By:- DR. Henry D.R. Carrol (M.R.G.),
Senior Oxford-Trained Lawyer, Solicitor
General Emeritus Of The Gambia & Founder
Senior U.T.G. Law Lecturer (From 2007 to Date).
Introduction:-This instructive and timely legal article, is a direct response, to Mr. Madi Jobarteh’s bogus article titled:-“The Inconsistencies and distortions in the President’s interview with Harona Drammeh”, which was published in the Tuesday 28th May 2019 publication of The Standard Newspaper.
It was indeed based on monumental legal bankruptcy, and calculated to misinform and intellectually deceive the reading public, both in The Gambia and in the diaspora, since the said Newspaper is on the internet (The Information Super Highway).
One of the stanzas, of the masterpiece poem titled:- “A Psalm Of Life”, ably authored by my namesake, the erudite American Poet, Mr. Henry Wadsworth Longfellow, inter alia reads:-“….in the bivouac of life, be ye not like dumb-driven cattle, be a hero in the strife.”Google authoritatively defines “bivouac” thus:- “a temporary camp without tents or cover, used especially by soldiers or mountaineers.
” Some years ago, when I made an Official trip to The East African Country/State Of Tanzania, I can fully well remember seeing some nice bivouacs, at the bottom of the famous Mount Kilimanjaro.
Mount Kilimanjaro, is one of the 7 summits (the highest peaks on each of the 7 Continents), and it rises 5,875 meters or 19, 340 feet above sea level.
It is the tallest free-standing mountain (not part of a mountain range), in the World.
The said poem was ably and inspirationally written in 1838, and it was rightly sub-titled:- “What the heart of the young man said to the psalmist.” Google authoritatively defines “Psalmist” thus:-“The author or composer of a psalm, especially of any of the Biblical Psalms.” Theologically speaking, David is The Chief Psalmist, hence:- “The Psalms Of David”, a musical masterpiece.
How His Excellency President Barrow Formulated His Cabinet?:-Mr. Madi Jobarteh wrongly wrote:- “…it was strange to hear the President narrate, how he personally formed his Cabinet on his own at the very beginning.
In the interview the President didn’t speak about any Technical Committee…” Firstly, the laconic phrase:- “…formed his Cabinet on his own…”, is linguistically wrong, because it is unacceptably highly tautological.
Secondly, Mr. Jobarteh bogusly went on to say, “… that Section 4 of the Memorandum Of Understanding (M.O.U.), stated that Cabinet positions would be allocated in consultation with each signatory stakeholder (Party Leader), in the Coalition Executive Committee- C.E.C…”.
It is very ironical or paradoxical to observe that, Mr. Madi Jobarteh was busy and hilariously talking about:- “…signatory stakeholder (Party Leader)….”, when in actual fact, the M.O.U.that was purportedly made by “Coalition 2016”, was never ever signed by its constituent members (i.e. the 7 Political Leaders of the 7 Gambian Political Parties, and the one Independent Candidate (then Honourable DR. Mrs. Isatou Touray, now deservedly Her Excellency The Vice President Of The Republic Of The Gambia). In Law, if a document has neither been signed nor thump-printed, by the concerned parties, then the contents of that document, are not legally binding on them, and they are not legally enforceable.
Also the said concerned parties, will not be able to avail themselves of The Contract Defence of Non Est Factum (Latin:- not my deed), See the locus classicus (Latin:- i.e. best known) British Contract Case of Gallie Vs Lee (1969), later renamed:- Saunders Vs Anglia Building Society.
“Equity aids the vigilant, but not the indolent”, as the famous Equity maxim goes.
Ex Turpi Causa Non Oritor Actio (Latin:-no right or benefit, can be derived from an illegal action). This famous latin maxim, is the equivalence of the famous Equity maxim:- “He who comes to Equity, must come with clean hands.”
Even if the M.O.U. is called:- ” a gentleman’s agreement”, it is still legally defective, because Google authoritatively says:-“ A gentleman’s agreement, or gentlemen’s agreement, is an informal and legally non-biding agreement, between two or more parties…”
His Excellency President Adama Barrow’s Exclusive And Unfettered Authority And Discretion To Appoint Honourable Cabinet Ministers:-Mr. Madi Jobarteh wrongly wrote:- “…it went further to state that all Presidential appointments and removals, shall be done in consultation with the C.E.C., and that in the event of the removal of a Minister, the President will consult the signatory stakeholder affected by the proposal, before the appointment of a replacement. Barrow never followed this procedure…”
Section 71 (3) of The Gambia’s 1997 Constitution (which is still legally in force), now being revised by The C.R.C., says:- “Secretaries Of State (now Ministers),shall be appointed by the President and shall, before assuming the functions of their Office, take and subscribe to the prescribed oaths” (i.e. The Oath Of Office, Oath Of Allegiance and Oath Of Secrecy), The Oaths Act (1965).
In Law, whenever “Shall” is used in any Legislation (The Constitution inclusive), this means that, the legal obligation that is being imposed by The National Assembly/Parliament, is mandatory or imperative.
On the contrary, whenever “May” is used, this means that, the legal obligation that is being imposed by The National Assembly /Parliament, is discretionary, (i.e. you may either choose to do it, or not to do it, without legal consequences).
William Shakespeare, in Act 3, Scene 1 of his masterpiece Play/Tragedy titled:-“Hamlet”, said “To be or not to be, that is the question…” On the face of the said Section 71 (3), it is therefore crystal clear, that His Excellency President Adama Barrow, has the mandatory Presidential responsibility and authority, of appointing Honourable Cabinet Ministers, and in doing so, he does not have to consult any other person, authority or institution.
This is The President’s Prerogative (ie special rights or privileges, especially of a ruler. For example “Prerogative Of Mercy”, which the said Constitution, also confers on His Excellency The President). Expressio Unius Est Exclusio Alterius(Latin:- What has been expressly stated by the law, excludes what has not been stated).
Roma Loquitor Causa Finita (Latin:- Rome has spoken, and the cause is finished).
His Excellency President Adama Barrow, is indeed neither a Communist nor a Socialist President (as myopic people would like him to be). He is indeed a Democratic President, who has been deservedly and Democratically voted into Office, by the right-thinking members of The Gambia’s electorate.
By not following the procedure for appointing Honourable Cabinet Ministers, laid down in the M.O.U., His Excellency President Adama Barrow, has indeed not committed any Criminal Offence whatsoever, and the said M.O.U. is not legally binding on him.
But the said Constitution (or “ The Grund Norm” in Jurisprudential parlance), is indeed legally binding on him, because on 18th February 2017 (the 52nd Independence Anniversary Of The Gambia), when the Honourable Lord Chief Justice, Mr. Hassan B. Jallow (C.R.G.), was ably swearing-into-Office, the then victorious and invincible Honourable Adama Barrow, The President Elect (the then Flag Bearer or Presidential Candidate of “Coalition 2016”, at The Independence Stadium in Bakau, one of the three Oaths that were mandatorily taken, by the then Honourable Adama Barrow, was:- “…to uphold and defend The Constitution Of The Republic Of The Gambia, and other laws of The Gambia, so help me God.”
He took this important oath, (including the other 2 compulsory Oaths), while holding The Holy Quran up in his right hand.By the grace of God Almighty, I was physically present at this historical and epoch-making Ceremony, as a competent and compellable witness, to use The Law Of Evidence terminology.
I was sitting next to My Learned Friend and Senior, in the Honourable and Learned Legal Profession, Mr. Antouman A.B. Gaye. The said M.O.U., was certainly not part and parcel, of the said important Oath. His Excellency President Adama Barrow, therefore has exclusive and unfettered authority and discretion, to appoint Honourable Cabinet Ministers etc. Also, it is legally wrong for any myopic or ignorant person to say, that by not complying with Section 4 of the said M. O. U., His Excellency President Adama Barrow, has allegedly committed a Criminal Offence, because conventionally or Constitutionally speaking, a sitting President (i.e. a President while he/she is in Office), clearly enjoys full and unquestionable Presidential Immunity. Section 69 (1) of the said Constitution says:-“Except as provided in subsection (2), no civil or criminal proceedings shall be instituted against any person, while holding or performing the functions of Office as President, in respect of anything done or omitted to be done, by him or her, whether in an Official or a private capacity.”
Is His Excellency President Adama Barrow, Bound To Comply With The M.O.U.?:-Mr. Jobarteh then wrongly wrote:- “…Therefore what Barrow did not say in the interview, was his blatant disregard of the M.O.U. only to monopolise decision-making from beginning to end, to the disadvantage of the Country”.
As I have already clearly explained, His Excellency President Adama Barrow, was not under any Legal obligation whatsoever, to act in conformity with the said purported / alleged M.O.U. It is monumental and unacceptable rudeness, to wrongly address His Excellency President Adama Barrow, merely as “Barrow”, as if he was addressing a mere school boy.
Even a school boy, who is under-aged, is respectfully and courteously addressed as:- “Master”, not to talk about His Excellency The President of a whole Republic, The Commander-In-Chief Of The Armed Forces and The First Citizen Of The Gambia.
By rudely addressing His Excellency The President, simply as “Barrow”, this is highly seditious. “Manners maketh man”, as the famous adage goes. Mr. Jobarteh, would never have addressed Ex-President Yahya Jammeh, merely as “Jammeh”, to his face, the reason for this outright impossibility, is fairly obvious.
His Excellency President Adama Barrow, was clearly NOT “…monopolizing decision-making from beginning to end, to the disadvantage of the Country…”, as Mr. Madi Jobarteh was fallaciously and deceitfully asserting. On the contrary, His Excellency President Adama Barrow, was duly exercising Official powers or authority, lawfully or legitimately vested in him, by the Laws of the land.
When Talking About The Gambian’s National Security, Should His Excellency President Barrow, Refer To Senegal?:- His Excellency President Adama Barrow, in his recent interview with Mr. Harona Drammeh, he inter alia talked about his relationship with The Gambia Armed Forces, and in buttressing his point for not visiting Gambian Soldiers at the Barracks so far, he gave as a good example, His Excellency President Macky Sall of neighbouring Senegal, of an African President, who has not visited his Soldiers at the Senegalese Barracks.
“ Charity begins at home”, as the adage goes. “ Home” here means “ our Senegambia home.” Mr. Madi Jobarteh wrongly wrote:-“Whether President Macky Sall visited any Military Barracks or not in Senegal, cannot be a reason for a Gambian President, to also visit or refuse to visit his Armed Forces”.
I am vociferously putting it to Mr. Madi Jobarteh, that you cannot talk about National Security in The Gambia, without simultaneously or contemporaneously, talk about National Security in Senegal, our nearest African neighbour.
In fact the Political idea of “Senegambia”, existed long before these 2 neighbouring E.C.O.W.A.S. Countries/States, were Colonized by their respective Colonial Masters (i.e. The British and The French), hence the famous slogan in Political circles, concerning The Gambia and Senegal:-“One people, but two Nations.”
The Gambia shares borders with neighbouring Senegal on 3 sides namely:- on the North, the South, and the East, but on the West side, The Gambia has an outlet to the mighty Atlantic Ocean, this makes it a Coastal or a Riparian State, in International Environmental Law, instead of “a Land Locked State”, like Zambia and Zimbabwe, in Southern Africa.
This was why, way back in 1965, just after Gambia attained her Political Independence from The U.K., on 18th February 1965, the 2 then prototype and eminent Senegambian Statesmen:- His Excellency Mr. David Kwesi Jawara, The Prime Minister of newly Independent Gambia, and the late His Excellency President Mr. Leopold Sedar Senghore, the first President Of Independent Senegal, deemed it very wise and mutually beneficial, to urgently sign a Bilateral Defence Security Agreement.
In a nutshell, this bilateral security agreement says, that whenever there is any instability in Senegal, Gambia should immediately send troops/Soldiers or Military Personnel into Senegal to assist, in the urgent restoration of normalcy.
To be continued
Conversely, whenever there is any instability in Gambia (now “The Gambia”), Senegal must also immediately send Military Personnel/Soldiers to Gambia to assist.“A friend in need, is a friend indeed”, as the famous adage goes.
By then, Gambia never had an Army, instead it had a Paramilitary Field Force, and my dear paternal Uncle, the late Mr. Emmanuel Eku Mahoney, was its able Deputy Commander. In 1980, he was shot and killed in the Bakau Barracks, by the ill- intentioned and malicious Mr. Mustapha Danso, a Constable in The Field Force.
His assassination, inevitably led to the 1981 bloody attempted Coup d’tat, led by the late Mr. Kukoi Samba Sanyang, by the end of July 1981, when His Excellency President Sir Dawda Kairaba Jawara (K.C.M.G.).
(G.M.R.G.), The First President Of The Republic Of The Gambia and The Commander-In-Chief Of The Armed Forces, was away in The United Kingdom, as an Official Guest of The British Royal Family, headed by Her Majesty Queen Elizabeth The 2nd, for the grand and historical occasion of, The Royal Wedding between Prince Charles (The Prince Of Wales) and the late Princess Dianna Frances Spencer, on 29th July 1981, rightly dubbed:-“The Wedding Of The Century.”
Prince Charles is The Heir Presumptive/Apparent to The British Throne , and from Wednesday 31st October 2018, Prince Charles and Madam Carmella, Duchess Of Cornwall, arrived in The Gambia, to begin a 3-day Royal Visit, (the first leg of their African Tour, and they later visited Ghana and then Nigeria, all are Commonwealth Countries).
They were warmly received on arrival, at The Banjul international Airport, by His Excellency President Adama Barrow, who offered them , The Gambia’s warm and friendly hospitality .It was on the legal basis, of the aforesaid important Bilateral Security Agreement, between Gambia and Senegal, that His Excellency President Sir Dawda Kairaba Jawara, urgently and Officially requested his then Senegalese Counterpart, His Excellency Mr. Abdou Joof, to quickly dispatch Senegalese Soldiers to The Gambia, by land, sea and air, to crush the attempted
