In Golak Nath v Punjab,(AIR  SC 1643), which concerned a constitutional amendment that abolished property rights, the Supreme Court ruled that an amendment could not abridge fundamental rights even if it followed the constitutional procedure.In 1973, following the enactment of four constitutional amendments that limited the power of judges and judicial review, and restricted property rights, the Supreme Court in the landmark case of Kesavananda Bharati v State of Kerala, (AIR  SC 1461) applied the basic structure doctrine. In his judgment, Khanna J. said, “it is not permissible to touch the foundation or to alter the basic institutional pattern. The words ‘amendment of the Constitution’ with all their wide sweep and amplitude cannot have the effect of destroying or abrogating the basic structure or framework of the Constitution.” The seven-to-six majority decision also held that contrary to the decision in Golak Nath, any part of the constitution could be amended.
Following more conflicts between the judiciary and the other arms of government, led by Indira Gandhi, the Supreme Court reasserted itself in the case of Minerva Mills v India, (AIR  SC 1789). In the words of Chandrachud CJ., “[t]he power to destroy is not the power to amend. Since the Constitution had conferred a limited amending power on the Parliament, the Parliament cannot under the exercise of that limited power enlarge that very power into an absolute power.”
But what does all this mean for the Gambia? The Gambia’s Bar Association in their public statement on Jammeh’s annulment of the elections have pointed out that Jammeh’s actions are not only unconstitutional but treasonable offences. But who can stop him? Even if the Supreme Court was properly empanelled and could hear the election petition and consider the unconstitutionality of Jammeh’s annulment of the elections, it arguably could not stop a tyrant desperate to hold on to power. Jammeh has not shown any respect for the basic principles of the Gambia’s Constitution, nor has he shown any respect for the fundamental rights of the people expressly provided for. The preamble of the Constitution states,
“This Constitution provides for us a fundamental Law, which affirms our commitment to freedom, justice, probity and accountability. It also affirms the principle that all powers emanate from the sovereign will of the people.
“The fundamental rights and freedoms enshrined in this Constitution will ensure for all time respect for and observance of human rights and fundamental freedoms for all, without distinction as to ethnic considerations, gender, language or religion. In acknowledging our fundamental rights we also affirm our duties and responsibilities as citizens of this Country.
“This Constitution guarantees participatory democracy that reflects the undiluted choice of the people. The functions of the arms of government have been clearly defined, their independence amply secured with adequate checks and balances to ensure that they all work harmoniously together toward our common good.”
From experience, we know that when a person wants to perpetuate themselves in power, they destroy the existing constitution so much that it is not worth the paper that it is written on and in the extreme they just dismantle all constitutionally provided structures and recreate a constitution that suits their purposes. We have seen this happen before with our neighbour to the North, Niger Republic.
In the Niger Constitution of 2010, amendment procedures are provided in Articles 173 – 175. The procedure requires a bill jointly initiated by the President and members of the National Assembly. The bill must be voted by a majority of three-fourths (3/4) of the members composing the National Assembly to be considered and it is approved by four-fifths (4/5) of the members of the National Assembly, If it is to be adopted. In default, the bill is submitted to a referendum. The power to amend is limited by Article 175, which states that “(n)o procedure of revision may be engaged or followed when the integrity of the territory is infringed.” It further limits the power excluding the following from amendment: the republican form of the state, the multiparty system, the separation of religion and state and specific provision of Article 47 and Article 185. The provisions of Article 47 protected from amendment concern the election and tenure of the President of Niger. Article 185 grants amnesty to those involved in the 2010 coup d’état.
In 1960, Niger proclaimed its independence from France, and Hamani Diori became leader of a single-party dictatorship that was toppled by a coup d’état in 1974. What followed was military dictatorship that lasted until 1993 when the first multi-party presidential elections were held in the country. Again, in 1996, a military coup d’état brought in a new government led by Col. Ibrahim Baré Maïnassara who was subsequently elected President. In 1999, another coup d’état ended the presidency and life of Maïnassara. Later that year, a new constitution was promulgated, and a new president, Mamadou Tandja, was elected. Conflict between Tandja and the other branches of government began when he refused to step down at the end of his constitutionally permitted two terms in 2009.
Tandja tried to change the constitution to extend his term by 3 years and dissolved the legislature when he did not get their approval. He then constituted a committee to draft a new constitution, which removed presidential term limits. When he did not get the constitutional court’s approval to put the new constitution to the people for a referendum, he dissolved the court and held the referendum. By this time he had become very unpopular and was deposed in yet another coup d’état in 2010. The military constituted a transitional government and introduced a new constitution which was accepted by the people in a referendum.This is the 2010 constitution, which aimed to address the excesses of Tandja, curb the presidential powers, and institute a true democracy, which had eluded them since independence. It also enshrined, in the Constitution, the protection of those involved in the coup, from future prosecution.
It is interesting to note that the Gambian Constitution does not provide for presidential terms limits, while the tenure of the president is 5 years, the absence of limits on the number of terms a president can serve means that, like Jammeh, you can perpetuate yourself in office under the cloak of democracy. After this political dust settles, if Adama Barrow succeeds Jammeh, it may be worth it to consider amending the Gambian Constitution to limit the number of terms that a president can be elected into office and to ensure the independence of the judiciary. The lessons from the past 20 years under Jammeh must be reflected in the constitution, to prevent future abuses of presidential power.
Merry Christmas, everyone!