Mismanaging the transition-transfer: an unlawful abuse of incumbency
By Lamin J Darbo
Almost without exception, and outside of an armed military takeover, dictatorship usually succumbs to mass action, violent or otherwise, on the streets of a country, and the resultant forceful change in government may be termed a revolution. Recall the 1979 collapse of the Pahlavi dynasty in Iran, the 1989 uprising that terminated Nicolae Ceausescu’s repressive and utterly lawless regime in Romania, and the year 2000 fall of Slobodan Milosevic’s ruthless autocracy in the Federal Republic of Yugoslavia, momentous events in modern history which as they were unfolding, captivated global attention and became the stories of the period.
Some of these dictators, merciless wielders of the police power of ruthless totalitarian systems, crafted elaborate plans for lifetime rule, and in places, a continuation of their despicable regimes through their progeny. It almost always ends in ashes and tears. That the country may have escaped the fearful ramifications of this genre of change is extraordinary, but not for Babili Mansa’s lack of effort in systematically micromanaging the entire tapestry of Gambian public life - more pertinently the succession question - for his personal benefit.
Ours is as sanctified a revolution as any, but palpably a revolution of a different kind!
Undoubtedly, the Coalition campaign was vigorously fought, and Babili Mansa defeated in as transparent a manner as possible anywhere in the world thanks to the process of ‘on the spot counting’. The wonder lies in how it happened, in totalitarian Gambia, without violence, without deliberate obstruction of the processes, whether of the IEC, of NAWEC, or GRTS, with the incumbent ‘conceding’ falsely, and not intending to do so.
Ours continue to be a prayer revolution, prayers that became travelling companions of a defenceless and long suffering people through two decades of governmental lawlessness.
An electoral defeat to the Coalition in the 2016 presidential contest was not part of Babili Mansa’s calculations. To him and his hardened followers, that was inconceivable! It was as if, pre-election, they were watching the public mood in a different country. Even as the nation went to the polls, celebration infrastructure was being erected. Other paraphernalia was being distributed with zeal and excitement and food galore readied for the projected fifth ‘thrashing’ of the opposition in presidential elections.
Notwithstanding his clear defeat, there is no transition taking place, a state of affairs at cross purposes with the 1997 Constitution of the Republic of The Gambia (the Constitution) and democratic convention. No conciliatory democratic event attendant to transition is taking place. For example, abducted citizens unlawfully detained pre-election remain incarcerated. As recently as a few days ago, citizens were abducted and detained beyond the constitutional deadline without charge. Radio stations, the latest within the last forty eight hours are being closed. Even the UDP prisoners were released not by executive fiat and show of magnanimity but through less than admirable judicial intervention. Numerous other political prisoners remain incarcerated. Even when he ostensibly conceded, the concession was really never intended. It was false, or in the journalistic and political jargon of the moment, fake!
Any surprise then that Babili Mansa rescinded his ‘concession’ and interposed a non-existent court to validate his legally meaningless nullification of the public verdict dismissing him from the presidency. In the period since the ‘concession’ the world spoke with a singular voice and in the process shifted the locus of executive legitimacy to the president-elect. Through the ECOWAS Authority, the global community readies to install the president-elect on 19th January. The country is on tenterhooks, and frantic conflict preparation of the powerless - fleeing the potential main theatre - approaches feverish levels.
True to form, Babil Mansa ignores his caretaker status, categorically rejects the global ultimatum to transfer power peacefully, and proceeds with his clearly futile project of investing the courts – a project now dead in the water - with the cloak of arbitral authority in a now practically non-justiciable matter. Non-justiciable because except for the incumbent, no one recognises a tainted, and incompetent process that aims to divest the president-elect of a vested right without a hearing by failing to properly join him in the impending proceedings.
Non-justiciable because even were the president-elect properly joined and served, there is no lawfully constituted, i.e., existing Supreme Court of The Gambia, and consequently the proviso to section 125(2) of the Constitution regarding a single judge exercising “... the powers of the Court in any interlocutory matter, which may be subject to a fresh application to a bench of five judges of the Court” does not arise. The Constitution, at section 125, commands a full-fledged Supreme Court, but even an ad hoc variety was not operational in The Gambia for some two years. In the circumstances, there is no legally subsisting election petition the Chief Justice can take cognisance of for the purpose of issuing any interlocutory order staying the inauguration as postulated by counsel for the petitioners. An interlocutory application presupposes a properly constituted court!
For a number of reasons, the most fundamental of which is the non-existence of a competently constituted court, the Supreme Court petition route is no longer available. In the particular circumstances of this regrettable affair, the only other Constitutional command to be obeyed is that the president-elect must be inaugurated as stipulated in 63(1).
Indeed, the Chief Justice, in open court on 10 January 2017, recommends an inter-party platform resolution of the matter, or an Alternative Dispute Resolution mechanism, or the utilisation of the good offices of ECOWAS. Stated differently, the Chief Justice was simply advancing the obvious, i.e., drop the legal challenge and negotiate a face-saving political solution. For obvious reasons, if the finest jurists from the pre-eminent democracies were to constitute, properly, the panel that then purports to nullify the 01 December verdict of the people, no one anywhere would pay attention. Any judicial process was long overtaken by events elsewhere and cannot be other than a futile academic exercise.
Where are we headed as a nation?
On the eve of Britain’s entry into World War I, then Foreign Secretary Edward Grey famously remarked: “The lamps are going out all over Europe, we shall not see them lit again in our lifetime”. In light of his clear electoral defeat, and considering national security threats embedded in Babili Mansa’s explicit and implicit mechanism for transfer of political authority, are the lights about to go out all over The Gambia?
Our country is overwhelmed by the banality of what it is witnessing, by an et tu moment more instructive than the circumstances surrounding the original locus of the expression in Julius Caesar. Here it is not a friendship brazenly betrayed, but a national trust desecrated by the person entrusted with its protection. With a divide so fundamental, nothing short of Babili Mansa’s departure can mollify Gambians. On any sensible analysis, the responsibility for any outside military intervention to dislodge an entrenched militaristic government can only be attributable to the preeminent architect and legal custodian of that outfit. Clearly, there can be no justification for the lights ever going out in the circumstances, but if they did, the repercussions would prove so transformative Babili Mansa would wish, in the fullness of time, that he was never president of The Gambia.
That his dream was to rule for his natural life is no longer a matter of conjecture. As demonstrated by section 63 of the Constitution, succession of the electoral variety was never far from his thoughts and he prepared for it in quite a destabilising manner.
Section 63(1) of the Constitution states that “the term of office of an elected President shall, subject to subsection (3) and (6), be for a term of five years; ...”
In its original form, and before the enactment of Act No. 6 of 2001, section 63(2) stated: “The person elected President shall assume office on the day following his election, ....
Predictably, section 63(2) was amended to suit the grand purpose of one man for unfettered control of Gambia. Via the agency of Act No. 6 of 2001, section 63(2) reads: “The person elected President shall assume office sixty days following the day of his or her election”.
In 2006, and via Act No. 9 of that year, section 63(2) yet again underwent an amendment, this time in a more clever and subtle manner: “The person declared elected as President shall take the prescribed oaths and assume office on the day the term of office of the incumbent President expires”.
On its face, this sounds sensible and in arguable conformity with the principle of the rule of law. What it really does is strip 63(2) of its standalone status by linking it to 63(1). It should be pointed out that both 2001 and 2006 were election years. Although it may look harmless, linking sub-sections 63(1) and 63(2) without transparent legislative control as to the timing of a presidential election creates the situation where elections can be called many months before “... the term of office of the incumbent President expires”.
In a political dispensation as obtained in Babili Mansa’s Gambia, the gap between elections and the expiry of the term of an incumbent president must be legally constrained so as to avoid the difficulty of the current climate and its attendant national security implications. Here we have a defeated ruler who must be endured in office for an extra 50 days, thanks to the needless linkage between sub-sections 63(1) and (2), and the deliberate silence about when presidential elections might be called.
The linkage was designed for precisely the type of climate we are in currently, triggering the query as to why, in a totalitarian dispensation, the executive power must remain in a president who lost the mandate to govern. These are not trivial queries in that the issue is enmeshed with crucial national security implications as has now become clear to everyone. In a normal democratic system anchored in institutions, for example in the USA, the interlude presents no issues as nothing interferes with the statutorily controlled, almost automatic transition process. Conversely, for a country steeped in personalised rule, the danger is palpable as Babili Mansa tragically and erratically rolls out the blueprint for transitional disaster.
The concerns here are not fanciful considering the millennium year revolution in Yugoslavia was triggered by the exact same circumstances as currently taking place in The Gambia. Milosevic called early elections in September 2000 when his mandate runs through June 2001. He claimed to have won elections he lost, conceded under pressure, offered to resign but at the expiry of his mandate in nine months. Belgrade poured on the streets and the fever caught on in the rest of Yugoslavia. He was forced to resign weeks later in October 2000.
But Babili Mansa ploughs on, crossing the proverbial Rubicon, and ignoring the gathering clouds over our sovereign space that foretell a security crisis of potentially far reaching consequences. The Greater-Banjul area, the uncontested economic and political heartland of the country, is rapidly emptying. Slowly but surely, the contours of possible conflict are beginning to take shape as the British and American embassies are, in ominous tones, advising their citizens in The Gambia to leave, or to consider leaving.
Should it ever come to this?
As counselled by the erudite, sensible, immensely well read if conflicted spokesman, the now former Minister of Information and Communication Infrastructure, Babili Mansa must engage in a conversation with his conscience, reflect on the absolute privileges attendant to 22 years of monarchical-style totalitarianism, ponder the consequences on his nuclear family if nothing else, and come to terms with the reality of human transiency.
More significantly, Babili Mansa should remember that it was not accumulated criminality over the whole life of his reign but momentous madness lasting mere weeks that earned former Ivorian President Laurent Gbagbo his journey to the International Criminal Court. The Dear Leader may wish to say his goodbyes and travel with the Buhari team out of Coalition Gambia on 13 January 2017, get some rest in a secluded retreat somewhere on God’s planet earth, properly learn to read and understand the Quran, study nature, reflect on the teachings of the timeless sages, humanity’s conduits of wisdom and knowledge across the ages, do a lot of prayers, and ask forgiveness.
Ala Shakespeare, “there is a tide in the affairs of men which taken at the flood leads on to fortune; omitted, all the voyage of their life is bound in shallows and in miseries”. Standing as he does at the fork in the road, he must now make the most important decision ever. A wrong turn and Babili Mansa would forever regret he ever became president!
For The Gambia, our prayer revolution will see us through this impasse as well.
Lamin J. Darbo