15 July 2015
THE PRESIDENT OF THE REPUBLIC OF THE GAMBIA
SUBJECT: THE CONSTITUTIONALITY OF THE MOTION ON THE ELECTIONS (AMENDMENT) BILL 2015 INTRODUCED BY THE HEAD OF THE CIVIL SERVICE
The dictates of National duty, as a major stakeholder in the political process and your role in the process of promulgating a law, has compelled us to address this memorandum to you.
We have two fundamental observations to raise, touching on both technicality and substance regarding the constitutionality of passing the Elections (Amendment) Bill 2015. The advice of constitutional experts should be earnestly sought to look into the constitutionality of the motion moved by Mr. Nyabally.
In short, The Elections (Amendment) Bill 2015 is reported to have been passed. The Bill was introduced by the Head of the Civil Service. The same person is referred to as Minister for Presidential Affairs. The role of Head of the Civil Service and that of a Minister are unconnected with, isolated from and independent of each other. In short, they are incompatible.
Section 168 subsection (1) of the Constitution is quite clear. It states:
“The President, acting in accordance with the advice of the Public Service Commission, shall appoint a person holding an office in the public service on permanent terms to be the Head of the Civil Service. The Head of the Civil Service shall be the competent authority for the Civil Service.”
Hence, a Head of the Civil Service must be a person holding an office in the public service on permanent terms. No honest analyst could fail to acknowledge this fact. A whole government with paid advisers should not wallow in the dark.
Why is the position of Minister and Head of the Civil service incompatible? The answer is simple.
Section 166 Subsection (4) provides the answer:
“In this Constitution, an office in the public service does not include –
(a) the offices of President, Vice-President, Speaker or Deputy Speaker of the National Assembly, Minister or a member of the National Assembly;
(b) the offices of a member of any commission (other than a commission the members of which are hereby or by an Act of National Assembly declared to hold an office in the public service), or a member of the Advisory Committee on the exercise of the Prerogative of Mercy or the Advisory Committee on the conferment of honours.”
Hence a Head of the Civil Service cannot be a member of the National Assembly or a Minister without vacating one’s post.
In fact, Section 170 Subsections (1) and (2) of the Constitution adds:
“(1) A person holding an office in a public service shall not hold office in any political party.
(2) Any person who holds an office in a public service who wishes to contest an election for a political office shall, prior to nomination as a candidate, obtain one year’s leave of absence without pay, which leave shall not unreasonably be refused.”
There are clear lines of demarcation between functions of Head of the Civil service, National Assembly member and Minister.
Section 101 Subsection (1) states that,
“Subject to the provisions of this section, a Bill or motion may be introduced in the National Assembly by a member of the Cabinet or by a member of the National Assembly, and the National Assembly shall give consideration to Bills and motions so introduced.”
Since the Head of the Civil Service cannot be a Minister or member of Cabinet the Bill was introduced by the wrong person. In this respect it should be returned to the National Assembly and not enacted into law.
This is the first technicality. Allow us to move on to the second.
The Central Committee of PDOIS has received and did deliberate on the report that the Bill which was introduced into the National Assembly was different, in content, from the Bill which was published in the Gazette on 1st June 2015.
This would be in violation of Section 101 Subsection (3) of the Constitution. It reads:
“No Bill, other than a Bill referred to in subsection (5), shall be introduced into the National Assembly unless it has been published in the Gazette, and such publication has been made at least fourteen days before the date of its introduction:
“Provided that where the President certifies that the enactment of the Bill is required in the public interest as a matter of urgency, the Bill may be introduced notwithstanding it has not been published fourteen days beforehand, but the Speaker shall, on the introduction of the Bill, cause a vote to be taken in the National Assembly without debate on a motion to give consideration to the Bill notwithstanding that the said period of fourteen days has not expired.”
A Bill containing pen marks, reducing deposits, was never published in the Gazette before introduction into the National Assembly and was not introduced under a certificate of urgency.
Hence, the introduction of the Bill departed from established constitutional procedures. In this regard, it should not be enacted into law.
Law, Common Sense, National Interest and conscience all combine to indicate that the Bill is unsuitable for our times and circumstances and should be returned to the National Assembly. The most appropriate decision is to utilise the proposals from the opposition as the basis of building consensus on genuine electoral reform which would stand the test of time. We hope, after 20 years at the helm your government will not hinder the exercise of franchise by the sovereign Gambian people to make their right to self determination, which include the right to determine their manner of government without any obstacles, a reality.
Yours In the Service of the People
CC Chairman, IEC
Attorney General and Minister of Justice
Speaker, National Assembly
I wonder when Halifa will realize that Jammeh does not and will never care about the constitution. Unless there is united front that is well funded to remove Jammeh he will continue to use the oposition to wipe is behind with and there is nothing we can do about it.
We are the very ones keeping Jammeh in power by our lack for unity, tribal and regional divisions. Yes I said it.
It is my believe that one of the many obstacles that is preventing Gambians from toppling Yaya Jammeh is the fact that we are not nationalist. Chief among these obstacles no one dares speak about in public is the undeniable fact that we are divided into faction and from the creation of out state we let the state exist for the sake of the individual rather than the other way around.
The problem with factions is not new and unique to Gambia but our problem is amplified by the undeniable fact that we are more loyal to our tribes, regions, and terry Kafos than the State.
The State always comes last instead of first.
As long as we choosecontinue tribal, regional and personality politics the status quo will not change. No paper tigers and can change the status quo with words. This goes for both the oposition back home and the diaspora
Gambains need to wake up and realize that we the younger generation cannot continue the fights that our fathers fought before and after independence The tribal and regional battles between the rural folks and the urban folks, the fight between the mandinkas and mainly wollof for influence and power cannot continue if we want to turn our dear country around.
Gambians need to wake up and realize the urgency of now. If we are to be taken seriously by the international community the struggle need to find out a way to bridge the divides I mentioned we have to figure a way to stop our divisions and act in the best interest of the country.
Like I said before on different forums. Each and every good son and daughter should start sitting with him/her self and ask if our actions and efforts are in the best interest of the county or are we advancing an agenda contrary to what’s best of The Gambia
The Bridge; You are entitled to your opinion but Halifa knows very well that the struggle entails three things, ie. political, diplomatic and legal. Without understanding of these three things and when and how to utilize them, we will always be lost in struggle. No that everything done to expose the regime goes towards isolating it diplomatically which all goes to built on the gains of the struggle itself. We must learn to appreciate the efforts of those who are engage in the struggle on a daily basis which efforts contribute quantitatively to intensify activities towards the change we deserve. All I know and confident of is that Halifa and PDOIS are not adventurist, they measure every step of the way before plunge into anything and that is one guarantee that we are on the right track.
The Bridge:”I wonder when Halifa will realize that Jammeh does not and will never care about the constitution. Unless there is united front that is well funded to remove Jammeh he will continue to use the opposition to wipe his behind with and there is nothing we can do about it” . The PDOIS has long shown their proposal on how the opposition should come together. They have proposed two options in their manifesto. They are waiting for other parties to put their proposal on the table. We should all be calling on those parties that did not show any proposal to do so. To continue calling for unity without proposing anything is counter productive. PDOIS’ proposal is already approved by their congress waiting for others to tell all about theirs. Singing about unity for the gallery will not move us any closer to it i think.
Yerro. I appreciate your comment. To tell you the truth I was not expecting a response on such a sensitive topic. I do value and appreciate the effort of those on the ground but it should not take 20 years to form a united front. Am happy that PDOIS has a proposal on the table but without discussing the underlying obstacles to a union no proposal will survive the current toxic relationship between UDP and PDOIS. At some point common sense will have to prevail, one doesn’t have to get everything one wants in a negotiation. I united from that servers for a one year term with checks and balances to ensure no one uses that opportunity to be anointed royalty and life time president should not take 20 years if there are no underlying obstacle such a tribal and regional divisions.
Thanks for engaging me.
P.S please post PDSOI’s proposal on this thread.
The Bridge: If you are a follower of political events in Gambia, these questions would not arisen.However, since they arise we are left with no option but to address them. I think we should appreciate that parties on the ground are not a homogenous group. They have tried their best at different times to forge an alliance but proved unsuccessful for one reason or the other which we are all aware of. I don’t like blaming political parties really looking at the most adverse environment in which they operate and the laws they have to operate under. The solution I believe for the Gambian people to take the bull by the horn and support a party to take them across the bridge but our people too have not reached that stage based on the reasons cited by Maxs. However, I am inclined to believe that if all parties engage the people as suggested by PDOIS below, we are likely to get some result at the end of the day. The problem is that there are many registered parties but how many of them are engaging the electorate or even doing anything of substance apart from being registered?
The strategic options are twofold. There may or may not be credible electoral reform. If there is credible electoral reform, the second round of voting would be restored, if no candidate gets more than 50 percent of the votes cast in the first round.
In such a case the country would need strong opposition parties on the ground that would put up strong candidates, who would deprive the incumbent of the 50 plus percent majority in the first round and form an alliance in the second round.
On the other hand if there is no credible reform, we would still need very strong opposition parties to come together to form an alliance and file one candidate against the incumbent.
Both options require the strengthening of opposition parties on the ground. This is why PDOIS came up with Two Tactics as a way forward.
2.3 FIRST TACTIC
PDOIS calls for all political parties to go on the ground to build their base and select their presidential candidates before the end of 2014. If there is electoral reform, they could put up their candidates to deprive the incumbent of the majority required to win in the first round, and form an alliance in the second round as has happened in Senegal.
2.4 SECOND TACTIC
PDOIS proposes that if there is no credible electoral reform, the opposition presidential candidates and their committees should meet to agree on the modalities of selecting one candidate in 2015 to face the incumbent in 2016.
With this approach, parties would not go up to the dying hours and then withdraw from Alliances and start accusing each other of betrayal which encourages voter apathy and facilitate the smooth sailing of the incumbent to victory.”
Bridge , you are right about need for opposition unity and Jammeh disrespect for constitution. The weak opposition parties and their lack of unity are legitimizing dictatorship in the country . They are also part of the problem . They do not inspire and educate ignorance majority of our population who lack political education . Political education is key to move the country forward . Though one can put some blame on opposition parties for this lack of political education but majority of these blames goes to dictatorial regime and JAWARA government for lack of geninue civic education. Even today , most graduates from university and college have never set their eyes on the Gambian constitution much more to read it . How can such people know their constitutional rights and respect the rights of fellow citizens . The same problem goes to every sector of population such as military , NIA, and even police force who only had the opportunity to learn some basic laws during their training but as soon as they graduated , the constitution is taken away from them, then they continue their ignorance behavior. Civic education and needs to learn the constitution should be part of school curriculum from the primary school to university level . This will help to educate majority . National media such as radio and television should have programs gear towards educating citizens about constitutional responsibilities.
Yerro Ba, the three things you mentioned, political , diplomatic and legal . I want to know which one Jammeh has ever respected . From my personal assessment, I think Jammeh didn’t care about any one of them because he never respect any . Politically , he careless about his opponents and their suggestions. Legally , Jammeh never respect the constitution, laws or international courts . This is evidence by imprisonment of innocent citizens without due process. Countless people disappeared without trace which foroyaa always also highlighted . Even those who are lucky to be taken to courts and are acquitted, they are rearrested and taken back to prison without due process . Diplomatically , Jammeh does whatever he like without following normal diplomatic protocol. So please tell me which one is working . I don’t think even mr sallah lengthy letters are working to influence Jammeh.
I meant one five year term.
Thanks Max. let keep driving home the message of common sense politics
The accusation that Halifa doesn’t realise that Jammeh does not and will never care about the constitution, is often, a constantly repeated one, but one that is quite baffling,given what we know about Halifa and PDOIS’ position on the subject..
The fact is that Halifa, being a victim of Jammeh’s misrule, as well as, an advocate for the many other victims of Jammeh’s blatant and total disregard of the law, knows far more than his accusers that Jammeh does what he likes and cares very little about the law,if it doesn’t serve his purpose…
How many times have we read admonishments and exposures, in the pages of Foroyaa,on/about impunity,unconstitutionality and total disregard of constitutional provisions by the Jammeh regime…?
Just recently, didn’t PDOIS address an open letter to the Executive about the technical deficiencies of the Elections Amendment Bill and the UNCONSTITUTIONALITY of the Secretary General doubling as a state minister…?
Have PDOIS not been exposing this unconstitutionality since it was first introduced, at the time of Njogu Bah, and still continues to do so…?
Halifa and PDOIS,in my view, are not exposing the Jammeh administration’s misrule to make them to reform, but to fulfill their duty as an alternative government and to also educate the masses to understand that they have the power to change, if they are not happy at the status quo….
Unlike many, Halifa and PDOIS understand that political power is dependent on the support of the masses and without commanding the support of the masses,nothing much can be achieved in terms of political change(s)…That is why they favour engaging the people. at the grass roots level, in order to build the support bases of the political parties…That is why they are urging all those who oppose this new attempt to stifle political participation, to speak out…
PDOIS has also, without any ambiguity, indicated the type of opposition alliance they want to be part of, and so it is surprising that people still question their commitment to opposition unity… I don’t know if there are any “UNDERLYING” obstacles that created a “toxic relation” between UDP and PDOIS….May be the writer (The Bridge) can share with us what these underlying obstacles are that have created this toxic relationship..
As far as we know,both parties have indicated that they enjoy good working relationships and do engage in negotiations/discussions to reach common grounds in areas of common interest,as in the joint electoral reform proposal…We also know that both have indicated their preferred alliance format, in the past, and have also indicated their openness to further discussions on the matter…
Maxs:”Diplomatically , Jammeh does whatever he likes without following normal diplomatic protocol. So please tell me which one is working . I don’t think even mr sallah lengthy letters are working to influence Jammeh.”
Maxs, I too cannot tell you whether Jammeh responds to anything he is criticized of but one think I do know is that he eventually retracts his actions or undo them atimes. He is now saying he has pardoned even the treason convicts which includes even those who attacked the barracks in Farafenni. He has also pardoned even murderers when he said just a month ago that he would never do. He has pardoned rapists, drug peddlers, even cocaine peddlers, human traffickers and dangerous criminals both local and foreign. Do you think Jammeh will tell you’ I am doing this because of diplomatic pressure or opposition pressures’? Mr brother, Jammeh will never do that. This is why he is telling you that he did it as a result of his profuse reading of the Quran and the Bible. It is you and me who should use our everyday commonsense to deduce chaff from grain. Any sincere person would not fail to appreciate what PDOIS is doing in Gambia. I for one cannot imagine Gambia without a PDOIS in particular and the parties in the opposition you described as weak in general.
Maxs wrote,”Political education is key to move the country forward”. Isn’t PDOIS not engage in political education in the Gambia? I have never seen any party that engages in political education as PDOIS does. I can be corrected if I am wrong. But one party doing political education in a situation where the ruling party deprives everyone of the instruments to amplify information at all levels is not an easy task. When i read you i always detect that you have never been engage in opposition political activism in the Gambia. The obstacles are multifaceted. Prove me wrong if i am. Anyone who does would appreciate a hundred times the work being done by the opposition in Gambia. But “Maxs, let’s keep driving home the message of common sense politics” but I must add that let us be sincere to ourselves when we make our demands as we are people who reside hundreds of miles away from the danger zone.
Bax’s objective and profound analysis is enough food for thought.