By:- DR. Henry D.R. Carrol (M.R.G.)
Solicitor General Emeritus Of The Gambia,
Senior Oxford-Trained Lawyer &
Founder Senior Law Lecturer (U.T.G.) 2007 to date.
On Friday 29th June 2018, His Excellency President Mr. Adama Barrow, The President Of The Republic Of The Gambia and The Commander-In-Chief Of The Gambia Armed Forces, in his wisdom, decided to reshuffle his Coalition Gambia Government, in pursuance of his Executive Powers, vested in him to do so, by The Gambia’s 1997 Constitution. This political metamorphosis, came as breaking news or “a bolt from the blue” (a totally unexpected occurrence). As a result of the aforesaid prototype (first of its kind) reshuffle, four Honourable Cabinet Ministers, were Officially relieved of their respective Cabinet portfolios, some of them were re-deployed to other Ministries, while the then Vice President & Minister Of Women’s Affairs (Her Excellency Mrs. Ajaratou Fatoumata Jallow-Tambajang), was re-deployed to The Foreign Service. However Mrs. Ajaratou Jallow-Tambajang, later Officially wrote a letter to His Excellency President Mr. Adama Barrow, inter alia informing him, that she has decided to reject her Official re-deployment to The Foreign Service, and His Excellency President Mr. Adama Barrow, has accepted the aforesaid rejection Uberrimae Fidei (Latin:- in utmost good faith).
As a sequel to the Official removal of Her Excellency Mrs. Ajaratou Fatoumata Jallow-Tambajang, as The Vice President Of The Republic Of The Gambia & Minister Of Women’s Affairs, the then Honourable Mr. Ousainou Darboe, the Minister Of Foreign Affairs, International Co-Operation & Gambians Aboard, was Officially appointed as His Excellency The Vice President Of The Republic Of The Gambia & Minister Of Women’s Affairs, by His Excellency President Mr. Adama Barrow, with effect from Friday 29th June 2018. Since His Excellency Mr. Ousainou Darboe was appointed in the aforesaid dual Official capacities, some people have been ignorantly and publicly criticizing his aforesaid appointment, arguing that it was wrong, illegal and unconstitutional. Notable among the aforesaid overt critics were:- Honourable Mr. Mama Kandeh, the leader of The Gambia Democratic Congress (G.D.C.) and Mr. M.C Cham (Jr), the Youth Mobilizer of the G.D.C.
Ignorantia juris non excusat (Latin:-ignorance of the Law is no excuse). The aforesaid critics were saying, that the Official appointment of His Excellency Mr. Ousainiu Darboe, as The Vice President Of The Republic Of The Gambia, was wrong, illegal and unconstitutional, because Honourable Mr. Ousainou Darboe, the leader of the United Democratic Party (U.D.P.), was convicted by The High Court Of The Gambia in 2016, for conducting a public demonstration at Westfield, Serekunda, following the sudden death of Mr. Solo Sandeng (an Executive Member of the U.D.P.), at the then N.I.A., without an Official Clearance for this from the Inspector General Of Police (I.G.P.), in contravention of The Public Order Act (1961). After the aforesaid conviction of Honourable Mr. Ousianou Darboe , he unsuccessfully and consecutively appealed against his conviction, to both The Gambia Court Of Appeal and The Gambia Supreme Court, but unfortunately his 2 aforesaid appeals, were dismissed by the 2 aforesaid Superior Gambian Courts. This in a nutshell, is the basis or substratum why the aforesaid vocal critics of His Excellency Mr. Ousainou Darboe, are erroneously saying, that his recent Official appointment as The Vice President Of The Republic Of The Gambia, was wrong, illegal and unconstitutional.
Section 70 (2) of the aforesaid Constitution reads:- “A person shall be qualified to be appointed as Vice President if he or she has the qualifications required for the election of The President under Section 62.” Now Section 62 (1) of the aforesaid Constitution reads:-“ A person shall be qualified for election as President if:-
(a) He or she is a citizen of The Gambia by birth or descent,
(b) He or she has attained the minimum age of thirty years but not more than sixty-five years ,
© He or she has being ordinarily resident in The Gambia for the five years immediately preceding the election,
(d) He or she has completed senior secondary school education and
(e) He or she is qualified to be elected as a member of the National Assembly.”
Section 62 (1) (b) of the aforesaid Constitution, has now been recently amended by the National Assembly, so that now the amended Clause rightly does not have an upper age limit, within which the age of a Candidate for the Presidency must fall. This is in keeping with International Best Practice and it prevents discrimination on grounds of one’s age, and this is diametrically opposed to the sacrosanct and inviolable provision of Section 33 of the aforesaid Constitution, which contains a general anti-discrimination Clause. A good example of an old politician contesting for the Presidency in Africa, was My Learned Friend, His Excellency Mr. Abdoulaye Wade, a President Emeritus of neighbouring Senegal. In America, old male politicians like:- Mr. Jimmy Carter, Mr. Ronald Regan, Mr. George W Bush etc, were legally and Constitutionally qualified to contest in the political race , to The White House. The Gambia, must therefore not be an exception, to this International Best Practice.
Section 62 (2) of the aforesaid Constitution reads:-“A person who holds the citizenship or nationality of a country other than The Gambia, shall not be qualified for election as President.”
Section 62 (3) of the aforesaid Constitution reads:-“A person who, while holding Public Office In The Gambia has been:- (a) compulsorily retired, terminated or dismissed from such office or (b) has been found guilty of any criminal offence by any court or tribunal established by Law or (c) has been found liable for misconduct, negligence, corruption or improper behavior by any commission or committee of inquiry established by Law shall not be qualified for election as President.” Now let us make a detailed legal analysis, of this important Constitutional provision, vis – a – vis the recent Official appointment of His Excellency Mr Ousainou Darboe, as The Vice President Of The Republic Of The Gambia and Minister Of Women’s Affairs, by His Excellency President Mr. Adama Barrow. Section 62 (3) (b) of the aforesaid Constitution is saying :-“A person who, while holding Public Office In The Gambia has been (b) found guilty of any criminal offence by any court or tribunal established by Law…. shall not be qualified for election as President.”
What Honourable Mr. Mama Kandeh and his fellow critics fail to realize is this , when Honourable Mr. Ousainou Darboe was convicted for leading a public demonstration at Westfield in Serrekunda, after the death of Mr. Solo Sandeng at the then N.I.A.,in 2016, without first of all having an Official Clearance for this from the Inspector General Of Police (I.G.P.), in contravention of The Public Order Act (1961), when he was convicted by The High Court for this Criminal Offence, he did not commit the aforesaid Offence as a holder of a Public Office. On the contrary, he was convicted, when he was the leader of The United Democratic Party (U.D.P.), and this political position , by any stretch of the imagination, does not fall within the ambit of the definition of “a Public Office”, as expressly provided for by Section 230 of the aforesaid Constitution, which reads thus “ “Public Office” includes an Office the emoluments attached to which are pay directly from the Consolidated Fund or directly out of moneys provided by an Act of the National Assembly, and the Office of a member of a local Government Authority or a member of a Public Enterprise or of the staff of a Public Enterprise.” Clearly going by this authoritative definition, the leader of a registered Political Party, is certainly not holding a “Public Office”, therefore he or she is not a Public Officer. Indeed the leader of a Political Party, deals with or work with members of the public, in order to secure the votes of registered voters for his Party, and those voters concerned, should naturally subscribe to The Political Manifesto of his or her Political Party, but all of this, will not make that leader of a Political Party, to be holding “a Public Office.”
Even in a worst case scenario, if the aforesaid conviction, of His Excellency Mr. Ousainou Darboe is a legal impediment to him being Officially appointed as His Excellency The Vice President Of The Republic Of The Gambia, (which is clearly not the case here), be that as it may, His Excellency President Mr. Adama Barrow, can evoke the Executive Powers vested in him under Section 82 of the aforesaid Constitution entitled:- “Prerogative Of Mercy”, and accordingly grant His Excellency Mr. Ousainou Darboe, The Vice President Of The Republic Of The Gambia & Minister Of Women’s Affairs, a Presidential Pardon, which will totally erase any Criminal conviction, which he may have. Section 82 (1) of the said Constitution reads:- “The President may, after consulting the committee established by sub-section 2:-(a) grant to any person convicted of any offence a pardon either free or subject to lawful conditions.” Section 82 (2) of the aforesaid Constitution reads:- “There shall be a Committee on the exercise of the prerogative of mercy consisting of the Attorney General and three other persons appointed by the President subject to confirmation by the National Assembly.”
It is therefore very dangerous for a layman or a laywoman to trespass into a legal territory, and then to start distorting and misrepresenting sacrosanct and inviolable legal and Constitutional principles to the general public. Certainly, such unacceptable and unprofessional misconduct, is not only against Pro Bono Publico (Latin:- for the good of the public), it is also intellectual dishonesty of the highest order. Nemo dat quod non habet (Latin:- nobody gives what he does not have).
After Honourable Mr. Mama Kandeh recently appeared on the popular National Television Programme called “Kerr Fatou” , presented and hosted by Ms. Fatou Touray, on this controversial matter, His Excellency Mr. Ousainou Darboe, The Vice President Of The Republic Of The Gambia & Minister Of Women’s Affairs, was also later invited to the aforesaid T.V. Programme, for him to present his side of the story .Audi Alteram Partem (Latin:- listen to the other side). This one of the two legal principles of The Doctrine Of Natural Justice. In a nutshell, His Excellency Mr. Ousainou Darboe rightly said, that if Mr. Mama Kandeh and his fellow critics, strongly believe that his appointment as The Vice President etc was wrong, unconstitutional and illegal, then they should quickly take the matter to The Gambia Supreme Court for adjudication, and he will be waiting for them there. “A word to the wise, is quite sufficient,” as the age-old and time-honoured adage goes.
Finally, as a Canadian-Trained Theologian, let me terminate this very interesting article, with this very appropriate quotation:-
“…..but let Justice roll down like waters,
And righteousness like an ever flowing stream…”-The
