Nov 19, 2019, 12:40 PM
1. I wish to end my contribution to the
draft constitution firstly by expressing profound gratitude to the Commission
for providing this opportunity for public consultation and discussion at group
as well as individual levels. Secondly I wish to make this final summing-up on
some of the points over which disagreements still exist.
Advocates for non-inclusion of the word ‘secular’ have advanced two reasons for their position: that the word was not contained in earlier constitutions except the 1997 constitution which they consider flawed; also that the term means legitimizing homosexuality and gay marriage.
These two reasons both suffer from serious error and misconception and I am sure that the Commissioners will be following matters closely. Regarding the first point, everyone can see the perfect error in the suggestion that only words that have appeared in earlier constitutions can appear in our new constitution. This position is not tenable given the desirable fact that constitutions and laws need to grow in order to meet changing needs and developments in a country. Another question: is it not contradictory that the same advocates against a “new word” in the constitution are the same advocates for inclusion of new words such as ‘Shari’ah High Court’, ‘adoption’, ‘burial’ ‘waqf’, ‘impeachment’ and entirely new provisions and sections? If ‘secular’ is a new word, it can now be legitimately inserted. What is the problem with that? On the second point, it is obviously not correct that secular means acceptance of homosexuality and gay marriage, whether by denotation or by connotation. One can say that such manifest error can only represent a campaign of disinformation and misinformation. Furthermore it could be noted that our national laws already have addressed this point by criminalizing acts of homosexuality and other acts that are “against the order of nature”, with stiff sentences ranging from 5 to 14 years. So it is submitted that given our existing legislations, homosexuality and gay marriage should not be any concern.
2. It is a safe proposition that the term ‘secular’ being an English word just like all other words in the constitution (except waqf) can have only one meaning, and I suggest that the meaning could be explained in the interpretation section (S.312)
In constitutional and State matters, the term ‘secular’ has invariably meant a separation between State and Religion. I believe this is the common concept in most countries around the world, not forgetting our own Sub-region and Muslim dominated countries as Senegal, Nigeria, and others. Applied to The Gambia it also means that neither Christians nor Muslims should visit State House, particularly for festive greetings, to promote their own personal, parochial, non-State interest. Such visits should receive the fullest media coverage (print, radio, television) and any gifts distributed should be declared to the public stating the amounts involved, source of funds (whether Central Bank, State Owned Enterprises, or Private), and the purpose. Such matters should be stated somewhere in the new constitution similar to sections on ‘gifts’ to Public Servants, Presidents and Ministers.
It would also mean by implication that little mosques and chapels should not be constructed on State properties and certainly not with State funds as already asserted by other commentators. Here it should be remembered that Christianity and Islam are not the only religions practised in The Gambia.
3. ‘Shari’ah’ can be omitted as it does not govern all citizens: non- Muslims as well as Muslims who do not accept to be bound by it or by some particular aspects of it; and it is not right, proper or just to apply national funds towards its implementation. Also its inclusion would be inconsistent with women’s rights provided in other sections of the same constitution (5.53 et al) and in our national laws (women’s Act 2010, et al) especially right to own property and to equality of treatment. Non-Muslim women in religious mixed marriages could be adversely affected and their rights violated. To make the constitution more coherent, consistent and just, religious personal laws such as Shariah should be excluded; and if necessary could be included instead in properly defined, well-considered Acts of the National Assembly.
‘Shari’ah High Court’ creates only more expenses and unnecessary duplication to an already existing High Court which already has jurisdiction to deal with all civil and criminal cases. The Superior Courts of the Gambia can always be appropriately empaneled to deal with cases involving Shari’ah.
Cadi means ‘judge’, but so also does ‘magistrate’. If we continue to have ‘Magistrates Courts, surely ‘Cadi Courts’ can continue to be maintained instead of introducing new words such as ‘Shari’ah Courts’ that were never in our previous constitutions, as some have argued in the case of the inclusion of ‘secular’.
I thank the Commission for accepting comments and views, and want fellow Gambians to note that these are mere legitimate discussions, and no one should take them personally or sectionally to the point of anger or threatening disobedience. We all are citizens of this country and all have a right to express views especially when we have been requested to do so. There is strong confidence in the CRC that with their constitutional and legal knowledge and their superior drafting skills, they will come out with the best draft of not what people want to dictate, but of what is true, fair and impartial.
I thank all fellow Gambians for their understanding and for putting Reason over Passion.