BY:- DR. Henry D.R. Carrol (M.R.G.),
Senior Oxford-Trained Lawyer,
Solicitor General Emeritus Of The Gambia &
Founder Senior U.T.G. Law Lecturer (2007 to date).
INTRODUCTION:-
According to Jus Gentium (Latin:- Public International Law or The Law Of Nations), The Montevideo Convention authoritatively defines “A State”as “A political entity, with a fixed territory, a fixed population and a functional government.” Any political entity, which does not have these 3 important characteristics, is called “A Failed State”. The Republic Of The Gambia, is indeed a veritable State.
WHAT IS “A SECULAR STATE”?
The word “Secular”, is from the Latin word “Saeculum” or “Secularis”. Latin was the scholarly Official Language of the powerful Roman Empire. “Roma loquitor, causa finita” (Latin:- Rome has spoken, and the cause is finished).The Oxford Advanced Learner’s Dictionary, by A.S. Hornby, authoritatively defines “Secular” thus:- “Worldly or material, not religious or spiritual, for example secular education, secular art/music, the secular power, The State contrasted with The Church,” in The Gambia’s case it would be “The State contrasted with The Mosque.” The said dictionary goes on to define “Secularism” as, “the view that morality and education should not be based on religion.”Wikipedia encyclopedia on the internet says:- “A Secular State is an idea pertaining to secularity, whereby a State is or purports to be Officially neutral in matters of religion, supporting neither religion nor irreligion. A Secular State also claims to treat all its Citizens equally, regardless of religion, and claims to avoid preferential treatment for a Citizen from a particular religion/non-religion, over other religions/non-religions.” Going by these authoritative definitions, The Gambia is indeed a veritable Secular State. As the famous Sharia adage in Arabic goes:- “La Kum denu kum walia din” (:- follow your religion, and let me follow mine), from the Surah (Chapter 109, Verses 1-6) called “Caferon”, in The Holy Quran. There should be no compulsion or duress in religion. Prophet Muhammad also said:-“Beware! Whoever is cruel and hard on a non-Muslim minority, or curtails their rights or burdens them with more than they can bear, or takes anything from them against their free will, I (Prophet Muhammad) will complain against the person, on the day of Judgment.” Prophet Muhammad also instructed his followers, “to live peaceably with people of the book” (Christians, whose Holy Book is “The Bible” and Jews, whose Holy Book is “The Torah.” There is a time for every season and activity under the heavens–a time to remain silent and a time to speak”, from the book of Ecclesiastes Chapter 3, Verses 1 & 7, The Holy Bible
- MAI FATTY’S SERIOUS AND UNFOUNDED ALLEGATION:-
On 25th October, 2018, Mr. Mai Ahmed Fatty, the leader of the Political Party (Gambia Moral Congress- G.M.C., which does not have any seat in our present National Assembly/Parliament), a former Honourable Minister Of Interior in His Excellency President Mr. Adama Barrow’s present Coalition Gambia Government and My Learned Junior at The Gambia Bar, inter alia made this monumental, unacceptable and unfounded allegation, on his Facebook account:-
“….Contrary to the contention of many, including some lawyers, who continue to wrongfully contend that The Gambia is a Secular State, I asserted with categorical inference, that The Gambia is NOT a Secular Republic………. Seventeen years ago, the then Gambian Minister Of Justice & Attorney General introduced a Bill in Parliament (Act. No 6 of 2001) to amend Section 1 of the 1997 Constitution of the Gambia. Parliament subsequently passed the Bill into Law on the 15th May, 2001, and former President Jammeh signed his assent on the 25th May, 2001.
Subsequently, Honourable Kemesseng Jammeh filed a Writ of Summons against the Attorney General at The Gambia Supreme Court, invoking its original jurisdiction to declare that amendment not only null and void, being of no legal effect, but also a declaration that the promulgation of the Law by both the National Assembly and The President was ultra vires. The case reference is S.C.C. Suit No.4 of 2001.
It’s imperative to note that prior to the said amendment, the original wording of Section 1 of the 1997 Constitution reads:- “The Gambia is a Sovereign Republic.” The amendment sought to insert the word “Secular” between “Sovereign” and “Republic”, to read: “The Gambia is a Sovereign Secular Republic.”
The matter was set for legal arguments before a very eminent panel of five distinguished Justices of The Gambia Supreme Court. The gravamen of Honourable Jammeh’s contention was that Section 1 of the Constitution was an entrenched provision and therefore could not be amended through a normal process. It required amendment exclusively via a national referendum, and that the combined powers and authority of both the National Assembly and the President CANNOT alter that Constitutional imperative. Since the government was attempting to surreptitiously change an entrenched provision of the Fundamental Law through the back-door, the unconstitutionality must be resisted. The Attorney General raised untenable preliminary legal objections bordering on jurisdiction and more, with remarkable failure.
On the 29th November, 2001, the five eminent Justices of the Supreme Court UNANIMOUSY held that the amendment was unconstitutional, ultra vires, null and void, and of no legal effect. It struck off the word “Secular” from the provision for fatal irregularities. The significance of this landmark decision is that Section 1 of the 1997 Constitution reverts to its original provision: “The Gambia is a Sovereign Republic”. Now this brings me to my irrefutable assertion that The Gambia is NOT a Secular State. I am pleased to refer you to (1997-2001 GR 839, where the Case was legally dissected in extenso. That means the existing 1997 Constitution is silent over the matter of secularity, and there is growing public opinion that it should remain so, without being disturbed……..”
LEGAL ANALYSIS OF MR. FATTY’S SERIOUS AND UNFOUNDED ALLEGATION :-
Firstly, it is legally wrong for Mr Fatty to say in lines 6 and 7:- “Parliament subsequently passed the Bill into Law on 15th May 2001…”, because the National Assembly/Parliament can only pass a Bill, (the embryonic stage of an Act/Statute/Law. It is only after His Excellency The President Mr. Adama Barrow, has assented to a Bill (after it has been published in The Government Gazette, for any likely objection from the general public), that the Bill will then metamorphose to an Act/Statute/Law.
Secondly, it is Legally/Constitutionally wrong, for Mr Fatty to say:-“…It’s imperative to note that prior to the said amendment…”, because the then Attorney General & Minister of Justice (Mr. Joseph Henry Joof), merely attempted to amend Section 1 of the said Constitution. Since he never completed the two-fold amendment process, it was therefore a purported amendment, NOT an amendment. Honourable Mr Kemesseng Jammeh, then a U.D.P. Parliamentarian, now His Excellency The Gambia’s Ambassador to Turkey, must be warmly congratulated, for a legal job well done. He is the immediate successor of Mr Momodou Badjie, my classmate at St. Augustine’s High School, and the present able National Security Adviser. “He who comes to Equity, must come with clean hands”, as the Equity maxim goes.
Thirdly, I concur in toto ab initio (Latin:- altogether from the beginning), with My Learned Junior, Mr Fatty, when he wrote:- “…Since the government was attempting to surreptitiously change an entrenched provision of the Fundamental Law through the back-door, the unconstitutionality must be resisted.” Around 15th November, 2018, the B.B.C. “Focus On Africa” T.V. Programme, authoritatively reported that, His Excellency Mr. Omar Bongo of Gabon, is very sick and is presently receiving medical treatment in Saudi Arabia, and the entire Country/State has come to a halt, because The Gabon Constitutional Court, has illegally amended The Gabon Constitution, and has given Mr Bongo all Presidential powers which he wants, without following Constitutional procedures to do so, and Gabonese Lawyers (Our Learned Friends), have rightly called this callous and unconstitutional act “a Constitutional Coup.”
Fourthly, it is Legally/Constitutionally wrong, for Mr Fatty to say:-“…That means the existing 1997 Constitution is silent over the matter of secularity, and there is growing public opinion that it should remain so, without being disturbed ….” I vehemently disagree with My Learned Junior, the said Constitution is not at all silent “over the matter of secularity.” Let me now quickly quote 2 appropriate and powerful Sections of the said Constitution, to prove beyond all reasonable doubt, the aforesaid infallible assertion of mine. (1) The first Section is Section 100 (2) (a) & (b) which read:- “The National Assembly, shall not pass a Bill (a) to establish a one – Party State, (b) to establish any religion as a State Religion.”(2) The second relevant Constitutional Section, which also clearly proves that The Gambia is a Secular State is, Section 25 (1) (c) of the said Constitution, which reads:- “Every person shall have the right to :- (c) freedom to practise any religion and to manifest such practice.” It is of paramount Legal and Constitutional Importance, to highlight the indisputable fact that, The Gambia became a Secular State, from the very date on which it attained the National Status as a Republican State, on 24th April 1970. This is confirmed beyond the shadow of a doubt, by Section 21 (1) of The Gambia’s 1970 Republican Constitution, which was assented to by the late His Excellency Sir Alieu Sulayman Jack (K.C.M.G.), the then Acting Governor General Of The Gambia, who assented to the said Constitution, on behalf of Her Majesty Queen Elizabeth The 2nd Of The U.K. The late Sir Jack, was the father of the present Honourable Speaker of The National Assembly/Parliament, Honourable Mrs Mariam Jack-Denton, the first female Gambian Lawyer, My Learned Friend. The said Republican Constitution was being used during the era of the first Gambian President, His Excellency Sir Dawda Kairaba Jawara (K.C.M.G.), (G.M.R.G.). Vel Primus, Vel Cum Primus (Latin:- either the first, or among the first). The aforesaid Section 21 (1) of The Gambia’s 1970 Republican Constitution reads:- “Except with his own consent, no person shall be hindered in the enjoyment of his freedom of conscience, including freedom of thought and of religion, freedom to change his religion or belief and freedom, either alone or in community with others, and both in public and in private, to manifest and propagate his religion or belief in worship, teaching, practice and observance.”
Fifthly, the very fact that, The Gambia from the date it became a Republican State, throughout The Gambia’s 2nd Republic (from 22nd July 1994 to 18th January 2017), has incorporated in its Constitution, “the right to religion”, by way of “an entrenched Clause”, this is clear evidence to prove beyond all reasonable doubt, that The Gambia has continuously been “a Secular State”. The very fact that, this fundamental and highest Law in the land, (called “The Grund Norm” in Jurisprudential terminology), is recognizing and acknowledging “Religious Plurarism” In The Gambia, is indeed further evidence to prove, that The Gambia is indeed “a Secular State.” If Mr. Mai Fatty continues provoking and disrespecting Gambian Christians, none of them and liberal Gambian Muslims, will vote for him, in any type of free and fair Gambian election, organized by The Independent Electoral Commission (I.E.C.). He will certainly and deservedly get zero (0) votes from them.
SENEGAL IS A SECULAR STATE:-
This sub-title is “an alliteration of letter“ s””, in literary terminology, or ““s” to the power 4”, to use mathematical parlance. The present population of neighbouring Senegal, (our nearest African neighbour) is about 16,465,867 and 94% of this population, are Muslims (ie 15,477,915). The present population of The Gambia is about 2,188,158 and 90% of this population, are Muslims. Senegal’s first President, the late His Excellency Leopold S. Senghore, was a Christian, and His Excellency Sir Dawda Kairaba Jawara (K.C.M.G.), (G.M.R.G.), the first Gambian President, was also a Christian during the early days of his Statesmanship on 18th February 1965, when he successfully led Gambia to Independence, with his vibrant People Progressive Party (P.P.P.), and his then name and Official title was :-His Excellency Mr. David Kwesi Jawara, The Prime Minister of Gambia, and the name “Gambia” was later Officially changed to “The Gambia”, because postal mails for “Gambia”, in West Africa, South Of The Sahara, were mistakenly sent to “Zambia”, in Southern Africa and vice versa. Gambian Christians have indeed played a pivotal role, in The Gambia’s Constitutional History, (and they are still doing so patriotically). Three important cases in point are :- (1) The late Mr. Pa Louis Thomasi, a Gambian Roman Catholic Gentleman, who won the competition for designing The Gambia Flag, and he was given 50 Pounds Sterling in those days, for winning the said competition. (2) The late Mr Nicholas Potin, another Gambian Roman Catholic Gentleman, who also successfully designed The Gambia Coat Of Arms, the Official Logo of The Gambia Government, and he also won the competition, for designing the said logo, its use is legally regulated by an Act Of Parliament. (3) The late Mr. Edward Francis Small, a veteran politician, a Trade Unionist and a staunch member of The Gambia Methodist Church (my Church), who in 1920 ably represented Colonial Gambia in The Gold Coast (now Ghana), at the prototype Conference of National Congress For British West Africa (N.C.B.W.A.), where he gave a powerful speech about the rights of West Africans for Independence and Self-Rule. Royal Victoria Teaching Hospital (R.V.T.H) in Banjul, has been Officially and deservedly, renamed after him, in his honour.
On 19th November 2018, His Excellency Monsignor Dajobesto Compos Salas, The Ambassador of His Holiness The Pope To The Gambia, presented his Letters Of Credence to His Excellency President Mr. Adama Barrow, at The State House, and President Barrow rightly invited The Most Rev. DR. Gabriel Mendy, the Roman Catholic Bishop and his small Episcopal delegation, to this important Ceremony.
Conclusion:- “For The Gambia Our Homeland, We Strive And Work And Pray, That All Will Be In Unity, Freedom And Peace Each Day ….” The Gambia’s National Anthem. This powerful and relevant quotation is saying, both Christians and Muslims must always work together harmoniously as a united team, for the development of The Gambia, and religion, tribalism, regionalism etc, must not divide our one peaceful Gambian family, which our forefathers, had worked so hard to establish for us. On 8th November 2016, the then Honorable Mr Adama Barrow, The President-Elect, in an interview on Gainako Radio, made it abundantly clear, that The Gambia is a Secular State.
NOTE:- The Author, DR. Henry D.R. Carrol (M.R.G.), (1) has been deservedly awarded a Honorary Doctorate Of Philosophy Degree, by The Zoe Life Theological College in Philadelphia, U.S.A., and the Citation for the Award was:-
“ FOR PROMOTING AND SPONSORING CHRISTIANITY IN THE GAMBIA” & (2) He is also a Senior Canadian-Trained Theologian, with a Diploma In Church Ministry/Theology, from Wycliffe College Of Theology, Canada, affiliated to University Of Toronto, Canada.