GSIC response to the Draft Constitution
Honorable Commissioners of the CRC, it is with great pleasure that we write to express our profound gratitude and appreciation for the tremendous efforts exerted to produce this magnificent, inclusive and accommodative piece of legislation that is very responsive to the wishes and aspirations of every Gambian regardless of ethnicity, tribe, religious affiliation or social status.
This great achievement deserves every Gambian’s appreciation. We pray that the Almighty Allah continues to bless and guide this nation. However, due to the fallibility or imperfection of human nature, it is a possibility that some defects, no matter how small, are natural consequences in any handiwork of man. As a result, the Gambia Supreme Islamic Council (GSIC) with its individual members and organizations prepares this Position Paper to outline its observations and provide recommendations to that effect.
The comments are divided into two parts. Part l talks about Secularism/Secularity /Secular and Part ll contains our observations and recommendations.
First l: Comments on the word Secular
The GSIC strongly reaffirms its position that the Gambia had and has never been and should never be a Secular State. It should remain a Non-Secular State.
This is what we inherited from the founding fathers of the nation and this is what is deeply rooted in our social norms and values. Our Non-Secular Status has provided us all the peaceful co-existence, freedom of conscience, liberty to embrace any conviction and the right to enjoy any religious, political, denominational affiliation without being subjected to any restraint or persecution.
We understand that there are many Gambians including the Christian Council (GCC) who are trying to cunningly attributelink their demand for Secularism with the unilateral declaration of The Gambia as an Islamic state in 2015 by The former president. That is very unfortunate and quite misleading.
All this with their full knowledge that the first attempt to secularize and deconsecrate our lives, cultures and moral values started in 2001, fourteen years before that unilateral declaration. And it cannot escape any reasonable mind that, the single word of Secular in the Constitution wouldn’t have precluded the former president to make such a declaration or prevent any other likeminded president to make such declaration in the future.
We have no doubt that the secularists would find it difficult to find a reasonable justification for their demand. From 1965 to 2001 of peaceful coexistence, freedom to practice any religion and to manifest it and the cordial relations that existed between religions without the word Secular in any of the previous constitutions, is a clear indication that the unconstitutional attempt to insert the word in the 1997 constitution in 2001,was not to be done in good faith. And GSIC believes that it is the same bad faith that is driving the calls to have the word inserted in the draft constitution.
When we submitted our rejection of Secularism in 2018, we stated clearly that the status quo should remain (Non-secular state).We have good intention of protecting norms and values of all religions in the Gambia.
The draft law provides sufficient provisions that protect all faiths. Section 8 caters for the enforcement of the Constitution and section 33 provides for the enforcement of Fundamental Human rights and Freedoms. We believe that section 47 which talks about freedom of conscience, section 67 which talks about protection from discrimination and section 151(2) which precludes the National Assembly from declaring any religion as the state religion in addition to the earlier mentioned sections are enough safeguards catering for all possible concerns. However, if the other religious groups opt to ally with secularists in an ideological fight to deconsecrate, de-religionize and de-spiritualize our norms and values which we believe had started since 2001 or a way beyond, that will never deter us to continue advocating peacefully against the inclusion of the word SECULAR in the Constitution. Simply because, secularizing the country is a high threat to our religious freedom and practices as we have seen in France and some parts of the world. The GSIC believes that the inclusion of the word is a serious threat to the religious harmony and respect that the country has been known for.
It is ironic that some section of the society is trying vehemently to borrow beautiful garments to dress Secularism elegantly in the eyes of the Gambian people. Our people deserve to be told the truth. We have enough examples to show dangers and threat of Secularism to religious freedoms. France, which is the father of modern secularism and the main proponent of the doctrine in modern times, banned the wearing of religious symbols in certain public places in 2003 in the name of protecting secular values. France was truly reflecting secular norms and values in passing that law. We know that Gambia is heading there. And we do not want to be caught by surprise. In addition to that, the recent comments made by one National Assembly Member suggesting the removal of mosques in public places is a true manifestation of how Secularism works and how it is going to work in the Gambia when the word is inserted.
We are aware that some attempts are being made to compare the Gambia with our neighbor, Senegal as an example of a secular country which demonstrates peaceful coexistence among different religious groups.
We do not want to plunge into an endless debate about the difference between Senegalese Legal System and political reality, with the Gambian one. However, GSIC believes that the most appropriate example should be a country that the Gambia shares the same Common Law and a similar Legal System with such as Nigeria, Ghana, Sierra Leone and Liberia, none of which has the word Secular in their constitutions. We see no reason why the Constitution of the Gambia should bear the word.
Noise is being made in some quarters that the constitution should not accommodate Sharia law because they believe that the Gambia is a secular state. We assert that The Gambia is not the only country that recognizes Sharia law in its constitution. There are many countries around the world including Common Law countries that adopt Sharia as part of their Laws. Some examples are Kenya, Ethiopia, Tanzania, Uganda, Nigeria, Eritrea etc,.
Changing the Cadi Court to Sharia Court is just a correction of a very long standing legal anomaly that had existed more than hundred years (from Muslim Court to Muhammedan Court, Cadi Court, and now to Sharia Court) in the same way that current High Court of the Gambia was changed from Supreme Court to High Court some decades ago.
Finally, the GSIC is not demanding any preferential treatment from the state. All we want is that justice and equity reign in the country. It is a common knowledge that Common Law is inherited from our former colonial master, Britain and is largely based on customs and traditions of Britons which are hugely influenced by Christianity. And these Christian Laws and traditions have been made applicable to all Muslims in the Gambia since the colonialist came to the country but without any objection from Muslims.
Why then should Christians or any other person object when Sharia law is being made applicable to only Muslims? Instead, we have seen a lot of preferential treatment being given to Christianity in the Gambia. More than 15 days or so is given as a holiday for Christmas and the Christian New Year, while Tobaski, Koriteh and Muslim New Year is never given more than two days holiday. We have also seen Sunday being an official off day in the entire country for Christian brothers to go to Church while Muslims are not given the same treatment on Friday and Muslims never complain about this unfair treatment.
The Second Part: Observations
Section 9 (e) of the Constitution states; the Shari’ah as regards matters of marriage, divorce, burial, endowment (waqf) and inheritance among members of the communities to which it applies. The GSIC observes that when the Draft Law treats the original jurisdiction of the Sharia High Court in section 186(1), it mentions ADOPTION which is not captured in section 9(e) as part of the laws of the Gambia. Section 186. (1)reads” Save as provided in section 184, the Shari’ah High Court has original jurisdiction to hear and determine Shari’ah causes or matters relating to adoption, (kafala) marriage, divorce, burial, inheritance, or endowment (waqf) amongst people who are subject to Shari’ah in that. We recommend that the word ADOPTION be added to Section (9) (e) to harmonize the two sections.
We also recommend that the word ADOPTION be given an Islamic interpretation to mean ‘Kafala’.
The draft law should state clearly the qualification of a legal practitioner who can represent a party in Sharia High Court as captured in Section 186 (4) which reads (4) A party to proceedings in the Shari’ah High Court is entitled to be represented, at his or her own expense, by a person qualified in the Shari’ah or by a legal practitioner.
We recommend that the ‘Legal Practitioner’ mentioned above should be a person qualified in shari’ah before he/she can appear in Sharia Courts.
In order to avoid unqualified judges in Sharia to adjudicate Sharia matters, the GSIC is proposing that the Appeal Court and The Supreme Court be ousted from adjudicating Sharia matters and the hierarchy of Shari’ah courts be as follow:
A. Sharia Subordinate Court
B. Sharia High Court
C. Sharia Division in the Court of Appeal
D. Sharia Division in the Supreme Court
(n) We recommend that the minimum qualification requirement for persons who are to be appointed in the office of a Sharia judge to be as follows:
a. Obtaining at least a degree in Sharia adjudication or
b. At least a bachelor degree in Sharia
c. Or a combination of degree of Sharia and Law
Right to marry: Section 52 of the Draft Law states (1) Men and women of full age and capacity have the right to marry and found a family. And sub section (2) Marriage shall be based on the free and full consent of the intended parties. Our observation and concern is that this section is very vague and broad
to the extent that, it could be interpreted to include homosexuality.
So, we recommend that the CRC add the following to section 52 “subjected to Personal Laws of marriage whether it is Religious or Customary Law”
In conclusion, the GSIC with all its member organizations, believe that taking these observations into consideration will crown your work and also give The Gambia the best constitution ever created in our history.
Summary of demmands
The GSIC demands that Secularism/Secularity/ Secular or words or phrases with similar meaning be never inserted in the constitution.
We demand that Shari’ah law and Shari’ah courts be maintained but with the creation of Shari’ah Divisions in both the Appeal Court and the Supreme Court occupied only by those qualified in Sharia to entertain appeals from the Shari’ah High Court.
We demand that Marriage be clearly defined to reflect our religious and cultural values.
We demand that the word ADOPTION captured in section 186(1) be added to section 9(e) and be given an Islamic interpretation.
We demand that the Legal Practitioners be qualified in Shari’ah before he/she can appear in sharia courts.