address two matters that appear to have gained some traction in the public space.
34. It is unfortunate that a tiny minority of critics have levelled the claim that the Draft Constitution is plagiarised. The CRC, with its team of experienced draftspersons and international consultants/drafters, has not given any credence to such claims and essentially view the claims as merely stoking emotions to back up the critics’ rejection of the Draft Constitution. Indeed there have been those that never said anything good of the CRC from the time of its inception. For them, it was personal.
35. The word “plagiarise” relates essentially to copyrighted work that is protected and is used without the rightful authority.
36. No Constitution in this world is copyrighted and that’s for a good reason. Every Constitution, including the Constitution of the USA that has been touted as a model by some critics, has drawn inspiration from some one or more constitutions or other written literature. International experts on constitutional law advise reliance on best constitutional models for the development of new constitutions. We see the best example of such encouragement in the Website called “Constitute.com” which collects and collates the constitutions of the world for purposes of serving as a reference to constitutional builders and researchers.
37. It is perfectly acceptable and indeed encouraged in the legislative drafting world that drafters of laws may draw inspiration from other written laws by adopting specific provisions thereof or adapting such provisions to special circumstances. This is non-controversial, well except in The Gambia. One only has to review various Commonwealth constitutions to see evidence of adoptions or adaptations. The Constitution of Kenya drew much inspiration from the Constitution of South Africa and was effectively the most modern on the African Continent at that time (2010). The Constitution of Kenya adapted and, in some instances, made better the South African constitutional provisions that it adopted or adapted. The 2010 Constitution of Kenya has been hailed as a forward-looking Constitution on the African Continent whose development had had the benefit of domestic, UN and other international expertise input.
38. The Gambia shares the same Commonwealth tradition with Kenya and other Commonwealth countries. Constitutionally, The Gambia has more in common with Kenya, South Africa, Ghana, Nigeria, Sierra Leone, Uganda, Zimbabwe, Zambia, Tanzania, Malawi, Botswana, Namibia, Lesotho and Liberia than it has with Senegal or other French-speaking countries. I mention these Commonwealth countries specifically because the CRC has studied the Constitution of each and, where appropriate, has drawn inspiration from them as circumstances required having regard to The Gambia’s own special circumstances. The Report accompanying the Draft Constitution is instructive on this.
39. The CRC has not blindly adopted or adapted constitutional provisions from elsewhere; it thoroughly reviewed and applied them in The Gambia’s own national circumstances, especially having regard to the opinions expressed by members of the public during the public consultations. It is from such sources that international best practices are gleaned.
40. Within the Commonwealth we see a number of laws, including constitutional provisions, that are similar or the same – referred to in judicial terms as being in pari materia. There is judicial value in this, in that courts are able to consider the decisions of other foreign courts on laws that are similar or the same to assist with deciding on matters before them. The decisions of foreign courts in relation to the laws of a similar or same nature may not be binding on the local courts, but they can have a persuasive effect in deciding a case.
41. The constitutional history of The Gambia shows that the 1970 Constitution drew a lot of inspiration from the Jamaican Constitution of 1962 which it adapted. The 11 Chapters of the 1970 Constitution are essentially the same as those of the 10 Chapters of the Jamaican Constitution.
42. Similarly, Chapter III of the 1970 Constitution was adapted from Chapter III of the Jamaican Constitution; the minor differences are in the areas of protection of persons detained during a period of public emergency, which the Jamaican Constitution did not have. Similarly, the Jamaican Constitution had no provision on prohibition of slavery and forced labour which the 1970 constitution adapted from the European Convention on Human Rights.
43. In a similar vein, the 1997 Constitution of the Republic of The Gambia drew enormous inspiration from the Constitution of Ghana.
44. That is constitution-building! Trying to denigrate the toil and hard work of the CRC on this issue has been most unfortunate.
45. In a similar fashion in relation to statute law:
• The Civil Marriage Ordinance, 1910 of Sierra Leone was adapted by The Gambia through the Civil Marriage Act, 1938 and by Kenya through its Marriage Act 1962 (revised in 2012). The majority of the provisions in these legislations are the same, with The Gambia adopting verbatim most of the provisions of the Civil Marriage Ordinance of Sierra Leone.
• Kenya’s Evidence Act 1963 was adopted by Nigeria in its Evidence Act 1990 (now repealed and replaced by the Evidence Act 2011). The Gambia’s Evidence Act 1996 largely adopted Nigeria’s Evidence Act 1990.
• Sierra Leone’s Illiterates Protection Ordinance, 1898 was adapted by The Gambia in 1902 and subsequently by Ghana in its Illiterates’ Protection Act, 1912 and Uganda in its Illiterates Protection Act, 1918.
• The Gambia Nationality and Citizenship Act 1965 was partly adapted by Sierra Leone in its Citizenship Act of 1973.
• The Criminal Code and Criminal Procedure Code were modelled on similar statutes of Kenya which, in turn, drew inspiration from similar legislation in Nigeria; the latter adapted its laws on the subjects from similar laws from Queensland (Australia).
46. In fact a lot of the laws debated and enacted by the National Assembly invariably draw inspiration from the laws of other countries, from regional and international instruments, and from other literature. We see a lot of harmonization of laws in the European Union, Caribbean Community and Eastern Caribbean States. Countries are moving closer to each other and learning from each other. Let’s not be left behind in that journey for the sake of sensationalism.
47. On a final point on this subject, the CRC had the benefit of two prominent African experts in Professor Dr. Albert K. Fiadjoe from Ghana and retired Chief Justice Willy Mutunga of Kenya. The former was the Chairman of the last Ghana Constitutional Review Commission and the latter a member of Kenya’s Constitutional Reform Commission. Both were integrally involved during the CRC’s constitutional development process and were regularly consulted as necessary. They both advised adopting and adapting, wherever necessary, best constitutional provisions around the world that had come to represent best international practice. That was what they did in their own countries and nobody accused them of plagiarising. In essence, they viewed the criticism as a non-issue and so do we.
48. The second matter relates to whether or not the Draft Constitution permits gay marriages. I thought we had trashed this out properly during the public consultations and laid it to rest, but there seems to be new sermons on the subject. When we published the proposed Draft Constitution in November, 2019, we replicated in that Draft the current section 27 of the 1997 Constitution. That created an uproar with claims that the Draft permitted gay marriage because subsection (2) of that section indicates that marriage “shall be based on the free and full consent of the intended parties” without specifying those parties. From a legal standpoint, we did not think so as the provisions of the section should be read conjunctively and not disjunctively, but we nonetheless sought to clarify the provision better, hence the current section 54 in the Draft Constitution. There were no issues with that provision during the second round of public consultations. Frankly, I cannot analyse this subject better than how the Foroyaa Newspaper did in their Editorial of 28th September, 2020. The truth and fact is that section 54 of the Draft Constitution cannot by any stretch of legal interpretation be interpreted as permitting gay marriage. The irony though is that with the Draft Constitution now halted on its tracks, we are stuck with section 27 of the 1997 Constitution. That’s enough said.
49. The Draft Constitution has a lot of transformative provisions specific to The Gambia’s circumstances. I’ll cite some examples:
• It ensures a fair balance in the respect and treatment of all faiths as provided in Chapters I, III, VIII and IX;
• It introduces national holidays;
• It provides for national values and governance to be adhered to;
• It removes the age-old distinction between citizens by birth and descent and recognised every child born of a Gambian parent as a citizen by birth (Chapter IV);
• It creates a whole Chapter on leadership and integrity, one of the key demands of our people during the public consultation phases of the constitutional review process;
• It expands on the fundamental rights and freedoms by creating provisions on social and economic rights
• It ensures gender balance and fair representation of persons belonging to marginalised groups – that is, the youth, women and persons with disability. It provides a specific quota representation for women and persons with disability, and makes it mandatory for no less than 10% of candidates for National Assembly elections fielded by each political party to comprise youths;
• It establishes a system of continuous voter registration to ensure that no citizen is disenfranchised;
• In line with the mandate under the CRC Act, 2017, it provides a term limit for occupying the Office of President;
• It provides procedures for the recall of elected members of the NA as part of The Gambia’s developing democratic process;
• It creates a National Assembly Service Commission to truly reflect the principle of separation of powers;
• It identifies clear principles of justice and properly delineates the independence of the Judiciary;
• It creates expansive provisions on Local Government with better defined roles for local governments vis-à-vis central government;
• It creates an expanded Chapter on Land to include natural resources and the environment and recognises the land tenure system in The Gambia and how this may be appropriately protected for future generations;
• It creates a whole new Chapter on Independent Institutions and Offices to strengthen the governance machinery of the public service;
• It provides that, in relation to Independent Institutions and State Owned Enterprises, the Chairperson and Vice Chairperson (where applicable) cannot be of the same gender and there will have to be a succession of genders in those offices, thus preventing “gender capture” in leadership positions in those institutions;
• It sets out principles governing finance and financial management; and
• It places emphasis on, and creates principles governing, youth development in the country.
50. I would think that the Draft Constitution has good provisions, for that was what we set out to achieve. Naturally, it has provisions that some would find disagreeable. That’s in the nature of constitutional development. Ultimately, it is my hope – and I can only hope – that the Draft Constitution does not remain in cold storage for too long before it is revived, at least in some form, so that the wishes and aspirations Gambians had expressed to us can be met somehow.
51. It is true that the ongoing debate about the failure of the Draft Constitution to advance to the remaining stages of the National Assembly and eventually to a referendum for the people’s verdict is quite intense. I implore patience and tolerance in that discourse. We at the CRC are not despondent, as we are satisfied that we have discharged the duty entrusted upon us and carefully followed the terms of reference set out for us in section 6 of the CRC Act, 2017. As a nation, we should collectively remain optimistic and work towards what is best for this country. When in trying we fall, we should get up, dust off and proceed on the positive journey of national development. We must work together in unison and avoid spewing venom the result of which can only result in negative consequences.
52. At this point, I take the opportunity, once again, to thank the Government for the support they had given the CRC during the course of discharging our assignment. In particular, I thank His Excellency Adama Barrow, President of the Republic, for affording my colleague Commissioners and I the opportunity to serve our country. We all had wished for a different outcome, but we must continue to soldier on nevertheless, for some day we shall reach that promised destination where we all shine.
53. I thank our external partners: the UNDP who, apart from the assistance I mentioned earlier, also provided funding in excess of D10 million dalasis to undertake our internal public consultations, US$40,000 to our external consultants and D3.8 million to support our technical committees; they also provided us with one vehicle (a Toyota Prado) and paid the first year’s rent of the CRC’s premises. Their assistance has been invaluable to our work. We also thank the European Union for their support and outreach to the CRC and for placing The Gambia’s transitional justice in relation to constitutional review high on their agenda. I thank the Government of Qatar for the financial support they gave to the Government, of which the CRC became a beneficiary. I thank ECOWAS for the financial support they provided which enabled us to launch and continue with our periodic CRC Newsletter.
54. Having been called to national duty and to give our best as experts and professionals in our respective fields, we have unfortunately become the subject of much disrespect, ridicule and insult, much to the consternation of our families and friends. We must, however, move on, and I can assure everyone that we demit office with our heads high, holding no grudges and harbouring no anger against any person or institution. We feel satisfied with the products of our assignment. We continue to be very proud of our people, their resilience and love for country, but above all for educating us as we journeyed with them through the public consultations. We are confident that all the good intentions that we all have, individually and collectively, to reform our governance system and improve the lives of our people, will someday converge to make us a better people and as one family, one tribe, one Gambia.
55. I wish to encourage our citizens not to consider the money spent on the CRC project as wasted. Far from it! It is amazing how fast our people have learnt so much about the Constitution and what it means and stands for. The CRC process, apart from discharging a duty, has equally been a very educative process. Many in our rural communities had called on us to visit them annually to discuss constitutional matters. We pass that call to where it properly belongs – the National Council for Civic Education, one of our many partners in constitutional development.
56. I feel compelled to let you know that since 22nd September, 2020 when the Bill introducing the Draft Constitution failed to garner the required votes in the National Assembly, I had received a number of condolences – messages from friends and professionals with whom we had worked on this project and citizens alike. At first I felt confused, wondering who actually died. When might the funeral be held and where? Or has the funeral taken place already? Then it dawned on me quickly that it was the Draft Constitution, which we all thought had life, they were referring to. I wondered how I should respond. Tell them “Siguil sa waalla”, or something else? In the end, I said to myself we’re all “bereaved” and, therefore, not to make matters worse, I simply sent a thank you note to reassure them that constitutional reform is always alive, and so shall it be long after we depart this world.
57. In conclusion, I wish to mention that during the period of our service as Commissioners, we have tried our utmost, through our Oversight Committee made up of select Commissioners, to lend maximum support to the Secretary and our Secretariat to ensure frugality and proper management of the financial resources entrusted to us to carry out our assignment. By the time we formally cease to hold office on 22nd October, 2020, we would be in a position to return to the Government at least D10 million of the subvention we had been receiving. I thank the Secretary, Head of HR and Admin, and Head of Finance and the respective staff under them for their diligence and stewardship.
58. Let us try and always support each other as a people. If and when we have differences, let us agree to disagree while at the same time maintaining harmonious relationships. We are too small a country not to love each other and be honest with each other. For our part, Your CRC Commissioners and our Secretary and staff, we love each and every one of you.
59. Thank you. And may the Almighty God always shine over our dear country. |
A clear conscience fears no accusation - proverb from Sierra Leone |
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Momodou
Denmark
11635 Posts |
Posted - 22 Oct 2020 : 19:24:24
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#CRC STANDS DISSOLVED
Today Thursday 22nd October, 2020, the Constitutional Review Commission (CRC) stands to be dissolved. This is in line with the CRC Act of 2017 that requires the Commission to dissolve after one month following the Draft Constitution Promulgation Bill is tabled at the National Assembly.
The dissolution affects all but the CRC Secretary and a very few members of staff in Finance and Human Resources Departments will continue till January 2021 for auditing purpose. This extension is in pursuance of section 22(4) of the CRC Act.
As we are departing on a happy and clean slate, the CRC wishes to thank all its staff for living up to its expectations. Every effort and resources invested was worthwhile and posterity will remember us for the love of country.
To the media, Gambians and CRC stakeholders, you have all be incredibly amazing throughout the review process. Your level of participation and inclusion in the process was massive.
We are touched parting with you but happy leaving office with our heads high above.
#CRCENDS |
A clear conscience fears no accusation - proverb from Sierra Leone |
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Momodou
Denmark
11635 Posts |
Posted - 18 Dec 2020 : 10:48:40
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Former President Dr. Goodluck Ebele Jonathan is scheduled to leave for the Gambia to lend his support to the country’s ongoing constitutional review process and facilitate the process of forging a workable national consensus.
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The former President who was invited by the President of Gambia, Mr. Adama Barrow, is expected to deploy his experience and goodwill as a well-respected international statesman towards advancing the constitutional review process and enhancing the progress of the continuing national dialogue, in line with the expectations of Gambians.
The ongoing Gambian transition involves the drafting of a new constitution which has to be passed by the National Assembly before being submitted to a national referendum.
According to the Gambian authorities, the former President is being invited to facilitate the process of the dialogue because of his neutrality and proven record in democratic and constitutional reforms.
Dr. Jonathan who leaves the country on Thursday for The Gambia will be meeting with various stakeholders including President Barrow, political party leaders and parliamentarians, while in the country
The assignment is consistent with the vision of the Elders Forum, a newly constituted body, by the Goodluck Jonathan Foundation, to drive proactive consultations with stakeholders in the West African sub-region towards preventing and resolving governance and election-related tensions.
Dr. Jonathan will be supported by the leaders of the intergovernmental International Institute for Democracy and Electoral Assistance (IDEA) who have been designated by the Gambian Government to provide secretarial assistance to the former President, in the course of the mission.
Ikechukwu Eze
Special Adviser to
H.E. Dr. Goodluck Ebele Jonathan
Goodluck Jonathan |
A clear conscience fears no accusation - proverb from Sierra Leone |
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Momodou
Denmark
11635 Posts |
Posted - 25 Dec 2020 : 21:45:12
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Statement by The Gambia Civil Society on the Dialogue over the Ongoing Consensus Building Process of the Rejected Final Draft Constitution 2020
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Thursday, 24th December 2020 – TANGO Conference Hall, Fajara
The Gambia Civil Society Organisations and Trade Unions have with interest received news of the Government of The Gambia’s decision to revive the Final Draft Constitution through a national consensus-building process, three months after it failed to pass in the National Assembly. The Draft Constitution came on the heels of sustained desire of Gambians for a new constitution. Therefore, when the autocratic regime of former President Yahya Jammeh was ousted on 2nd December 2016, Gambians yearned for a new political chapter, which is founded on democracy, rule of law, good governance and republican values.
Generally, Gambians have recognised that the Constitution of The Gambia 1997 is in many ways deficient in providing a democratic and progressive dispensation, mainly because of the numerous undemocratic and self-serving amendments it was subjected to under the former regime. Following the democratic transition of power from the former government to a Coalition Government, Gambians legitimately anticipated a new Constitution that would among other things overhaul the 1997 Constitution and an array of bad laws used as tools to perpetuate autocracy and dictatorship. Both the Coalition 2016 led by President Adama Barrow that defeated ex-President Jammeh and a national consensus had agreed to implement a constitutional reform process that should lead to a Third Republic.
It was for this reason that most if not all Gambians welcomed the creation of the Constitutional Review Commission in 2018 as a mechanism to enable the country draft a new constitution within a wider framework of transitional justice – a process we as Civil Society considered as widely participatory and inclusive.
Civil Society Organisations, like many Gambians, were disappointed not only by the failure of the National Assembly to pass the Final Draft Constitution to its Third Reading, but also by the lack of a passionate drive by the Executive to defend a Bill it had sponsored. The draft Bill was rejected without a substantive debate on the substantive provisions. The rejection of the draft by a sizeable number of National Assembly Members in only its very First Reading is an indication of the absence of a political consensus among the Members. This, despite the fact that the draft constitution presented to the National Assembly, was the culmination of wide stakeholder consultations of Gambians at home and in the diaspora. As Civil Society, it is rather unfortunate that no meaningful concerted efforts were made by the stakeholders to chart a way forward in the aftermath of the Draft’s rejection.
We welcome and support the new efforts by the Government to revive the Final Draft Constitution through the support of International IDEA and former President Goodluck Jonathan of Nigeria as facilitators/mediator. We are hopeful this would unlock the key sticking points on the top contentious issues, thus brokering a common non-partisan ground in the national interest. However, we remain concerned about the process and its outcome. Our concern was borne out of the engagements we had with International IDEA on Monday, December 14th and with H.E. Jonathan on Friday, December 18th. On both occasions, we expressed our apprehensions and position on the process and outcome of the consensus-building effort. We hold that the Government, International IDEA and Mediator Goodluck Jonathan cannot tag the Civil Society as stakeholder and yet fail to avail it the ‘Issues and Options Document’ which was purposely prepared to guide the dialogue, despite our numerous requests. As a critical stakeholder in the process, we have not yet been availed the opportunity to meaningfully partake in the political dialogue initiated by the Government of the Gambia.
The inclusion and participation of civil society as a non-partisan entity is urgent, legitimate and critical to build a meaningful political consensus. It protects the legitimacy and integrity of the process and upholds the best interest of the citizenry.
The Gambian Civil Society strongly urges President Barrow, International IDEA and Mediator Goodluck Jonathan to ensure transparency, participation, inclusion and national consensus. For that matter, we hereby wish to state our position on the process and outcome for a new constitution:
1. The current process should be guided by the highest ideals of sincerity, honesty, transparency, and commitment to the national interest by all stakeholders;
2. Any New Draft Constitution must:
a. Uphold and guarantee the fundamental rights and freedoms of all Gambians, including justiciable socio-economic rights;
b. Uphold The Gambia as a sovereign republic based on modern democratic values and the Rule of Law, in which all citizens are equal in rights and dignity;
c. Guarantee a State with clear separation of powers between the three different organs of state and with a clear delineation of their respective powers and authority;
d. Unequivocally set presidential term limits to ensure no President serves beyond the two-term mandate (to prevent self-perpetuating rule);
e. Create adequate checks and balances to restrain power, ensure transparency, accountability and efficiency of public institutions and prevent abuse of office;
f. Empower the National Assembly, as the People’s representation, has all the necessary oversight powers to check the Executive and all other structures of the State to ensure that they adhere to the rule of law, perform their functions efficiently and effectively and prevent corruption;
g. Create and guarantee the secularity of the State in which the State will have the due obligation to protect the right of all citizens to freedom of belief and worship; and
h. Ensure a credible electoral process, pluralism and political participation that allow the people to fully exercise their franchise on constitutional and electoral decisions.
We, the civil society and trade unions, demand transparency, inclusion and accountability of the process which will be the basis for our participation. We wish to assure all Gambians that we will stand by and safeguard the best interest of the country in this process. To that end, we will not hesitate to take all and every necessary, legitimate, lawful and democratic action to guarantee and protect the sanctity of a Constitution that upholds the destiny of our motherland and becomes the solid foundation of our budding democracy.
Thank you for your kind attention.
God bless our dear Nation, The Gambia
Signed John Charles Njie, Chairperson of TANGO, Representing the Gambian Civil Society and Trade Unions |
A clear conscience fears no accusation - proverb from Sierra Leone |
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CRC Draft Constitution
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