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Saturday, February 27, 2021

Our constitutional debacle

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Dr Ousman Gajigo

Last month ago, I wrote an article in this newspaper about how problematic and ironic it is that as a country entering a new democratic era, we have willingly subjected ourselves to a constitution (the 1997 Constitution) that was designed by a dictator.

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If the country is going to observe constitutional democratic norms, one would think that it is obvious that we need to ensure that the constitution in effect should not have provisions that are incompatible with constitutional democracy and the rule of law.

So here we are today being forced to endure the outrage that is Yankuba Touray claiming immunity from prosecution or questioning despite all the atrocities he is accused of committing.

To make sure that we have a working constitution appropriate for a democracy would have been quite straightforward. This would have simply required modifying the 1997 Constitution at the earliest opportunity, while the country await the full recommendations from the Constitutional Review Commission (CRC) for the creation of a new constitution.

Unfortunately, the government only made minimal changes to the constitution to make possible the appointments of few individuals.

What is more, President Barrow had no qualms in using the problematic provisions of the Jammeh constitution when they suited him politically.

Recall the removal of a nominated National Assembly Member and replacing her with a sycophant who makes a mockery of the check and balance role of the National Assembly.

In other words, political expediency rather than national interest was the driving motivation for Barrow and his government when it comes to making any corrective actions as far as the 1997 Constitution is concerned.

This is the proper background to Yankuba Touray’s outrageous refusal to testify in front of the Truth, Reconciliation and Reparations Commission (TRRC) on 26th June. Mr. Touray claimed immunity given the provision in the 1997 Constitution.

I believe this is the relevant section of the 1997 Constitution that he is basing his claim upon:
“No member of the Armed Forces Provisional Ruling Council, any person appointed minister by the Armed Forces Provisional Ruling council or other appointees of the Armed Forces Provisional Ruling Council shall be held liable or answerable before a Court or authority or under this Constitution or any other law, either jointly or severally, for an act or omission in the performance of his or her official duties.”

From a non-legal expert reading of this section, several key words jumped at me: “liable”, “answerable”, “court” and “authority”. The TRRC may not be a court but it can be considered as an “authority”.

Moreover, the TRRC and all its powers are enshrined in an act of the National Assembly, which is required to be in accord with the constitution. Yankuba Touray’s claim may not be as solid as he believes but it cannot be simply dismissed out of hand. If a judgement is rendered that the TRRC Act or any act is in conflict with the 1997 Constitution, it is the constitution that normally wins.

I will leave it to the legal experts to adjudicate the merits of Yankuba Touray’s immunity claim. As an ordinary citizen, my outrage is focused on the Barrow government for making it possible for this immunity claim to be even made.

Like most Gambians, I will be outraged beyond measure if Yankuba Touray’s argument stands in court.

The same goes for any member of the AFPRC or their appointees.

But we should be equally outraged right now that Yankuba Touray’s claim even has a slim chance of success.

If we had a government that is sincere about reforms and is led by competent people, Yankuba Touray shouldn’t even a provision in the constitution that he can point to.

Furthermore, every single day that we wake up with that immunity provision in our constitution should be a day of outrage for every Gambian.

This situation we are in today is both foreseeable and preventable.

It was obvious that Yahya Jammeh and the AFPRC inserted that clause for an eventuality like the TRRC.

Which means that one of the first acts of the Barrow administration should have been to remove it when sworn in.

But like all other power-hungry politicians, Barrow’s only priority now is remaining in power. Every act or omission should be seen through that lens.

The legal and legislative processes needed for removing all the problematic clauses should have been easy.

The Yankuba Touray scenario is one example of many where our current Attorney General, Mr. Tambedou, has woefully failed.

The Attorney General has been given advice on this very issue by others but he ignored them. Mr. Tambedou, despite a seemingly impressive resume, is apparently all show and no substance.

He seems to be quite adept at making appropriately-sounding statements for public consumption but the real work that is needed to achieve any meaningful progress in areas under the responsibility of the Ministry of Justice does not get the required attention.

Witness his grand statement that he “…will set an example” for Yankuba Touray, a bark that has no bite to back it given the track record of his Ministry of Justice in prosecutions so far.

A brief scrutiny is all it takes to show that Tambedou’s track record so far has been abysmal. For instance, for two years now, the country still cannot seem to register any progress on key legal cases. Witness the case of the former DG of NIA still dragging in court.

Or the unbelievable situation where the so-called Junglers are kept detained and untried while Mr. Tambedou unashamedly declaring that he couldn’t try them in court.

Or the criminal case of witness tampering by Yankuba Touray and Fatou Jahumpa-Ceesay, which imploded within moments of the court session starting.

In addition to these prominent criminal cases, the Tambedou-led Ministry of Justice has done a poor job of providing quality legal due diligence when it comes to rendering legal opinion on commercial contracts signed between the Gambia government and numerous foreign investors.

There is no shortage of poorly negotiated contracts between the government and various entities, with significant fiscal and governance implications for the country.

Despite the confident-sounding chest-beating of the Attorney General, we cannot be confident that his team would be able to mount a strong legal assault on Mr. Touray’s outrageous claim. For all we know, Yankuba Touray was emboldened to make this immunity claim after the government’s failed prosecution of his witness tampering case.

So, what exactly is in Mr. Tambedou’s record as an Attorney General that should give us assurance that Yankuba Touray will be dealt with competently?
Another point that Gambians should not overlook is that Yankuba Touray’s immunity claim has an interesting implication for Adama Barrow’s argument that he should stay in power for five years because that is the tenure mandated by the constitution.

How unfortunate that we have now come full circle whereby Adama Barrow and Yankuba Touray are on the same problematic side of a clear-cut issue.

If Adama Barrow’s appeal to the Jammeh’s constitution is valid, would that mean that Yankuba Touray’s claim to immunity under the same constitution also stands? Someone needs to pose this question to Adama Barrow.

Ousman Gajigo is an economist. He has held positions with the African Development Bank, the UN, the World Bank and Columbia University.

He holds a PhD in development economics. He is currently an international consultant and also runs a farm in The Gambia.

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