Why use of force to oust Jammeh and install Barrow will be lawful
By Kemo Ceesay (UK)
Given the deluded outgoing Gambian leader Yaya Jammeh’s unwavering belligerence, it seems apparent that the Economic Community of West African States (ECOWAS), supported by the international community, may have to use force to remove him from power and install president-elect Adama Barrow. Going by established precedent, such military intervention will be lawful in international law.
It is widely known that Jammeh, had always been law and order threat. He manifested this on 22 July 1994 by illegally usurping power. The putsch overthrew the democracy and abolished the 1971 constitution. Despite this illegality, Jammeh and his colleagues, riding on slogans such as “transparency and accountability”, “soldiers with difference”, and promise that they would “never introduce dictatorship” in the Gambia, were widely tolerated (at least initially) because of the previous administration’s perceived excesses.
But Jammeh has since been incorrigible and continues to indulge in law breaking (both Gambian and aspects of international law) with impunity to the extent that he considered himself the law. His modus operandi has been wilful disregard of the law. The current state of affairs that obtains in the Gambia, threatening peace and stability in that country and the sub-region, is a culmination of his contemptible attitude to the rule of law.
On 02 December 2016, the Independent Electoral Commission, whose chairman and staff were handpicked by Jammeh, declared the coalition flagbearer, Adama Barrow, winner of the elections that took place the day earlier. Mr Jammeh openly conceded defeated and congratulated Mr Barrow, only to change his mind a week later with the most bizarre reasons, including a claim that not “all Gambians” have voted. He then declared the election results “null and void”, oblivious to the fact he had no such authority and that the only authority to do so was the IEC and/or the Supreme Court of the Gambia, the latter only after it has received a valid challenge by one of the contenders. Realising that his declaration had no legal effect, Jammeh now appears to have filed a petition (arguably out of time) with the Supreme Court that has been dysfunctional for several years, with no independent and/or impartial judges.
In the meantime, Jammeh ordered his hapless army to illegally occupy the offices of the IEC and intimidate the public at will. There is also a serious possibility that he will seek to implement his publicly stated desire to exterminate or mass deport certain ethnicity, kill dissenters en masse and trampling on the inalienable rights of the citizens. In the circumstances, Jammeh’s position clearly represents a very serious violation of the Gambian constitution (settled by him) and the international law.
He has since been asked, by impartial mediators, including ECOWAS, to retract from his intransigence position and allow the will of the Gambia people to take effect. But he appears immune to reason and rationality. Consequently, ECOWAS has issued a communique declaring that they “shall take all necessary actions to enforce the results of 1st December 2016 elections” when Jammeh’s term expires on 18 January 2017.
So what does this mean? Does it mean military intervention? If so, will such intervention be lawful in international law?
The answer can be found in ECOWAS’ earlier decision to do exactly the same – restoration of democracy – in Sierra Leone in 1998 when President Ahmed Tejan Kabbah, who was ousted by the military the year before, was reinstated by ECOMOG. He became the first democratically elected African president to be restored to power through military intervention. The intervention was based on its “Protocol Relating to Mutual Assistance on Defense” entered into in 1981. This has since been repeated in a number of countries in the region including, Mali, Ivory Coast and Burkina Faso. Doing the same thing in the Gambia by enforcing the democratic wish of the people will not only be morally right; but it can also be legally justified under the international law in many respects. As this is not a scholarly legal article, only the most relevant justification will be discussed here.
But a range of possible justifications could be relied upon by ECOWAS. They may include tacit authorisation by the Security Council, the right of self-defence, the doctrine of humanitarian intervention, and the right to restore democracy based on the consent of a legitimate government. The latter, given that the legitimate government of the Gambia is that of the winning coalition which appears to have made the request, is likely to be the most appropriate justification at the moment, although all other options could potentially be argued, depending on the prevailing situation on the ground in the days and months to come.
Evidently, the UN Charter - Article 2(4) - explicitly prohibits aggression by member states, but any use of force by ECOWAS to restore democracy in the Gambia could be justified.
Firstly, ECOWAS is not a state; so arguably Article 2(4) doesn’t actually apply. Secondly, Article 2(4), prohibits aggression or use of force only in cases where it is used "against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the UN.” None of these will be relevant in the event of military intervention in the Gambia by ECOWAS because such intervention will not be against the territorial integrity or political independence of the Gambia. On the contrary, the intervention will, just like it was in the case of Sierra Leone (similar subsequent events), be justified on the ground of putting into effect democratically expressed wish of the people of the Gambia which supports the country’s political independence. Thirdly, it cannot be sensibly argued that such action is inconsistent with the “purposes” of the UN – maintenance of international peace which is threatened by Jammeh’s obduracy.
And ECOWAs doesn’t even need a Security Council resolution on the matter before it can commit troops. The Security Council has already made a clear statement which speaks of its desire to have the will of the Gambian people respected. This means that the Security Council is likely to authorise use of force posthumously as it did in the case of Sierra Leone. The same position will obtain for AU.
So, unless Jammeh changes his current position and immediately co-operate with peaceful and orderly transfer of power, ECOWAS should proceed and take all necessary measures, including the use of force or military intervention, to give effect to the democratic will of the people of the Gambia. Such use of force will not only be morally correct, it will also be legally justified.