Lawyer Gaye Sowe to TRRC – “1997 Constitution Worst in Gambian History”

Veteran Gambian lawyer and Executive Director of the Institute for Human Rights and Development in Africa, Gaye Sowe, on Thursday, told the Truth, Reconciliation and Reparations Commission that the 1997 Constitution is the worst Constitution the Gambia ever had. As he argues that Gambians deserved better, Gaye Sowe explained that the 1997 Constitution could quickly turn anyone into a dictator.

Testifying before the TRRC, Gaye Sowe said the 1994 coup d’état was illegal as it threw away Constitutional Order. “Military governments always try to come up with laws to make them look a bit legal,” Gaye Sowe explained. Yet, he said, soldiers would always slip towards stiffening the rule of law to accumulate power.

Gaye Sowe told the Commission that the 1997 draft Constitution did have an immunity clause, which gave the AFPRC junta and other government members more power. Gaye Sowe, therefore, stated that it was important for the Supreme Court of the Gambia to say that there is no immunity clause for human rights violations.

“Would you say that the 1997 Constitution was a template for the roadmap to Dictatorship?” asked Counsel Faal. The witness responded, “Yes, and it nearly made Jammeh be a monarch. Jammeh, therefore, embarked on amending the Constitution to give himself more powers, enabling him becoming a King.”

Gaye Sowe further revealed that what the soldiers and Yahya Jammeh’s regime took from the Gambian people (the Constitution the Junta scraped) differed from what they returned to the nation (the 1997 Constitution). While he would not say whether The Gambia should be a secular state or not, Lawyer Sowe noted the country’s leadership and citizens ought to respect decisions emanating from the highest Court.

“As per the 1997 Constitution, there is nowhere where the State embraces a particular religion. Therefore, Yahya Jammeh declaring the Gambia as an Islamic State was illegal and unconstitutional. It violated the ways we make laws in the country,” Gaye Sowe said. He explained that the Constitution did not provide any “executive directives” similar to other countries, like the US.

Gaye Sowe explained how 1997 enabled a legal environment for Yahya Jammeh to intoxicate the grassroots Local Governance System, especially the Alkaloship and Chieftaincy as well. The Executive Director of the Institute for Human Rights and Development in Africa added that the amendments of the 1997 Constitution also gave Jammeh powers to venture into several businesses, including selling sand.

On what the military Junta did of the provisions that reduced the President’s powers, Gaye Sowe said the soldiers removed that provision to suit Yahya Jammeh, or whoever eventually became the President. Gaye Sowe emphasized that when Gambians approved in a referendum that the 1997 Constitution “was the wish of the Gambian People, and still is”, they enabled Yahya Jammeh to self-perpetuate in power, and it affected Gambians the most.

On whether the Judiciary encourages compliance of the citizens with the truncated Constitution they adopted in 1997, Gaye Sowe responded, “Yes! When you talk about the Independence of judges, security of tenure comes to mind. Jammeh had power over the Judiciary, but he also had powers to remove members of the Judicial Service Council.”

On the election of the President of the Republic

Gaye Sowe informed the Commission that there was a 50+1 vote to elect a President out of an “Absolute Majority. But a 2003 amendment substituted it with a simple majority,” he said.

According to the season Gambian Constitutional specialist, “Section 63 of the 1997 Constitution that talks about the President’s tenure were also amended twice. Some of the provisions were very much self-serving,” Gaye Sowe revealed.

He added that treason’s concealment is punishable with life imprisonment, adding that the right to bail, pending appeal, was also taken away.

Finally, Gaye Sowe said the current regime of Adama Barrow did nothing much to amend the 1997 Constitution draconian laws. The indemnity Act (that guarantees impunity to gross human rights violators after the April 10-11^th bloody demonstration) and the NIA Act that gives immunity over abuses and human rights violations by agents of the National Intelligence Agency are some of these laws, according to him. “The only thing amended was the cross carpeting and the age limit on the presidency,” Gaye Sowe lamented.

Concluding his testimony, Gaye Sowe urged Gambians to listen to and respect each other. He appealed to the authority to implement the recommendations to come out of the TRRC process.