Law Making In The 21st Century
“..unfinished business of making The Gambia a genuine democratic republic remains” - Almamy Fanding Taal
‘The life of the law has not been logic; it has been experience... The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.’ Justice Oliver Wendell Holmes Jr.
While we are vigorously debating the fine points of the merits and demerits of the Bills the Attorney General and Minister of Justice is proposing to lay before the National Assembly shortly. It may be useful to consider the law making process under the 1997 Constitution of the Gambia. Also to ponder the purposes of a democratic government and what kind of nation we want Gambia to be in light of proposed draft constitution?
It is important to think about these questions because the Barrow Government since its establishment has been mired in a crisis of competence and a crisis confidence: it is important to make a distinction between the two types of crisis here.
The first crisis in respect of competence is about the capacity of the Government to manage complicity. There is no doubt that the Barrow Government inherited a series of complex issues in January 2017. The Janneh Commission has unearthed a web of systemic corruption with the Central Bank of the Gambia at the heart of the criminal activities of the former President aided and abetted by Secretaries Generals Ministers, Cabinet Secretaries and Permanent Secretaries.This instance alone requires that a fundamental shift in policy that will radically change the relationship between the Government and its Banker is put in place. A competent government would at least have looked at relevant models in Africa and act swiftly to change the modus operandi of the Central Bank but that was not done by the Barrow Admiration.
The second crisis is in some ways more significant than the first one as it deals squarely with leadership quality. With all the available capacities and data what can the Government do swiftly, what options are available for the transformation of processes and programmes, is the Government bold enough to chart its own course? Rwanda came from genocide and is currently ranked as one of the most successful post conflict nations in the world and is in its third decade of peace and prosperity. What happened in Rwanda did not happen in the Gambia. So with the right leadership the Gambia could have done better.The change of Government in Sierra Leone was nearly contemporaneous with the Barrow Government already the Maada Bio Government is making significant developments in rebuilding that nation that went through hell in the 1990s and is now getting positive results for the people. Ahmed Abiy within 18 months of his Premiership was awarded the Nobel Peace Prize for bringing peace between Ethiopia and Eritrea amongst other positive developments. All these illustrations are not to suggest that the ‘Visions’ of these leaders are perfect and or are right, the point is that they have clear visions whether one agrees with them or not, which the Gambia does not have under the Barrow Government.
The reason some of us are fixated on the person of the Attorney General- the Chief legal adviser to the Government (the executive branch)-is because in the Gambia the law making function is in reality performed by the Executive arm of the Government.Therefore the Legislative Agenda is set and controlled by the Executive, the technical expertise for law making is housed with the executive and so is the decision for the collection, distribution and management of national revenue aka BUDGET PROCESS.This flies in the face of the theory of separation of powers, that may be so, but it is mandated by the 1997 Constitution. Instead of changing this fundamental flaw in the architecture of governance the Barrow Government has selectively amended the 1997 Constitution that has in fact disadvantaged people.
In this regard the proposed draft constitution provides for some reforms of the law making function of Legislature but the draft does not go far enough because the Executive is still in the driver’s seat of the process. In light of the above record and the various challenges of rebuilding the institutions of good governance the Barrow Government has performed relatively well in the area of fundamental human rights. The Gambia over the past three years is facing the challenges of the 21st century in larger freedoms. However, in this context it is important to observe that the abuse of power by the executive continues, capricious decisions personally sanctioned by the President after obtaining advice from the Cabinet go on unabated.
The issue of fundamental human rights in the Gambia and in most post-colonial societies has been contested since independence in the 1960s. The 1964 Independence Constitution of the Gambia was an Act of the UK Parliament which provided for a Westminster style Parliamentary system of Government with the Queen as Head of State with a resident Governor General.However, soon after independence on 18th February 1965, the first Premier Sir Dawda Kairaba Jawara started campaigning for the Gambia to become a republic, Sir Dawda narrowly lost the first referendum for republic but handily won the second referendum which gave birth to the first republican constitution in 1970.
The 1970 Constitution of the Gambia produced a hybrid system of government – a cross between the US Executive Presidency and UK Westminster Parliamentary system-an elected executive President and an elected house of representative which combines both the law making and executive functions of the government in one body. The 1970 Constitution provided a governance framework based on the rule of law and respect for human rights. The implementation of this credo earned the Gambia then considerable respect and admiration throughout the world and the proud host of the African Commission on Human and Peoples’ Rights. It is ironic that the capital of African democracy and human rights has been the site for some the worst human rights abuses in the 21st century.
This concept of the hybrid system of government was imported into the 1997 Constitution with the significant difference that Ministers are not elected by the people but appointed by the President yet the Ministers still have the lead in the Law making process. A slight variation of the same concept is in the proposed draft constitution.In the proposed draft constitution Gambians have the best elaboration and restatement of Fundamental Human Rights and how to secure and protect these rights. The National Human Rights Commission is established as a constitutional office.
It is important to note that since independence the subject of human rights has been taken extremely seriously by the Gambia Government until the Coup D’état of 1994. The 1997 Constitution which returned the Gambia to ‘civilian democratic’ government turned out to be the handmaiden of one of the worst dictatorships in the 21st century; characterized by illegal arrests and detention of citizens, extra-judicial disappearances, torture and killings on an unprecedented scale.Although Chapter 4 of the 1997 Constitution which contains the fundamental rights provisions is an entrenched part of the constitution, this chapter also contains significant claw-back clauses that militated against the full enjoyment of human rights the Gambia.
It should be clear from the above discussion that the approach adopted for the promotion and protection of human rights since independence may not be right approach for post-colonial states like the Gambia: Neither entrenchment of human rights clauses, explicit iterations human of rights provisions nor human rights commissions have guaranteed the full enjoyment of human rights in Africa. It is clear that the greatest threat to the full enjoyment of rights comes from the State and its agents. Nobody is seen negotiating with a thief as to how and under what circumstances he can take away your property!Therefore, it is necessary to move away from this frame of reference premised as it is, as a negotiation between the State and the Citizen as to how the God given rights of human beings are to be exercised and enjoyed. It is time to return to first principles: these rights are not given by the state rather the State has an obligation to protect these rights because the individual pays the state to do so.
The oldest written republican Constitution in the world is the US Constitution and it did not come with a Bill of Rights but was made following a Declaration of Independence from and a revolutionary war against the United Kingdom: ‘’We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness’’.
The Declaration makes it clear why governments are established: simply put to protect these inalienable rights- Life, Liberty and pursuit Happiness. This explicit message did not find its way into the adopted Constitution in 1789 but soon thereafter the 1st amendment to the US Constitution was proposed and it was adopted in 1791. Amendment I read:‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances’.
This approach by the most successful democratic post-colonial nation is remarkably different from the approaches adopted by other post-colonial nations like the Gambia. In three short sentences the US Constitution guarantees the full enjoyment of basic rights by prohibiting the law making body from making laws that may curtail the rights of the people. Thus, as a people we have been running in circles since independence trying to realise the enjoyment of human rights.
Consequently the unfinished business of making the Gambia a genuine democratic republic remains. As such the proposed draft constitution has presented Gambians with a great opportunity for renewal and institutional innovation for effective government.This responsibility must be discharged with the serious ingenuity it requires and deserves based on the values of the Gambian people. We must look at models that have work successfully over a reasonable period of time in different parts of the world and in Africa and adapt them to our requirements.
Almamy Fanding Taal
Editors note: Views expressed herein are those of the author and do not necessarily represent the views of Gunjur Online. Got an opinion article? send it to us at GunjurNewsOnline@gmail.com