By Bubacarr Drammeh
Introduction
One of the most controversial provision of the draft constitution is section one. The said section reads “The Gambia is a Sovereign Republic.” The Nation is divided on whether the word secular should be inserted into section one of the draft constitution. The Constitutional Review Commission (CRC) is tasked with the difficult job of deciding whether to add the word secular to section one of the draft constitution. However, the ultimate decision of whether the word secular should be inserted in the constitution rest on those who are eligible to vote come the day of the referendum. Mr. Chairman, it is my humble opinion that the word secular should not be part of the constitution of The Gambia.
The addition of the word secular in the constitution would not only lead to absurdity, it could be a basis for the eradication or expulsion of some religious practices fundamental to people of faith. The political consequences could be huge i.e. the addition of the word secular may lead to the total rejection of the intended 2021 constitution. Thus, a waste of time and resources.
Many citizens— either as religious leaders, scholars, or activists— have opined on the addition or omission of the word secular based on their perspective. I intend to bring out the legal consequences of the addition or omission of the word secular.
What is secular and secularism?
Cambridge Dictionary defines secular as “not having connection with religion” whiles the Oxford learner’s dictionary defines secular as “the belief that religion should not be involved in the organization of society, education, etc.”
With respect to Secularism, Oxford learner’s dictionary defines Secularism as it defined the word secular. Cambridge Dictionary, on the other hand, defines secularism as the belief that religion should not be involved with the ordinary social and political activities of a country.
Forms of secularism
Secularism could be categories into two distinct forms: hardline secularism or flexible secularism. Hardline secularism requires that strict neutrality of public service be respected. For example, by prohibiting all public students from manifesting any religious beliefs and limiting all manifestations of religion to those displays or practices which could take place in the student’s private lives or on weekend.
Flexible secularism would provide a forum in which all religious beliefs could be acknowledged and expressed equally. This variety of secularism would accept all beliefs, recognizing that their expression in form of an outward religious sign is a matter of individual right.
Whatever form of secularism a country decided to abide by, both calls for the complete separation of religion and the state.
I will use two countries that are regarded as democratic with a reputation of secularism to explain the two forms of secularism. I will use France as my case study to explain Hardline secularism, and the United States to explain flexible secularism.
Secularism in France
Nicky Jones, in his published article— Religious Freedom in a Secular Society: The Case of the Islamic Headscarf in France— stated thus:
secularism in France was developed to counter the formidable power of the established Catholic Church and to free the State’s public services, particularly its public schools, from the involvement and influence of the Church and clergy. Over many centuries, the Catholic Church had traditionally been responsible for education and had played an important role in administering schooling and maintaining public order in France. The Church and political institutions maintained close relations, as part of which Church officials were paid functionaries, and institutions of each power supported the other in a liaison of mutual advantage.
The 1958 Constitution of France— which is still the Constitution— stated in article 1: “France is an indivisible, secular,democratic and social Republic. It shall guarantee equality before the laws of all citizens without distinction according to origin, race or religion. It shall respect all beliefs.” In 2004, the French Parliament enacted legislation formally prohibiting the wearing of overt religious symbols in all public institutions including schools, libraries and government buildings. Shortly after this law passed, two Muslim schoolgirls aged 11 and 12 years old, wore their Hijab to school. They were asked on number of occasions to remove them, they refused to do so and were expelled from school. Their families appealed against their expulsion, but the entire French justice system ruled against them.
After exhausting local remedies, they filed a complained at the European Court of Human Rights that their expulsion violated Article 9 of the European Convention protecting their right to freedom of religious expression and Article 2 of protocol No 1 to the European Convention protecting their rights to education. The court noted that secularism was a constitutional principle and a founding principle of the Republic of France, the protection of which appeared to be of primary importance, particularly in schools. An attitude that failed to respect that principle would not necessarily be covered by freedom of religious manifestation and would not be protected by Article 9 of the European Convention. The Court concluded that the restriction in question was justified as a matter of principle and proportionate to the aim pursued.
In 2010 the French parliament passed a law banning Niqab. The penalty for wearing niqab attracts a maximum of 150 euros or a citizenship class or both. This law was approved by the Constitutional Council of France.
Secularism in United States
Many of founding fathers were religiously persecuted in Europe. The persecution played a role in their emigration to what is now called the United States. Thirteen colonies originally formed the Union. At the time of the revolution, twelve of the thirteen colonies already had established religions and churches. The late United States Supreme Court Justice, Justice Scalia, has described some of what the establishment of religion in these colonies customarily entailed:
Typically, attendance at the state churches was required; only clergy of the official church could lawfully perform sacraments; and dissenters, if tolerated, faced an array of civil disabilities. Thus, for example, in the colony of Virginia, where the Church of England had been established, ministers were required by law to conform the doctrine and rites of the Church of England; and all persons were required to attend church and observe the Sabbath, were tithed for the public support of Anglican ministers, and were taxed for the costs of building and repairing churches.
Unlike France, The United States Constitution does not use the word secular. In fact, the original United States Constitution does not have anything that seems to suggest secularism. The complete separation of religion from the state was introduced as an amendment to the United States Constitution. Amendment I—widely known as the First Amendment— provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; . . .” The first Amendment is known as the Establishment clause and Free Exercise clause. This section has been a basis for a plethora of cases. I will cite a few of them.
Engel v. Vitale (1962): The Establishment Clause bars prayer in public schools if the prayer is an official or approved part of school activities. The Court announced a robust separation principle, which prevents the state from composing or leading prayers for students in school. The Court effectively viewed such actions as effectively announcing an official dogma, which is the equivalent to establishing an official religion.
Wallace v Jaffree (1985): The Court held that an Alabama statute which authorized a period of silence for meditation or voluntary prayer in public schools violated the Establishment Clause.
Lee v. Weisman (1992): This case held that the Establishment Clause prohibits a public middle school from having a rabbi deliver prayers at a graduation ceremony. The major premise of the Court’s reasoning was that the government may not coerce anyone to participate in a religious exercise. The minor premise was that children would feel psychological coercion to participate, even though attendance at the ceremony was voluntary and standing respectfully through the prayers was optional.
Rosenberger v. UVA (1995)—Public university’s refusal to use student activity funds to pay for printing Christian student group’s newspaper—Court permitted the funds to be used, otherwise it would be viewpoint discrimination violation of Free Speech
Marsh v. Chambers (1983): This case holds that the Establishment Clause does not always bar religious activities like prayer in public institutions, other than public schools, if the activities are deeply embedded in the history and tradition of the country. The court rejected a challenge to the Nebraska Legislature’s practice of beginning each of its sessions with a prayer offered by a chaplain. The Court based its decision on history, noting that the First Congress, which voted to approve the First Amendment, also hired a chaplain to deliver similar prayer
Trinity Lutheran Church of Columbia Inc. v Comer (2017): This case concerns the relationship of the Establishment Clause to the Free Exercise Clause. A Missouri government agency awarded grants to assist public and private institutions in purchasing rubber playground surfaces. Apparently concerned about violating the Establishment Clause by spending government money on religious institutions, the agency disqualified churches from receiving grants. The Trinity Lutheran Church argued that its disqualification violated the Free Exercise Clause.
The Court began its opinion by rejecting any contention that the Establishment Clause necessitated disqualification of churches from receiving grants. The Court then applied, what it considered, a “basic principle” that denying a generally available benefit solely on account of religion violates the Free Exercise Clause.
Secularism IN THE GAMBIA
The British colonized The Gambia in the 19th Century, but by this time Islam was already widely spread in The Gambia and the people were already practicing Islamic law. In 1894, the Protectorate Ordinance was passed. The Ordinance recognized customary law (this includes Islamic law, which had already become part of the custom of the indigenous populations). The British were Christians and Christianity was embedded in their laws because the Church of England was central to the British modus operandi. The Gambia is overwhelmingly Muslim, with ninety percent of the population practicing Islam (predominately Sunni Islam). Approximately eight percent of the population is Christian, from various denominations, and the remaining two percent is said to follow traditional African beliefs.
Historically, The Gambia has never experienced what France and the United States experienced with respect to entanglement of religion and the states. In The Gambia, neither Islam nor Christianity has controlled any sector of the government— recall the Church of France was responsible for public education and maintaining public order. Unlike Virginia, Public official or citizens were never compelled to attend the Mosque of The Gambia or The Church of The Gambia— recall in the colony of Virginia ministers were required by law to conform to the doctrine and rites of the Church of England; and all persons were required to attend church. There has never been an instant were people were taxed for the costs of building and repairing mosques or churches—recall citizens were taxed for the costs of building and repairing churches.
The 1997 Constitution of The Gambia in Section 100 stipulated that the National Assembly, the law-making organ of the state, shall not pass a law declaring any religion as state religion. This has been practiced and understood throughout the history of our nation. However, in 2015, in a rally in Brufut, Yahya Jammeh, the former president stated that “in line with the country’s religious identity and values, I proclaim Gambia [sic] as an Islamic state.” This was followed by an executive order that “all female staff within the government ministries, departments and agencies are no longer allowed to expose their hair during official working hours. Female staff are urged to use head ties and neatly wrap their hair.” Both moves were just not unconstitutional, they were widely condemned by Gambians. They were seen as a diversion of people’s attention from the financial hardship due to the poor economy.
Religion in The Laws of The Gambia
There are three distinct sources of law in the Gambia: (i) common law; (ii) customary law; and (iii) Islamic (Sharia) law. The Constitution in Section 7, includes, amongst the laws of The Gambia, “Sharia, as regards to matters of marriage, divorce and inheritance, among members of the communities to which it applies.” Chapter 8, Part 3 of the Constitution, establishes a Cadi Court system within The Gambia. Other laws of The Gambia that validate the application of Sharia (Islamic law) in The Gambia, are:
- The Sharia Law Recognition Act, CAP: 6:04, Volume 2, Revised Laws of The Gambia (2009). This Act was originally enacted in 1905 and then amended in 1925, 1933 and 1945. Originally, this Act only applied to Banjul City and Kanifing Municipality. This Act establishes the validity of Muslim marriages, when duly contracted between Muslims, in accordance with Sharia Law such marriages are valid and effectual in the same manner as those provided for under the Christian Marriage Act; and
- Muslim Marriages and Divorce Act, Cap: 42:01, Volume 7, Revised Laws of The Gambia (2009).
The laws of The Gambia also recognized Canon Law. Christian Marriages Act, Cap: 41:03, Volume 7, Revised Laws of The Gambia (2009).
Thus, the laws of The Gambia embodied religious laws. However, only three aspects of religious law are applicable in The Gambia. These aspects are marriage, divorce and inheritance.
Religion in The School System
Since The Gambia attained her independent in 1965, religious teaching has been part of the school curriculum. Every public school teach Islamic Religious Studies and Cristian Religious Studies. The teachers are not from religious associations, they are employees of the Ministry of Education like their colleagues who teach Math, English, etc. They are paid by the taxpayers since their salaries come from the state. The nation’s highest public institutions — University of The Gambia, Gambia College, and GTTI — all teach religious courses.
Religion in Public Institutions and Public Matters
Buildings designated for worship could be found in almost every public building in The Gambia. The State house — the official resident of the President — has a mosque; The Supreme Court building has a mosque; Ministry of Justice has a mosque; Quadrangle—the building that comprises of various ministries— has a mosque; the biggest state hospital has a mosque and a church; The Gambia college has a mosque and a church.
In addition to having places of worship in our public institutions, every State function in The Gambia is commenced with an Islamic prayer and a Christian prayer. Furthermore, all major Islamic and Christian religious ceremonies are accorded public holidays.
Putting it Altogether
The Gambia has never been a religious state like Saudi Arabia or a hardline secular state like France. It could be argued that The Gambia has flexible secularism like the United State. It is my position that, The Gambia has uniquely balanced religion and the affairs of the state. The country has managed to avoid the excessive entanglement of the two dominant religions with the affairs of the state. The Gambian people embraced Islam prior to the arrival of the British. The British brought Christianity and common law. Yet, they recognized Islamic Civil Law. As stated above, The Sharia Law Recognition Act was enacted to give validity to Muslim marriages, when duly contracted between Muslims, in accordance with Sharia Law. Such marriages are valid and effectual in the same manner as those provided for under the Christian Marriage Act and ever since, The Gambia continues to apply three aspects of religious law i.e. marriage, divorce and inheritance. People may argue that we have other religions beside Islam and Christianity. This assertion may be true, but the two percent has never been oppressed. Free exercise of religion has been guaranteed by both the 1970 and the 1997 constitution. Thus, even though Islamic Law and Canon Law are part of our laws, the Constitution still guarantees free exercise of other religions besides these two. Additionally, the Constitution proscribed the enactment of any law to declare any religion a state religion. The provision that proscribed such enactment is an entrenched clause, which could only be amended in a referendum. Thus, irrespective of ninety-eight percent Muslim and Christian, the constitution still guaranteed the free exercise of other faiths.
The addition of the word secular in the draft constitution would lead to absurdity for the following non-exhaustive reasons:
- The Constitution recognized sharia law and has provided for the establishment of Cadi courts for the adjudication of dispute arising from marriage contracted under Islamic law;
- The Christian Marriages Act recognized marriages solemnized by the Church;
- The state education system includes religious studies in school curriculums throughout the country;
- Religious holidays are accorded same dignity and honor—i.e. public holiday— like national holidays such as independent day; and
- The country has mosques and churches in public buildings.
I have heard and read several comments on whether the word secular should be inserted in Section 1. Madi Jobarteh, a proponent of this position has captured the position of his fellow proponents. He falsely claimed that “In 2004 when the French Parliament voted to ban the veil, the ban was only limited to public schools.” The French ban Hijab and other religious symbols from being worn in all public institutions including schools, libraries and government buildings. However, he rightly stated that the ban “was not only about the hijab.” What he didn’t say is that the law was passed to proscribe religious practice not to ensure the smooth practice of religion or to ensure all religions are treated equitably. The court’s holding eradicates the narrative proponents like Madi are spreading all over. The European court of human rights noted that secularism was a constitutional principle and a founding principle of the Republic of France, the protection of which appeared to be of primary importance. An attitude that failed to respect that principle would not necessarily be covered by freedom of religious manifestation and would not be protected by Article 9 of the European Convention. The Court concluded that the restriction in question was justified as a matter of principle and proportionate to the aim pursued. It is clear from the ruling of the court that Secularism was the reason the ban was upheld. This ruling has contradicted Madi’s submission that “secularity of the state will protect both Islam and Christianity and their believers equally.” This ban and its subsequent validation by the courts in France and the European Human Rights court reinforced the argument propounded by those against the insertion of the word secular, that “secularity of the state will undermine religious practice in The Gambia.”
Finally, on this point, Madi concluded that “the French Government has resisted calls from far-right groups to ban Muslim women volunteers who help schools during excursions from wearing a headscarf… French President Macron was heard speaking strongly in support of the Muslim population against the racist narratives from the far-right racist groups.” This is an intentional misleading and distortion of the incident and therefore a “misconceptions and misinformation that [is] being peddled in [support] to [add the word secular].” This is what happened: France’s Senate approved, with an overwhelming support, an amendment that would extend the law banning people from wearing overt religious symbols to the adults accompanying children on school trips. The Bill needs to go to the lower chamber, but analyst predict it won’t make it because the President’s party has a majority and they are against the bill. In fact, the Bill captured the attention of the public when a councilor from the far-right party released a video of himself confronting a woman attending a regional assembly with a group of schoolchildren, demanding that she remove her veil in the name of Secularism. There were mixed-message from the President’s Cabinet and the President himself. For example, the government’s official spokesperson told France 3 Television “Who does he think he is, stigmatizing someone who is accompanying children on a school trip?” but the education minister, told BFMTV “The law does not prohibit veiled women from accompanying children, but we do not wish to encourage the phenomenon”, which is “not in agreement with our values.” This position was supported by the Finance Minister Bruno Le Maire. The President’s initial comment was that “those who want to sow hatred and division” sometimes use the principle of secularism to “target particular religions”. But he later appeared to balance his remark by saying he would fight against all forms of “communitarianism”—referring to a form of self-segregation among immigrants that France feels is antithetical to successful integration. Emile Chabal, a specialist in French politics and modern history at Edinburgh University, described the President’s actions as “trapped between his own desire not to talk about it and the fact that [veil] has become such an important value for many voters.”
So, to minimize the issue as racist and nothing to do with Secularism is a distortion of fact. It has everything to do with secularism. No matter how racist the French people are, I do not believe in this generation, they will pass a Bill— the basis of which is racism—in one of the houses of parliament.
Another falsehood that proponents like Madi are peddling is that there are “Muslim majority states [that] have banned the veil (from the hijab to the burqa) in public places such as schools, universities, restaurants, parks or in offices as the case may be. These countries include Tunisia, Tajikistan, Chad, Turkey, Azerbaijan, Morocco, Gabon and Cameroon including some European and Asian countries.” First, most of these countries no not have Cannon law or Islamic law as part of their laws. In fact, only two of these countries have Sharia as part of their laws. Tunisia is a Civil law and Sharia lawjurisdiction, Tajikistan is a Civil law jurisdiction, Chad is a Civil law and customary law jurisdiction, Turkey is a Civil law jurisdiction, Azerbaijan is a Civil law jurisdiction, Morocco is a Civil law and Sharia jurisdiction, Gabon is a Civil law and customary law jurisdiction and Cameroon is a Civil law and Common law jurisdiction.
Second, Morocco, a country that has Sharia as part of their laws— like The Gambia— never ban Hijab. In fact, the only Ban the country has ever promulgated was in 2017 when it banned the manufacturing, marketing and sale of the burqa (called Niqab in The Gambia). Tunisia another country that has Sharia as part of their laws banned Hijab in 1981, lifted the Ban in 2011. The only form of veil the country currently banned is Niqab. This ban is limited to public institutions. The other countries listed do not have Sharia as part of their legal system. Comparing them to The Gambia based on majority being Muslim with regard to the legal system is tantamount to comparing oranges and apples. Furthermore, in 1980, the hijab was banned in government offices, hospitals, universities, and schools in Turkey. The country has recently lifted the ban on Hijab. Turkey’s opposition party declared it “a serious blow to the secular republic.” A clear indication that the ban was employed in the name of secularism.
The United States does not have the word secular in its Constitution, but it is regarded as a secular state that respect free exercise of religion. Congress cannot prohibit free exercise of religion like France. Secularism in the United States is understood to be that Government is supposed to stay clear of favoring, endorsing, or engaging with religion and religious institutions. Similarly, The Gambia has never legitimately had the word secular in her constitution but the constitution proscribed against endorsing one religion as a state religion. Thus, the omission of the word secular in a constitution does not equal to endorsing one religion over another. But, the addition of the word Secular in a constitution have been and could be used as basis to proscribe a religious practice fundamental to a particular religion.
The Gambia is a sovereign country with a unique culture. The constitution must reflect the will of the masses not the whim of the intellectuals. The omission of the word secular would have no consequence to free exercise of religion. The draft captured this when it stipulated “The Gambia is a sovereign Republic”.