HIS EXCELLENCY PRESIDENT BARROW’S REVOCATION OF MS. YA KUMBA JAITEH’S NOMINATION AS HON. M.P. /N.A.M. WAS CONSTITUTIONAL/LEGAL
By:- DR. Henry D.R. Carrol (M.R.G.),
Senior Oxford-Trained Lawyer, Solicitor
General Emeritus Of The Gambia & Founder
Senior U.T.G. Law Lecturer (From 2007 to Date).
INTRODUCTION:-His Excellency President Adama Barrow’s recent Official revocation of Ms. Ya Kumba Jaiteh, as one of the 5 Honourable Presidential Nominees for The National Assembly/Parliament, has triggered a plethora of negative and legally unfounded written/published reactions from:- Mr. Madi Jobarteh, Alhagi Yorro Jallow of Havard University (U.S.A.), Mr. Salieu Taal (My Learned Junior) and the newly elected President Of The Gambia Bar Association etc. I really sympathize and empathize with the 2 aforesaid monumental laymen in Law, who do not have an iota of legal expertise, and nonetheless had the guts, audacity and temerity, to publicly write articles on this important matter/controversy, which are nothing but unacceptable misrepresentations of both 1997 The Constitution and other Laws Of The Gambia. Nemo dat non quod habet(Latin:- one cannot give, what one hasn’t got).
The National Assembly/Parliament, is established by Section 88 of the said Constitution, and Section 88 (1) says it is composed of 53 Elected Members and 5 Nominated Members. The incontrovertible Constitutional rationale for these 5 Honourable Nominated Members, (who should be politically neutral or apolitical, at all times), is for them to ably represent special interests in the said Assembly/Parliament, like:- Women’s Rights, Child Rights, Rights Of Youths, Environmental Protection,Trade Unions, Rights of The Disabled, etc.. In his masterpiece book titled:- “A Hundred Great Lives”, Lamperi, the erudite historian wrote:-“Aristotle, was a man with a defunct countenance, but his genius was sufficient compensation for his personal defect. He was a man, with a readiness of invention and fecundity of thought, and no philosopher, made a more profound impression on the Western World.”In other words:-“Disability does not mean inability.” The Assembly is now on recess, it will resume work in March 2019.
Section 91 of the said Constitution, states the different Legal grounds, on which a Honourable National Assembly Member-N.A.M./M.P., shall cease to be a Member Of the said Assembly, and these are:- The dissolution of The National Assembly, or any reason that could have disqualified a candidate from contesting a National Assembly Election, or if he/she resigns, or if elected as an Independent Candidate and he/she then joins a Political Party, or if he/she is recalled by his/her constituents, or if he/she is absent for 10 or more sittings of the National Assembly, and if he/she is found to be guilty of “Contempt Of The National Assembly”, contrary to Section 110 of the said Constitution, ( a heinous Parliamentary Offence).
In his recent article, with the long title:- “Stand against authoritarianism before it gets stronger and bigger! The President cannot sack a member of Parliament”, Mr. Madi Jobarteh, wrongly wrote:-“…While the Constitution gave powers to the President to nominate five members, but it did not give him the same powers to dismiss a nominated member…” This hilarious and unfounded statement of Mr. Jobarteh, was indeed a monumental and unacceptable Constitutional/Legal error, which was maliciously intended to distort sacrosanct and inviolable Constitutional/Legal Principles, thereby getting cheap popularity and deceiving gullible or simple-minded people. Mr. Jobarteh’s, conduct, was also tantamount to exhibiting monumental intellectual dishonesty. “In The Kingdom Of The Blind, The One-Eye Man Is King”, as the famous adage goes. The title of Mr. Jobarteh’s article, was legally wrong and totally misleading and unfounded. H.E. President Adama Barrow’s action was not tantamount to “authoritarianism”, and he indeed has the Constitutional/Statutory power/authority to sack a nominated N.A.M./M.P., and this is buttressed/endorsed by our present 1997 Constitution, which is still legally in force, for all intents and purposes, and it is also fully endorsed by some appropriate Acts/Statues of Parliament.
A GOOD LEGAL REASON WHY H.E. PRESIDENT BARROW’S ACT WAS CONSTITUTIONAL/LEGAL?:- Yes, the aforesaid legal grounds, are grounds, on which a Honourable M.P./N.A.M. shall cease to be a Member of the said Assembly/Parliament, but these grounds are not exhaustive. Section 91 does not say, that these are the only grounds, that shall disqualify a Nominated/Elected N.A.M from membership of the said Assembly. The famous Latin maxim:- “Expressio Unius Est Exclusio Alterius (:-what has been expressly stated by the Law, excludes what has not been stated), therefore clearly does not apply here. A legally-minded person, a sound Lawyer, or an astute law interpreter, should ex abundanti cautela (Latin:-out of the abundance of caution), cross-reference the said grounds, with Section 231 (1) and Section 231 (5) respectively, of the said Constitution.After this has been wisely done, it will then become crystal clear, that His Excellency President Barrow’s act was indeed Constitutional/Legal. Google authoritatively defines “cross reference” thus:- “a reference to another text or part of a text, typically given in order to elaborate on a point.” “Equity aids the vigilant, but not the indolent.”, (Equity Maxim).
My Learned Friend and my Lawyer, Mr Moses Richards, likes quoting this adage- ? The best listener is the person, who has metaphorically heard, what has not been said”, (i.e. the ability to read between the lines). Section 231 (1) reads:-“Where a power is conferred by the Constitution to make any proclamation, order, regulation, rule or pass any resolution or give any direction or make any declaration or designation, it shall be deemed to include the power, exercisable in like manner and subject to like conditions, if any, to amend or revoke the same.”Yes, the former Honourable Ms. Ya Kumba Jaiteh, (My Learned Junior at The Gambia Bar), was indeed one of 5 Honourable Presidential Nominees, who became Honourable Members Of the said Assembly/Parliament, as a direct result of His Excellency President Adama Barrow, evoking powers vested in him to do so, by Section 88 (1) of the said Constitution. Section 231 (1) of the said Constitution, clearly gives His Excellency President Barrow, the explicit power/authority to revoke such a Nomination. President Barrow giveth, and President Barrow has taken away, blessed be the name of His Excellency President Adama Barrow. This is indeed crystal clear, for all who want to see it.
The Holy Bible says:-“There is none so blind, as he/she who does not want to see.”This rancor also happened, during The Gambia’s 2nd Republic, when Ex-President Yahya Jammeh, in 2009, revoked the Presidential Nomination of Honourable DR. Mrs. Fatoumatta Jahoupa-Ceesay, alias “F.J.C.”, (my good friend and dear sister), who was then The Honourable Speaker Of The National Assembly for 2 years (from 2007 to 2009), and she was one of the 5 Honourable Presidential Nominees, of the said Assembly/Parliament. This is therefore, Parliamentary history repeating its self. Indeed the categories of legal grounds, on which a sitting Honourable M.P./N.A.M., shall cease to be a Member of the said Assembly/Parliament, (whether Elected or Nominated),are therefore not closed.
ANOTHER GOOD LEGAL REASON WHY H.E. PRESIDENT BARROW’S ACT WAS CONSTITUTIONAL/LEGAL?:-
Also Section 231 (5) of the said Constitution says:-“Without prejudice to the provision of Section 167, but subject to the other provisions of this Constitution, the power to make any public appointment to a Public Office, includes the power to dismiss any person so appointed.”This is also clearly corroborated, by Section 20 of The Interpretation Act (1966), which reads:-“Where by or under any Act, a power to make any appointment is conferred, then, unless the contrary intention appears, the authority having the power to make that appointment, shall also have the power to suspend or dismiss any person appointed by it, in exercise of the power.” A Public Officer/Public Servant, means the same thing.
The said Section 167, is titled:-“Appointment To And Removal From Offices In The Public Service.” His Excellency. Adama Barrow, therefore has the power/ authority under the said Section 231(5), to sack any Honourable Nominated N.A.M./ M.P. The laconic phrase:- “… subject to the other provision of this Constitution…”, from the said Section 231(5), is clearly alluding to “Cross Referencing”, which I have already discussed and analyzed in this legal article.
According to Black’s Law Dictionary, 8th Edition by Bryen A. Gerner, Editor-In-Chief, “Nomination” is authoritatively defined as:-“1. The act of proposing a person for election or appointment.2. The act of naming or designating a person for an Office, Membership, award, or like title or status.” It also authoritatively defines “Appointment” as:-“The designation of a person, such as a non-elected Public Official.” It is therefore crystal clear, that these words:-“Nomination” and “Appointment”, are indeed synonymous or interchangeable. In Act 2 Scene 2 of William Shakespeare’s masterpiece Play/Comedy titled:-“Romeo And Juliet”, he rightly wrote:-“What is in a name? That which we call a rose, by any other name would smell as sweet.”Since after His Excellency President Adama Barrow had Officially Nominated the 5 Honourable Nominated N.A.M.’s/M.P.’s, in April 2017, they just took their Oaths Of Office, (Officially and professionally administered by the Honourable and Learned Lord Chief Justice), and started work immediately, without any independent body/authority, approving or endorsing it, (like The Public Service Commission-P.S.C. or The National Assembly), I would therefore like to strongly recommend/legally advise The Chairman and Members of The Constitutional Review Commission, (C.R.C.), that instead of saying:-“The President shall Nominate 5 Members Of The National Assembly”, our new National Constitution, (“The Grund Norm” in Jurisprudential parlance), should instead say:-“The President shall Appoint 5 Members Of The National Assembly.”, for clarity sake and avoidance of doubt.
CAN H.E. PRESIDENT ADAMA BARROW SACK A SITTING M.P./N.A.M.?
The correct answer for this important Constitutional/Legal question, is both “YES” and “NO.” “YES”, under the said Section 231(5), he can sack a Nominated M.P. /N.A.M., whom he has Officially Nominated, as explained and analyzed above, and a M.P./ N.A.M. is indeed a Public Officer, under the said Section 231(5). The answer can also be “NO” because, he cannot sack an Elected M.P./N.A.M., because he/she has been duly and deservedly elected, by the electorate in a given Constituency. If any President in The World (“Global Village”), has the power/authority to sack an Elected M.P./N.A.M, (I am sure there is none), then this will clearly be undemocratic, and it will be diametrically opposed, to wishes and aspirations of the electorate. The veteran and late American President, Abraham Lincoln, an erudite American Lawyer and Politician,authoritatively defined “Democracy” as:-“A Government of the people, by the people and for the people.”A famous political adage in Political Science is:-Vox Populi, Vox Dei (Latin:- The Voice of the people, is the voice of God).
DOCTRINE OF “SEPARATION OF POWERS”:- Mr. Madi Jobarteh in his said misleading article, AlhagiYorro Jallow, in his recent unfounded article titled:-“Hello Mr. President… All Democratic Institutions Should Rise Up”, (a big incitement) and Mr. Salieu Taal the newly elected G.B.A. President, in his bias or one/sided Press Release, all wrongly claimed that, the said act of His Excellency President Adama Barrow, violated the doctrine of “Separation Of Powers.” This famous doctrine, was ably propounded by Montesquieu, an erudite French Lawyer and Scholar, (My Learned Friend), in his masterpiece book “Espirit Des Louis” (The Spirit Of Laws), published in 1747. This doctrine is a classic model, for the Democratic Governance of a State. This doctrine asserts, that Government has 3 distinct arms (The Executive, Legislature and The Judiciary), and none should interfere with Official operations of another arm. I am clearly putting it to Mr. Jobarteh, Mr. Jallow, and Mr. Taal, that no where in our World, do we have a 100% Separation Of Powers, but instead we have a compromise and feasible legal scenario called:- “a system of checks and balances.” 2 examples are (1), The Judiciary, under its inherent jurisdiction, can declare an Act enacted by Parliament “unconstitutional”, if it is inconsistent with our 1997 National Constitution, (2) By “A Vote Of Censure”, under Section 75, The National Assembly can revoke the appointment of both His Excellency The Vice President and a Honourble Minister, both belonging to The Executive. Indeed, nobody is above the Law, including M.P.’s/N.A.M.’s. Even though M.P’s take part in the Law making process, this does not put them above the Law. They only pass “Bills”, (embryonic stages of Laws). It is only after His Excellence President Barrow has assented to these “Bills”, that they will then metamorphose to “Acts” or “Statutes” ( Laws). It is legally wrong, to call them “Law Makers”. They are “Co-Law Makers”. G.R.T.S.,Q.T.V., Radio Stations andGambian Newspapers, should take note of this legal correction of paramount importance. No so called Human Rights Activist, should say that, the power of The President to assent to “Bills”, is a violation of Separation Of Powers. This will be naïve, myopic, preposterous and unacceptable.
IS THE OFFICE OF HON. M.P./N.A.M.A PUBLIC OFFICE?:- The correct legal answer to this complex legal question, is both “YES” and “NO”. “YES” because, Section 230 (1) of the said Constitution, defines “Public Office” as:-“An Office the emoluments attached to which are paid directly from The Consolidated Fund…”, Section 3 of The National Assembly Salaries & Pension Act (1992). says – ”… Members of The National Assembly….. shall be paid salaries and allowances ( out of the Consolidated Revenue Fund)…? The answer can also be “NO” because, Section 166 (4) (A) of the said Constitution reads:- “In this Constitution, an Office in the Public Service does not include:- (a) The Offices of President, Vice President, Speaker or Deputy Speaker of the National Assembly, Secretary Of State (now Minister) or a member of The National Assembly.”For the avoidance of doubt, these 2 conflicting Constitutional provisions, should be urgently referred to The Supreme Court, for it to authoritatively interpret them, in pursuance of its exclusive original jurisdiction on such a matter, under Section 127 (1) (a) of the said Constitution. “Justice delayed, is Justice denied”, as the legal adage goes.
BOGUS PROPOSED IMPEACHMENT OF HIS EXCELLENCY PRESIDENT ADAMA BARROW:-In his said article, Mr. Jobarteh bogusly said, President Barrow, “…must be asked to immediately withdraw his unconstitutional decision and apologize to the Nation. If he fails or refuses to do so, I strongly urge The Speaker and N.A.M.s’ to impeach him for violating the Constitution, as per Section 67 of the Constitution.” This will never happen, it is a monumental Constitutional immoposibility, because H.E. President Barrow, has never violated the Constitution, and those M.P.’s whom Mr. Jobarteh has incited to attempt to do so, clearly do not have the support of two-thirds (2/3) of the total membership of the Assembly, which is required by Section 67 (5) of the said Constitution, before a Resolution, for the impeachment of The President, can be successful. Honourable Mr. Halifa Sallah, the highly educated N.A.M./M.P. for Serrekunda Constituency, highlighted this important Constitutional point recently, The Minority Leader in Parliament, Honourable Mr. Samba Jallow, must also be commended, for taking a neutral stance on this controversy, pending the receipt of A Legal Opinion from the Ministry Of Justice.On 26th February 2019, Mr. Salieu Taal, the newly elected President Of The Gambia Bar Association (G.B.A.), My Learned Junior, made an erroneous Press Release, inter alia saying:- that the revocation of the nomination of Hon. Ms. Ya Kumba Jaiteh, was unconstitutional. I totally disagree with My Learned Junior. I am sure, that other Learned Seniors at The Gambia Bar, (like my humble self), vehemently object to Mr. Taal’s Press Release. Mr. Jobarteh, Mr. Jallow and Mr. Taal, were all Constitutionally/Legally wrong, they should now “eat the humble pie” (admit defeat), and openly apologize to His Excellency President Adama Barrow, for wrongly accusing him of violating our cherished and beloved 1997 Constitution.
Conclusion:- Let me profusely thank my 2 Learned Juniors of The Gambia Bar Association, (U.S.A.- based Mr. Babucarr Drammeh and Mr. Ibrahim Jallow), for correctly subscribing to the incontrovertible view, that the said action of His Excellency President Adama Barrow, was indeed Constitutional/Legal. Mr. Drammeh was one of my clever LLB Students at The Faculty Of Law of The University Of The Gambia (U.T.G.). His Excellency President Barrow, indeed has the power/authority to sack a Nominated M.P/N.A.M, just like how, the electorate in a Constituency, under Section 92 of the said Constitution, also has the power/authority to recall a sitting Honourable Elected M.P./N.A.M, from the said Assembly/Parliament. “What is sauce for the goose, is also sauce for the gander”, (no discrimination). “…Let Justice Guide Our Actions, Towards The Common Good…” I rest my Case.