Is the Constitution according to the Gambia Bar Association a sacred text, a political tool, or both?

By Rtd Lt Colonel Samsudeen Sarr

There is an old saying that even a stopped clock is right twice a day. The same, it appears, can now be said of constitutions. A constitution that was yesterday dismissed as the illegitimate offspring of military dictatorship has suddenly been rediscovered as the Holy Bible of Gambian democracy.

One almost expects members of The Gambia Bar Association (GBA) to begin carrying pocket editions of the 1997 Constitution with the same reverence medieval monks reserved for sacred manuscripts.

The occasion for this constitutional conversion, of course, is the rumored appointment of Mr Edi MO Faal as Chief Justice of The Gambia. The GBA has swiftly convened an emergency meeting, unanimously concluded that Mr. Faal allegedly falls short of the qualifications prescribed by Section 139(2) of the Constitution, and dutifully informed the President, the Judicial Service Commission and the Attorney General of its findings.

Fair enough.

Lawyers are paid to interpret laws, not to predict the weather.

But if constitutional fidelity is now the profession’s highest calling, Gambians are entitled to ask one rather inconvenient question.

Where was this remarkable constitutional vigilance in 2018?
That year, the Truth, Reconciliation and Reparations Commission (TRRC) was established amid enormous national and international fanfare. The same Constitution that the GBA now invokes with almost theological devotion was already in force.

Section 201 of that Constitution specifies the qualifications required of a Chairperson of a Commission of Inquiry. It is not an obscure footnote buried beneath legal jargon. It is written in plain English.

Yet the appointment of Dr Lamin J Sise generated remarkably little constitutional soul-searching from the legal fraternity.

Instead, Gambians were rightly reminded of his distinguished international career at the United Nations International Criminal Tribunal for the former Yugoslavia.

No one disputes that Dr Sise possessed an impressive résumé.

But constitutional qualifications and impressive résumés are not necessarily the same thing.

If the Constitution is to be interpreted literally today, why was it interpreted so generously yesterday?
Ostensibly, constitutional principles, like certain imported commodities, are subject to seasonal availability.

Even more fascinating is the silence that surrounded the implementation of the TRRC Act itself.

Many Gambians still remember the unexplained replacement of Senior Counsel Lamin J Darbo, who reportedly received an appointment letter as Lead Counsel before quietly disappearing from the process, only to be replaced by Essa Mbye Faal. No public explanation was ever offered.

The legal fraternity scarcely raised an eyebrow. One could almost hear the deafening silence.

Then there was Section 202 of the Constitution, which requires commissioners to conduct “a full and impartial investigation.”

Impartiality, one would have thought, is the oxygen of any commission of inquiry.

Yet serious concerns were repeatedly raised by observers, military professionals and participants regarding whether some commissioners possessed either the necessary impartiality or sufficient understanding of military affairs to distinguish between lawful military orders, unlawful commands, operational doctrine and command responsibility.

Whether those criticisms were justified is not today’s debate. The question is simpler. Where was the constitutional alarm? Where was the emergency meeting?

Where was the unanimous resolution declaring that the Republic itself stood at the edge of constitutional collapse?

Hmmm!

As for Mr Edi MO Faal himself, I claim no personal familiarity beyond what many legal professionals have said about him over the years. By virtually every account, he has spent decades practicing law in the United States with distinction, handling complex civil and criminal litigation.

To suggest that an accomplished American attorney is somehow unfamiliar with the common law tradition is rather like suggesting that a graduate of Oxford has never encountered the English language.

The United States inherited the common law from Britain before adapting it through its own constitutional development, just as Canada, Australia and numerous other jurisdictions have done.

America did not import common law from another planet. None of this settles the constitutional question surrounding his eligibility. That is ultimately for the appropriate constitutional authorities, and, if necessary, the courts, to determine.

What it does expose, however, is something far more troubling than one rumored judicial appointment.

It exposes the growing tendency within our public discourse to treat the Constitution not as a consistent legal compass but as a political Swiss Army knife, taken out whenever useful and quietly returned to the pocket when inconvenient.

For years, Gambians have been told that the 1997 Constitution is fundamentally defective; that it was born of authoritarianism; that it requires comprehensive replacement before genuine democracy can flourish.

Now, almost overnight, that same Constitution has apparently become so flawless that every clause must be defended with almost religious zeal.

One wonders whether the Constitution itself has changed, or merely the political convenience of quoting it.

The irony becomes even richer when one considers that many of our intellectual elites passionately condemn colonial legacies while simultaneously insisting that our national progress depends upon rigid adherence to legal structures inherited from Britain’s common-law tradition.

Britain itself has no single written constitution. Apparently constitutional flexibility is celebrated in Westminster but condemned in Banjul.

The average Gambian, meanwhile, is preoccupied with the rising cost of food, electricity, healthcare and employment. Most citizens are not spending sleepless nights pondering the jurisprudential mysteries of Section 139 or Section 201.

Those debates belong largely to our legal and political elites.

Precisely because they occupy such privileged positions in shaping public opinion, they owe the nation something more valuable than selective constitutional scholarship.

They owe us consistency.

A Constitution cannot be dismissed as a dictator’s relic on Tuesday and elevated to divine revelation on Thursday.

It cannot be condemned as illegitimate when it frustrates political ambitions yet celebrated as untouchable when it frustrates someone else’s.

That is not constitutionalism.

It is constitutional convenience disguised in judicial robe

And perhaps that is the real constitutional crisis confronting The Gambia, not who becomes Chief Justice, but whether we have become a nation where principles are measured not by their consistency but by their usefulness.

When constitutions become political weapons instead of constitutional compasses, everybody eventually loses, even those who think they have won.