I must say that I was surprised and ashamed to read six grade legal analysis of so called Dr Henry Carol in his article titled “Barrow’s Decision To Revoke Ya Kumba Jaiteh’s MP Nomination was Constitutional”.
Before going any further, I would like to bring to Dr Carol’s attention the main constitutional rationale he claimed the 5 honorable members were nominated in the first place. Dr Carol argued that :
“ 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”.
Now from Dr Carol’s statement above, the fundamental question is :
“ Are the 5 nominated members truly neutral or apolitical and are they only nominated to represent special interest groups like the rights of women, children and youths” ?
The answer to this question is emphatically “NO”. Therefore, it is misleading , malicious and outright legal misinterpretation of the constitutional rationale for nomination of five nominated National Assembly members. Most students at primary school level knows that all the five nominated members have political affiliation. Majority are UDP members and they have played significant roles to Barrow’s victory. They were all nominated to represent the supreme interest of all Gambians regardless of political, economic , social and health status. Dr Carol has failed woefully to convince any intelligent human being on constitutional rationale for nomination of five members of National Assembly. This is his first misleading and unfounded constitutional interpretation. I also like to also bring to Dr Carol’s attention that “ Not all those who went to law school are intelligent and good lawyers “. We have so many dubious and unethical lawyers who would do anything for political expediency. This was evidenced during Jammeh’s regime when we have foreign machinery lawyers on the payroll of military dictatorship.
Secondly, I am also concerned when Dr Carol totally dismissed the arguments of both Alagie Jallow and Madi Jorbateh on the basis that “ they are not trained lawyers as he claimed “. This was an absurd argument because many people understand law or constitution without stepping their foot in law school. His continued categorization of lawyer Taal as “ junior learned lawyer “ was an indication to showcase his intellectual superiority in law when in reality he has not provided any substantive constitutional evidence to support his claim.
When I Analyzed Dr Carol’s article, I saw so many inconsistencies and lack of basic legal arguments. These are following areas below where I noticed Dr Carol’s legal rambling without making genuine legal grounds to convince intelligent people or make his case .
- Dr Carol’s provided yes or no answer to the question : “Can President Barrow sack a sitting MP or National Assembly member? “.
Dr Carol’s rationale for the Yes or No answer to this question was simply based on his futile attempt to distinguish between nominated members of National Assembly and elected members despite the fact that the constitution provides the same status to all members. Elected MPs and nominated members all enjoy the same privileges, responsibilities, rights and duty to uphold and defend the constitution as well as make legislative decisions based on conscience and national interest on behalf of the Gambian people. There is no constitutional provision which states that only nominated members could be sacked by the president while the elected members cannot be sacked.
The Yes or No answer given in this case is absurd and juvenile which was not expected from learned lawyer. The constitution is very clear about responsibilities and privileges of the members of the National Assembly. Here is what chapter VII , Part 5 states about responsibilities, and privileges of the National Assembly members:
Responsibilities of members 112 .The responsibilities of the members of the National Assembly shall include the following:
- a) all members shall maintain the dignity of the National Assembly both during the sittings of the National Assembly and in their acts and activities outside the National Assembly.
- b) all members shall regard themselves as servants of the people of The Gambia desist from any conduct by which they seek improperly to enrich themselves or alienate themselves from the people, and shall discharge their duties and functions in the interest of the nation as a whole and in doing so , shall be influenced by the dictates of conscience and the national interest.
This constitutional provision clearly states the expectations of National Assembly members and it did not make any distinction between responsibilities of members. In fact the constitution declares that “ all members ” are servants of the people of The Gambia. Both elected members and nominated members owe true allegiance to the Gambian people and they shall be influenced by the dictates of conscience and the national interest.
President Barrow’s termination of Ya Kumba Jaiteh from National Assembly was based on political expediency but not on national interest. He was criticized by Mrs Jaiteh for “not being the only son in The Gambia “. President Barrow was infuriated by this comment and later passed executive order to fire Mrs Jaiteh . President Barrow’s decision has no legal grounds and it simply indicate lack of tolerance and dictatorial tendencies. It is against this background that people who genuinely care about our new democracy have called President Barrow’s action “a violation of constitution”.
- Another inconsistency in Dr Carol’s article was on the question of “ Is the office of MP or NAM public office ?”
Here again, our so called learned lawyer gave controversial yes or no answer for the sake of nonsensical argument. A good lawyer will never give yes or no answer in the court of law because it simply shows lack of knowledge or clarity on legal cases . I believe Dr Carol’s did not have true understanding of section 230(1) which he falsely claimed give power to President Barrow to fire nominated members. The constitution is a clear legal document which is sometimes subject to foolish misinterpretation due to political expediency. Dr Carol’s answers are not based on genuine constitutional interpretation. He lack constitutional expertise to discern what is public office or servants. Here is what the constitution states about public office :
Section 80 mentions constitution of public office as: “Subject to this Constitution and any Act of the National Assembly the President may constitute any public office for The Gambia and make appointments to such office and terminate such appointments.”
Those who are in public offices are civil servants, thus they are in public service. The people who are in public service are constituted by the president through appointments. Nominated National Assembly members are not public officials. In the United States , the constitution give the President to nominate Supreme Court justices but they shall be confirmed by the United States senate. The nomination of lawyers or justices are done in many civilized countries which cherish democracy. In The Gambia , President Barrow can make nomination of National Assembly members as dictates by the constitution.
Here is what the constitution states about public service:Chapter XI. Section 166 of the constitution states:
(1) subject an Act of the National Assembly, the public service of The Gambia shall comprise the civil service as established immediately before this constitution comes into force and the offices declared elsewhere in this constitution to be offices in the public service.
(4) In this constitution, an office in the public service does not include:-
(a) the office of President, Vice President, Speaker or Deputy Speaker of the National Assembly, Secretary of State or a member of the National Assembly.
From the above constitutional provision 4(a), It clearly shows that a member of the National Assembly is not in public service which means our National Assembly members are not civil servants. The constitution proves who is civil servants in this case. Therefore, there is no confusion on this subject matter because National Assembly is legislative body which makes laws in The Gambia. They are independent of executive branch who are political appointees except the president . The President cannot unilaterally fire any National Assembly member since the National Assembly operate as an independent entity which hold executive branch to account . Dr Carol must remember that President Barrow also cannot unilaterally make any law or declaration without support of National Assembly members.
I do not think it makes sense to single out every wrong claim or misleading legal interpretation in Dr Carol’s article. What truly made me ashamed and saddened is that most Gambians look up to people like Dr Carol as honest , impartial and intelligent legal scholar when in reality we have so many people like Dr Carol who offers legal opinions for political expediency. We must remember that we have Gambian and foreign lawyers who helped Jammeh in human rights violations and lawlessness during the past two decades. I was surprised to see Dr Carol supported decision of President Barrow who is following the foot steps of Yaya Jammeh. President Barrow should have learned that majority of Jammeh’s decisions were unconstitutional. Barrow is a progeny of Jammeh’s dictatorship and he must be educated to deviate from the past decisions of former President Jammeh.
Written By Max Jarju
Editors: The views expressed by the author do not represent the position of the Freedom Newspaper. Thanks for your attention.