During the dictator’s time in office, one of the narratives of UDP was that it was the major opposition party and hence the “smaller” opposition parties should dance to its tunes. The head of the new coalition government is a UDP member, who ran as an independent candidate, but the UDP leadership does not see Mr. Barrow as a person who ran as an independent candidate but as a person who ran as a UDP candidate and hence “those other small parties” with the exception of Hamat Bah’s party and the one man party of Mr. Mai Fatty, should dance to the UDP tunes. Nothing has changed here folks! Of course, this is contrary to the MoU that the Coalition signed at its inception. Here are some indisputable facts:
(1) At the time the Coalition was being formed Mr. Co-President Darboe was in jail. Here one wonders whether the Coalition would have been formed if Mr. Co-President Darboe was not in jail.
(2) If UDP did not play the “major opposition party” card during the negotiation leading to the formation of the Coalition, would Mr. Barrow have been nominated as the leader of the Coalition? Here one needs to look at all the criteria one should look at in order to nominate a qualified person for the office of the presidency. By the way, before the formation of the Coalition, there were UDP militants who wrote and said that Mr. Barrow did not have the qualifications to be president.
(3) Among the conditions that the members of the Coalition agreed to in the MoU they signed, there are at least two conditions precedent that the members of the Coalition insisted upon:
(a) Three years transitional government should the Coalition wins; and
(b) That Mr. Barrow was to run as an independent candidate.
(4) The major issue of contention arose from this single point of view:
(i) Majority of Gambians see Mr. Barrow as a
President who ran as an Independent candidate; UDP members do not see Mr. Barrow that way at all. UDP members see Mr. Barrow as a UDP candidate who ran for president. Take this point away and you almost have no disagreement.
If all the arguments about “separation of powers” and “conflicts of interest” are seen from the above analysis, then one sees why UDP does not have a logically valid argument hence it relies on the “majority party” card. It is laughable when you read or hear UDP militants accusing persons who point out this weasel-like behavior as tribalist. LOL! Much has been written about “Separation of Powers” and most of it has not been accurate. I suggest reading and re-reading Federalist 51.
The question presented is whether Mr. Barrow is a president who ran as an Independent candidate or as a UDP candidate? If Mr. Barrow ran as an Independent candidate then why he is governing under a UDP platform? How could a person who ran as an independent candidate governs as a party candidate on the platform of a party that did not nominate him? Why would a person who signed a MoU to run as an independent candidate only to completely disregard what he agreed to do? This seems possible only because that is what the UDP leadership wants. Instead of showing respect to the agreement it signed, UDP is showing total disregard of that agreement simply because it is the ”Majority Party” and it can do as it sees fit. There is so much intellectual dishonesty in this debate it is mindboggling. The only justification UDP has demonstrated so far is that, it is the “Majority Party.”
The brother, Mr. Solomon Demba’s analysis of the Coalition’s agreement as being in violation of section 63(1) is way off and demonstrates a lack of understanding of both Contracts law and Constitutional law. The Coalition’s agreement to a three years transitional government does not violate the Constitution in any way whatsoever. If the Coalition government is held to the three years transition government it agreed to, whose constitutional right is violated? No one. It is a fundamental principle of constitutional law that a constitutional right cannot be violated without government action. This simply means that a person not under government control or directives cannot violate the constitutional right(s) of another person. An entity that is not under government control or related to a government in anyway cannot violate the constitutional right of another person or entity. I believe, besides the learned Mr. Lamin J. Darboe, almost all writers on Gambian constitutional issues miss this fundamental principle.
It is also a fundamental principle of contracts law that parties to an agreement are held to the terms of the agreement they signed absent mistake, misrepresentation, illegality, duress or fraud. If the three years agreement for a transition government the Coalition members signed was a mistake they have to say how it was a mistake. If they signed the agreement under duress or there was fraud or misrepresentation they will have to explain how that happened. And, if the agreement is illegal that too, they have to explain why it is illegal. To hold signers of an agreement to the terms of the agreement they signed absent the exceptions I listed above is not government action. Again, where there is no government action there is no constitutional violation. The signers of the agreement were not forced to sign the agreement against their wills. They signed the agreement as one condition among others that made it possible for them to agree to the formation of the Coalition. Therefore, the agreement to the transition period was crucial to the formation of the Coalition.
One argument that could be raised against the three years transition agreement is that it is against public policy but that is a weak argument because there is no public policy issue that the agreement affects. The signers of the agreement knew what the constitution, section 63 (1), says about the term of office of the presidency. It would be a totally different matter if the Coalition were to agree and subsequently signed a transition period beyond the five years term mandated by section 63(1). That would be a clear violation of the constitution. The office of the presidency is not a fundamental rights issue. And even if it was, there are directives where the president could be kicked out of office. See subsection 63(3). Another very important point is that, this is not a case where the National Assembly is trying to change section 63(1) without the directives of that jealous subsection 226(7).
If brother Solomon Demba wants to argue that the Coalition members would have agreed to form the coalition without signing the three years transition agreement, he can write about it and we are all ears! Let anyone tell us why the members of the Coalition chose three years transition period and not five years. Let anyone tell us whose constitutional right is violated by the three years transition period. Let anyone make the argument that holding the Coalition to the three years transition period is government action.
Written By Gambian Outsider!