constitutional law

Constitutional Change and Amendment: Should the Judiciary be allowed to review constitutional amendments?

Constitutions change overtime and in different ways, determined or dependent on the jurisdiction of that country. Constitutional amendments can be conducted as per the procedure designed by the Constitution or even outside the scope of constitutional law which can deviate from the cardinal principles of Constitutionalism. The role of the Judiciary (i.e. the courts) is said and well established to be different from that of the legislature. The legislature in most jurisdictions is vested with the power to make laws. Constitutional amendments therefore refer to the formal procedure of amending provisions of the Constitutions and not any other procedure. Hence, importing any other procedure for Constitutional amendment outside of the scope of the procedure provided for by the Constitution such as handing over the amendment power to the court is said by many against democratic principles.

In my previous blog post, “Constitutional Change and Amendment: Are we restrained by ourselves or other people?” I argued that by binding ourselves to commitments of the Constitutions we are also binding ourselves to the interpretations of judges who are not answerable to the people for their acts and are independent from any sort of influence from any person or authority. Hence, would it not be against the principles of accountability to allow the court to review Constitutional amendments?

Fundamentally, judicial review empowers the courts to decide on the legality of actions or inactions (failure to act) of both the legislature and executive and their consistencies with the Constitution Any act, omissions or decisions of the government that is inconsistent with the Constitution is, to the extent of their inconsistency declared null and void. On a general perspective, judicial review is understood from two distinct points which needs to be highlighted before delving into the subject matter. Firstly, it is a means through which courts control the exercise of administrative power. Secondly, it refers to the courts’ enforcement of the doctrine of ‘supremacy of the Constitution’ to declare null and void any act of parliament or any other act that are in conflict with the Constitution.

According to Justice Hassan B Jallow (as he then was), the Constitution of The Gambia is based on the principle of separation of power and as such supremacy “reposes in the Constitution, whether or not such is expressly declared by that instrument and not with the National Assembly or any other organ of state.” (Jallow JSC, Jammeh v. Attorney-General (2002) ). Hence any form of judicial enforcement that is inconsistent with the Constitution will take away the legitimacy and purpose of the creation of the Constitution.

As such, review of Constitutional amendments by the courts creates a conflict between the courts and legislature by handing over the responsibilities of the legislature to the court. At first look, judicial review of Constitutional amendments seems as a violation of the principle of separation of powers. Invalidating an amendment on the grounds that it is unconstitutional is constitutive in its functional meaning. It is very similar to enacting an Act of Parliament which is a duty imposed on Parliament and not on the courts.

However, if we are able to welcome the idea that the amendment power in a Constitution is like any other power vested by the Constitution, the same reasoning could apply in judicial review of Constitutional amendments. Also, the amendment power of the legislature is also limited in scope by its nature either explicitly or implicitly. This is where judicial review of amendments comes in as a mechanism to enforce those limitations. For instance, in The Gambia, the National Assembly is not allowed to alter any of the entrenched clauses found in section 226(7) unless:

(a) the Bill has been sent by the speaker to the Independent Electoral Commission.

(b) the Commission has within six months of receiving such reference held a referendum on the Bill.

(c) at least fifty percent of the persons entitled to vote in the referendum have taken part in the referendum and;

(d) the Bill is supported by seventy-five percent of those who voted.

In Jammeh v Attorney General, the Supreme Court of The Gambia ruled that failure to comply with the conditions set out in section 226(7) of the Constitution renders a purported amendment of the Constitution and assent thereto invalid, null and void and of no effect. The fundamental idea behind the involvement of the courts in the review of Constitutional amendments is to uphold the supremacy of the Constitution and that principle requires the courts to check that the legislature does not fall outside the dictates of the Constitution when exercising its power of amending the Constitution. This whole process would normally require individual(s) to bring up a case against the government in exercise of their rights as citizens or person living in The Gambia or with an express authorisation by the Constitution. But should this always be the case? Should the judiciary be reviewing Constitutional amendments in the absence of authorisation by the Constitution?

In my opinion, when courts in review amendments made by the legislature, they are only reinforcing the supremacy of the Constitution., not that of the legislature or the judiciary. After all, the amendment power is given to a constitutional organ of the government by the supreme law. Strauss highlighted that an amendment of the Constitution does not necessarily direct an ultimate concern about the document but rather the amendment is concerned about the institutional arrangements that the Constitution is supposed to control. The proposition Strauss is suggesting here is that the judiciary in reviewing Constitutional amendments only checks the exercise of the power of the legislature, which is a Constitutional institution.

It is trite law that in order to challenge an amendment or a law, one should be able to direct to a specific constitutional provision that the amendment or law violates. Elliot however makes the view that constitutional interpretations should not be “limited to the literal language contained in discreet clauses in the Constitution.” (Donald Elliot, 1989). This, in effect, forces the court to make decisions that are vulnerable because of the failure to adhere to Constitutional dictates. My view is that since the amendment power is limited in most constitutions and mainly as a delegated power, the amendment in fact helps in enforcing the limitations described by the Constitution.

For separation of powers to work effectively, we need procedures to check the balance of power between arms of government so as to settle any dispute that might arise. The separation of powers between the legislature and the judiciary presupposes that the power to amend is independent within its scope and margin so long as it does not violate the Constitution. This also in turn facilitates a procedure for determining whether the amendment made is ultra vires the Constitution. Thus, allowing the judiciary to review amendments protects the principle of separation of powers between the primary and secondary constituent power.

Accordingly, when applying the law, it is important to understand what exactly the law is or mean. As such, in the event of a conflict in law, the court, in its duty in applying the law, should be able to decipher which of the laws must take precedence over the other. In the case of reviewing amendments made by the legislature, a similar argument can be made in the sense that one of the main duties of the courts is to make decisions in conflict using the Constitution as its main tool and other legislations.

In doing so, the court will need to interpret the Constitution. If the Constitution is silent on who should determine the constitutionality of laws, then the arm of government that applies the law is the most competent to review the laws. The same applies for review of constitutional amendments. The striking similarity in the review procedure of statues and constitutional amendments resonates from the fact that they are both reviewed in a normative standard. As argued by Klein, judicial review of amendments is similar to ordinary judicial review. It is further described as “an examination of the compliance of a given legal standard to a superior standard.” (Yaniv Roznia, 2014).

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References

1 Justice A.K Date-Bah, “The Law and Practice of Judicial Review

2 Donald Elliot, “Why Our Separation of Powers Jurisprudence is So Absymal”, (1989)

3 Jammeh v. Attorney General, (2002) AHRLR 72 (GaSC 2001)

4 Marbury v. Madison, 5 U.S 137 (1803 U.S LEXIS).

5 David A. Strauss, “The Relevance of Constitutional Amendments” (2001)

6 Yaniv Roznai, “Unconstitutional Constitutional Amendments: A study on the Nature and Limits of Constitutional Amendment Powers.” (2014).

The Gambia: The state of liberal democracy

Congratulations to Gaye Sowe, Executive Director – Institute for Human Rights and Development in Africa (IHRDA) and member of the Constitutional Review Commission; and Satang Nabaneh, Ph.D in Law Candidate/Founder and Editor, Law Hub Gambia. Their joint chapter on The Gambia was published as part of the I-CONnect-Clough Center 2017 Global Review of Constitutional law. We are pleased to circulate this report published by the Clough Center for the Study of Constitutional Democracy.

Abstract

This is the second edition of the I·CONnect-Clough Center Global Review of Constitutional Law (ISBN: 978-0-692-15916-3). The 2017 Global Review assembles detailed but relatively brief reports on constitutional developments and cases in 61 jurisdictions during the past calendar year. The reports are authored by academic and/or judicial experts, and often the reports are co-authored by judges and scholars. The reports in this first-of-its-kind volume offer readers systematic knowledge that, previously, has been limited mainly to local networks rather than a broader readership.

Available at SSRN: https://ssrn.com/abstract=3215613


Suggested citation

Sowe G and Nabaneh S ‘The Gambia: The state of liberal democracy’ in Albert R, Landau, D, Faraguna P, and Drugda Š: The I·CONnect-Clough Center 2017 Global Review of Constitutional Law (July 19, 2018) 97-101.


Overview of the chapter "The Gambia: The state of liberal democracy"

2017 witnessed unprecedented political events in The Gambia that resulted in a transition from a dictatorship to a democracy. The single most important development was that “The Gambia became one of Africa’s newest democracies following 22 years of authoritarian rule by Jammeh, who vowed to rule The Gambia for a billion years. 

This momentous change led to the dawn of a new political and democratic dispensation and a slow, but gradualist thrust to liberal democracy.
— Sowe & Nabaneh

This report looks at various constitutional amendments, promulgation of new laws, constitutional case law and politics including Gambianization of the judiciary and what big questions await The Gambia in 2018 or beyond.

Download The Gambia chapter and the full report here.  

 

 

Constitutional Change and Amendment: Are we restrained by ourselves or other people?

The precommitment theory by famous Norwegian political theorist, Jon Elster presupposes that the acquisition of greater choice, and freedom, is not always desirable (Elser, 1979). At a later stage, one might need to limit himself to a certain course. This denies him the option to choose a specific act or course and thus provides for rationality as time goes by; one may think that X is the right course now, but worry that when the opportunity to choose Y arises, one might choose Y instead. This makes choosing Y impossible, more difficult, or less likely to allow for the prevalence of rationality regardless of intervening factors.

From independence, most countries in Africa have had their Constitutions changed or amended so as to accommodate new ideals and values. The Gambia is no exception to this. But what constitutes change? Where does the authority to bind people of these changes come from? It is one thing for A to bind himself and another for a group of people to be bound my Constitutional provisions. Two notions are already well known; First, a Constitution binds everyone, including the minority. Second, Constitutional commitments are vague. Free speech, and rule of law are examples. This vagueness comes in two spheres; committing a right with one hand and making it all together more problematic and impossible to achieve. This makes Constitutions contentious and political documents. The Constitution of The Gambia reads “We the People.” because it was enacted by the majority but it somehow is taken as the general will of the people only because the majority endorsed it.

"We the people of The Gambia have accomplished a great and historic task. We have had our say on how we should be governed. For this Constitution contains our will and resolve for good governance and a just, secure and prosperous society. " - Preamble of the  1997 Constitution

"We the people of The Gambia have accomplished a great and historic task. We have had our say on how we should be governed. For this Constitution contains our will and resolve for good governance and a just, secure and prosperous society." - Preamble of the 1997 Constitution

The division in Constitutional amendments are not internal but rather, they are divisions between the majority and the minority. Constitutions that are strong, will always bind generations to come to the ideals and values of those that came before them without their vote or consent.  As stated by George Washington to the framers of the US Constitution, “I do not think we are more inspired, have more wisdom, or possess more virtue, than those who will come after us” (Ackerman, 1991) It is not clear to me why one generation is at liberty to bind a future generation but what I do know is that it is possible for a particular generation to want to continue practicing the ways and appreciate the values of the past.

The interesting argument here is not just the mere fact that Constitutional commitments are binding on everyone including the minority who didn’t consent to the change in the first place; rather the commitment would be to bind other people who would challenge another person’s view. Those that drafted the Constitution may not worry about their own acts or omissions in certain times instead they would be worried about others who don’t even share the same values as them. The Constitution commitment then “changes from a technique of simple self-binding into a restrain on opposition to certain contested political values”. Society will always disagree both in “calm” and “lucid” moments, hence, the viewpoint that commitments are entrenchments of partisan politics” (Waldron, 1998). This then makes Constitutional commitments anti-democratic which further raises a “counter majoritarian difficulty” so long as it holds back the popular will of the people.

Considering the question of who makes a Constitutional commitment, it is expected that the majority that consents to the ethos of the Constitution are cognisant of what it is that they have agreed to commit to. A commitment to Constitutional rights such as free speech is vague and abstract. Interestingly, Justice Marshall has pointed out that hate speech laws should be focused “on the nature of the ideas expressed, rather than on the likely effects of the expression”.[1]  There is however a difficulty in applying this distinction. A person that is committed to free speech is bound to accept or reject it without realising the practicability of the right. This is where judicial review comes in.  By committing to the right to fair trial, “the people” of The Gambia consented to the use of strict rules of evidence that would offer a frustrating position to any prosecution.  An argument that the people that drafted or supported the right to fair trial understood this implication would be a difficult one.

This makes the commitments of Constitutional rights misleading as people in most cases are bound to obey these Constitutional commitments without knowing the consequences of the Constitutional commitment in question. But was this commitment made with full consent? It’s only fair that this question is asked. By binding ourselves to the commitments of the Constitution, we are also binding ourselves to the interpretation of judges who are not answerable to the people for their acts and also independent from any sort of influence from any authority or person. This then draws the conclusion that Constitutional commitments and judicial review have the same problems; they are both undemocratic. 

The case for Constitutional change and amendment is not as clear-cut as most people think. Because Constitutional commitments bar the pursuit of the popular will, it first of all makes us not self-binding to the Constitution and secondly, those who committed to the Constitution will never fully understand what they have committed to.

One point that was reached by Alexander Bickel is that “courts principles are required to gain assent, not necessarily to have it” (Bickel, 1986). This assent could be seen “in a rather immediate foreseeable future”. Bickel concluded by stating that in the event the assent does not materialise, the power of the people to overturn an interpretation of a constitution that they did not consent to “is how and why judicial review is consistent with theory and practice of political democracy” (Bickel, 2390. Hence, should a Constitution claim some inherent power to have a moment where it can say without a preceding legal order, there has to be some theory of constituent power? If so, does The Gambia need formal or substantive theory of Constitutional change or amendment?         

[1] Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11, [2013] 1 S.C.R 467.


References

Alexander Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (2nd edn, Yale University Press, 1986)

 Bruce Ackerman We the people, vol. 1: Foundations, (Havard University Press, 1991). 

Jeremy Waldron, “Precommitment and Disagreement” in Constitutionalism: Philosophy Foundations (1998)

Jon Elster Ulysses and the Sirens (Cambridge University Press, 1979).

Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11, [2013] 1 S.C.R 467

Sanford Levinson (ed.), Responding to Imperfection: the Theory and Practice of Constitutional Amendment (Princeton University Press, 1995)


Maria Saine is currently pursuing a masters degree in Law at Trinity College Dublin.
 

New Gambia and the Remaking of the Constitution

[Editor's Note: Satang Nabaneh's article was commissioned by International IDEA and was originally posted on ConstitutionNet, IDEA's online knowledge platform for supporting constitution builders globally.


                                         The Gambia's current President, Adama Barrow

                                         The Gambia's current President, Adama Barrow

On 1 December 2016, Gambia held a presidential election in which former President Jammeh (who had been in power for 22 years­) lost to the opposition coalition candidate Adama Barrow.  Initially, Jammeh accepted the results on 2 December only to reverse his position a week later, refusing to step down thereby plunging the country into an unprecedented political stalemate. The about-turn generated widespread local and international criticism, and started a flurry of diplomatic negotiations by ECOWAS. On 17 January 2017, the Alliance for Patriotic Reorientation and Construction (APRC) dominated National Assembly approved a state of emergency declared by the President a day before, and extended the term of the Parliament and the presidency by 90 days.

In response to the recalcitrant position of Jammeh, ECOWAS mobilized troops with the mandate to enter the country and forcefully oust the former President in case the diplomatic missions failed. Consequently, Barrow was sworn in as President on 19 January 2017 at the Gambian Embassy in Dakar, Senegal. Shortly after, a coalition of forces from five ECOWAS countries entered The Gambia stopping before the capital to finalize a diplomatic push for Jammeh’s exit.  Two days later, Jammeh, after having looted the state’s coffers, finally succumbed to diplomatic pressure and left The Gambia for Equatorial Guinea. On 26 January 2017, The Gambia’s new president, Adama Barrow returned to the country amidst widespread celebrations.

The 1997 Constitution and potential reform areas

The Gambia adopted its second republican constitution in 1997 following a referendum held on the draft constitution on 8 August 1996. President Jawara of the People’s Progressive Party (PPP) had dominated political life from pre-independence to 22 July 1994 when a coup d’état led by Yahya Jammeh, a young army lieutenant, overthrew his government. The coup d’état brought to an end the longest surviving multiparty democracy in Africa.

The Constitution recognises The Gambia as a sovereign secular republic. It is premised on the principles of separation of powers, rule of law and respect for fundamental human rights. However, trends in The Gambia characterized by the complete disregard for the rule of law and the personalization of the state by former President Jammeh over the past two decades, posed a clear and present danger to the full realization of the Constitution.

Not only was the former regime notorious for the disregard of the rule of law, but Jammeh further distinguished himself by a number of amendments to the supreme law with largely anti-human rights and undemocratic provisions, such as the removal of the two-term limit and sweeping reforms to the electoral law which required heavy financial deposits for Presidential and National Assembly candidates. Naturally, the new government has promised and has actually started the process of sweeping legal and institutional reforms, including repeals or amendments of several laws from the Jammeh era that eroded human rights.

1. Electoral Reforms

Section 26 of the Constitution guarantees citizens the right to make political choices, providing for free, fair and regular elections, and permitting qualified citizens to vote and stand for public office. On 28 February 2017, the National Assembly passed the Elections (Amendment) Bill 2017 “to encourage the widespread participation of the ordinary citizenry in the new democratization dispensation.” The Interior Minister noted that salaries of most Gambians are low, and the revenue that is derived from commercial activities is equally very low.

The amendment was a response to the major shrinking of the political space during Jammeh’s era. In July 2015, the Elections (Amendment) Act, 2015 was passed and signed by the President on 20 July 2015. The number of signatures needed to register a political party was increased from 500 to 10,000 registered voters with at least 1,000 from each of the administrative areas, in addition to the requirement that a party post a deposit of more than D 1 million (USD 24,000). Candidates for President were required to pay D 500,000 (approximately USD 12,500) raised from D 10,000 (approximately USD 250); the fee for candidates for the National Assembly was increased from D 5,000 (approximately USD 125) to D 50,000 (approximately USD 1,000) and candidates for local council office were to pay D 10,000 (about USD 200). Opposition political parties not only regarded the increases as unreasonably high but also as a ploy by the government to drastically limit the participation of the opposition in elections. The basic salary for an average government employee in The Gambia is D3000. Thus the exorbitant fees were clearly intended to discourage multiparty democracy as most people wouldn’t be able to contest without patronage and financial support from the ruling party.

Now, the 2017 amendment reduces the exorbitant fees back to their initial amounts: President D10,000, National Assembly D5000 and other categories to D2500 and D12500 respectively.  

2. Change of retirement age and removal of upper age limit for holding office as President

On the same day of the amendment of the Elections Act, the National Assembly also passed the Constitution (Amendment) Bill 2017 introduced by the Interior Minister on behalf of the President. The Bill amends section 141(2)(b) of the Constitution in extending the age at which a Supreme Court judge should vacate his or her office from seventy to seventy-five years. In addition, the amendment also removes the upper age limit of sixty-five for holding office as President provided under section 62(1)(b). According to the Interior Minister, the amendments were an attempt to ensure that competent and experienced Supreme Court judges and politicians will not be forced out of office in light of the limited number of qualified judges and political leaders.

However, the process for amendment by government was erroneous as they didn’t follow the proper procedures. In a televised statement, the Minister for Justice and Attorney General Tambedou advised President Adama Barrow not to sign the two recently amended constitutional provisions. Minister Tambedou believed “that the procedure adopted at the National Assembly to amend these constitutional provisions was misconceived. The process of amendment of the constitutional provisions should have been guided by Section 226 of the Constitution instead of Section 101 which was the procedure used at the National Assembly.” As the applicable amendments deal with sections 62(1)(b) and 141(2) of the Constitution which are not entrenched provisions, they fall within the ambit of section 226(2). The section provides that before a Bill for amendment is presented for first reading, it must be published in at least two issues of the Gazette, the latest publication being not less than three months after the first.  The Bill should also be introduced into the National Assembly not earlier than ten days after the latest publication and must be supported on the second and third reading by votes of not less than three quarters of all the National Assembly Members. This procedure was not followed.

The Minister took full responsibility for the error and promised to take actions to remedy the situation as well as avoid such occurrence in the future. He further underscored the urgent need to do a comprehensive review of the Constitution. This public apology and acceptance of responsibility showed the Government’s responsiveness to the concerns of citizens who lamented the non-adherence to the constitutional procedures in passing the amendments.

Other immediate potential reform areas for the government:

3. Introduction of presidential term limits

The issue of term limits is not stipulated in the 1997 Constitution. Currently, The Gambia and Togo remain the only two countries in West Africa without presidential term limits. When the issue was brought up at the ECOWAS Heads of State Summit in 2015, the two countries refused to agree to the plan of restricting West African presidents to two terms in office. This led to the abandonment of the idea by the sub-regional body.

The absence of term limits enabled ex-president Jammeh to stand and win elections four consecutive times and even to seek a fifth term unsuccessfully in December 2016. It further provided him the opportunity to misrule the country and govern horribly against his people for twenty-two years.

According to Memorandum of Understanding (MOU) of the Coalition, one of the key goals of the Coalition government is the institutionalization of term limits. There is an urgent need for an amendment to include a two-term limit of 5 years. In assuring Gambians that his government will introduce a two-term limit of 5 years, President Barrow stated that "with term limits, any president that comes will serve appropriately and have respect for the laws of the land because the person will know that there is an end to his or her tenure."

4. Media law reforms

Section 25 of the Constitution guarantees a wide range of rights, including freedom of speech and expression, and freedom of thought, assembly, and association. Under President Jammeh’s rule, the environment in which the media operated was a precarious one characterized by draconian laws and arbitrary arrests, detentions, and physical assaults against journalists, as well as by closure and burning down of media houses. 

As a dictator, Jammeh stifled the independent media. This was done through several changes which occurred including amendment to section 52 of the Criminal Code (Amendment) Act 2004 making any written or verbal statement that is critical of the government an offence; the offence of publishing false news with intent to cause fear or alarm to the public; the Information Act (amended) 2013 that provided a 15-year jail term for any person found guilty of using the internet to spread ‘false news’ about the regime or public officials. The amendment also imposed a fine of D 3 million (approximately USD 86,000) on persons found guilty of publishing ‘false news’ online against the regime or public officials.

There are several problems with such provisions, including the difficulty of distinguishing between fact and opinion; the chilling effect of such provisions have upon freedom of expression; and the fact that they do not serve any legitimate purpose which would justify restricting freedom of expression.

In addition to repealing these laws, a new Freedom of Information Act should be enacted to ensure the right to free speech and independence of the media. This will be in line with the promises made by the Justice Minister to make reforming media laws a priority. This will also guarantee the protection of press freedom which is vital to establishing and maintaining an open and democratic society in The Gambia.

Conclusion

We, Gambians fought against dictatorship because we wanted change: our rights and dignity restored. The hallmark of that dictatorship was the constant abuse of power through the blatant disregard for the rule of law as laid down in our Constitution. Going forward, Gambians must act as watchdogs to ensure respect for fundamental human rights by the government. It means also that every citizen must be a human rights defender or protector. Furthermore, this will also ensure efficient leadership and effective government that is responsive to our needs and accountable to the citizenry. 

In order to ensure that our democratic aspirations are attained, there is need for the creation of a participatory platform between state and non-state actors to agree on set human rights-based goals and priorities which are underpinned by the rule of law, transparency, and accountability. The Gambia can provide a blueprint for democratic movements in Africa through its transition from dictatorship to democracy. For that to be possible, provisions in our Constitution that are repugnant to natural justice or at variance with international human rights law must be expunged or amended to fall in time.

Satang Nabaneh is a Gambian human rights defender. She holds a Master of Laws (LLM) in Human Rights and Democratisation in Africa from the Centre for Human Rights, University of Pretoria, South Africa, and LL.B (Hons) from University of The Gambia.