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Sunday, July 3, 2022

3 or 5 years? The Constitution and the MoU are mutually inclusive

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Prior to the December elections in The Gambia, several opposition parties formed a coalition to remove the incumbent President Yahya Jammeh from office. As expected of any genuine political compromise, they held several meetings to achieve their common goal of uprooting long-term leader of the APRC regime. During their negotiations, many citizens hoping for a relief from the oppressive regime and generalised economic hardship kept their nerves as they prayed, encouraged and urged the political leaders to find a workable solution. Majority of Gambians shared the prevailed view that no single political party could defeat Jammeh through the ballot box. However, optimists believe that if the opposition political parties could coalesce around a single presidential candidate, the seemingly indomitable Jammeh will be defeated at the ballot box. When news broke out that GDC has pulled out of negotiations, many felt betrayed and condemned that party’s actions. In fact, many people speculated that GDC is a sham party the dictator was using as a front to create disunity and distractions in the ranks of the opposition to ensure his fifth electoral victory.

Notwithstanding GDC’s withdrawal from the talks, the remaining parties miraculously reached the long-awaited compromise that had remained illusive to the opposition parties since 2002 presidential election. The agreement was documented in a blueprint called a Memorandum of Understanding (MoU). The MoU listed the goals, the strategic objectives, composition, office of flag-bearer, tenure of office of the flag-bearer, transitional cabinet, coalition executive committee, ad hoc committees, The Secretariat, and transitional provision. Gambians and advocates for democracy across the globe hailed the brilliance of the drafters; endorsed the document wholeheartedly; and published and distributed it. The MoU guided the selection of the flag-bearer and fundraising initiatives to fund the campaign amongst other things. The incumbent was defeated and eventually removed by the Coalition through the ballot box in December 2016.

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With all the aforementioned struggles and achievements, there have been hints that the terms and agreements of MoU would not be honored with respect to the stipulated tenure of office of the flag-bearer (President Barrow). Hon Halifa Sallah, National Assembly Member for Serekunda and leader of the People’s Democratic Organisation for Independence and Socialism (PDOIS), has been asked on several occasions as to whether Barrow should step down after serving three years in office. He responded consistently that the agreement in the MoU should be respected. Mr Ousainou Darboe, the Minister of Foreign Affairs and leader of the United Democratic Party (UDP), also had an opinion regarding the issue. He said the constitution mandates a five-year term for president. He contended that President Barrow must serve his full five-year term, and that he will personally challenge in court any attempt to condition President Barrow to serve only three years.

These different positions taken by the two veteran politicians have sparked a debate amongst people who endorsed the MoU at its inception. The supporters for a shorter transition argued that President Barrow should honour the agreement because he came to power through the MoU. If he honours the promise, some believes, that will send a strong message to all politicians on our eternal commitment to ending self-perpetuating rule to be cemented by incorporating a presidential term limit in our constitution. Those who are calling for President Barrow not to honor the MoU claimed that the three-year agreement for the Coalition President conflicts with Section 63 (1) of the Constitution of The Gambia. Not surprisingly, they argued that the Constitution being the supreme law of the land must be respected and should therefore prevail over the MoU of the Coalition. As such, they alleged that the tenure stipulated in the MoU is ‘illegal.’

At the drafting and subsequent signing of the MoU, all stakeholders knew very well that the tenure of office of any president in The Gambia is five years. This notwithstanding, they proceeded and appended the Coalition MoU. The question is why have they decided to do so? Well the coalition MoU has succinctly answered the question. It stated that the transitional government will “conduct constitutional review and electoral reforms and organize referendum” all within three years. It is clear from the aforementioned quote that the intention of everyone at the time was to call for a referendum — to replace the 1997 constitution derogatively called The Yahya Jammeh’s Constitution by the very people when in opposition abhorred it but now in power defend it — and subsequently general elections within three years. This will provide them the mechanism to enforce the three-year agreement stated in the MoU without necessarily violating any law, not especially the constitution.
I will attempt to explain in brief some of the questions frequently being asked with respect to the Constitution and the Coalition MoU.

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What is a Constitution?
There are various definitions of the term constitution. I prefer the following two definitions:
Gilbert Law Dictionary defines Constitution as “a system of basic laws and principles by which a nation, state, corporation or other organization is governed.” Business dictionary.com defines “constitution as a fundamental and entrenched rules governing the conduct of an organization or nation state, and establishing its concept, character, and structure.”
It can be deduced from these definitions that a constitution directs the actions and activities of people in charge of the affairs for the entity it is created. Therefore, as our constitution was created for the purposes of a country, its governors must align their actions to the principles, rules, regulations and laws stated, implied or envisaged in the constitution. Anything contrary or in violation of the constitution is null and void ab initio. Thus, the 1997 Constitution is the fundamental and supreme law of The Gambia.

What is a Memorandum of Understanding (MoU)?
There is no universally acceptable definition of memorandum of understanding (MoU). I found the definition provided by law teachers particularly instructive. They define memorandum of understanding (MoU) as “a document describing a bilateral or multilateral agreement between parties. It’s most often used in cases where parties either do not imply a legal commitment or situations where the parties cannot create a legally enforcement agreements. It is more a formal alternative to a gentlemen’s agreement.”

A memorandum of understanding does not generally have the force of law and by that it does not generally create a binding agreement, as does a contract. As stated in the definition, people generally resort to MOU where they either do not intent a legal commitment or found themselves in a situation they could not create a legally enforceable agreement. The latter is what happened to the Coalition. They intended to have a legally binding document but found themselves in a position they couldn’t create a legally enforceable agreement. That was the reason they came up with an agreement in the form of a MOU.

What did the Constitution says about the number of years Barrow should serve versus the number of years the Coalition MoU says Barrow should serve?

As highlighted in the introduction, the most heated debate surrounding President Barrow and the Coalition is whether to honour the MoU or comply with the Constitution. The Coalition leaders are passionately divided on this issue, as are their ardent supporters. When Barrow was asked whether he would honor the three years agreement, he responded in the affirmative, but with a caveat that they may go back to the negotiating table if the need arises. When Halifa Sallah was asked he said he expects Barrow to honour the agreement. This notwithstanding, he alluded that he was also opened to the possibility of re-negotiating the tenure of the flag-bearer. When Lawyer Darboe was asked he said that the Constitution provided for a five-year term, and that if President Barrow is to serve less than the full term, he will personally challenge it in the Supreme Court of The Gambia. Having briefly explained the position of some of the Coalition leadership and their supporters, now let us see what the two documents say.

Section 63(1) of the Constitution provides that “ The term of office of an elected President shall subject to subsection (3) and (6), be for a term of five years;…” The MoU, on the other hand, provides under the heading Organs of the Coalition that “…The person elected at a National Convention of The Coalition who stands as an Independent Candidate belonging to no party shall be supported by the Coalition as Flag Bearer…The flag bearer will…a) Head a transitional government for a period of three years”

Is it the Constitution that is supreme in this circumstance or the Coalition MoU?
The Gambia, like many democratic states, exercises what is called constitutional sovereignty. Constitutional sovereignty in a nutshell means the supremacy of the constitution, which is the expressed written will of the people. That is why in The Gambia, the Constitution is regarded as the supreme law of the land. The superiority of the Constitution over all other laws is as stipulated in Section 4 of the constitution of the Gambia. The said section provides that:

This constitution is the supreme law of The Gambia and any other law found to be inconsistence with any provision of this constitution shall, to the extent of the inconsistency shall be void.
Evidently, by virtue of the aforementioned section, the Constitution does not only have the force of law, it is the law that all other laws must conform to. The Constitution of The Gambia overrides any law or agreement (contracts, MoUs, Letters of Intent, etc.,). Thus, any law or agreement that is contrary or that violates any of the provisions of the Constitution, such law or agreement, if challenged in court will be invalidated.

The Coalition MoU, on the other hand, does not have the force of law for it cannot be enforced in any court of law in The Gambia to the extent inconsistent with the Constitution. And even where it could, it must be in conformity with the Constitution of The Gambia. In this circumstance (or any other circumstance), any agreement be it an MoU or a contract must conform to the Constitution of The Gambia for it to have the backing of the law. Premised on the aforesaid, the Constitution of The Gambia will prevail over the Coalition MoU.

Can the three-year tenure stipulated in the Coalition MoU be enforced without necessarily violating the Constitution of The Gambia?
The answer is an emphatic yes. The political parties that formed the coalition have the power and influence to see that promises stipulated in the MoU are respect and executed as agreed. They constituted the cabinet and most importantly have absolute majority in the National Assembly. With such power, all they need to do is trigger constitutional reform by calling for a referendum. The referendum should be to repeal and replaced the 1997 Constitution with a new constitution. To amend or repeal any provision of the 1997 Constitution of The Gambia, The bill must be supported by the votes of not less than three quarters of all members of the National Assembly first — this is after the bill has been published in the Gazette already see s.226 — before it can be presented to the citizens in a referendum. This new constitution will give birth to the Third Republic. It will also mandate that we go to the polls to elect a new President and National Assembly Members. This being the case, they can make the commencement date exactly three years as stipulated in the Coalition MoU. Thus there will be no 1997 Constitution and therefore no violation of its provisions.

There is no doubt that the constitution of any country is the supreme law of that land. As such, for the purpose of governing any country its constitution takes precedence over the Qur’an, the Bible, Acts, Contracts, MoUs, etc. Where any of these scriptures or documents conflict with the constitution, the constitution will prevail. I believe that the drafters of the Coalition MoU were fully acquainted with this fact. They were also aware of the fact that from the attainment of independence, there has been no peaceful transfer of power in our country. The previous regimes spent a combine ridiculous fifty-two years in power. For whatever reasons best known to them, neither government showed any willingness to relinquish power.

If their reluctance to democratically transfer power taught us anything, the signatories of the Coalition MoU believed is the idea that citizens must decide on two-term limit for presidents. Every single politician in the country was theoretically not opposed to term limit or relinquishing power at some point. But once they were voted in office, they intentionally broke their promises. In fact, the APFRC said one of the core reasons why they orchestrated the 1994 coup is that President Jawara has stayed in power for too long, and alleged that he showed no willingness to relinquish power. When President Jammeh seized power, he also spent twenty-two years with even imperial ambitions to coronate himself as a monarch.

The political parties that formed the coalition knew that Gambians were tired with self-perpetuating rules. During their negotiations, and of course during the campaign, they promised that they would ensure that term limit is instituted. The tenure stipulated in the MoU is a statement of intent that term limit is a priority for the Coalition and that they will start with themselves by agreeing on a tenure of office for the flag bearer with a three-year transition for the Coalition government.

They know very well that they will not be able to achieve everything they would want within three years — just as no government will be able to achieve everything it intends to achieve even if given hundred years — but will ensure that they set a precedent for subsequent governments. Premised on the aforesaid, the Coalition MoU is not illegal (so the claims that it is illegal is wrong) rather the MoU and the Constitution are mutually inclusive. The intention of all the parties to the MoU is clear and unambiguous. As the platform President Barrow was elected on, the Coalition MoU must be executed within the framework of the 1997 Constitution for the creation of long-awaited Third Republican Constitution in 2020.

By Bubacarr Drammeh, Barrister

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