Understanding Gambia’s draft constitution: An address to the CRC Chairman – Kofi.

Sir, to begin with, I will like to join the many who are singing the chorus of Sec. 1 – (1) “The Gambia is a Sovereign Republic” with the omission of the word “secular,” in order to be read, as “The Gambia is a Sovereign Secular Republic.”

Sir, when the people vented their disappointment towards the non-inclusion of the word “secular” that this might bring religious indifference and a path to make the Gambia an Islamic state. You wasted no time to address its non-inclusion at the standard newspaper. In your argument, you cited the 1970 and the 1997 constitution as a point of reference to justify the non-inclusion of “secular” in the draft and stated none of those constitutions had it. You also argued that when it was inserted in 2001 Kemesseng Jammeh contested it in the Supreme Court and it was struck out. You went on further to dismiss the claims that it should not be a religious issue and refer us to Sec. 151 (2) “the national assembly shall not pass a Bill to establish any religion as a state religion.”

Sir, the reason why many are calling for the inclusion of “secular” in the constitution is that by its definition “secularism is a system of political or social philosophy that reject all forms of religious faith and worship” which means the separation of power from the state and the religion.
Sir, in your argument you failed to mention or refer us to chapter 10 (Judiciary) part 3 of the constitution where Sec. 185 – 187 talks about the Shari’ah high court. From my point of view, Shari’ah now will be part of the laws of the Gambia. The reason is that it is clearly stated in Sec. 186 (2) “The Shari’ah High court shall, in the exercise of its original jurisdiction, have all the power and authority as may be conferred by this constitution or any other law.” Sir, there is a smoking gun in this section and it can be triggered anytime. This is a clear indication of an Islamic state and there is a reason to worry about. To go by your references citing the same 1970 and 1997 constitution that none of them included “secular” but then, is it not the same constitution that also did not include “Shari’ah high court, Shari’ah judges in all courts and also for the supreme court to have Shari’ah jurisdiction?”

Sir, I would like to refer you to the CRC Act Sec. 6 (Vi)-The Gambia’s existence as a “secular” state [in which all faiths are treated equally and encouraged to foster national cohesion and unity]. This is your responsibility and the need for the inclusion of the term “Secular” in this constitution as stated in your Act.

Sir, without further argument, we are not an Islamic country to have their characteristics and it would be prudent for the inclusion of “secular” in the constitution and remove all forms of Shari’ah in the constitution.

Fundamental Human Rights and Freedoms

Sir, in Sec. 30-3(a) it is stated that, “the fundamental rights and freedoms enshrined in this constitution – belong to each individual and not granted by the state.” I will underline “not granted by the state” and would delve into it later. Sir, under Sec. 44-2(c) Limitation to our free speech; it is stated that “the uttering of abusive or threatening speech or writing that causes feelings of ill-will, disaffection or hostility.” Sir, we all know that insults are not healthy in any speech but remember that our fundamental rights are not granted by the state to dictate our speeches as to what to say or what not to say?

Consumer Protection Rights

Sir, under Sec. 63a. “The consumers have the right to goods and services of reasonable quality.” Sir, majority of goods imported to the country are not of high quality. It will be wise to also state that, in compliance with an act of the National Assembly, all goods and services offered by the public entities and private persons are subjected to a warranty period of not less than six months.

The Executive: Duty to attend and address the National Assembly

Sir, under Sec. 87. (5) “The National Assembly may, after an address of the Assembly by the President, hold a debate on the address and, for that purpose, the President may or, if he or she so designates, the Vice President shall, attend and answer any matter or question relating to the President’s address”.
Sir, I would like to bring to your attention, that for the past 22yrs or more, the past and the current president never attended to answer any matter or questions relating to their speeches. Therefore, I suggest that, let it be part of this constitution that the President be answerable to the National Assembly after his address, and to appear at least two times before the Assembly goes on leave.

Elections to the office of the President

Sir, under Sec. 91-1(b) it is stated that, and I assume the minimum age of a presidential candidate to be 30yrs? Sir, what is the maximum age limit to be a president? Is it possible for an 86yr old Paul Biya to contest for a president? Sir, I will urge you to clearly state the maximum age of the Presidential candidate.

Sir, within the same section on 5(f) and (g), to summarize it, “that a Presidential candidate should have a minimum of an undergraduate degree and plus five years’ work experience or holds a minimum of a Senior Secondary School Certificate or its equivalent plus twelve years’ work experience.

Sir, it is too illogical to have two “minimums” for a qualification of a post. In this regard, I would advise you to maintain just one of them. Furthermore, in my opinion, the minimum qualification of the Senior Secondary Certificate requirement for the presidential candidate should be a thing of the past or should come at least with a requirement of six credits because the same requirements have reflected in both the 1970 and 1997 constitution.
Sir, the reason for the low standard qualification is that, in 1970, the Gambia had only two high schools and 90% of the population were illiterates. In 1997, there were not more than 20 high schools and probably 40% of the population were illiterates as well. Fast-forward to 2019, we have universities and almost a 100 plus high schools. The university is producing a good number of graduates that can become good leaders. In spite of this, I urge you to set the standards of the presidency a bit high.

Qualification and disqualification of ministers

Sir, going through Sec. 114-1 (a – e) and seeing that one has to attain the age of twenty-one or more and in (d) also have a proven experience of not less than eight years.

Sir, it is also illogical to set the minimum age limit of a president to 30yrs and that of a minister to 21. According to their job titles, both are politicians. Looking further with the job experience in relation to the minimum, it does not tally well, since the age range to finish tertiary education is between 16 – 20yrs. I suggest you to be consistent with the age and the minimum educational qualification requirement.

Other Public Offices

Sir, it is stated that in Sec. 129(11) that “the DPP in his report shall include statistics of 11 (a-g). I suggest that it also reflect on all the ministers to present their annual report of their ministries to enable the National Assembly to evaluate their performances.

Shari’ah High Court

Sir, why Shariah high court?

Sir, this is a country that its people have lived peacefully and respected their values, with regard to religious beliefs, political affiliation, tribe or nationality.

Sir, in Sec. 86 (1) it is stated that the original jurisdiction to hear Shari’ah causes relating to adoption, marriage, divorce, burial inheritance but in Sec 186(2) it is stated as mentioned earlier that its jurisdiction have all power and authority as may be conferred by this constitution or any other law. Not forgetting that Shari’ah judges have a seat in all courts. Why?

Sir, according to the CRC act 2017 Functions of the Commission. Sec. 6 2(d) (vi): (2) In carrying out its functions under subsection (1), the Commission shall – (Vi) The Gambia’s existence as a secular state [in which all faiths are treated equally and encouraged to foster national cohesion and unity].
Sir, before the inclusion of the Shari’ah high courts and to have Shari’ah judges’ subsection (4) has to be exhausted. In respect to this, you have violated the CRC Act. Therefore, I would like to urge you to remove all Shari’ah related matters in this draft.

References:

Standard newspaper 11/20/2019: “CRC Explains Controversial Absence Of Secularism In Draft.”
Draft Constitution 2019.
CRC Act 2017.
Pa Louise Sambou: ”Why I Think The Draft Constitution Has An Islamic State In Mind.”
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