By Foday Samateh

Speaking at a news conference on the Constitutional Review Commission’s countrywide listening tour, the Commission Chairman Cherno Jallow was reported to have remarked that: “The sum of the most pertinent issues raised by the Gambian community at large relates to concerns about the governance of the country…It is an understatement to say that Gambians generally have lost faith in government – and that is any government…They seem to view [the educated class] as untrustworthy, greedy, unreliable and without conscience…One even indicated that he does not trust his own educated sons because of how he has seen them amass their wealth. Some amongst them have even called for farmers to lead this country.”

Many will surely bemoan this as an unequivocal indictment of the elite and the intellectual class. That judgment will be correctly rendered.

But these dark clouds, viewing them from a different perspective, can also be silver linings. Myriad factors have contributed over the past fifty years to the unenviable state of affairs. Key among them is faith in government. The history of politics shows that it’s always foolish to trust governments and always wise to not trust them. Government is essentially the power of the state at the disposal of a bunch of people relative to a population; and people, being humans, are liable to be “untrustworthy, greedy, unreliable, and without conscience,” especially when they are in a position to get away with it. Therefore, governments must, by their very nature, always bear the burden of proof that they are doing right by the people. They must never enjoy the benefit of doubt regarding their duties and actions. Faith in power should be reserved only for God.

Gambians have lost faith in government under three presidencies for reasons that are too numerous and obvious. To elaborate on them would be belaboring the point. The more relevant concern here is how this lack of trust pertains to the constitutional review that is underway. That the Chairman of the Constitutional Review Commission (CRC) was the one who made the lamentable observation about the public’s loss of faith in the ruling class is, in a paradoxical sense, heartening. If anybody should be cognizant of the prevalent deficit of faith in the officialdom, they ought to be him and his fellow members of the CRC. This insight should inform their deliberations over what to keep, what to include, and what to strike out from the Constitution so that the rights, powers, and the institutions they will maintain, reconsider or establish under the new one will reflect the public’s skepticism of government.

The constitutional review will result in two possible outcomes. It will be superior or inferior to the current one. The degree of superiority or inferiority will depend on how terrific or terrible the draft turns out to be. And based on the CRC’s own Issues Document as well as views the public expressed during the nationwide listening tour, either outcome is likely.

Both the Issues Document and a good number of the public who spoke to CRC on the listening tour are rightly concerned about presidential powers, particularly when it comes to appointments. The presidential power to hire and fire key officials and officers in both the executive and judicial branches with little or no oversight is imperial in all but name. It is probably the biggest undermining factor of our government of separated powers and democracy itself. Thankfully, opinions seem to align on a consensus to revamp the process. But some proposed alternatives to fix a grave problem raise grave questions of their own. The idea of the Judicial Service Commission or the Public Service Service Commission to be responsible for many of what have been presidential appointments or to be vested with a veto power over such appointments, for instance, is grievously flawed on several levels. Such proposals as well as the numerous offices the CRC identifies under the executive branch for possible elevation to constitutional status, and the proliferation of administrative commissions the CRC puts forward for possible inclusion in the Constitution are symptoms of a common disease that afflicts too many reforms: Over-correction.

The president’s imperial power of hiring and firing needs to be curtailed and the potential for abuse needs to be minimized as much as possible. But the reforms should remedy the defects in our democratic system of separated powers, not exacerbate them. Much of the problems in our government are born of the current Constitution’s deliberate circumventions of the tenets and principles of separation of powers. Any meaningful oversight of the the president’s appointments can be the responsibility of only the legislative branch. The Constitution, however, defied logic and reason and the best practice by excluding the legislative branch from weighing in on almost all presidential appointments. To instead require the President to consult with the Judicial Service Commission (JSC) when appointing judges, or the Public Service Commission (PSC) when appointing members of the Independent Electoral Commission, for example, is a cop out. It was a conscious act of subverting legislative oversight power, thus effectively weakening our democracy from its very inception. The corrective measure should be the president nominates judges, cabinet ministers, other top officials, and security chiefs for the legislature to hold an open hearing on the nominations before voting to confirm or reject them. Any other arrangement will be a mere substitute for the flawed status quo or worse. The JSC and the PSC should have no constitutional role in presidential appointments. As a constitutional or institutional matter, the president should not be bound by their advice, because the president should be answerable to only the legislature and the courts.

The potential for over-correction extends to the “marginalized groups” and the political parties. The marginalized groups are defined in the CRC Issues Document as women, the youths and the physically challenged. There is no denying that citizens who fall under these three categories are under-represented in the decision-making positions in the government. It’s right, fashionable even, to decry this under-representation as a problem that must be addressed. That said, the claims that it’s a result of discrimination have no basis in law or fact. There has never been any law or policy to discriminate any group for being women, youths or physically challenged. In fact, in the Chapters on Fundamental Human Rights and Citizenship, the Constitution explicitly prohibits all forms of discriminations based on gender, sex, age, tribe, religion, creed and so forth. The Constitution rightly recognizes all Gambians as citizens as a whole or individuals. No more, no less. The citizenship of a man is equal to that of a woman. The same holds true for the old and the youths; the able-bodied and the physically-challenged.

The compelling need to address the under-representation shouldn’t justify introducing categories of citizens in the Constitution. That in itself would be an act of discrimination, however well-intentioned. The Constitution cannot declare in one chapter that no citizen shall be treated with favor, affection or ill-will based on gender, sex, age, tribe, religion or other attributes; and then declare in another chapter that this or that category of citizens shall be treated with favor or some other criteria based on gender, sex, age or other attributes. Measures like this tend to create more problems than solve. Cases in point are Affirmative Action in the United States and South Africa.

In The Gambia, the under-representation is mostly a consequence of social problems or lack of opportunities. It is not a legal problem or a legacy of some past discrimination like in the United States and South Africa. Therefore, it should be left to the political process and civic activism. The change needs to be organic to the country’s political and social progress, rather than decreed from on high. The temptation to impose a constitutional injunction of proportional composition of the cabinet on the president, or the proportional composition of the executive committees and electoral candidates on political parties should be resisted. It would not bring about better governance or a better democracy. All it would do is require quotas to be filled for the sake of complying with the letter of the law rather than its spirit. More importantly, the Constitution shouldn’t be turned into something it has no business being. It should prohibit presidents and political parties from doing what constitutes discrimination. It shouldn’t go any further by commanding them to do what should be best left to their discretions and judgment under prevailing circumstances.

Among the things to be avoided in the Constitution are hard and fast rules for qualifications for public office. Academic achievement, for example, has its uses, but it’s not always the same thing as wisdom. Experience counts in keeping a system functioning, but sometimes the occasion calls for a fresh, reform-minded visionary. High intelligence is a great asset for solving hard problems, but character and moral courage are more important for society’s well-being. Expertise is always ideal but it doesn’t always come with values a country holds dear. A public official who is imbued with integrity but light on paper is more preferable than one who is strong on paper but light on integrity. And effective leadership at any level consists of much more than a university accreditation. Admittedly, government involves more than what farmers or other trade groups can bring to the table. That makes eggheads, bureaucrats and pencil-pushers indispensable. But for fifty years and counting, the educated class has shown themselves to be — in the country’s bleak assessment — undesirable elements, who are “untrustworthy, greedy, unreliable and without conscience.”

The case against prizing elitism in the Constitution should be leveled against shifting a good deal of governing authority and power from elected officials to unelected bureaucrats and commissions. Faith in the system requires that the Electoral Commission, the Central Bank, the Auditor General’s Office and the Ombudsman’s Office are independent. But the Constitution shouldn’t make the Attorney General completely independent of the President, who, as the head of the executive branch, is ultimately responsible for carrying out the laws of the land. Nor should the Constitution make the Director of Public Prosecutions independent of the Attorney General who is the country’s principal lawyer. Such bureaucratic fiefdoms will serve no consequential purpose. They will only upset the constitutional and institutional hierarchies that are needed to hold subordinates who are found wanting in their jobs accountable. Besides, the attempt to anticipate every possible scenario of abuse of power with preventative measures in the Constitution will more likely succeed in spawning countless unforeseen problems in the administration of government. Good laws may not prevent bad people from doing wrong. But bad laws are sure to hinder good people from doing what’s right.

And finally, the commissions! Why a Teaching Service Commission when there are the Public Service Commission (PSC), the Civil Service, two Ministries of Education (which should be combined into one anyway), and Regional Education Offices across the country? Why a Health Service Commission when there are again the PSC, the Civil Service and the Ministry of Health? What then would be left of the PSC and the Civil Service in particular when teachers and health workers, who are the majority of civil servants, are given their own service commissions? Why a Land Commission when there are the Ministry of Lands and the Ministry of Natural Resources?

Why a Human Rights Commission (HRC) when there are the National Assembly, the courts, the Ministry of Justice, and nongovernmental and civil society organizations that commit themselves to holding the government to uphold the laws and the rights of the people? What can an HRC do that cannot be done with greater authority and better results by these institutions? Remember the fate of the Media Commission that was required under the current Constitution? In its short life, that commission turned out to be the worst threat to freedom of the media. If the government is really serious about human rights enforcement rather than mere image-making by forming a commission with a cool-sounding name, it should establish a human or civil rights branch at the Ministry of Justice to specialize in prosecuting violations of such rights, especially by officials or agents of the state. And why an Anti-corruption Commission when there are the Auditor General’s Office, the Ombudsman, the Gambia Revenue Authority, the Ministry of Justice, the National Assembly, the Inspector General of Police, and the state intelligence? If these institutions cannot severally or collaboratively fight corruption, which is or should be one of their primary responsibilities, what hope is there that some commission will come storming to save the day?

Even if these commissions are needed, there is no need to enshrine them in the Constitution. The Constitution already grants the National Assembly and the President the power to establish commissions when the situation warrants it.

But these commissions with pleasing names, like most government entities have already proved, will hardly live up to the purported objective for which they will be established. Our government over three successive administrations, and too many other governments for that matter, seem to have acquired special talents for creating more bureaucracy even as the bureaucracy fails to deliver the services and opportunities the people are promised. One would assume that as the age-old problems persist in defying same old solutions, the government would re-evaluate the means and methods of doing things, and rethink the functions and purpose of the administrative state. Instead, it doubles down on the alphabet soup of ministries, departments, agencies, and commissions. It’s no surprise that tending to the needs of the ever-bloating bureaucracy has become the primary pre-occupation, instead of restructuring the administrative state for the needs of the country.

A cursory glance at the national budget will disabuse the doubting Thomases of their doubts. Year after year, the larger proportion of the budget goes to the expenses of the bureaucracy, and the leftover is sprinkled over the sea of problems the government is supposed to solve. To build a bridge, hospital, road or a school, the government has to take out a loan. No point mentioning the resources that need to be marshaled to urbanize our pitiful metropolitan areas. Even the endless, mindless hobby of creating new ministries, departments, agencies and commissions involves taking out loans. The shameless and cynical part of it all is that the government deliberately expands the bureaucracy sometimes just for the hope of winning donors’ heart about whatever happens to be the latest fad in the so-called international community. But when the donors’ dollars dried up, the tax-payers end up picking up the tab. And so the budget deficit gets larger and larger, the national debt gets bigger and bigger, and taxes get higher and higher.

The bureaucracy — if it ever were true to being the administrative state’s means of solving problems, providing vital services and creating opportunities for the people — has long since abandoned that essential mission. It has been nothing more than an income-earning trough and a cesspool for corruption and self-dealing for one class of citizens only: the educated class. Little wonder the country has lost faith in government.

The constitutional review is a historic chance to reset things. To learn from the past and reconstruct the administrative state on the timeless foundations of governing for our time. Establishing more commissions and independent bureaucrats, especially in the Constitution, isn’t charting a new course. It’s just harkening back to failed experiments and hoping for a different outcome. The commissions identified in the CRC’s Issues Document for possible inclusion in the Constitution will mostly be assigned to do what people who run for office are elected to do. They will stand in the way of electoral and governing mandates.

And lest we forget, these commissions will inevitably expand the already sprawling bureaucracy and add new expenses on the nation’s finances. The work they will do can neither be considered too demanding for the relevant ministries of the underperforming bureaucracy nor be deemed susceptible to conflicts of interest to necessitate their establishment. The resources that will be spent on these commissions will be paid by the entire nation, including struggling farmers and market vendors. However, the resources will mostly benefit individuals who will be appointed to the commissions. And most of these individuals will come from, you guessed it, the elites. The same show goes on. The people pay for the government for the privileges of the elites. About time the people have lost faith in the system.

Several sections of the Issues Document show the CRC’s desire and determination for a Constitution that both prevents a repeat of the dictatorship and satisfies international  (read Western) expectations. As pointed out earlier, many of the preventative proposals go beyond well-intended corrections into the territory of over-corrections. International expectations should be incidental to the national needs. We should shoot for a Constitution that works for The Gambia, first, foremost and exclusively.

The Issues Document also envisions a Constitution that confers less power on elected officials and more power on unelected elites within the bureaucracy. When the moment calls for a more concise Constitution that streamlines government, the CRC’s blueprint betrays a plan for a voluminous one that reaches into the domains of legislative statutes, public policies and political party platforms to absorb even the most mundane matters into the Supreme Law.

The Constitution should summon us to a set of ideals. At the same time, the idealism should be tempered with reality. What’s the point of drafting the most ambitious Constitution if the country can’t afford the costs it demands? The CRC should, therefore, draft a Constitution that provides for a government that is necessary. A government that has no more power than necessary for the security of peace and the protection of freedoms and liberties. A government that requires no more resources than necessary to provide vital services and invest in opportunities for the nation’s prosperity. The police power of the state is to the public’s freedoms as its expenses are to their incomes. The Constitution must reflect both with a government that is democratic and affordable.

The CRC wrote the Issues Document before embarking on the listening tour. But after traveling the country, they can no longer plead doubtful about what’s on the country’s mind: “The sum of the most pertinent issues raised by the Gambian community at large relates to concerns about the governance of the country…It is an understatement to say that Gambians generally have lost faith in government – and that is any government…They seem to view [the educated class] as untrustworthy, greedy, unreliable and without conscience…One even indicated that he does not trust his own educated sons because of how he has seen them amass their wealth. Some amongst them have even called for farmers to lead this country.”

The people have argued their case before Justice Cherno Jallow and his Constitutional Review Commission. Let no one say that their summation against government for the elites, by the elites and for the elites isn’t loud and clear.

Ends

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