The quick answer to the above question is NO and the long answer is it’s debatable! The law of the land must be drafted clearly without ambiguity in all cases particularly in respect to former President Jammeh. A law made by our sovereign legislature in the context of a transition away from dictatorship must clearly define the rights, benefits, entitlements, terms and conditions of former leaders in unequivocal terms.
Clarity and brevity are the twin objectives of legislative drafting. Thus, it is misleading to engage in hypothetical scenarios where the law is crystal clear as in both enactments ! Therefore, the NAMs and the AG must not engage in what-if speculations and plotting future scenarios. The TRRC indictment is a legal basis to disqualify JAMMEH from benefiting under the new Act. Cleary no reference is made to either the TRRC or the Janneh Commission, as a court in the United States have used the JANNEH Commission Report to forfeit the Potomac property worth millions of Dollars in the name of Jammeh’s family members.
All those interested in seeing justice done and discourage impunity know that both Acts of 2006 and 2023 have not disqualified former president Jammeh. In fact, the 2006 Act is more specific and restrictive in its definitions of Former Presidents and their entitlements. With a minimum of two terms for a former president to be entitled to the benefits enumerated in the Act. Section 2 of the 2006 Act provides “former President” means a person who has held the office of President of the Republic of The Gambia for not less than two terms.”
Compared to the above definition the 2023 Bill recently enacted by the National Assembly defines in Section 2. “Former President” means a person who has held the office of President of the Republic of The Gambia under the Constitution, it is clear to see that the former definition was more carefully considered and better drafted.
In addition the 2006 Act in Section 4 subsection 2 explicitly disqualifies a former president who leaves office under the cloud of (Misconduct) Section 67 of the 1997 Constitution which reads:’ The President may be removed from office in accordance with this section on any of the following grounds- (a) abuse of office, willful violation of the oath of allegiance or the President’s oath of office, or willful violation of any provision of this Consultation, or (b) misconduct in that- (i) he or she has conducted himself in a manner which brings or is likely to bring the office of President into contempt or disrepute; or (ii) he or she has dishonestly done any act which Is prejudicial or inimical to the economy of The Gambia or dishonestly omitted to act with similar consequences.
No such disqualifiers and caveats are provided in the recent enactment. Which begs the question why the indecent haste to replace a perfectly reasonable law with one that has not been carefully scrutinised by the legislators? In this regard the earlier law is much better than its successor. Relying on the purposive rule of interpretation of statutes one could argue that the conduct of former president Jammeh after his defeat in 2016
Within the dynamic context of Gambia’s Transitional Justice Process the definition of ‘Former President’ must include caveats with respect to gross human rights violations, indictments by commissions and, gross misconduct leading to impeachment. We are a nation of laws that is why Edward Singhateh could testify before the TRRC and go scot free while Yankuba Touray who refused to testify was tried by a court of competent jurisdiction and sentenced to life imprisonment. And the law is not what a leader says it is but what is written in the books of law.
