The Constitution Can Be Lawfully Repealed

As The Gambia’s emergence from a half century of failed government, with the last twenty two years to December 2016 steeped in violent totalitarian mayhem continues, high drama intermittently dots the national stage. From former ministers who lobbied for and partook in the sumptuous high councils of criminal government self-anointing as party leaders and offering themselves as potential presidents, to fantasists who harbour the delusion of an ousted dictator’s resurrection as president, and the mixture of euphoric beauty and ugliness in between, the national drama continues apace.

Freedom is an enticing inalienable right that can have profound implications in a society emerging from a generation of totalitarian rule. After all, its reality or illusion is often the compelling underlay of the “backway” syndrome, or emigration to the world’s freer public spaces.

Hail freedom!
In this critical interim between totalitarian excess routinely manifested in executive vandalism and the dawn of potential democracy, The Gambia stands at a crossroads. We must get to work to consolidate our newfound freedom, to construct monuments of thought capable of catapulting Gambia to the first rank of democratic nations. Our first port of call must be a brand new framework document, a constitution stripped of the internal violence to democratic government and separation of power that pervades the structure of the 1997 Constitution of the Republic of The Gambia (the Constitution).
The central question is whether to amend the Constitution or create anew.

That question was given different answers by key voices in the Executive and Legislative arms of government. The votes are not there for a choice grounded in mere amendments of the Constitution, and that pitch will therefore fail, and rightly so! Nevertheless, a significant question of legality was interposed as an argument against a new creation. From interventions on the floor of the National Assembly (NA) upon the introduction of the Constitutional Review Bill by the Attorney General and Minister of Justice, it was asserted by the member for Serrekunda that NA members were on the verge of transforming themselves from the Solons of the country to treasonable felons in that anything more than merely amending the Constitution would tantamount to overthrowing it.
That it is merely called a constitution cannot cloth a document with talismanic immunity from repeal. On both doctrine and express Constitutional text, the assertion that a new constitution amounts to the unlawful overthrow of the extant one is utterly erroneous.

Section 226 (1) of the Constitution permit its alteration by “an Act of the National Assembly”. Delineating that alteration process, section 226 (8) states: “No act of the National Assembly shall be deemed to amend, add to, repeal or in any way alter any of the provisions of this Constitution unless the title of the Act clearly indicates that intention and the Act does so in express terms”. Section 226 (9) drives home the point!
In this section:-
(a) References to this Constitution include references to any law that amends or replaces any of the provisions of this Constitution;
(b) To the alteration of this Constitution include references to the amendment, modification or re-enactment with or without amendment or modification, of the Constitution or of any provision for the time being contained in this Constitution, the suspension or repeal or the making of different provision in lieu thereof, and the addition of new provisions to this Constitution.

Ushering in a new constitution cannot be approximated to overthrowing the current one, and it cannot be remotely considered treasonable. The defence of the Constitution that section 6 (1) categorised as treason is specific to a person who “by himself or herself or in concert with others, by any violent or other unlawful means, suspends or overthrows or abrogates this Constitution or any part of it, or attempts to do any such act”. Section 6 (1) contemplates a “violent” or other “unlawful” means, not a legitimate legislative process as currently on the table in Sovereign Gambia.

Any lingering doubt over the meaning of “violent” or other “unlawful” means is conclusively settled by section 35 of the Criminal Code, that, albeit redundantly, supplements the exclusive emphasis on the forceful overthrow of government elaborated at section 6 (1) of the Constitution.

Aside the express permission to alter the Constitution by “suspension” or “repeal” at section 226 (9) (b), doctrine permits a sovereign people to alter its public space as necessary. Section 1 (2) of the Constitution is categoric on the point that “the Sovereignty of The Gambia resides in the people of The Gambia from whom all organs of Government derive their authority and in whose name and for whose welfare and prosperity the powers of government are to be exercised in accordance with this Constitution”.

In his highly acclaimed book, “Make No Law: the Sullivan Case and the First Amendment”, Anthony Lewis, the distinguished former legal correspondent of the New York Times submits: “Those who framed the Constitution and its most important amendments used spacious phrases … The Framers laid down principles rather that specifics, and they surely did so intentionally. They chose to avoid binding the future with a code of precise instructions. They understood that precision is the enemy of permanence. Detailed rules, which necessarily reflect the limited vision of any age, become obsolete as circumstances change. A rigidly detailed constitution would not last, so the framers gave us values to protect, in bold strokes: “no law … abridging the freedom of speech”. They wrote a document whose grandly phrased provisions can be interpreted, faithfully, to deal with new circumstances. Writing in 1819, Chief Justice Marshall put it that the Constitution was “intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs”. The Constitution remains our fundamental law because great judges have read it in that spirit”.

Violence and a negation of the rule of law are legally wired into the structure of the Constitution. Not even the titans of civil engineering can construct a viable storey building of multiple floors on a shallow mud foundation. The Constitution got it wrong from the preamble and it is incapable of constituting the foundational basis of a truly democratic political system.

Tinkering with the Constitution by way of amendments offers no meaningful solution. A brand new constitution is the only way forward! “Worldwide, constitutional setups are in a state of flux. As states across the Middle East, Africa and Asia look for successor arrangements to dictatorship, minority rule or anarchy, the pressure on new constitutions to provide a stability that can be hard-wired into the foundations of the state is immense” (The Gazette 2012).
As a national document, the constitution of a democratic society must settle public power in a manner that avoids concentrating authority in any one segment of a political system. In no small way, the Constitution comprehensively failed this basic test. Notwithstanding theoretical delineations between the traditional arms of a democratic polity, and the Constitution’s self-serving claim of separating power, the reality is completely different. Not only are the Legislative and Judicial branches accorded inferior status in the Constitution by making both ultimately answerable to the Executive, critical independent agencies necessary to the proper functioning of a democratic society are all similarly degraded by sourcing the exclusive appointing and removal authority in the President.

In a nutshell, meaningful national power is entirely concentrated in the Presidency. In the most benign hands, such concentration of public power can only erode the freedoms essential to creating and nurturing a democratic society. Additionally, there are express contradictions between key Constitutional provisions, as well as considerable fluff in need of pruning from such a vital document. There is therefore a compelling need to retreat from the brazen amalgamation of public power in one branch of government, and this by the supreme law. Public power must be sensibly demarcated, and properly shared between fully independent and internally self-governing branches of government. A new constitution must create efficacious independent agencies, and it must be internally coherent, much shorter, democratically robust, and rule of law compliant.

In our context, it is an absolute nonsense to talk about framers in terms of this Constitution. It has no grand structure, no overarching philosophy running through its letter or spirit. What the Constitution does, and this in spectacular fashion, is concentrate power in the puppeteer of the day, the grandmaster and totalitarian political midwife who was present at the critical juncture of its creation. As he was interested, had absolute power, and wielded the veto, the resulting product was way short of the minimum standards a document like a national constitution must acquire to pass the requisite test of balance and neutrality, a document, so to speak, that can serve as a fitting legacy for posterity.
Unsurprisingly, what resulted is a document with immense potential for violence against the citizen, and of stalemate and paralysis in public life. A crisis, any crisis in governance is therefore only solvable via the agency of raw power, not through the more sublime avenues of political and legal negotiation in a public environment equally responsive to the legitimate needs of all its members. Undoubtedly, The Gambia’s “…successor arrangements to dictatorship …” is yet to materialise. Its current Constitution cements dictatorship spectacularly!

And so I concur wholly with Foday Samateh, the eminent essayist and literary scholar that what Gambia needs is nothing short of a new framework document, a constitution that can serve as a reliable handmaiden of democratic governance for centuries to come.

The Gambia must move away from the prescriptive form of constitutional engineering, a task achievable only through shedding the excess fat in the Constitution. We must create a constitution grounded in “principles rather that specifics”, and this “to avoid binding the future with a code of precise instructions” for precision, undoubtedly, “is the enemy of permanence. Detailed rules, which necessarily reflect the limited vision of any age, become obsolete as circumstances change”. There are universal values Gambia’s new constitution must protect.

And Gambia must prepare great judges able to grapple with the rigorous intellectual challenges endemic in the philosophical fabric of constitutionalism and the rule of law.

On treason, there is no chance in law and sovereign doctrine. The Constitution deserves flushing!

Lamin J. Darbo

Ends