By Madi Jobarteh
Democratic governance is a system where institutions and officials function according to democratic processes and norms. By doing so, they reinforce each other thus preventing conflict while promoting stability, managing crisis and facilitating economic and social progress. Democratic norms are basically the rule of law, separation of powers, citizen participation, transparency, accountability and respect for human rights among others.
In a democratic republic, the aim of the constitution should be to attain and strengthen democratic governance. Such a constitution recognizes that power must not only be restrained but also checked to prevent abuse and corruption which are the basis for human rights violations. The 2020 draft constitution has attempted a great deal to establish a democratic governance system in the Gambia which the Barrow Papers have now come to bulldoze in favour of Dictatorship.
In the first place, a worrying phenomenon I noticed in the Barrow Papers is how they replaced the word, ‘State’ with ‘Executive’ in matters referring to local governments. Why? The Executive is one branch of the State. Local councils deal with more than one organ of the state. That is why the 2020 draft envisaged that the entire State system should support local governments.
But in the Barrow Papers, in Section 5 on ‘Decentralization of Government’, the Executive is used in place of the State. The only reason for this is to accumulate all power in the hands of the Executive, i.e. the President and Cabinet so they can control local governments. This can only lead to conflict, corruption and inefficiency within local councils as we have been seeing.
In Section 96(2) of the Barrow Papers, on the issue of vacancy in the office of the president, it provides that the vice president or in his absence the speaker will assume the position of president for the rest of the term. This is a huge setback for democratic governance because it means a person who has no mandate of the people is made to lead the country. In the 2020 draft constitution, it is provided that within 90 days of the vacancy there will be elections. This is one standard in democratic countries.
The other way round this is the introduction of a running mate system so that a president is elected together with his running mate as vice president. In the US, when the president dies or resigns, the vice president continues under Section 25 of their constitution. In Nigeria, contrary to the claims by Ismaila Ceesay, their 1999 constitution introduced in Section 142(1) a running mate. Hence the proposal in the Barrow Papers for a vice president or speaker to continue the entire term of a president who died or resigned is undemocratic.
A key feature of democratic governance is transparency and accountability for the purpose of preventing and detecting corruption. This is why asset declaration is required for persons elected or appointed to public office and after their removal from such office. This requirement also extends to their spouses and those who held their business interests in trust. But in section 93, the Barrow Papers deleted a provision of the 2020 draft constitution which requires the spouse of the president to declare his or her assets to the Anti-Corruption Commission.
Similarly in Section 109, the Barrow Papers deleted provisions of the 2020 draft which required the vice president and ministers to disclose, within three months of leaving office, all assets they acquired when they were in office. Not just that, but their spouses will also not disclose their assets acquired during the VP or minister’s tenure to the Anti-Corruption Commission.
It is common to have public officials put stolen wealth in the name of their spouses and children to cover up their ill-gotten wealth, hence the need for them to disclose their wealth after leaving office.
Therefore, to delete these provisions means to cover up potential corruption, hence undermining democratic governance. It means a VP or minister could accumulate huge amounts of wealth through bribery and corruption while in office and he will not be held accountable because he is prevented from disclosing his assets after leaving office. If such wealth is in the name of his spouse, he will still be protected because the spouse is also prevented from disclosure.
Another element of bad governance in the Barrow Papers is how they added the word, ‘gross’ in front of the grounds for the impeachment of a president. In the 2020 draft constitution, the grounds for impeachment include abuse of oath of office, violation of a provision of the constitution, and misconduct. But in the Barrow Papers, Section 98 on the ‘Removal of the President by Impeachment’, they added ‘gross’ in front of ‘abuse, violation, and misconduct. Why?
At first glance, one may argue this is justified since impeachment must not be easy to come by. But on a deeper look, what value does ‘gross’ add to these provisions? After all, to impeach a president will require strong arguments and convincing of 75% of NAMs which is daunting. Hence to add ‘gross’ is only intended to further complicate matters unnecessarily just to protect the president from accountability, no matter what. The debate to establish the level of ‘gross’ would have rendered the whole need for accountability unnecessary.
To further expose the attempt by the Barrow Papers to shield the president from accountability and undermining democratic governance, they have raised the bar for impeachment from one half as suggested in the 2020 draft constitution to two thirds majority of all members of the National Assembly in Section 98(3). Effectively, the machinations around Section 98 are intended for nothing other than to raise the president above scrutiny and accountability.
From the foregoing, it is abundantly clear that the intention and purpose of the Barrow Papers is to create a government that is like a Ruler and not a Governor. Despite its shortcomings, the intent of the 1997 Constitution, and especially the 2020 draft constitution is to establish and operate a democratic governance system in the Gambia.
This is why Section 1 subsection 2 of the 1997 Constitution states that sovereignty resides in the people of the Gambia, and the State and all its organs and agents derive their legitimacy and authority from the people and perform their functions on behalf of and of the welfare of the people. Apparently, the Barrow Papers want to subvert the sovereignty of the people.
Check out Constitution Series 6 on Threats to Independent Bodies
For The Gambia, Our Homeland