Sunday, July 21, 2019

What Is Meant By Transitional And Consequential Provision Of A Constitution?

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Some people have been arguing that the 1997 Constitution should not have been supported because of its transitional and consequential provisions. We expected that the legal minds will help explain what a transitional and consequential provision of a constitution is all about so that the chaff will be separated from the grain of constitutional law.

The nation is being cheated by its best legal minds whose duty  is to give knowledge on our instruments of governance without interfering with the due process  of the law as it governs the protection of the rights of people whose liberty may be at stake. To ensure that there is no mob justice and that each person is guaranteed the right to fair hearing and trial is why there is presumption of innocence until one is proven or pleads guilty.

These days the issue of a provision in the transitional and consequential part of the constitution regarding the indemnity of officials from 1994 to 1997 is in sharp focus. The Supreme Court is the authority empowered to interpret the provision. The TRRC and Yankuba Touray are all obliged to abide by the decision of the Supreme Court on this  matter. Any judge or magistrate who may hear a charge for contempt of the TRRC may be obliged to refer any claim of immunity to the Supreme Court for proper interpretation.

Hence the spirit of counselling and dialogue for a witness to voluntarily give testimony is appropriate for the TRRC. When incriminating evidence is adduced against a person the TRRC whose role is to give recommendation is duty bound to give a chance to those who are adversely affected to have their say rather than to appeal against any decision. Hence it would be an act of magnanimity just to ensure due process for a TRRC to recognise certain legal defences of a person who is adversely affected and refer their legal positions to the Supreme Court for final interpretation and proceed as ordered by the Supreme Court.

The country is doing what has never been done before. Those who are exercising direction or control of such transitional institutions should be ready to take the extra mile to ensure integrity and credibility. In our view, those who claim that the 1997 constitution should have been rejected because of some provisions in the transitional and consequential part of the constitution, must be seen to have little understanding of constitution.  

Let us explain in simple terms what is meant by transitional and consequential provision. Readers would recall that the coupists overthrew the executive and the house of representatives of the first republic, suspended the 1970 constitution and ruled by decree punishable by death sentence if they did not succeed.

From the 1994 to 16th January 2016 the supremacy of decrees was the order of the day and the world recognised the government as a legitimate one that they did business with. During that period, international treaties were signed, loans were taken, jobs were given, degrees were acquired, lease documents awarded, laws made like the Election Decrees, elections held and so on and so forth.

The 1997 constitution came into being on 16th January `1997. How would someone make all those actions that took place from 1994 to 1997 legitimate under the 1997 Constitution? This  is what gives rise to a transitional and consequential provisions of a constitution. They save what transpired in terms treaties, employment rights, property rights, court decisions in the new constitution.

The 1970 Constitution has its transitional provisions transferring the powers of Her Majesty and the Governor under the 1965 constitution  to the President and so on and so forth. The 1970 Constitution uprooted many of the transitional provisions in the 1965 constitution. The 1997 Constitution also uprooted many of the transitional provisions in the 1970 Constitution. Any post 1997 Constitution would also uproot many provisions of the transitional and consequential provisions. Hence the power to govern comes with the power to amend constitutions either by passing bills at the National Assembly or through a referendum for those provisions which cannot be amended by the National Assembly.

Now when it comes to couposts in Nigeria, Ghana and Gambia or any other place once they agree to the promulgation of a constitution under their rule they would also include in those transitional and consequential provisions, provisions to protect themselves from retroactively being prosecute for overthrowing governments and suspending constitutions and related matters.

If Gambians rejected the 1997 constitution because of such transitional provisions then they would have continued to be ruled by decrees. They would have probably been ruled by a Gaddafi like state until something like the Arab spring put an end to it. Gambian thinkers were more mature than that and that is why they accepted the 1997 constitution which enabled them remove the government in peace and establish the TRRC to expose all wrongs in order to promote repentance and forgiveness in order to build a better society. Those who refuse to accept the short-sightedness of their vision, tactics and strategies and the delay it causes and is still causing to the consolidation of democracy and the sovereignty of the people would always be groping in the dark without ever seeing light at the end of the tunnel.

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