Is the Gambia Ready For Another Constitutional Moment?: Do We Need A Constitution or Attitudinal Change?

Mamos Media

Alagi Yorro Jallow
Fatoumatta: The problem with the Gambia is not one that a document will help. The Gambia’s problem is attitudinal, our outlook, our cumulative culture, and the sum of our beliefs. What we need to invest most of our time and resources in is the foundation of our nationhood. We need to find something that unites and inspires us, and that makes us a people. Because when we talk of nationhood, we are talking about a shared heritage, a shared ideal, a shared vision. As it is, we are pulling in different directions. We cannot agree on a revenue-sharing formula, for instance; so much so that the powers that be have to resort to the use of force to secure an elusive consensus.
Fatoumatta: The Gambia has had several constitutional moments with the most recent Draft Constitution rejected by the National Assembly. Before the Draft 2020 Constitution edition, it was widely acknowledged that from the country’s independence in 1965, the Executive had appropriated power from the other two arms of government. Did the Draft Constitution sought to redress this problem and was, to a great extent, unsuccessful birth of a new Third Republican Constitution.
Because a Constitution is a result of human endeavor, it is never perfect. Amendment, therefore, is never a question of “if” but a matter of “when.” Questions arise. Has the Gambia reached that point? Does the country need a significant overhaul of the 1997 Second Republican Constitution? Hasn’t the problem of excessive concentration of power around the Executive been dealt with?
For sure, there are areas of the 1997 Constitution that many would like to see reviewed. In any constitutional making process, the focus is always on the balance of power between the three arms of government: the Executive, Legislature, and Judiciary. This balance entails distributing power to these arms in a structured manner that provides regulatory checks and balances.
Fatoumatta: Sadly, we have observed that sometimes when the leaderships or some in the memberships of these three institutions face ethical or political challenges, the entire institutions they head, or to which they belong, are deftly blackmailed into solidarity. They are roped in. “This is an assault on the Judiciary “; “the legislature is under attack,”; ” our democracy is under a serious threat of subversion; “the Executive is frustrated, “; and ” constitutional governance is in danger” are some of the “casts” that now are commonly spewed out when the consequences of personal failures are being masked as attacks on our institutions of State.
Do our people have the discernment to detect and detest this fraudulent claim?
Fatoumatta: Countries like Britain do not need a written constitution because a sense of nationhood is ingrained in their collective psyche. Though they diverge on some issues, the divergence is not so serious as threatening their society’s fabric. The sense of belongingness fortifies them against divisive forces that often tear apart countries that are less resilient owing to internal divisions. The Gambia does not need another unrepresentative constitution, a constitutional time-bomb. The Gambia does not need a Presidential system of governance with an imperial presidency. We cannot legislate nationhood. Because legislation implies the element of coercion, ‘do this, or we do that,’ you know.’ Nationhood can only be attained organically. When people through small patriotic acts learn to live together, learn to stand up for each other, see the larger pernicious effects of infractions as small as bribing a traffic cop, and generally develop, from within themselves, a national ethos that does not need a document or order to enforce.
To that end, much effort needs to be devoted to literature and the arts. Through literature, we can make myths that glorify our past and illuminate our present experiences and imbue us with hope for the future. Myth-making is very crucial to nation-building—a story for another day. The arts will help us reimagine our place in the world, away from colonial and neo-colonial colorations. They will help us rework the ‘problem’ of our diversity into a dividend for good. My choice of words here is deliberate. Diversity, in an unimaginative society, is a problem that needs to be solved. In Nazi Germany, they would like the final solution – the Holocaust – to answer their’ problem of diversity.’ Rwanda had their final solution, too. Pol Pot of Cambodia had his solution. In all these instances, people were imaginatively hobbled – instead of seeing diversity as a dividend, they saw it as an inconvenience. The arts help us to imagine diversity in a creative, rather than destructive, way.
Fatoumatta: To get there, no document, however thorough and expansive; however, ingenious and all-encompassing – will suffice. The culture of what scholars like Edgar Schein and Shalom Schwartz call bad manners have to be progressively whittled down – not by a legislation document, but by a social reengineering of our software – that is the sum of the attitudes, the appetites, the worldview, the beliefs of our people.
Fatoumatta: The Gambia’s constitutional democracy under the rule of law, underpinned by the doctrine of separation of powers amongst the three arms of government: Legislature, Executive, and the Judiciary, the twin doctrine of checks and balances operates to ensure interdependence of government and equilibrium of powers amongst the three arms. This guarantees government functionality, the prevention of the emergence of executive dictatorship, and, overall, preserving the democratic order.
The morality, ethics, values, and beliefs of the actors heading these three arms of government impact and shape their institutional capacities to play the checks and balances assigned to them by the Constitution. An incompetent, morally unfit, and ethically challenged President, for example, may bring about a weak, corrupt and inefficient presidency, which may be incapable of performing its checks and balances roles regarding the exercise of or abuse of powers by the two other arms. Similarly, an incompetent, corrupt, and ethically challenged leadership of the Legislature may become so vulnerable and insecure that it may lack the gut to rally the Legislature to check the excesses of the Executive and thus prevent a slide into a dictatorship.
For example, how has the Legislature been able to deal with the Executive for engaging in extra-budgetary payments of oil imports subsidies, and not making disclosures, other than to pliantly and submissively appeal to a brazenly contemptuous Executive to please bring a supplementary appropriation bill to capture the subsidy payments already made without appropriation!
As for the Judiciary, it is indisputable that if the leadership of the Judiciary is ethically challenged, it is not only the justice administration endangered but also the discharge of the arduous duty to confine the government and the governed to the narrow path of constitutionality and the rule of law will fail.
Fatoumatta: Thus, it can be seen how vital qualification, credibility, integrity, and sound ethical credentials of these arms of government’s leaderships are to the smooth operation and perfect functioning of the arms of government themselves. Many feel that it is an unattainable ideal because of time constraints. This is no longer constitution-making but pure politics. A proper constitutional structure protects us from the worst instincts within ourselves. Interference with the current structure that delicately balances power runs the risk of creating authoritarianism. Examples abound of populist characters who were voted in but became dictators. That is why it is essential to have structures that cannot be manipulated by populists for self-aggrandizement. It would lead to the dearth of checks and balances.
Fatoumatta: Moreover, the creation of national kingpins is tribalizing our politics and constitutionalizing it. Is the Gambia ready for another constitutional moment?

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