Gambian Constitution Is An Instrument Of Violence Final Part

By Lamin J Darbo

Representation of the people

On elections, the schizophrenic nature of the Constitution is yet again brilliantly displayed. On the issue of “representation of the people”, there are references to “public elections”, to “elections”, and to “referenda” voting. The Constitution defines “public elections” as “the election for a President, National Assembly and a local government authority” (section 230).

Going by the above, elections for “traditional rulers” are not public elections but they are nevertheless mentioned in the Constitution. The significance of this matter, considering the positions of “Seyfolu and Alkalolu” are now appointive by a 2001 Constitutional amendment, should shortly become clearer. Suffice for now that the so-called “traditional rulers” are of course “Seyfolu and Alkalolo”, and because these are now appointive offices, why is it that the Constitution retains mention of elections in relation to “traditional rulers”?

This particular anomaly in the case of “traditional rulers”, appointments and elections, chimes in with the larger and more existential question of whether independent candidates are permitted to contest in “public elections”. Those who contend that the question is settled considering independents had contested several Presidential and National Assembly elections, are ignoring the clear and express command of the Constitution. It is easy to see where the confusion may be rooted in light of section 49’s implicit support for the proposition that independent candidates can contest in public elections. “Any registered political party which has participated in the Presidential election or an independent candidate who has participated in such an election may apply to the Supreme Court to determine the validity of the election of a President by filing a petition within ten days of the declaration of the result of the election”.

As in the reference to elections with regards to “traditional rulers”, the express and substantive provisions going to the essence of those traditional ruler elections were amended without any concomitant amendment to the implicit provisions permitting such elections. It is difficult to reconcile the differing provisions of the Constitution touching on a particular aspect of Gambian public life. If the reconciliation was faulty in the sense there was no simultaneous amendment of connected provisions to maintain coherence, as in the case of the now appointive “traditional ruler” positions, and section 39(3), there may remain a theoretical conflict even whereas the intent of an amendment is crystal clear.

Why was section 60 amended with such clarity in 2001, a Presidential election year?

The answer probably lies in the 1996 elections when then military Junta leader, and de facto President, was sufficiently frightened by the closeness of the Presidential poll to erect a protective barrier around his position for 2001 and beyond. Knowing the intractable difficulty of the opposition uniting around one political party, the amendment rightly calculated that unity may instead occur around an independent candidate. That was the avenue intended to be managed by section 60(1) when, in crystal clear language, it states that “no association, other than a political party registered under or pursuant to an Act of the National Assembly, shall sponsor candidates for public elections”.

Although section 49 implies a candidate may contest the presidency as an independent, it is an extremely weak provision when juxtaposed against the express statement of section 60(1). It is noteworthy that section 60(1) was an amendment inserted in 2001, and must therefore be seen as intended to be a definitive declaration of who can sponsor a presidential candidate in public elections. The statement that only a registered political party can sponsor “candidates for public elections” is too categoric a pronouncement to admit of any ambiguity. Indeed, a recent political event appears to bolster the contention that embedded in section 60(1) is the intention that independent candidates are barred from contesting in public elections. According to former Secretary General Njogu Bah on the televised occasion of Imam Baba Leigh’s (Leigh) release from unlawful state-sponsored abduction, the President delegated him to tell Leigh that if he wanted to participate in politics, he should form a political party and enter the political arena.

Leaving aside the expression and association guarantees of the Constitution, why must Leigh form and register a political party considering independents can, and do, participate in public elections. The former Secretary General’s advice to Leigh may be seen as confirmation that independents were permitted to contest in public elections because thus far, the main beneficiary discerns no serious threat from that quarter. A few independents in the National Assembly, and at local Councils, present no scenario to frighten the President. When a fully united opposition fronted by an independent candidate threatens in a presidential election, the President may invoke the exclusive party-political participation provision of the Constitution regarding “public elections” and trigger a national crisis in the process. And the blame for any such crisis may be entirely placed on the double-speak so prevalent in key sections of the Constitution!

Although there are those who contend that independent candidates are legally able to participate in public elections, the principal justification is that section 104 of Elections Act supports a non-party candidate for presidential elections. Unquestionably, this perspective is erroneous in so far as it placed exclusive reliance on Elections Act, a 2001 legislation backdated to a January 1996 commencement date. This particular Act started life as (Decree No. 78 of 1996, amended by Decree No. 91 of 1996, Decree No. 93 of 1996, and Act No. 7 of 2001). As inferior legislation, it has no capacity to control an express provision like section 60(1) of the Constitution.

Pertinently, section 104 (1) states that “The conduct of elections to an elective office in accordance with the Constitution and this Act shall be based on party politics”. In so far as this particular section conforms to the Constitutional edict on the point of party-sponsored candidates as the cornerstone of Gambia’s public election system, there is no question about its validity. However, section 104 (2) states that “notwithstanding subsection (1), a person who is qualified to be registered as a voter under the Constitution and this Act may contest as an independent candidate in any election”. This utterly pretentious posture of section 104 (2) of the Elections Act collides with an explicit Constitutional provision on public elections, and must be regarded as of no consequence whatsoever, and therefore void under the supremacy clause.

To avoid invalidation, inferior statutory law must comply with the Constitutional edict on who can contest public elections, or be voided to the extent of any inconsistency. In the accepted doctrinal words of Federalist No. 78, “a constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents”.

Should political doctrine not be good enough for those of the opposite persuasion, the supreme authority of our Constitution can indeed be relied upon for conclusive settlement of the issue. At section 4, and with absolute clarity, the Constitution states that it is “the supreme law of The Gambia and any other law found to be inconsistent with any provision of this Constitution shall, to the extent of the inconsistency, be void”.  Clearly, section 104 (2) of the Elections Act is wholly void and of no consequence in so far as it frontally collides with the express declaration of section 60(1) of the Constitution regarding which entities can legally sponsor candidates in public elections.

It must be remembered that members of the Independent Electoral Commission “shall be appointed by the President in consultation with the Judicial Service Commission and the Public Service Commission” (section 42(3)). The President also holds the Constitutional mandate “to remove a member of the Commission from office “for inability to perform the functions of his or her office whether arising from infirmity of mind or body or from any other cause” (section 42(6)(a).

In similar vein, the office of the Ombudsman is another purported independent agency created specifically to promote good governance and the rule of law. With a function akin to Judicial Review, the Ombudsman is empowered to investigate “any action taken by a government department or other authority, or public body … being action taken in the exercise of the administrative functions of that department or authority on a complaint by a member of the public …”  section 163(1) (a). Whatever efficacy it was meant to have is compromised by the ease with which the President can terminate the service of the Ombudsman. “An ombudsman or Deputy Ombudsman may only be removed from office for inability to discharge the functions of his or her office (whether arising from infirmity of mind or body or from any other cause) …” (section 164(6)).

Even Fundamental Rights and Freedoms under Chapter IV are subjected to the all-too-routine clawbacks, and other glaring shortcomings of the Constitution. At section 17(2), the fundamental freedoms are “subject to respect for the rights and freedoms of others, and for the public interest”. Clearly, this provision is unnecessary considering it comes under the interpreting purview of the courts. But it speaks to the relentless urge for micromanaging every aspect of Gambian public life. Under section 18(4), the delineated exceptions to killing, especially where done in the name of national security, are quite unsettling. By making the ostensible protection too porous, it significantly erodes the efficacy of the provision by offering wide licence to security agents and other pro-government operatives to conduct themselves in ways not reasonably contemplated by law, and to do so with impunity.

Conclusion

On current reality, the Constitution appears to be for the exclusive benefit of the incumbent. In present form, a new order can have no use for it, and there is neither obligation nor incentive to maintain it. The Constitution is an instrument of violence, and stalemate, and utterly unfit for a modern democratic state. It is too bulky and is intended to micromanage the entirety of Gambian public life. Unlike the neutral American one where succeeding governments have no need for major departures, there is no alternative to the Constitution’s comprehensive overhaul, or total scrapping, for failing the elemental tests of neutrality, separation of powers, and the rule of law.

Lamin J Darbo

Notes

Section 4 states:- This Constitution is the supreme law of The Gambia and any other law found to be inconsistent with any provision of this Constitution shall, to the extent of the inconsistency, be void.
“By Constitutional violence it is meant the adoption of a certain character or language in a Constitution that permits, through implied validation or acquiescence, regimes of violence or varying modes of complicity with them”
Section 91(1)(d) states: “A member of the National Assembly shall vacate his or her seat in the National Assembly:- if he or she ceases to be a member of the political party of which he or she was a member at the time of his or her election”.
According to the International Bar Association:- “The judicial system in The Gambia suffers from neglect, under-investment, and a severe lack of resources and infrastructure, resulting from a general deprioritisation of its importance. Whilst the government was supportive of the independence of the judiciary in discussions with the delegation, in practice many of its actions undermined judicial independence and the rule of law, and its overall attitude to the judiciary was of grave concern to the delegation. This has created a climate where the protection of human rights is undermined and the rule of law subverted”.
Section 145(1) There shall be a Judicial Service Commission which shall consist of:-
the Chief Justice who shall be Chairperson;
a Judge of a Superior Court;
the Solicitor General;
a legal practitioner of at least five years standing at the Gambia Bar nominated by the Attorney General in consultation with The Gambia Bar Association;
one person appointed by the President; and
one person nominated by the National Assembly.
There shall be a Judicial Secretary to assist the Chief Justice in the exercise of his or her responsibilities for the administration of the courts and financial matters. The Judicial secretary shall be responsible to the Chief Justice for the performance of his or her duties.
In the words of the International Bar Association:- “The Constitutional appointment procedure for judges, given the dominance of the President and the executive over the appointments to the Judicial Services Commission (JSC), the apparent lack of transparency with respect to the JSC processes, the absence of a clearly elaborated selection process and criteria for judicial appointments, exposes judicial appointments to political influence. There are serious concerns that the appointment of contract judges operates outside the constitutional appointment procedure, and that the precise role of the JSC in this regard is unclear and limited
A member of the Commission (other than an ex officio member) may be removed from office by the President with the approval of the National Assembly but may only be removed for inability to execute the functions of his or her office (whether arising from infirmity of mind or body or for any other cause)or for misbehaviour. A member shall be entitled to be heard in person or by a legal representative against any proposal to remove him or her.
Section 145(5) states that “a member of the Commission shall vacate his or her office if he or she ceases to hold the office specified in subsection (1) by virtue of which he or she was appointed or if he or she becomes a member  of the National Assembly
Section 141(5) reads: A judge may be removed from his or her office if notice in writing is given to the Speaker, signed by no less than one-half of all the voting members of the National Assembly, of a motion that a judge is unable to exercise the functions of his or her office on any of the grounds stated in subsection (4) and proposing that the matter should be investigated under this section.
Section 39(3) states:- “Every citizen of The Gambia being of the age of eighteen years or older and of sound mind shall be entitled, in accordance with the provisions of this Chapter and any Act of the National Assembly providing for such elections, to vote in elections for local government authorities and traditional rulers in the area in which he or she is ordinarily resident”.
Section 60(1) states that “No association, other than a political party registered under or pursuant to an Act of the National Assembly, shall sponsor candidates for public elections”.
Section 58 (1) states:- “The President shall appoint a District Seyfo in consultation with the Minister responsible for local government.
Section 59(1) states: “The Minister responsible for local government shall appoint an Alkalo in consultation with the Regional Governors and District Seyfo or Chairperson of the Kanifing Municipal Council, as the case may be.

Section 60(1) states:- No association, other than a political party registered under or pursuant to an Act of the National Assembly, shall sponsor candidates in public elections.
Foroyaa Newspaper, 20 May 2013, reported:- “According to Secretary General  Njogu Bah, President Jammeh told him to “… make it clear to the Imams and religious leaders that there is religion and there is politics. If they are engaging in religion, then let them confine themselves to issues about religion, Allah, attitudes, etc. If they want to engage in politics then let them set up and register their own political parties and make themselves be known in this arena. But they cannot be using the religion as a pretext to promote political objectives that are aimed at toppling a regime or bring about chaos in a country. This he said he will not tolerate and accept today or tomorrow …”
Bibliography

Elections Act 2001, Cap 1:01, Volume I, Laws of The Gambia 2009.

Foroyaa Newspaper, 20 May 2013.

Jallow, Hassan B. (2012). Journey for Justice, AuthorHouse.

Jeng, Abou. (2013), ‘From Hope to Despair: travails of constitutional law making

in Gambia’s Second Republic’. In Saine, Abdoulaye, Ebrima Ceesay and Ebrima Sall (eds.), State and Society in The Gambia Since Independence: 1965-2012.

New Jersey: Africa World Press.

Madison, James, “The Federalist No. 47”, The Federalist Papers, (1788).

Papworth, Neil (2006). Constitutional & Administrative Law, Oxford University Press.

Reyes, Eduardo, “Drafting a Constitution”, The Gazette, 27 September 2012.

The 1997 Constitution of The Republic of The Gambia, Cap 1:01, Volume I, Laws of The Gambia, 2009.

Under Pressure: a report on the rule of law in The Gambia,

The International Bar Association, August 2006.

Ends