Beyond jurisdiction and competence

Another coup in Sudan? The coups in Guinea and Mali are yet another glaring reminder that the peaceful transfer of power envisaged in our constitutions remains an unattainable aspiration. The recent coup d’états beg the question: why do we need constitutions when they can be cancelled so easily?

The Gambia’s 2016 election was nearly successful as a peaceful transfer of civilian power until the incumbent changed his mind. Then it became a coup d’état. By definition, a coup d’état “is a change of government made possible by the threat or use of force against the incumbent regime”. The former Gambian regime was removed by actual force because the Ecomig forces were already in the country when the president was leaving.

Therefore, we can surmise that coup d’état has become the new order of African transitions (third terms or military). As a legal novice who would always confuse the law with justice and morality, I remain perplexed by how quickly after coup d’états, life, especially public life, returns to normalcy:  The army, the police, the ministries, and strangely the courts assume the moral grounds to judge petty thieves barely 24 hours after a treasonous activity.

The overthrow of a government is not only illegal but amounts to the high crime of treason. Yet, perpetrators of coup d’états are usually not sanctioned, in fact, they are actually compensated. How quickly African constitutions collapse by suspension and rule by decrees has always disturbed me and I concluded that our culture and the state have been for too long a power relation where we have learnt to accept the force of the colonialists for 200 years and thereafter that of the state – whether illegitimate or elected – without question.

While it looks complex, a coup d’état, is a simple demonstration that the exercise of power is above constitutionality and laws. Therefore, governing is about coercion with or without the complicity of the ruled. We are left with many complex issues to answer especially regarding the limitation of the treason of successful coups. When the masses and political elite celebrate as in the case of my beloved Guinea, should (or can) the leaders be punished for treason?

I believe that the legal fraternity is the source of validity and legitimacy of military coups. They confirm the new rulers by operating even where the constitution is suspended. Therefore, to what end is a constitution in Africa?

Legal scholars have taught us that there are justifications that allow for the continuity of state institutions to function and operate and be subordinate to a treasonous head of state.

For instance, a prolonged boycott of the courts would bankrupt many who choose to remain loyal to the constitutional order that was overthrown. This theory in my view ensures the survival of statehood and I am sure there are many theories of legitimacy for I have the misfortune or blessing of having many lawyers as friends.

1. Efficacy of a coup bestows validity. Jurisprudence of successful treason.

2.The doctrines of state necessity, implied mandate, and public policy. This means that law cannot exist without an enforcing authority and how that authority is acquired is before the law. So, whoever can exercise authority is the state: elected, inherited, taken, etc, are all the same.

3. The decisions of courts are grounded in legal principles and not in political and personal expedience.

The lawyer who taught me this by finding a morally plausible argument for the usurpation of power as a political and moral issue to be resolved through the political processes of a society allowed his profession to function and claim that it is beyond the jurisdiction and competence of the courts.

The colonial systems that we are so proud of were politically and socially illegitimate and have fostered this argument to allow the natives to operate in a legal space subordinate to a political institution anchored only in force.

This article was first published on 21 September, 2021.

The author, Edrissa Mass Jobe is the Executive Chairman of EMHolding, Social Enterprise, The Gambia’s leading venture enterprise with major investments and holdings in the petroleum industry (Logix, Atlas, Elton); tourism and hospitality (Bamboo Village Hotel); agriculture value chains (EMPas Poultry, EMDairy); banking and insurance (FIBank, West Africa Takaful).

Edrissa has extensive high level experience and expertise in petroleum engineering, finance, network planning, and project management. He has lead country entry for multinationals in Africa in the petroleum industry, power, banking and insurance.

Edrissa is a “social entrepreneur” focusing on local production, local jobs and regional integration as effective mechanism for poverty alleviation.

Edrissa has served on boards (director or chairman) in banks, insurance, telecommunications and petroleum companies in many countries across West, Central and East Africa. He has served as the

Group CEO of Elton, B2C manager for Oryx Addax Group, manager for Shell West and Central Africa.

EMHolding is a regional leader in project origination and M&A including Elton; Total acquisition in Gambia; Slok Air; Vista Bank Group; Atlas Energy; GP Fuel Storage; EMLogix.