OPINION: 1997 Constitution Is On Lawyer Darboe’s Side! 

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1997 Constitution Is On Lawyer Darboe’s Side! 

Editor Mbai,

When Lawyer Darboe said that “only ill-health, UDP-deselection or death” would prevent him from contesting the 2021 elections, I think he was trying not to pre-annoy the Supreme Court judges by mentioning the Constitution at this point. I looked up the 1997 Constitutional provisions, and it seems that Darboe is indeed NOT disqualified IF the literal meaning of the Constitution is followed. Please note the big IF as I will return to it below.

CONSTITUTION OF THE REPUBLIC OF THE GAMBIA, 1997 – CHAPTER VI  – Office of President:-  

62(1)(b) … minimum age of thirty years but not more than sixty-five years;  

62(3) A person who, while holding public office in The Gambia (b) has been found guilty of any criminal offence by any court or tribunal established by law; or (c) has been found liable for misconduct, negligence, corruption or improper behaviour by any commission or committee of inquiry established by law shall NOT be qualified for election as President

Lawyer Darboe has been smart and the first thing he did as De-Facto President in 2017 was to have changed Section 62(1)(b) so that the sixty-five years age limit no longer applies.

The only possible difficulty for Lawyer Darboe lies in Section 62(3) where on a literal reading of the section he is in the clear but … and this is where the big IF comes in … it all depends on how the Supreme Court decides to interpret the term “public office”.

Taking into account “the mischief” the Section is meant to guard against – which is to safeguard society from crooks getting into positions of authority and trust – will the Supreme Court equate the Legal Profession and Leadership of a Political Party with “public office” where probity and personal integrity is absolutely essential? Will the Supreme Court bar Lawyer Darboe by arguing that they are implementing the spirit of the Constitution? Judges in UK do that all the time – when they say that they are implementing what they “think Parliament meant or intended”!

So on a literal reading I think Lawyer Darboe is on the money – and has a 95% chance of winning should the IEC bar him and he goes to court. But, and it is a big BUT, that 5% has cost many in the UK their life savings when they lose! Furthermore, as we can see in the USA Supreme Court fight as we speak, Supreme Court judges are NOT apolitical!

Dida Jallow-Halake.

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