These days so much judicial ink have been spilled, or wasted on this topic.
Please allow me to chip in.
Yes some called it “Gentleman Agreement”, “Memorandum of Understanding”, others called it “Election Pledge” or whatever name you may call it. In fact the names are as many as the agreement itself.
Fellow readers, I am sorry to bother you with yet another constitutional quotation. Please just bear with me is the nature of the trade that calls for it.
One cannot make arguments without basing it on facts or authorities.
Right if Section 63 (1) of the 1997 Constitution is of anything to go by, and it reads:-
“The term of office of an elected President shall subject to subsection (3) and (6), be for a term of five years …”
So whatever agreement or contract or MoU one may call it, the supremacy of the constitution takes precedent. Hence Section 4 and it states:-
“This Constitution is the supreme law of The Gambia any other law found to be inconsistent with any provision of this Constitution shall, to the extent of the inconsistency, be void”.
Furthermore, 64 of the 1997 Constitution – temporal exercise of President’s functions – is also been helpful here. A convincing and a more compelling argument is found in Section 65 (1) and (2) of the 1997 Constitution, and as it provides:-
“(1) The office of President shall become vacant during the term of a presidency –
(a) on the death or resignation of President or
(b) on the President ceasing to hold office under 63, 66 or section 67.
(2) Where the office of President becomes vacant in the circumstances set out in subsection (1), the Vice-President, or if there is no Vice-President in office at the time, the Speaker shall assume the office of President for the residue of the term of the former President.”
Section 63 (3), the president can be remove from office by an impeachment, 66 – mental or physical incapacity, and 67 – misconduct by the President respectively.
With regard to the above, the President took the prescribed oath to be in office for five years and not otherwise.
Now the way and manner a president shall or may vacate office is clearly provided for and vividly described and prescribed in the Constitution.
Another dichotomy between the Constitution and the MoU, is that, the two are like two vertical parallel lines that can never meet. What I mean is that the Constitution can neither accommodate the MoU, nor can the MoU make reference to the Constitution. This is simply because the MoU falls short of the constitutional requirement of 5 years, and that being the case, the MoU lacks all the merits of a legally binding agreement.
Thus, the MoU is not premised on any law that has the locus standi.
As the status quo remains, the MoU has collapsed it is like “putting something on nothing and expect it to stay there or putting nothing on nothing and expect it to be something (emphasis added), and out of nothingness comes nothing i.e. Latin ‘nihilo nihil fit’ as per Lord Denning in the case of MaCfoy V. U.A.C . We cannot waste our time and energy on something that we all know that nothing will come out of it. In another word is like looking for a “black cat in a dark room that isn’t there”, how do you find it? Unless we engage the service of a magician to bail us.
Now the question is, if President Barrow chooses to resign, on what basis is going to tell The Gambian voters who took their time to vote him in.
This begs the second question that, if President Barrow decided to go, is he going to resign with his entire cabinet and parliament or is he going alone?
Did we voted for President Barrow, or we voted for the 3 years?
Even if President Barrow decides to honor the so-called election pledge, what benefit are we deriving from that? Are we telling the entire ECOWAS block and the world over that we have the pleasure of going back to the constitutional crisis that we have just graduated from?
This goes with Mandinga proverb that “if a frog is not tired of jumping into the well, its rescuers will be tired of rescuing it from the well all the time.” So in a nut shell, if we are not tired of going into crisis, ECOWAS and the rest of the world will be tired of coming to our aid all the time.
Another question is this, is the resignation of President Barrow the only standard or yardstick to measure our democratic credentials.
If the answer is yes, then God have mercy on The Gambia our home land.
That goes with the Wollof saying that “Gambia doina warr”.
Thanks to my brother and Wollof friend Mr. M.S. Njie – EFSTH.
To call for another election in three years’ time is not the best interest of the country, and it can neither be dictate by law nor common sense.
Also it is incomprehensible for us to invest so much money and time into election, while we have an aging infrastructure, would that not amount to misplacement of priorities?
At least Mr. Barrow (as he then was), has put his life on the line for all of us to enjoy the desire freedom and the so-called democracy that we were yearning for.
Can’t we stop for a moment as a Nation and reflect back on the dark days of The Gambia and say to God thank you for giving us President Barrow?
As at now he is the right man for the job. Right now he is the National Insurance Number (NIN), and at the same time the Tax Identification Number (TIN) of The Gambia. The old adage got it that many are called but few are chosen and Mr. Barrow is among the chosen few. President Barrow, a tremendous leader and a superlative politician per excellence. Adama, the only Barrow of Jimara, and a prodigy SON of The Gambia.
Mr. President you are spectacular as we write.
Remember at some point we were all guilty of grumbling and complaining against the former President Jawara, and God settled the scores with us by giving us a ruthless monster, and the father of kleptomania, who had an excessive desire for stealing.
Consequently, the price that we all paid to that effect was that, we had an interregnum in our constitutionalism for 22 years, for all the wrong reasons, with all the reasons, and by all the wrong reasons.
Camp 3 years, is President Barrow’s resignation the only constitutional, or democratic, or institutional reform among our priorities’?
Camp 3 years, can’t we model our democracy on something else other than to abandon or exclude Mr. Barrow from the group in a form of punishment by sending him to Coventry, or to ostracize him from the rest of us.
Camp 3 years, let’s get to work and be real, time is of the essence.
If, and if again, Mr. President wishes to resign at 3 years all in the name of honoring the so-called MoU, would that not amount to what the Japaness called “kamikaze” the English equivalent of the word “suicide”. Is that not suicidal?
Is Mr. President on a suicide mission, or is he on a self-destructive mission called Frankenstein, named after Baron Frankenstein who created a destructive monster. Also called: Frankenstein’s monster.
Let us not use position as a revenge weapon – the German version of “vergeltungswaffe”. The revenge bombs made by the Germans in World 1 and World 2 to bomb England.
Finally, it is a well-established law in both common law and Islamic jurisprudence that “he who asserts must prove”.
This is in line with the prophetic hadith which states:-
“If people were to be granted their request, some will claim the blood and properties of others, but establishment of a claim is on the claimant…”
Mr. President, if the camp 3 years can prove their case against you, I am afraid you have no choice but to go.
The question is can they prove their case against you upon the principle of “beyond all shadow of doubt” or is that too high, then let’s lower the bar to “beyond all reasonable doubt”.
Besides, even if the worst come to the worst – meaning if all the more desirable alternatives become impossible or if the worst possible thing happens i.e. if President Barrow chooses or decides to die, I bet some of you can only be president by default – meaning in the absence of a better alternative candidate.
Though, the tongue is not meant to be spicy but that is the reality.
The 3 years as a rally point, to be honest is ear-splitting to some of us.
I think it is time for one to say it the way it is than to be economical with the truth. I belief, it is prudent for one to be proactive and be initiative rather than reacting to events.
Arguably, I think any reasonable bona fide son or daughter of The Gambia will appreciate these facts, as we all know all too well.
That brought us to the end of part one of this discussion – Latin “terminus a quo” meaning (the terminal point or the end of this debate).
On the discussion “Gambia has not decided yet”.
Oh are we now questioning the undiluted choice of a common Gambian voter that, his choice of presidency is wrong, and also his choice of partisan politics is wrong as well.
When we went to the polls on the December 1st 2016, who among was under duress or undue influence to vote for Mr. Barrow (as he then was), and as we repeated it in on the 6th of April, 2017?
I also don’t understand why camp 3 years is using the 3 years agreement as a rallying point out of the lot, and why are they laboring so much on that.
In fact, that statement is not the true representation of The Gambian voters.
The truth is that, a blogger and an illiterate voter like me, went to the December polls 2016, only to exercise my franchise for the man of my choice and regardless he is a Manjako or a boy from Jimara.
Our choice of President, and our choice in the National Assembly is the true verdict of The Gambian people, and should be respected, and until such a time that The Gambia decides again.
These are Constitutional rights guaranteed under Sections 26, and 39 i.e. the political rights, and the right to vote respectively.
This is also emphasized in paragraph 6 of the preamble of the 1997 Constitution, and it states:-
“This Constitution guarantees participatory democracy that reflects the undiluted choice of the people. …”.
If we have answers to all these multiple questions, then we will have a new approach, and a new look at our democratization processes.
Remember the word “democracy” permitted choice.
Controversially, democracy is said to be the best form of government in the absence of others, therefore, let’s get the best out of the best.
Oh! A story line like this, that has some legal and political flavors, do I need a permission from the Inspector General of Police/Politic – (IGP) of political science, Dr. Ismaila Ceesay, or the IGP of The Gambian Constitution triple Dr. Henry Carrol (MRG), REGARDS.
With due respect Dr. I intended to include all your accolades but time and space did not permit me, I hope, I will be forgiven as first time offender.
Whoops! Another permission, this time from who? The IGP of the English Language Honorable Fodeh Baldeh. Sir hope I spelt your name correctly.
Finally, with the new democratic space we need workaholics and not the all talking types.
Let’s work hard, pray hard and be hopeful for our country to become the land of milk and honey. For The Gambia the Eldorado of Africa.
Hope is the only “weapon” that no power on the earth can deprive of you. – Nelson Mandela, the MADIBAS – RIP.
A disclaimer, this article is not meant to agitate anyone either wittingly or unwittingly, and if it does, then words fail me.
Also I am a pupilage under the tutelage of Barrister Malick H.B. Jallow, and His Lordship Almami Fanding Taal, and that doesn’t mean that they are vicariously liable for anything said or done under this discussion.
Folk good day. May the law be with you.
By Kawsu E Jadama