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OPINION: Further Comments on the Draft Constitution by Charles Sarr-Thomas

Dec 19, 2019, 12:08 PM

To:    Hon. CHAIRPERSON & Members

        Constitutional Review Commission

        Bertil Harding Highway



From the CRC Public Consultation Meeting for KMC at the Youth Monument, Kanifing on 16th December 2019

I wish first and foremost to seize this opportunity to express my most profound appreciation to the Chairperson and members of the Commission for a very open, inclusive and interactive discussion of our draft Constitution. I believe all Gambians, without exception, have been given ample opportunity to participate in the process without let or hindrance or restriction of any kind. For this, it be hooves the nation to extend due gratitude to the Chairperson, Commissioners, all support staff and all those who contributed positively to a successful outcome.

Having said this, I am to point out that I was one of those who attended the KMC consultation meeting on Monday 16th December but was unfortunate to be called by the Master of Ceremonies. But because Honorable Chairperson did acknowledge the general situation and invited contributions directly to the Commission, I wish to convey these very brief submissions for consideration.

1)     It was rightly pointed out that “Cadi” means judge and so we cannot have Cadi Court. But it should be noted also that a ‘magistrate’ is also a judge so to speak but we have Magistrates Court in our judicial system and in the draft constitution as well.

2)     ‘Shari’ah High Court’ should be omitted because there is already a High Court with jurisdiction to deal with all civil and criminal matters.

Appeals from the Courts of 1st instance Justice (District Tribunal and Cadis Court) could go to appropriately empaneled Superior Courts for hearing and determination.

3)     The clause on ‘citizens by descent’ seems to open the way for a very long line of descendants who could be entitled to citizenship and to rights of citizens. The line of descendants should not go ad infinitum. Close the lineage at some verifiable point.

4)     The term ‘Secular’ should be retained for the following reasons:

 a.  It is merely an English word, like all the other words of the Constitution; and merely aims to achieve a separation between State and Religion. That notion can be expressed in the interpretation/definition Section of the Constitution. Note the word advocated is ‘Secular’ the noun being Secularity; not ‘Secularism’ as incorrectly can vassed by people who would just like to cause artificial confusion.

 b. No good concrete or cogent reason has so far been given for its exclusion. Senegal and some other Muslim dominated States describe as ‘Secular.’ Has there been any problem for those countries on account of this word?

 c.  Some have argued that the word did not appear in the 1970 Constitution. But is the new Constitution not to have new words and even new Sections?! If so, it would be the most unprogressive document the world over. In fact have these people considered that words and expressions like ‘Shari’ah High Court’, adoption, waqf, impeachment, and numerous more new words are appearing in draft Constitution; and it should also be noted that even brand new Sections have had to be added to the body of the Constitution and the preamble. So why not the word ‘Secular’ which is not harmful; and at-least has been in the Constitution for almost 23 years now. And even, if granted that it was not legitimately in the 1997 Constitution as argued, what is wrong with now putting it in legitimately? Why did these people not challenge this point for about 20 years,if indeed there was illegitimacy worth striking out? It is submitted that the very few proponents for non-inclusion of the term ‘Secular’, have no cogent argument; they must have a hidden reason other than the ones expressed. Note that the meaning of secular covers separation between the state and religion. Secular therefore men by implication that no Christians or Muslims should as a matter of propriety, visit State House of religious feast and promote their own personal, parochial and non-state interest. And any brown envelop received by them should be declared to the nation (even if not shared with them). This is the meaning of secular that could be inserted in the interpretation section (section 312).  

  d.    In Section 6 of the CRC Act, our own lawmakers have expressed that term (no doubt with the same notion and meaning as expressed above). If the CRC Act uses the term, why not the document that it has been requested to produce? The separation of State and Religion is a good thing as can be observed from the example of other countries and should be maintained.

5)  The inclusion of ‘Shari’ah’ in the Constitution, gives preference, privilege, or prominence to one religion over all others, contrary to the letter and spirit of Section 67 (6) of the Draft. It is the only part of the Constitution that is divisive. The version of Shari’ah as stated in Section 9 (e), is not clear Also that Section is made to govern persons who do not accept Shari’ah to be binding on them; it is imposed on them and therefore undemocratic.

For all these reasons, the section should be removed in order to remove all doubt and to render the document non-discriminatory. A document of this kind should have a national character, that is to say should relate to and affect everyone instead of only some members (be they majority or minority). It is proposed to only insert in the Constitution a provision empowering the National Assembly to legislate generally for the practice of Personal Law without mentioning any particular religion; this would solve the problem altogether.

6)      The “special consideration” being given to a category of citizens including marginalized groups, should be extended to minority groups because members of these groups are usually left out especially when appointments are made to certain public positions and/or to Statutory bodies.

Finally, I wish to thank the Commission once again for all their efforts and their most sterling(my belief) execution of their mandate.