Reply To My Learned Superior Pa Louis Sambou!
Thank you for your thought-provoking analysis of section 62(3) of the 1997 Constitution – and “Lawyer Ousainou Darboe’s eligibility to run for the Presidency”. Here are a few thoughts stimulated by your piece:-
I agree with you that “public office” under section 62(3) must mean “public office in the public service” and does not therefore apply to the office of Vice-President (nor, I assume office of Foreign Minister). So section 62(3) cannot bar Lawyer Darboe from contesting for the Presidency come 2021.
‘Noscitur a Sociis’
I don’t see why being “terminated or dismissed” as Vice-President (which is completely at the President discretion, and for which no reasons are needed or given) should taint anyone’s character and bar them from seeking office. Here I will borrow your own legal doctrine of ‘Noscitur a Sociis’ (‘a word is known by the company it keeps’). The mischief to which section 62(3) is target is bad behaviour, the unsuitability of the individual for high office because of criminality, etc:-
(a) compulsorily retired, terminated or dismissed from such office, or
(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.”
“Terminated” and “dismissed” must therefore be seen in association with (b) and (c) and should not really concern us if the “termination” or “dismissal” is simply a “no fault divorce”!
The Law vs. The Politics
Have you watched the remarkable live-streamed trial of Julius Malema in South Africa yesterday and today? The Boer police chief has jumped at the chance to nail Malema (26 years after Mandela’s Presidency!) … and Malema’s brilliant lawyer (white!) spent today making the Boer Police Lt. look like a fool! At one point the Lt. did not know his right from his left! I kid you not! But, and here lies the analogy with Lawyer Darboe’s eligibility, Malema may not walk free just because the case against him is rubbish. As Malema himself said, this is a political case brought by the ruling ANC party against a serious challenger.
Whether Lawyer Darboe is barred in 2021 may come down to political, not legal, considerations!
The Supreme Court in the USA has this week ruled on 3 election related issues, and as we all know the US Supreme Court is divided politically between the Liberals (Democrats) and Conservatives (Republicans). To continue with the USA example, the Vote Campaign led by Lebron James and the NBA are fighting Election Commissions in states that try to prevent African-Americans from voting. This is all a long-winded way of saying that whether Lawyer Darboe is actually allowed to run will depend on how the Independent Electoral Commission – and the Supreme Court – interpret section 62(3). And sure you do make exactly the same point when you write:-
“Given the contentious and combative nature of elections, opponents of lawyer Darboe may obviously be countenancing the use of the Constitution to attempt to annihilate him before the start of the race, something which would be foolish in my view especially given the limited prospects of success. In any case though, whilst an undesirable, divisive and disruptive tactic, it’s completely understandable — it’s the ways of democratic politics. The Independent Electoral Commission would, in my view be better advised to be proactive and factor such a possibility into its election planning so as to minimise or mitigate against any associated disruptions as the case may be. This is a hazard for which the Commission has or, ought to havereasonable foresight and, for which it must adequately plan for. Not doing so will be a huge mistake.”
I think it could be a “mistake” that could imperil The Gambia’s cherished peace. It is something that everyone should think hard about, seeing all the election-related trouble we see in the sub-region and further afield.
Thank you for your thought-provoking piece Mr. Sambou. Here is a thought: ifNPP win big in the Niamina West by-election, it would increase the chances that Lawyer Darboe will be allowed to run in 2021 without any hindrance.
Notting Hill, London.