To: Hon. CHAIRPERSON & Members
Constitutional
Review Commission
Bertil
Harding Highway
Kotu
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.