power of the people

How can young people shape The Gambia's democratic future?

The author gave a similar speech on the theme during the lecture on ‘The Gambia’s constitutional reform process’ organised by the International IDEA:  Institute for Democracy and Electoral Assistance and Faculty of Law, University of The Gambia, 16 March 2018.


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The role of young people in shaping democracy in The Gambia requires a deep historical reflection stretching from the struggles of our forefathers against colonialism and the struggle of young people in the defeat of a 22-year-old dictatorship in 2016. Therefore, the role of young people in shaping democracy today should not be seen as isolated efforts to ensure accountability and resistance to abuse of power, rather it should be seen as a continuity of struggles long conceived even well before the birth of our independence. However, that history will be worthwhile exploration elsewhere. Today I want to address the theme by first looking at the efforts at the regional level that were designed to enhance youth participation in democracy.

At the African regional level, the transformation of the Organisation of African Union (OAU) to the African Union (AU) in 2002 marked a renewed commitment to the promotion of democratic institutions and good governance in Africa. This commitment is premised on the recognition that inclusive participation, good governance and democracy are fundamental pillars of continental development. In 2013 the AU adopted the Solemn Declaration which called on African states to unite and articulate common development aspirations reflective of the continent’s contextual realities. That commitment gave birth to the adoption of Agenda 2063 which articulates Africa’s long-term development vision. Aspiration 6 of Agenda 2063 provides that the continent aspires for an ‘Africa, whose development is people-driven, relying on the potential of African people, especially its women and youth,’ As such, youth are critical to the realisation of Agenda 2063 as over 60% of the continent’s population is estimated to be under the age of 30.

Moreover, in recognition of the role of youth in ensuring democracy, the AU adopted other normative and institutional frameworks that require member states to enhance the participation of young people in democracy, governance and decision-making. These normative frameworks include the Youth Charter adopted in 2006, the African Charter on the Rights and Welfare of the Child (1990), the African Charter on Democracy, Elections and Governance (ACDEG) (2007), the African Charter on Human and Peoples’ Rights (1981), and the Constitutive Act of the AU (2002). All these instruments engender rights, duties and freedoms that enhance the meaningful participation of young people in issues that concern their well-being, aspirations, democracy and governance.

Based on these frameworks, the AU also devoted 2017 as the year of ‘Harnessing the Demographic Dividend through Investments in Youth’. In pursuance of this agenda the African Union Commission designed a roadmap that focuses on four pillars on youth investment. These pillars are Employment and Entrepreneurship, Education and Skills Development, Health and Wellbeing, and Rights, Governance, and Youth Empowerment. The fourth pillar which involves Rights, Governance and Youth Empowerment deals with a commitment to ensure youth participation, representation and inclusion in decision-making processes is guaranteed. The pillar also calls for an inter-generational dialogue that will foster learning for emerging young leaders in the continent.

Drawing from these standards, the AU shows a commitment to enable youth participation in democratic governance. However, the extent to which youth will effectively participate in democratic governance will depend on the level at which these frameworks are translated into realistic commitments and policies at the domestic level. Lack of political will and dictatorial tendencies can create a disjoint between regional standards and national efforts.

The Gambia is a party to many regional instruments and in fulfilment of her obligations have adopted policies and laws to enhance youth participation in democratic processes. Article 89 (1)(b) of the Constitution of the Gambia 1997, sets the minimum age limit to participate in parliamentary elections at 21 years. For presidency, Article 62(1)(b) sets the minimum age at 30 years. Moreover, Article 196 makes it mandatory on every Gambian to undertake national youth services after attaining the age of 18. In addition to the Constitution of the Gambia 1997, the government also adopted the National Youth Policy subsequent to the establishment of the Gambia National Youth council in 2000. The purpose of the NYC council is aimed at enhancing the participation of youth in national development.

The role of youth in shaping democracy in the Gambia was crystallised in the 2016 Presidential Elections when they rallied to elect a new leader that would pave the way for what would be the first democratic change of government in the history of the country since 1965. This change did not only allow the new government of The Gambia to close a dark chapter of bad governance since 1994, but also presents an opportunity for renewed commitment to the respect of human rights and democracy. In light of that change, the new government of President Adama Barrow pledges to embark on a comprehensive constitutional reform to further consolidate democracy and human rights protection in the Gambia.

The engagement and participation of youth in this election was unprecedented and critical. Due to their frustration over the autocratic regime of President Yaya Jammeh, they rallied behind the banners of opposition coalition to usher in democratic and constitutional change of government.

Beyond the 2016 elections, from civil society forums, government platforms and on the streets, young people in the Gambia manifest a strong commitment and ethos to ensure that the new government in Banjul lives up to its commitment to democracy, good governance and respect for human rights.

The change of government ensured by young people has also led to the widening of the democratic space in the Gambia where they are unhindered to hold government accountable through social accountability mechanisms. This has led to the formation of youth organisations that are contributing in the policy processes to proactively advance good governance, human rights and democracy. A-Plus Gambia is an example of a youth organisation that is making efforts to hold the government accountable through public expenditure reviews and monitoring of budget. Thus, through budget monitoring youth groups are able to assess the gaps that exist between policies and government actions to ensure the progressive realisation of socio-economic rights particularly local government service delivery. The significance of such activities by youth groups is not only important in shaping democracy but also engender discussions around alternative policy choices for the realisation of human rights.

Furthermore, youth are also involved in peace building efforts in the Gambia. On 9 and 11 May 2017, Gambian youth in partnership with young leaders from 22 African countries organised and hosted a conference under the theme ‘Youth, Peace building and Regional Solidarity: Lessons from Africa’. The conference was jointly funded by the government of The Gambia, UNESCO, and the African Council for the Development of Social Science Research. This conference provided an opportunity for stakeholders to reflect on the challenges and opportunities for youth in transitional systems. More importantly the young participants highlighted the need for intergenerational interaction and dialogue in sustaining peace and ensuring the durability of democracy. The conference also provoked discussions on gender equality, peace consolidation and youth participation in governance.

Nonetheless, as writers accurately put it that the youth bulge in Africa is a double-edged sword. While it can be a catalyst for economic growth and transformation when well-managed, but it can also spur violent conflict across the continent.

Going forward, our fears and aspirations as young people should dictate the pace of our constitutional making process. According to His Lordship the CJ Honourable Hassan B Jallow, ‘’the 1970 Constitution was a well-crafted constitution indispensable to the proper functioning of government’’ However, written constitutions are not a guarantee for democratic government based on constitutional conventions. He went further to say that ‘’the ultimate guarantee for good governance reposes not in the letter of the law, but in the will, commitment and determination of the people and their leadership to tread the path of justice and fair play.’’ It this commitment and will, we the young people of this country demand from our government. We are not negotiating our future in these trying moments of our times.

It is important to emphasise that democracy in this context is understood as popular governance that has its roots in the enlargement of the public sphere for people to constructively participate in the choice of governance they desire. As such, in this context democracy is not synonymous to western liberal democracy which does not give primacy to group rights as a basis for rights, freedoms and duties. The AU has over the years recognised African values as central to human rights, governance and democracy. Thus, Article 3(b) of the Charter for African Cultural Renaissance endears African states ‘to promote cultural democracy which is in separable from social and political democracy. The charter also calls on African states to strengthen the role of African values in promoting peace, good governance, social cohesion and human development. 

As young people, we look forward to an inclusive constitutional making process that will recognise our concerns and fears.

 

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.