By Gambian Outsider
Now that the dust has settled, let us look at what has transpired from the Despot’s [President Jammeh’s] declaration and the many and different reactions to it. Some called it a proclamation and others called it a pronouncement. Some called it null and void and others called it a fiction. Proclamation is a public or official announcement made by the government, especially one dealing with a matter of great importance. Pronouncement is a formal or authoritative announcement or declaration. It seems a pronouncement does not have to be made by the government. What the Despot said was not representative of The Gambia government some way, but then again, he is The Gambia government for all intent and purposes. If one believes that the Despot is not The Gambia government then what he declared was a pronouncement. And if one believes that he is in fact The Gambia government, then what he declared was a proclamation. One cannot be really wrong on either choice. I am of opinion that he is indeed the government in The Gambia. Everything that has been written about the matter touches on some truth but no one seems to talk about the elephant in the room – The doctrine of Separation of Powers. If the Doctrine of Separation of Powers does not exist in The Gambia then most of what has been written regarding the Despot’s declaration of The Gambia as an Islamic State is useless. In other words, everything that has been written on the subject hinges on the fact that there is indeed separation of powers in the different branches of government in The Gambia. Since this is the case, a discussion is warranted regarding this important doctrine – Separation of Powers. I always write with two goals in mind. First, to do all that I can to make sure that the Despot is out of there, and second, to make sure that whatever I write can edify Gambians who are not lucky enough to have the education and opportunities that some of us have. We also need to teach in our writings. I am well aware that such writings are boring to most, but writing about salacious details does not build a democracy the last time I checked. I do not have any issue with those who write about those things. That kind of writing is a part of the puzzle but it should not take center stage.
The Despot’s declaration is not a fiction. Fiction in the legal sense is very different from fiction in the literary sense. I think the lawyers will tell you that law cannot function properly without fiction. The Despot’s declaration is null and void in one sense and it is not null and void in another sense. It is null and void from a constitutional law framework. It is not null and void in the unfortunate reality that he could order his slaves to disrupt the lives of those who are not Muslims. I am not saying that is what he has done but because he has that ability, such a declaration cannot be taken as null and void.
What surprised me about the Despot’s declaration is not the declaration itself or the reaction to the declaration but why such reaction has not happened over the years, like when he infringes on the judiciary or when he made that pronouncement about Female Genital Mutilation (FGM). The pronouncement on FGM is just as illegal as the declaration about The Gambia as an Islamic State. First, I believe FGM is wrong and should be banned, but the method to ban it by the Despot is illegal. A bill should have been introduced and let the bill go through the proper channels to become law. The point is that the Despot has been making declarations that have the force of law for a long time and nothing has been done about it. Whether one supports something that the Despot banned or declared is not the real issue. The real issue is whether he used the right channels to do so. Is the point I am making not the same point on which most of the protestations about his recent declaration is based on? Don’t you people know that whenever the Despot uses his presidential privilege to pardon someone whose legal proceeding has not come to finality, such act is illegal. If a legal proceeding has react finality and there is a conviction, only then could he use his privilege with the advise of the Justice Department to pardon the convicted. While a case is ongoing, it is illegal for him to stop the judicial process on its tracks. For example, the pardon bestowed on the new managing editor the Daily Observer, Mr. Sabally, aka, “Gambia’s Pen or Gambia’s Pencil or Gambia’s Sharpe” was unconstitutional because that case did not reach finality. And whenever he has done similar things in the past, it was unconstitutional. We have to protest against these illegalities regardless of whether one likes a particular act by the Despot or not. The democracy we all want for Gambia cannot come to fruition if we keep silent on certain illegal acts because we like them and protest other illegal acts because we do not like them. Below I copy and paste Federalist 51. I urge all readers to not just read it but to study it thoroughly. You do not have to read it every day or every week, but at least try to read it once every month or a few times in the year. Please make copies and share it with other Gambians. Without a proper understanding of what is written below, the democracy we all want for Gambia may not be realized. And do not take everything written below literary. Dig deeper into the meaning of what the writer is saying. No one knows the true identity of the author of Federalist 51. The article was addressed to the people of the State of New York during the Convention to form the United States in Philadelphia. As you read through, please consider the following questions: (1) Why is the author so concerned with the distribution of power between the parts of the government? (2) What “check and balances” does the author propose to keep the three powers of the government separate and distinct? Enjoy and good luck. God bless you all.
Federalist No. 51OVERV
TO WHAT expedient, then, shall we finally resort, for maintaining in practice the necessary partition of power among the several departments, as laid down in the Constitution? The only answer that can be given is, that as all these exterior provisions are found to be inadequate, the defect must be supplied, by so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places. Without presuming to undertake a full development of this important idea, I will hazard a few general observations, which may perhaps place it in a clearer light, and enable us to form a more correct judgment of the principles and structure of the government planned by the convention. In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others. Were this principle rigorously adhered to, it would require that all the appointments for the supreme executive, legislative, and judiciary magistracies should be drawn from the same fountain of authority, the people, through channels having no communication whatever with one another. Perhaps such a plan of constructing the several departments would be less difficult in practice than it may in contemplation appear. Some difficulties, however, and some additional expense would attend the execution of it. Some deviations, therefore, from the principle must be admitted. In the constitution of the judiciary department in particular, it might be inexpedient to insist rigorously on the principle: first, because peculiar qualifications being essential in the members, the primary consideration ought to be to select that mode of choice which best secures these qualifications; secondly, because the permanent tenure by which the appointments are held in that department, must soon destroy all sense of dependence on the authority conferring them. It is equally evident, that the members of each department should be as little dependent as possible on those of the others, for the emoluments annexed to their offices. Were the executive magistrate, or the judges, not independent of the legislature in this particular, their independence in every other would be merely nominal. But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. We see it particularly displayed in all the subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other that the private interest of every individual may be a sentinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the State. But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit. It may even be necessary to guard against dangerous encroachments by still further precautions. As the weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require, on the other hand, that it should be fortified. An absolute negative on the legislature appears, at first view, to be the natural defense with which the executive magistrate should be armed. But perhaps it would be neither altogether safe nor alone sufficient. On ordinary occasions it might not be exerted with the requisite firmness, and on extraordinary occasions it might be perfidiously abused. May not this defect of an absolute negative be supplied by some qualified connection between this weaker department and the weaker branch of the stronger department, by which the latter may be led to support the constitutional rights of the former, without being too much detached from the rights of its own department? If the principles on which these observations are founded be just, as I persuade myself they are, and they be applied as a criterion to the several State constitutions, and to the federal Constitution it will be found that if the latter does not perfectly correspond with them, the former are infinitely less able to bear such a test. There are, moreover, two considerations particularly applicable to the federal system of America, which place that system in a very interesting point of view. First. In a single republic, all the power surrendered by the people is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself. Second. It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure. There are but two methods of providing against this evil: the one by creating a will in the community independent of the majority that is, of the society itself; the other, by comprehending in the society so many separate descriptions of citizens as will render an unjust combination of a majority of the whole very improbable, if not impracticable. The first method prevails in all governments possessing an hereditary or self-appointed authority. This, at best, is but a precarious security; because a power independent of the society may as well espouse the unjust views of the major, as the rightful interests of the minor party, and may possibly be turned against both parties. The second method will be exemplified in the federal republic of the United States. Whilst all authority in it will be derived from and dependent on the society, the society itse
lf will be broken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority. In a free government the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects. The degree of security in both cases will depend on the number of interests and sects; and this may be presumed to depend on the extent of country and number of people comprehended under the same government.
This view of the subject must particularly recommend a proper federal system to all the sincere and considerate friends of republican government, since it shows that in exact proportion as the territory of the Union may be formed into more circumscribed Confederacies, or States oppressive combinations of a majority will be facilitated: the best security, under the republican forms, for the rights of every class of citizens, will be diminished: and consequently the stability and independence of some member of the government, the only other security, must be proportionately increased. Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit. In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger; and as, in the latter state, even the stronger individuals are prompted, by the uncertainty of their condition, to submit to a government which may protect the weak as well as themselves; so, in the former state, will the more powerful factions or parties be gradually induced, by a like motive, to wish for a government which will protect all parties, the weaker as well as the more powerful. It can be little doubted that if the State of Rhode Island was separated from the Confederacy and left to itself, the insecurity of rights under the popular form of government within such narrow limits would be displayed by such reiterated oppressions of factious majorities that some power altogether independent of the people would soon be called for by the voice of the very factions whose misrule had proved the necessity of it. In the extended republic of the United States, and among the great variety of interests, parties, and sects which it embraces, a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good; whilst there being thus less danger to a minor from the will of a major party, there must be less pretext, also, to provide for the security of the former, by introducing into the government a will not dependent on the latter, or, in other words, a will independent of the society itself. It is no less certain than it is important, notwithstanding the contrary opinions which have been entertained, that the larger the society, provided it lie within a practical sphere, the more duly capable it will be of self-government. And happily for the REPUBLICAN CAUSE, the practicable sphere may be carried to a very great extent, by a judicious modification and mixture of the FEDERAL PRINCIPLE.
The Federalist has clarified it all. The Gambia Constitution is very dynamic, in that it has put in place all the partitions necessary as to allow the checks and balances needed to satisfy all the ingredients to arrest the power abuse.
It so happens that the Gambia has an accidental leadership which does not know and does not care how his government or the country is seen nationally or internationally. If this declaration has baffled everyone, why has it not baffled the man at the helm of affairs in Gambia? Is it not absurd that the president who has sworn to a Quran and taken oath to defend the Constitution knowing that it has an entrenched clause regarding turning the country into a religious state, is the one declaring a country an Islamic state without having any consultations with any of the separate departments as enshrined in the constitution?
Here this: “The president took an oath to defend the 1997 Constitution. Any declaration which is at variance with the provisions of the Constitution is a violation of his oath of office,” said Halifa Sallah.
Sallah also told the Attorney General to provide guidance to the president who does not seek for one thus: “It is your duty to explain these facts to the President to prevent him from bringing the office of President into disrepute. The Gambia is currently a sovereign Republic. Section 4 which is an entrenched clause states: “ The Constitution is the Supreme law of the Gambia and any other law found to be inconsistent with any provision of the Constitution shall to the extent of the inconsistency, be void.”
So we can go on and on but knowing the reality of our country, one should not ponder much but to accept that it needs change urgently.