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Saturday, November 28, 2020

Madi Jobarteh’s laconic article: ‘Our NAMs and the Executive’, was bogus and fallacious

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I cordially invite reference to a laconic and eye-catching letter to the editor of The Standard Newspaper, published in the Wednesday 26th August 2020 publication, of the aforesaid widely-read Gambian Newspaper, which has been duly and legally registered, at The Attorney General’s Chambers & Ministry of Justice, of The Commonwealth Republic of The Gambia.

Paragraph 1 of the said article read: “The U.S. House of Representatives knows election is coming amid controversy over safety of mail voting. So these days they publicly summoned the Post Office Chief, to ask him to tell them how ballots will be mailed safely, without any damage to the integrity of the election. When they were satisfied, they gave him millions of Dollars, to execute his job.”

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Many reasoned legal analysis

Firstly, Mr Madi Jobarteh told the general public that the Post Office Chief explained to the U.S. House of Representatives “… how ballots will be mailed safely, without any damage, to the integrity of the election.” Of course, by “election” in this context, Mr Madi Jobarteh, was clearly alluding, to the next American Presidential Election, which will soon be competently organized, on Tuesday 3rd November 2020, with God’s help for both American voters, within the American territory, and for prospective American voters, in the Diaspora. “Quic Quid Plantatur Solo Solo Cedit” (Latin: i.e what is attached to the land, is also part of the land). According to the American Constitution, the American Presidential Election, shall take place, once in every 4 years, like The Olympic Games. The 12th Amendment (i.e. Amendment x 11) of the U.S. Constitution, provides the procedure, for electing The President and Vice President.

Mr Louis De Joy, is the Federal Post Master General of The U.S.A., and The Chief Executive Officer of the world’s biggest postal organization. He was deservedly officially appointed in this capacity, by The Governors of the U.S.A. Postal Service, with effect from June 2020. The first Gambian Post Master General, was the late MR Edward Sowe (Snr), of Lovel Square in The Capital, Banjul, who was later deservedly Officially appointed, as a Lay Magistrates at The Kanifing Magistrates Court. He was inter alia, the father of, Ms Ruth Adjuah Sowe, a former Her Excellency, The Gambia’s Ambassador and Plenipotentiary To The Kingdom Of Belgium etc., and diplomatically accredited to The European Union (E.U.). She made Diplomatic History, when during The Gambia’s 1st Republic, the late His Excellency President Sir Dawda Kairaba Jawara (K.C.M.G.), (G.M.R.G.), Officially appointed her, as the first Gambian Female Ambassador. The late Mr Edward Sowe (Snr), was also the father, of my late Learned Friend, Mr Edward Sowe (Jnr), alias “Kweku”, who was a U.K.-trained Gambian lawyer.

Secondly, apart from the conventional postage, which Mr. Madi Jobarteh was talking about as a Layman, as a former Senior Contract Law Lecturer, of The Faculty of Law, of The University of The Gambia (U.T.G.), let me avail my humble self, of this golden opportunity at my disposal, to legally enlighten him, by explaining that, in Contract Law, there also exists what is called: “The Postal Rule.” This Rule means, that after an Offeror (i.e. the person making an offer), has already made the offer in question, to the whole World, as soon as, the Offeree (i.e. the person accepting the offer), has posted the acceptance of the offer, in the pigeon hole of a Post Office, it is deemed, to have instantaneously reached the addressee (i.e. the Offeror), even though, it is physically yet to get to him/her/it. “It” in this legal context, is alluding to corporate entities. The leading British Law of Contract Case, which established “The Postal Rule”, was ADAMS Vs LINDSEL (1818). An Offeror’s Offer, is indeed made to the whole world, as Honourable Mr Justice Bowen, rightly said in the leading Contract Case: CARLIL Vs CARBOLIC SMOKE BALL COMPANY (1892): “Why should not an Offer be made to the whole world?, for anyone to come forward, and ripen the conditions.”

Thirdly, according to the sacrosanct and inviolable principles of Contract Law, for there to be a legally enforceable Contract, three important legal requirements, must be fully satisfied namely: (1) There must be an agreement between the Offeror and the Offeree (i.e. there must be a valid offer, and a valid acceptance), (2) There must be “consideration”, which is something of value, usually money, but not always. According to the “Locus Classicus” (Latin: i.e. best known) Law Of Contract Case: Currie Vs Misa (1875):

“consideration, must be sufficient, but need not be adequate.”, and (3) An intention to create legal relations (i.e. the contracting parties, should have a clear intention, to go to Court, Arbitration etc, in the event of, any of the contracting parties, allegedly violating or breaching the legally enforceable Contract, with impurity. “He who comes to equity, must come with clean hands”, as the famous equity maxim goes.

Fourthly, In American Law, “The Postal Rule”, as established by Adams Vs Lindsel (1818), is only applicable “Mutatis Mutandis” (Latin: i.e. with the necessary changes or amendments). This means that, under American Law, “the majority rule” is that “the mailbox rule”, does not apply to “option Contracts.” By default, an “option Contract” is accepted, when the Offeror receives the acceptance, not when the Offeree mails it. An “option Contract”, is “a promise which satisfies the requirements, for the formation of a Contract, and limits the promisor’s power, to revoke the offer.” “Promisor” in this legal context means: the party making a promise. I am conceptually and evidentially certain, that the competent organizers of the next American Presidential Election, or “the race to The White House”, must bear in mind, “The Postal Rule”, when votes that are sent by mail (preferably by registered mail, for security reasons), are being counted. “To err is human, and to forgive, is divine”, as the famous adage goes.

Fifthly, having due cognizance of the fact that, The Federal Post Master General of The U.S.A., clearly does not have monopoly over postal matters, therefore one wonders like “Alice In Wonderland” by Lewis Carroll, why was it that, the proprietors of D.H.L., which google defines as: “The global leader in International express…, The global market leader, in the logistics industry, which commits its expertise in International parcel, express and air….” were also not summoned, by the U.S. House Of Representatives, since D.H.L., is indeed a registered Company, under American Law?

Finally, for the first paragraph, of the said article of MR Madi Jobarteh, he sarcastically wrote: “When they were satisfied, they gave him millions of Dollars, to execute his job.” The laconic phrase: “… to execute his job…..”, is linguistically wrong, it should have been:- “…to execute the job of his organization..”, since MR Louis De Joy, the Federal Post Master General of the U.S.A., is not running a one-man show, on the contrary, he is working with a team. “Many hands make light work”, as the famous adage goes

The second paragraph of Mr Madi Jobarteh’s aforesaid article read: “This is how Parliament runs things in a democratic republic, they lead and not wait for the Executive. The Parliament or National Assembly or House Of Representatives etc, are the governors and the leaders in a democracy. But in The Gambia, our National Assembly waits for the Executive, when they know that, the Executive is notorious for inefficiency, corruption and disregard.“ Firstly, his laconic phrase” the Parliament or National Assembly or House of Representatives etc, are the governors and leaders in a democracy….”, is indeed bogus, fallacious and totally unacceptable, because the leading Constitutional Law Books, one of which is: “Constitutional And Administrative Law”, scholarly co-authored by Professors Wade and Bradley, authoritatively list “The three Arms Of Government”, in this sequence or chronological order:- “The Executive, The Legislature and The Judiciary.” “Qui Priore Est Tempore Portio Est Jure” (Latin: i.e. he who is first in time, has priority in law). Going by this authoritative Constitutional submission therefore, the Executive, is indeed “…the governors and the leaders, in a democracy…”, contrary to what Mr Madi Jobarteh has bogusly written in his aforesaid article, without an iota of Constitutional or Parliamentary authority, to buttress or substantiate, his aforesaid bogus assertion. To further buttress my incontrovertible Constitutional point, on page 49 of the said Law Book (10th Edition), in the first paragraph, Professor E.C.S. Wade and Professor A.W. Bradley, authoritatively wrote: “… Broadly speaking, the Executive functions comprises the whole corpus of authority to govern, other than that, which is involved, in the legislative functions of Parliament, and the Judicial functions, of the Courts.” Hence the famous adage in British politics: “The Executive governs or rules, and the Monarchy reins.”

Secondly, the authoritative and unquestionable definition of “Democracy”, is the one laid down, by the veteran and late American President, Abraham Lincoln, in his famous “Gettysburg Address”, (i.e. “Democracy, is a government of the people, by the people, for the people…”

Thirdly, I am vociferously putting it to Mr Madi Jobarteh, that it is not only the Executive, that “…is notorious for inefficiency, corruption and disregard…”. These adjectives, can equally be applicable, to the other two arms of Government (i.e. The Legislature and The Judiciary). Examples of these, are numerable.

Paragraph 3 of Mr Madi Jobarteh’s article read: “…right now our women are in distress in Lebanon, yet our National Assembly, has failed to publicly summoned The Foreign Affairs Minister, to ask him what is he doing about that? Even when an N.G.O. wanted to airlift our women, out of Beirut, the government refused, yet the National Assembly did not ask why?”.

This statement of Mr Madi Jobarteh, is indeed a very unfair attack on the Executive or the Gambia Government, because in the Tuesday 25th August 2020 publication of The Standard Newspaper, it contained a graphic and plausible Press Release, from our Ministry of Foreign Affairs, International Co-operation and Gambians Abroad. The front page of that publication, contained the title of an eye-catching article, which read thus: “Gov’t gives update on fate of Gambians in Lebanon.” A coloured passport-sized photograph, of our hard working and patriotic Foreign Minister, Honourable Dr. Mamadou Tangara, was appropriately affixed to it. Page 3 of the aforesaid publication, contained The Press Release, from our Ministry of Foreign Affairs, which inter alia said: In 2014 and 2015, The Gambia Government dispatched missions to Lebanon, to get accurate information about the plight of Gambian migrant workers in Lebanon. These missions resulted, in the successful obtainment of penalty and detention waivers, and the reparation of some Gambian women to The Gambia. An exclusive funded reparation package and psychosocial help, were given to returnees, by The Gambia Government.

Out of 30 women registered for reparation, 10 were finally repatriated. The remaining 20 rejected The Government’s offer of reparation, and decided to continue living in Lebanon, for greener pastures. One of the concluding paragraphs, of the aforesaid Press Release read: “Presently, the Honorary Consul has obtained approval for the waivers of penalties and clearances to travel for all the women. Once these clearances are received, The Government will ensure their safe return…” what is more explicit than this? This Press Release, was published on Tuesday 25th August 2020, whereas, Mr Madi Jobarteh’s aforesaid bogus and unfounded letter to the editor of The Standard Newspaper, was published barely 24 hours later, on Wednesday 26th August 2020. MR Madi Jobarteh, who is always craving for information, does not dare to tell the reading public, that at the time he was writing his aforesaid bogus letter to the editor, he had not seen the aforesaid Press Release, from our Ministry of Foreign Affairs. The erudite William Shakespeare, in his masterpiece Play/Tragedy titled “Hamlet”, in Act 1, Scene 3, authoritatively wrote: “To thine own self be true, and it must follow, as the night the day, thou canst then, not be false to any man.”

 

Mr Madi Jobarteh as usual, was just writing for cheap popularity, and it is very clear from the contents of the aforesaid Press Release, that there is no need whatsoever, for The National Assembly to summon our Honourable Foreign Minister, Honourable  Dr Mamadou Tangara, because in law, “he does not have any case to answer.” Instead My Learned Friend, Honourable Mrs Mariam Jack-Denton, The able Speaker of the National Assembly/Parliament, should instantaneously summon Mr Madi Jobarteh, before the aforesaid august Assembly, and rightly Charge him with the heinous Parliamentary Offence Of “Contempt of the National Assembly”, contrary to Section 110 of our 1997 Constitution, and as sure as God Almighty created Adam and Eve, who lived in “The Garden of Eden”, he will be found “guilty as charged”, by both the learned Honourable Speaker and Honourable National Assembly Members (both elected by Gambian voters, and nominated, by His Excellency President Adama Barrow), with powers vested in him to do so, by Section 88(1)(b), of our aforesaid Constitution, which is still legally in force. He will indeed be unanimously found “guilty as charged” (i.e. without any dissenting opinion). There will indeed be “Concensus Ad Idem” (Latin: i.e. meeting or convergence of minds), among all Honorable Members of the aforesaid Assembly/Parliament.

Paragraph 4 of Mr Madi Jobarteh’s aforesaid article read: “… NAMs have failed to call the Executive Director of N.A.A.T.I.P. and the I.G.P., to ask them why have there been no arrests and prosecutions ever, for human trafficking? Yet it is so glaring in the Country…”

First of all, I have phoned my learned junior, at the Gambia Bar, Mrs Tulai Jawara- Ceesay, who is the present able Executive Director of N.A.A.T.I.P. This acronym means: National Agency Against Trafficking In Persons, which has been established by an Act of Parliament, and it is within the official portfolio of the Attorney General’s Chambers & Ministry of Justice. She told me that she has read Mr Madi Jobarteh’s bogus article, and she strongly disagrees with him for saying: “… NAMs have failed to call the Executive Director of N.A.A.T.I.P. and the I.G.P. to ask them why have there been no arrests and prosecutions ever for human trafficking, yet it is so glaring in the country.”  Mrs Tulai Jawara-Ceesay, then gave me two excellent examples, of human trafficking cases, which N.A.A.T.I.P. is presently prosecuting at the High Court of The Gambia. The first case, is on sexual exploitation of Nigerian nationals on trafficking, which is now on-going, before Honourable Mr Justice Ebrima Jaiteh. The second case, is presently presided over, by Honourable Mrs Justice Sainabou Wadda- Ceesay, on International Labour Migration on exploitation. It is about Gambian girls, on domestic servitude in The Middle East. I shall refrain from giving further and better particulars, about these cases, “Ex Abundante Cautella” (Latin: out of the abundance of caution), to avoid violating “The Sub Judice Rule”, which asserts that, once a case is before a court of law or an adjudicating body, members of the general public, are forbidden from going into details about such cases, because this is not in the public interest or “pro bono publico” (Latin:  i.e. the good of the public). Of course, the court concerned, will also have due cognizance of the famous Latin maxim: “Des Minimis Non Curat Lex” (i.e.: the law does not concern its self with little things, or inconsequential trivialities).

Paragraph 4 of Mr Madi Jobarteh’s aforesaid bogus article read: “… meanwhile our environment is being bastardized by Chinese companies, only to have our Minister in charge of the environment, wine and dine with them. One would expect the National Assembly would have summoned the Minister over the wanton destruction of our environment. But no, they didn’t…”

 

This is clearly libelous, and the Honourable Minister of the Environment, can successfully sue him for libel. But I know Honourable Mr Lamin Dibba very well, because he was, one of my former Environmental Law students, at the Faculty of Law of the University of The Gambia (U.T.G.), so I do not think that he would like to take any legal action against Mr Madi Jobarteh. This is his prerogative, and I therefore fully respect this nature of his.

 

Madi Jobarteh wants Hon. Parliamentarians to summon H.E President Adama Barrow

 

The remaining part of paragraph 4 of Madi Jobarteh’s bogus aforesaid article read: “…Instead of summoning The President to answer to a wide range of issues, concerns and fears about the National response to COVID-19, the National Assembly rather watches as The President flies all the way to Mali, to sit with irate soldiers, leaving pertinent issues at home unaddressed.” It is monumental and unacceptable constitutional nonsense, for Mr Jobarteh to bogusly talk about the National Assembly summoning the President, concerning COVID-19. The best person the Assembly must summon in this regard, is the Minister of Health, Honourable Dr Lamin Samateh.

Section 17 (1) of our 1997 Constitution reads: “The President shall at least once in each year, attend a session of The National Assembly, and address a session, on the condition of The Gambia, the policies of The Government and the administration of The State.” This is the only time, when His Excellency the President of The Republic of The Gambia, must mandatorily attend a session of the Assembly, and since The 1st Republic (during the political era of the late His Excellency President Sir Dawda Kairaba Jawara (K.C.M.G.), (G.M.R.G.), this mandatory sole Parliamentary session, has been officially termed or dubbed: “The State Opening Of Parliament.” This is an Executive power of His Excellency the President, that is not delegatable, hence the use of the laconic phrase: “The President shall…”, in Section 17(1) of the said Constitution. If it had been:- “The President may…”, this would mean that, The President has a discretion, as to whether or not, the aforesaid Executive Power, should be exercised, and there will not be any Constitutional consequences, if he decided either way. The aforesaid Executive Power, is not delegatable. Hence the famous Latin maxim: “Delegatus Non Potest Delegare” (i.e. a delegated power, cannot be sub-delegated). During the era of ex-President Yahya Jammeh, an official opening of the National Assembly by The State, was cancelled at the last minute, when all the dignitaries and diplomats were already seated, and waiting for the arrival of ex-President Yahya Jammeh. Ex-President Yahya Jammeh rightly, never sent any person to deputize for him, because if he had done so, this would have been a flagrant violation of the said Latin maxim: “Delegatus Non Potest Delegare”.

The tail-end of paragraph 4 read: “…The National Assembly rather watches, as The President flies all the way to Mali, to sit with irate soldiers, leaving pertinent issues at home unaddressed.” Google defines “irate” thus: “feeling or characterized by great anger…” Google continues to state some derogatory synonyms to “irate”, such as:- “…cross, mad, raging, ranting, raving, frenzied…” Firstly, His Excellency President Adama Barrow, actually never flew out of The Gambia, to talk to the aforesaid soldiers, now in control of Mali. However, His Excellency President Macky Sall, of neighboring Senegal, has recently done so. Mr Madi Jobarteh has therefore committed the heinous Criminal offence of “Sedition”, contrary to Section 60 of The Criminal Code. “Seditious Intent”, is defined by the said Code thus:- “Words or conduct, that incite public hatred or contempt, against the person of The President, or The Gambia Government, as by law established.”

By disrespectfully and scandalously describing the soldiers, now in charge of Mali, as “irate”, Mr Madi Jobarteh has unwittingly committed the heinous Criminal Offence of:- “Defamation Of Foreign Princes/Rulers”, contrary to Section 51 of the aforesaid Code. Although the aforesaid soldiers, are presently not “De Jure” (Latin: i.e. by right or legitimate) rulers of Mali, but for all intents and purposes, they are the “De Facto” (Latin: as a matter of fact), the present rulers of Mali.

 

Conclusion

I am vociferously putting it to Mr Madi Jobarteh that since he is always pretending to have constitutional knowledge, when in fact, he is constitutionally bankrupt, he should quickly go to Timbooktoo Bookshop, and buy a personal copy of the aforesaid authoritative law book, which I have authoritatively alluded to earlier on, from the proprietor, my good friend, Mr Jagne. If Mr Madi Jobarteh is unable to understand anything, he should not be ashamed, to ask a qualified senior lawyer, to enlighten him on this. I strongly commend the aforesaid Law Book, because it was one of the indispensable law text books I used with glee, from 1989 to 1993, when I was studying for my University of London L.L.B. Honours Degree, at Buckland University College, in Oxford. U.K., as a self-sponsored undergraduate law student. “A word to the wise, is quite sufficient”, as the famous adage goes. The very fact that, Mr Madi Jobarteh calls himself, a so-called human rights activist, this does not give him the licence, to be always unjustifiably lambasting His Excellency President Adama Barrow, The Executive and The Legislature, with impunity. He should be summoned by the prosecution authorities, and given a strict warning to desist from doing so, otherwise he will face the full force of the laws of the land, because one of the tripartite principles of the doctrine of the Rule of Law, as scholarly propounded by A.V. Dicey is: “NO PERSON IS ABOVE THE LAW.” I am finally putting it to him, that as far as the 3 arms of Government are concerned (i.e. The Executive, The Legislature and The Judiciary), The Executive, is indeed “Primus Inter Pares” (Latin:-the first among equals). As a senior Canadian-trained theologian, let me conclude by quoting: “Those who have ears to hear, let them hear, and let those, who have eyes to see, let them see”- The Holy Bible. I rest my case.

 

To be continued

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