3 Years Jottna or Tayenanj! Time’s up or Fed Up!

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3 Years Jottna or Tayenanj! Time’s up or Fed Up!

This issue seems bound to be a constitutional, moral and ethical challenge for our body politic and it must not be ignored but addressed as is the norm for democratic societies.

Law and morality are not always compatible, something like Apartheid and Segregation may have been legal but immoral.

But if we can have a genuine dialogue, we can devise acceptable solutions.

It has been nearly 2 and a half years and most of the Transformation Agenda of the Independent Candidate for the Coalition of Parties has not been achieved but the most important is that democratic transition of power has been achieved for the first time in our history and that should be applauded.

Was the 3 years promise for new polls feasible is a million dollar question and short of a constitutional crisis, it was unlikely to be kept.

The comparisons to the AFPRC Transition period of 2 and a half years fails to appreciate the main distinction between military junta rule and governance in a democratic dispensation. In the former, the Juntahad both Executive and Legislative powers and in the latter, the powers are separate in letter, if not fully in spirit.

This exegesis is an attempt to stimulate the discourse and debate, away from partisanship, zealotry and hackery.

Can we afford another set of elections without destabilizing the Republic further? Well the supposed new Constitution under draft is premised on a Referendum so that is a hypocritical proposition.

The question should be what is the best approach or option for the National Interest.

The many obvious legislative gaps, and untenable provisions in the 1997 Constitution can be fixed and the CRC has demonstrated its capacity to engage with all the parties and draft the necessary changes and amendments, most of which are generally agreed upon and do not need Referendum and enhance our democratic governance and rule of law. This can be done rather than risk all on a new Constitution that may not pass in the National Assembly, or may not get Presidential Assent or last may not get the 75% approval of at least 50% turn out of registered voters. This condition has not been met by winning candidates in the last 4 elections, being Presidential 2016, National Assembly 2017 and Local Government and Municipal elections in 2018.

As always, we write to challenge assumptions and stimulate discourse and not based on superior knowledge but humbly in exercise of our duty as an occupant of the highest office in a democratic Republic and that is, one of Citizen.

The biggest onus lies of course with the First Citizen, the Elected President and not all decisions will be correct or perfect but we can only demand he does the best he can and keeps always in his mind that he swore an oath of office to uphold and defend the Constitution and the Republic, without fear or favor, affection or ill will and so Help him God!

“Without fear or favor, affection or ill will” ie without prejudice it seems remains our biggest challenge and one that we must overcome to achieve our ambitions and goals for a better Gambia for all.

Pa Musa Jallow
Aka Cessadep PMJ
Friday 24 May 2019

3 Years Jottna or Tayenanj! Time’s up or Fed Up!

Given the fixed term mandates for both the Executive and Legislative under the 1997 Constitution as at now, can the 3 Years Promise by the so called Coalition of Parties led by Independent President Barrow be reasonably respected without
1. creating a constitutional crisis
2. amending the fixed term mandate clauses and allowing for new elections within 90 days
3. or removing a duly elected President and replacing him in this case, with an appointed ie selected but non elected person
4. Is it fair to ask the President to respect the 3 years and not apply the same to all other elective arms of government?
5. Does the 1997 Constitution allow for its total overthrow, even if constitutionally as envisaged via the said CRC; or can it only be amended not overthrown like the US Constitution?
6. Are the price and trouble of these lawyer driven processes worth it and at the expense of growing challenges and regressions in security, education and health or can a more balanced and sensible approach be undertaken?

The current debate and discourse in The Gambia have been hijacked by political partisans, zealots and agenda driven so called activists including so called human rights and democracy advocates and the interest of the majority may have been overlooked.

3 years is up ie Jottna or is it Tayenanj- we are fed up!

Does the Coalition have a mandate for total revisionism or a limited one as it won 44.6% of a less than 60% voter turn out in the Dec 2016 Presidential and even lesser actual voter percentages in the National Assembly and Local Government elections. Or is the mandate the Manifesto of Candidate Barrow?

Whither President Barrow?!

Respect his promise or his oath of office.. the former means stepping down after the 3 years and leaving the nation to its own devices or respect the oath of office and that means not only 5 years but respecting the provisions of the 1997 Constitution including the immunities of the AFPRC era and that of the former President. One cannot have one’s cake and eat it. The national interest must be the supreme consideration and sadly the nation’s principal legal officer ie the Attorney General has shown a predilection for selective adherence to the 1997 Constitution and therefore rendering a disservice to the Executive.

Again the following are important to note

A. The 1997 Constitution elects the Executive, National Assembly and Local Government bodies to fixed terms and thus the 3 year Memorandum of Understanding does not have constitutional basis.
B. The fixed term mandate in the 1997 Constitution can be amended by the NA but without presidential assent, it does not become law and there is no discernible will as at now, for that;
C. The option for the President to step down and be replaced by a selected and appointed Vice President, does not honor the democratic expression of the will of the people and thus creates a worse situation than the elected Executive completing the constitutionally mandated term;
D. It is unlikely there is a genuine working majority in the National Assembly for or against the President, given the divide and tussle within the UDP majority of 31, and not reliable shifting inclinations of the current opposition parties, ie the APRC, GDC and Independent parties. PDOIS, PPP and NRP and the UDP were the Coalition Parties.
E. Certain amendments require absolute majorities over 67% ie two-thirds of the vote in the NA, Presidential Assent and a Referendum with 75% approval of at least 50% registered voter turn out, Herculean tasks, in the current hostile environment between the Executive and the majority party in the NA.
F. Given all the above and the resurgence of the APRC, which still remains the party with singularly the highest number of votes, ie 208 000 in the December 2016 Presidential elections, followed by UDP with 142 000 in the 2017 National Assembly elections, all being barely 25% and 17% of registered voters, meaning rushing into new elections in 2019, will be costly and possibly destabilizing.

The best way forward may be a true National Reconciliation effort and moderation of the processes that have not achieved the stated objectives of accountability and national reconciliation but rather exposed narrow agendas, cronyism and selective persecution in the case of the Janneh Commission of Inquiry and with the TRRC, it is not only failing in an impartial process but perceived to be pursuing an agenda and a narrative and the Act itself may have constitutional challenges.

The CRC seems genuine but an expensive elitist exercise, which could have actually been more concise in doing a constitutional review as provided under the 1997 Constitution every ten years, rather than an effort to ignore, reverse and denigrate the hard won progress of the last 25 years.

We deserve better than more posturing and narrow agenda driven partisan point scoring.

There are many identifiable gaps in the 1997 Constitution and the CRC has demonstrated the capacity and competence to sit with all parties including Executive and Legislative to resolve these.

“Without fear or favor, affection or ill will” ie without prejudice it seems remains our biggest challenge and one that we must overcome to achieve our ambitions and goals for a better Gambia for all.

#ToTheGambiaEverTrue
#GodBlessTheGambia
#NkosisikeleleiAfrica

References

1. The Supremacy of the Constitution
2. The fixed term mandates
3. Amendments
4. Other

CHAPTER II
THE CONSTITUTION AND THE LAWS
4. Supremacy Of the Constitution
This constitution is the supreme Law of The Gambia and any other law found to be inconsistent with any provision of this Constitution shall, to the extent of the inconsistency, be void.

5. Enforcement Of the Constitution
A person who alleges that-
(a) any Act of the National Assembly or any thing done under the
authority of an Act of the National Assembly, or
(1) any act or omission of any person or authority, is inconsistent with; or is in contravention of a provision of this constitution, may bring an action in a court of competent jurisdiction for a declaration to that effect.
(2) The court may make orders and give directions as it may considered appropriate for given, to such a declaration and any person to whom any order or direction is addressed shall duly obey and carry out the terms of the order or direction.
(3) The failure to obey or carry out any order made or direction given under subsection (2) shall constitute the offence of violating the Constitution and
(a) shall, in the case of the President or Vice President, constitute a ground for his or her removal from office in accordance with section 67; and
(b) any other person who is convicted of that office shall be liable to the penalty prescribed by an Act of the National Assembly.

6. Defence of The Constitution
(1) Any person who –
(a) by himself or herself or in concert with others, by any violent or other unlawful means, suspends or overthrows or abrogates this Constitution or any part of it, or attempts to do any such act, or
(b) aids and abets in any manner any person referred to in paragraph (a)
commits the offence of treason and shall, on conviction, be liable to the penalty prescribed by an Act of the National Assembly for that offence.
(2) All citizens of The Gambia have the right and the duty at all times to defend this Constitution and, in particular, to resist, to the extent reasonably justifiable in the circumstances, any person or group of persons seeking or attempting by any violent or unlawful means to suspend, overthrow or abrogate this Constitution or any part of it.
(3) A person who resists the suspension, overthrow or abrogation of this Constitution as provided in subsection (2), commits no offence.

63 Tenure of office Of President
(1) The term of office of an elected President shall, subject to subsection (3) and (6), be for a term of five years; and the person elected President shall before assuming office take the prescribed oaths.
(2) The person elected President shall assume office sixty days following the day of his or her election, and in any case where the candidature of a person contesting the election is unopposed, such candidate shall be declared unopposed and elected to the office of the President on the day following the making of such declaration.
(3) A person elected as President may at any time during his term of office be removed from office if a no confidence motion is passed in the National Assembly supported by two thirds of the members of the National Assembly.
(4) where a no confidence motion is passed in accordance with subsection (3), the speaker shall request the Independent Electoral Commission to call for a referendum within thirty days of the passing of such motion to endorse or reject the decision of the National Assembly and where such decision is endorsed the President shall vacate the office.
(5) The procedure for the conduct of such referendum shall be prescribed by an Act of the National Assembly

(6) where the life of the National Assembly is extended for any period in accordance with section 99 (2), the term of office of the President shall be extended for the same period.

65 Vacancy in the Office of president
(1) The office of President shall become vacant during the term of a Presidency
(a) on the death or resignation of President or
(b) on the President ceasing to hold office under section 63, 66 or section 67.
(2) Whenever the office of President becomes vacant in the circumstance set out in subsection (1), the Vice-President,
or if there is no Vice-President in office at the time, the Speaker shall assume the office of President for the residue of the term of the former President.
(3) Before assuming office under this section, the Vice-President or, as the case may be, the Speaker shall take the prescribed oaths for the office of President. On assuming the office of President, the Speaker shall vacate his or her office as Speaker and his or her seat in the National Assembly.

CHAPTER XII AMENDMENT OF THE CONSTITUTION
Alternation of this (1) subject to the provisions of this section, an Act of the Constitution National Assembly may alter his Constitution.
(2) Subject to subsection (4), a bill for an Act of the National Assembly under this section shall not passed by the National Assembly or presented to the President for assent unless-
(a) before the first reading of the Bill in the National assembly, the Bill is published in at least two issues of the Gazette, the latest publication being not less than three months after the first, and the Bill is introduced into the National Assembly not earlier than ten days after the latest publication; and
(b) the Bill is supported on the second and third readings by the votes of not less than three quarters of all the members of the National assembly.
(3) If the President fails to assent within thirty days to a Bill passed by the National assembly in accordance with subsection (2), the Bill shall be returned to the Speaker who shall refer it to the Independent Electoral Commission shall cause a referendum to be held on the Bill in accordance with subsection (4) and, if the Bill is supported on such a
referendum by the majority of voters provided for in that subsection, it shall again be presented to the President for his assent.
(4) A Bill for an act of the National Assembly altering any of the provisions referred to in subsection (7) shall not be passed by the National Assembly or presented to the President for assent unless-
(a) the Bill is published and introduced in the manner required by paragraph (a) of
subsection (2);
(b) The Bill is supported on the second and third readings by the votes of not less than three quarters of all the members of the National Assembly;
(c) The Bill has been referred by the Speaker to the Independent Electoral Commission and the Commission has, within six months of such reference, held a referendum on the Bill; and
(d) At least fifty per cent of the persons entitled to vote in the referendum have taken part in the referendum and the Bill is supported in the referendum by at least seventy five per cent of those who voted.
(5) The Speaker and, in the case of a Bill to which subsection
(3) or (4) applies, the Independent Electoral Commission shall certify that the relevant provisions of this section have been complied with and such certificates shall be delivered
to the President when the Bill is presented for assent.
(6) Where a Bill which has been supported in a referendum by the majority provided for in subsection (4) is presented to the President to the President for assent, the President shall
assent to the Bill within seven days.
(7) Subsection (4) applies to –
(a) this section;
(b) section 1 and 79 (2) (which relate to the sovereignty of The Gambia);
(c) sections 4, 5 (1) and 6 (2) (which relate to the Constitution, as the supreme law of The Gambia;
(d) sections 8 and 13 (4) (which relate to citizenship);

(e) Chapter IV (which provides for the protection of fundamental rights and freedoms);
(f) Sections 39 (1), 42 (1), 47 (3) (which relate to elections and the Independent Electoral
Commission) ;
(g) Section 63 (1) and the first sentence of section 71 (2) (which relate to the term of the President and the qualifications for Secretaries of State);
(h) Sections 85 (4) and 160 (7) (which relate to the Director of Public prosecutions and the independent of the Auditor general);
(i) Sections 87 and 100 (which relate to the National Assembly and the legislative power);
(j) Sections 120(1)(a), (2) and (3), 121 (1), 123, 126 to 128, 130, 132, 133, 135 (1) and (2), 136 and 138(1), (4), (5) and (6) (which relate to the judicature (;
(k) Sections 149 (1) and 151 (1) which relate to
taxation and the withdrawal of money from public funds);
(l) Section 193(1) (which relate to local government);

(8) No Act of the National Assembly shall be deemed to amend, add to, repeal or in any way alter any of the provisions of this Constitution unless the title of the Act clearly indicates that intention and the Act does so in express terms.
(9) In this section –
(a) references to this Constitution include references to any law that amends or replaces any of the provisions of this Constitution;
(b) to the alteration of this Constitution include references to the amendment, modification or re-enactment with or without amendment or modification, of the Constitution or of any provision for the time being contained in this
Constitution, the suspension or repeal or the making of different provision in lieu thereof, and the addition of new provisions to the Constitution.

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