Presidential Advisers speak for their master – unless the master rejects their statements! So, notwithstanding the wishes of the Civil Society Organisations and others, we can safely say that the Final Draft Constitution as it now is will not see the light of day before 2022 (or even before 2027 as I wrote last week!).
“Bias against Barrow” say Jatta and Mballow
Both Mr. Jatta, Senior Presidential Adviser, and Mr. Mballow, Assistant Adviser, have made it clear that the “Draft Constitution is unfair to President Barrow” and has to be changed before it can be put to a referendum. The National Assembly will not be able to get a 75% vote to put the Constitution to the people against the President’s will … and so it is R.i.P for the Draft Constitution until 2027 UNLESS it undergoes drastic surgery.
“Bias Towards Darboe” says Mballow
I think Mr. Mballow is wrong on that because of the one word “this” in Section 92:
92. (1) A person is disqualified for election as President if he or she (2)(b) has been convicted by a court or tribunal of competent jurisdiction of (2)(b)(ii) any other offence for which the prescribed penalty exceeds twelve months (The disqualification “does not apply if the conviction has been overturned on appeal or if the person has been granted a pardon in accordance with this Constitution”).
So, clearly Lawyer Darboe’s pardon by Barrow under the 1997 Constitution does not count once the 2020 Final Draft Constitution comes into force – because Darboe would have to be pardoned again under the new Constitution. On the other hand, if Barrow rejects the 2020 Draft Constitution, Darboe’s pardon under the 1997 Constitution remains valid.
Bigger Dangers For All Challengers to Sitting President
92. (1) “A person is disqualified for election as President if he or she – (2) (a), has, during any period of service in a public office or in the private sector in The Gambia, been terminated or dismissed for dishonesty; does not apply if the termination or dismissal, as the case may be, has been litigatedbefore a court of competent jurisdiction and the person has been found not to have acted dishonestly”.
The presumption of innocence seems to have been overturned here! For example, all the President’s Office needs to do is write to the Independent Electoral Commission and say: “Lawyer Darboe was dismissed as Vice President for ‘dishonesty’ on these grounds …”. Lawyer Darboe will be barred UNLESS he ‘litigates’ before a court and clears his name. How long does a court case take in The Gambia?
92(2)(f) has, within ten years immediately preceding the date of nomination for election as President,uttered any statement to cause feelings of ill-will, disaffection or hostility between different classes or ethnic groups of The Gambia;
This probably came straight from the Kenyan Constitution, but there we have a very strong Ethics & Anti Corruption Commission which investigates politicians offending utterances and speeches – and allows the offending politician due process with lawyers involved before decisions are reached. Who is to decide a candidate is ‘a tribalist’ before he/she is barred? Newspapers?
92(2)(i) has failed to submit to the Independent Boundaries and Electoral Commission on the date of nomination for election of President a certificate from the authority responsible for the collection of taxes that he or she has paid all taxes due from him or her;
Now, we all know how Jammeh abused the tax and “commissions” system. What if the Tax Chief knows that he will be subjected to 3-Days Jotna if he gives a particular Opposition Candidate a Tax Clearance?
92(2)(j) “after the date of nomination for election as President but before the date of election, has beendeclared to be of unsound mind”.
Who decides who is mad? The Royal Gambian College of Psychiatrists? The IGP? I can think of more than one Presidential aspirant who may fall foul of this section, for example that ZAAPP Party guy! I am clearly not mad – if I am sane enough to know that I am not mad! But my views are subjective – as will be the views of even the doctors too! I don’t even know why this Section is necessary … once someone has been chosen by a dully established political party as their Presidential candidate, that should be enough – unless we think the Party itself is mad! If the USA can survive Donald Trump, we can too!
Gourmet – Or Dog’s Dinner?
Depends on your taste – but the more one looks into the Final Draft Constitution the more it resembles the latter!