By Gambian Outsider!
Jumping Off The Barrow Bandwagon!!
As I was editing this article before sending it to some of the online newspapers to have it published, I just read about the political divorce of The Coalition. I have not changed a word from what I wrote, so please read below to see for yourself how far off I have been.
The Great Divide!
During the struggle to ouster dictator Yahya Jammeh, Gambians in the opposition seem to have been united by their dislike or to use a stronger term, hatred of the dictator. This view is partly true and partly untrue. On the one hand, it is true that most Gambians both home and in the diaspora hated the dictator and went to great lengths to make sure that he was, in one way or another, whether through peaceful means or by force, was either sent parking to a land without a name or was eliminated. On the other hand, it is untrue to think that the only driving force behind the struggle has been the hatred of the dictator. The desire to see a free Gambia has been an equally strong force if not a stronger one. Now that the dictator has been sent into exile, it is obvious to anyone who cares to read or listen to the narratives objectively to see that hatred of the dictator was not the only force behind the struggle. This point is manifested by how those in the struggle who have been united by one goal, the ouster the dictator, are now divided into two camps. In Camp 1 you find those whose only motivation was their hatred of the dictator and the position of these people presently is that since the dictator is no longer in The Gambia, those who do not hold the same view as they do should shut the hell up and go about their businesses. In Camp 2 you find those who have been initiated by love of country to join the struggle to see a free Gambia. Those in camp 2 see their work as continuing. Camp 2 wants to see the rule of law observed in the Gambia because anything less than that would be no different from the former regime. The camp a person belongs pretty much dictates that person’s view of the “new” but “old” administration. The present administration is new because some of the faces are new. The present administration is old because the institutions or lack thereof that brought us the dictator are alive and well. Gambia is not new because someone keep saying that it is new. Unless there are institutional changes or the establishments of new one in the very near future, there is will be a repeat of the last 22 years. How much the present administration will resemble the one it replaced will be known in the next three years.
I am off the Barrow Bandwagon because Mr. Barrow is not ready for primetime. Mr. Barrow appears to be a figurehead and not a president.
Most of what Mr. Barrow does is scripted. He lacks the requisite mental fortitude and hence his inability to analyze a situation. Mr. Barrow does not understand the bully pulpit of the presidency. Political slogans do not govern a nation. Mr. Barrow will tell anyone who will listen that there is a new Gambia. If Gambia is new it is only in words. A wish or a desire for something does not make the thing desired to come true just because one keep on wishing and desiring. The lack of focus on the checks that would be necessary to separate this administration from the old one seems to be completely ignored. Right now the administration is just happy to receive handouts as if that is a successful way to govern. The handouts will sooner rather than latter stop. The three years they agreed to serve before a new election will be here before they know it and Gambians will see very little change if any. What we are seeing in this new administration is a movie we have seen before. The length of that movie lasted for 22 years. The present administration is following a similar script like that old movie we saw not long ago. The only difference, so far, is that the new movie is now featuring Mr. Barrow as lead actor. To see how the two scripts are similar, here are a few highlights of that really horrible movie. A flashback to 1994 and beyond when the Dictator and his gang of thugs came to power:
(1) The dictator did not have the mental fortitude to analyze a situation;
(2) He had an insatiable desire for attention;
(3) He loved to associate himself with famous people to feel important;
(4) He saw himself as “The Father” of the nation and not the chief servant of it;
(5) He was in the habit of building castle in the air;
(6) He and his wife were wont to display “generosity” by giving Gambians large sums of money to show how kind they were; this was consistently done whenever either one of them or both visited our hospitals and the like;
(7) As father of the nation, no one was supposed to be wealthier or more famous than he was.
(8) He was in the habit of talking about justice but he never understood what justice is;
(9) He portrayed himself as Godsend to Gambians and Gambians bought that rubbish by the truck load for 22 years;
(10) Anywhere he turned, Gambian businessmen and businesswomen and so-called well to do Gambians were giving him gifts of every kind. On his birthdays, Gambian businessmen and businesswomen would line up to shower him with gifts to be in his good books;
(11) No one knew how much his salary was;
(12) He illegally spent monies that were never appropriated by the
(13) He was used to talking about security but that security talk was for
himself and not for Gambians. Gambians were never secure in their
homes, persons, properties, and effects;
(14) Whether he respected and followed the Constitution depended upon
* This list is not exhaustive.
The question now is, how many of these points so far do you see in the new celebrity president? If you have not seen anything, then please pull your head out of the sand.
Mr. Barrow’s wife visited the hospital not longer ago and doled out 40,000 dalasis to the sick. Visiting the sick is a very nice gesture but doling out any monies that is not out of Mr. Barrow’s own pocket is no different from what the man he replaced used to do. I am not saying that the president and his wife cannot spend their own hard earned money whenever they want, but the nation’s funds is not theirs for the taking.
The VIP Debacle!
First, there are two presidents: Mr. Barrow and Mr. Ousainou Darboe as co-president. As the founding father of his party and who could have been nominated if he was not in jail, Mr. co-president Darboe is not your ordinary minister of foreign affairs. I doubt if Mr. Barrow makes any decision without first consulting with Mr. Darboe and that is not a bad thing at all. However, what has been puzzling to many are the constitutional blunders that this administration keeps making despite the fact that they have all those legal Oustasses, Constitutional Bouhabas, Political Marabous and Know-It-All Strategies all over the place. What is the legal argument to justify the appointment of Ms. Tambajang? Can Mr. Darboe and Mr. Fatty legally defend this appointment? Can a person like Mrs. Tambang who is disqualified to hold office of the Vice President under section 70(2) See 62(b), be appointed to oversee the now seem to be vacant position of the vice presidency? What an absurd thing to do. How in the world can a person disqualified for a position by virtue of section 62(b) oversees the very position that she is disqualified from holding? Why is this administration having a problem to follow the law? What is so difficult for this administration to simply follow the law like ordinary Gambians do every single day?
Second, how come the certificate of pardon was not made public before the appointments of Mr. Darboe and the other cabinet members who were illegally convicted of crimes? That certificate should have been made public before the appointments but that did not happen. It is true that the date on the certificate of pardon indicates that those convicted by the former regime were pardoned before their appointments but I do not buy that argument at all for the simple fact that if that was so, the certificate should have been made public before those appointments were announced. It is like the “new” administration does things as it feels like and when it is questioned, it goes back to do what it should have done in the first place. One does not go to court and ask a judge to free a criminal defendant first and later show evidence to support that position. Evidence is presented first then if reliable and convincing, the criminal defendant is freed. One cannot claim breach of contract if no contract was formed in the first place. First you have to show that a contract was formed then you can claim and show breach of that contract. What is clear and is becoming clearer everyday is the fact that this administration either does understands the rule of law and ignores it or it does not understand it but pays lip service to it. Which is it?
Members of the “new” administration earned our respects solely on reputation and I have to say, that respect has been evaporating based on what they have been doing and what they are supposed to do but are not doing. Man cannot live on reputation alone folks! Sooner or later people are going to see whether that reputation is merited or not. Right now we have an administration that cannot seem to critically think about what it needs to do and how to do it within the province of the Constitution. It is true that some of the provisions in the constitution are undemocratic and may need to be changed at some point but this is no reason to ignore the supreme law of the land. The law is what it is and unless changed in the right way, it is still the law. Now that is law biding! The constitution cannot be invoked when it is convenient and bypass when it is not convenient. Following the law all the time is a duty.
Mr. Co-president and Mr. Chief Justice!
The newly appointed Chief Justice during his speech after taking the oath of office talked about the need for an independent judiciary. The CJ touched on a very important topic but he never said a word about how that was going to happen. What is in place or need to be in place so that the executive obeys a court order? If the executive or specifically the justice department disobeys a court order, what comes out of it? Who can make the executive obey the law when it does not want to do so? If this issue is not tackled and I am not saying it is an easy one, this new administration will be just like the one it replaced. Here is what co-president Darboe said about the independent judiciary:
“ My Lady, I was part of that historic task and I have had a say in how we Gambians should be governed. I did so in this very courtroom wherein members of The Gambia Bar Association met to make recommendations to the Constitutional Review Commission on the new Constitution of The Gambia. I was then Vice President of The Gambia Bar Association. I was also a part of a small group of lawyers comprising Mr. O.M.E Sillah, Mr. P.C.O. Secka of blessed memory, Hon Justice R.C. Sock that submitted various recommendations to the Constitutional Review Commission. Of interest to me is the independence of the judiciary. I saw then the threat to the independence of the judiciary. I believed that a provision such as Section 120 (3) of the Constitution, together with an Esso type of Judges would guarantee the absolute independence of the judiciary. I believe that with an independent judiciary no one will starve of justice. I believe that with an independent judiciary, democracy will be constitutionalised.”
The question to Mr. Darboe and to the Chief Justice is this, whether section 120(3) served its purpose as Mr. Darboe envisioned? Mr. Darboe was so proud to have been a member of that “small group” but that small group never put in place any mechanism that would protect the judiciary from harassment and intimidation or loss of employment. I do not know how the judiciary could have been independent when it was not protected from the two other branches of the government. The bottom line is that, Mr. Darboe and members of that small group did absolutely nothing under section 120(3) to protect the judiciary and by extension the Gambian people. And it so happened that because of that colossal mistake, Mr. Darboe came to suffer from it when he was on trial and was illegally convicted. Everyone knows that if the judiciary was independent, there was no way Mr. co - president would have been sent to jail; no way. Mr. co-president was right that his conviction was pre-arranged but that was only possible because the judiciary was not independent and did as it was ordered - to convict him.
The Minister of Justice promised the Chief Justice that his ministry would obey the law whenever ordered to do so. What happens if he does not? Who can make him obey the law when, for example, the president asks him to execute a certain directive contrary to law? The Minister’s promise or promises are not good enough. Safeguards are needed to make sure that the judiciary is independent and that there is a price to pay when the law of the land is not followed no matter who the person.
Mr. Sheriff M. Tambebou, Mr. Mai Fatty and Dr. Henry D.R. Carrol, PhD!!
When the dictator filed his petition at the Supreme Court to challenge the election results both of you lawyers made the argument that because the Supreme was not instituted in close to fifteen months it was not proper to institute one and have it hear the petition. I add Dr. Carroll to this argument because he wrote an article and parroted your position and like you, he never advanced any legal principle or pulled out a Latin as he loves to do to support what he said about the matter. What I am interested to know from the three is what is the legal basis for their position? What other options did the petitioner had to have his petition heard? I asked this question because section 49 of the constitution clearly states that a registered political party or an independent candidate can file a petition to determine the validity of the election. This is clearly a right and where there is a right there is a corresponding duty. But, it is not the case that where there is a duty there is a corresponding right. You three did not advanced any legal support for the position you took and as it turned out, Supreme Court justices were hired at least six months before the election, but that is besides the point here. Even though the election is over with, it is still relevant if you three can show any legal support for your position. Section 49 presupposes the existence a Supreme Court because if that were not the case then section 49 would be useless. To make the argument that the petitioner’s case could not be heard because a Supreme Court was not instituted at the time was a total denial of a constitutional right. It is not a rule of law to deny a party a day in court because the designated forum was not instituted. The petitioner was denied its right. That right was the right to be heard. Whether the petitioner was going to win or not is not the point. I personally believed the petitioner did not have a case and could not win but that has nothing to do with the petitioner’s right to be heard as directed by the constitution. A right given by a constitutional provision or a statute cannot be denied without due process of law. If The Gambia was under Martial Law at the time then my argument would change but as you know, that was not the case.
What I am about to say was something that I did not write about when I wrote about the APRC’s petition because I did not want to do anything at all that could help them. Here is what needed to happen: Because there was no sitting supreme court at the time, the petition should have been filed at the court of appeals because it was the next highest court. If there was no instituted court of appeals, then the petitioner should have been filed at the high court and if there was no high court then it should have been filed at a magistrate court and if there was no magistrate court then should have been filed at a selected-members of the national assembly if it came to that. The point is that in each of these courts, the petitioner’s right to be heard would have been observed. This shows the importance of having a constitutional right and to have that right respected under law. You will notice that the sequence of courts in reference to the APRC petition would have been from the highest court in the land to the lowest court if needed. However, the reverse, from the lowest court to the highest court is the normal way in the ordinary course of business. In ordinary court of business, one begins from the lowest court that has jurisdiction to highest court based on what happens at the lowest court.
The reason why a political party or an independent candidate can file a petition at the Supreme Court is because section 49 lays original jurisdiction of a case of that nature in the Supreme Court. It is not as if lower courts could not handle election disputes. Of course, section 49 can be changed and election dispute cases may then go through the ordinary course of business. Whether that would be a good idea can be debated. For sure, it is of paramount public interest that election results are settled as soon as possible and hence, the reason why the writers of the constitution place original jurisdiction in the Supreme Court so that once the Court has spoken, there is nowhere else to appeal its decision and thereby the matter is settled. All Cases and Controversies must be settled legally and not by arguments that have no legal foundation whatsoever. Anyone who takes a position different from mine is welcome to write and explain his or her position.
Mr. Seedy Njie’s argument that only the Supreme Court could declare the winner of the election was nonsense. And, he merited the rebuke by Mr. Mai Fatty. The job of declaring the winner of the election was the job of the IEC and the IEC declared a winner. Mr. Njie cited a United States case to support his contention, but that case was actually about recounting votes that have already be cast and not to redo an entire election. Another point Mr. Njie was clueless about was that, even if there was a sitting Supreme Court, that court could have dismissed the petition for failure to state a claim upon which relief can be granted. This is called Rule 12(B)(6) in the United States. I am sure there is such a rule in The Gambia. This rule tests the legal sufficiency of a claim. Based on the snippet of the petition I read, the petition seemed to have been saturated with legal conclusions. Those who have access to the petition can have the whole thing posted on the online newspapers for all to see.
Even though I hate making predictions, I will go on a limb and make a prediction. Here it goes: This “new” administration will, when the three years agreement they signed to form the Coalition is about to come to an end, will make the argument that the term of office of the president is five years and not three hence Mr. Barrow should serve for five years. And they will cite section 63 (1) which I renamed the Halifah provision LOL! Of course that argument cannot be sustained because when they entered into the three-years agreement they were well aware of section 63(1). So the fact that they did not used the terms of that provision estopped them from using it. Parties to a contract are held to the agreement they signed. And according to the Parol Evidence Rule prior and contemporaneous evidence that contradicts the terms of an agreement are not allowed, unless there existed duress, mistake fraud or misrepresentation at the time of entering into the agreement. Section 63(1) which states that the term for the office of the president is five years will unambiguously contradict the three-years terms within the four corners of the agreement. LOL! It will be interesting when the time comes to see how The Coalition will try to wiggle itself out of this LOL! And yes, any qualified Gambian, when the time comes can file a complaint and force The Coalition to adhere to the terms of the agreement they entered into. Sweet! We will all find out soon enough whether members of the Coalition actually believe in the rule of law. As of right now, all indications are that they do not.