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Sunday, November 29, 2020

Sentiments have no space in our legislative house

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By Yankuba Jallow

Ya Kumba Jaiteh should be able to tell Gambians which provision of 1997 Constitution she will rely on to summon the President. Does the National Assembly have the power to summon the president to answer to them? Is it mandatory upon the president to attend? Why does she want the president to appear in person when he could be represented by the vice president?What if the president is requested to appear and he sends the vice president to come, what can the National Assembly do in that situation? Can the National refuse the vice president and insist that they want the president to appear in person?
These questions are settled by law (the 1997 Constitution) and the National Assembly cannot summon the president and insist that he must appear in person.

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Which law can she rely on to ‘summon’ the president? Which provision of the Constitution?
It is at the discretion of the president to appear or send the vice president to appear. Section 70 of the Constitution provides that the vice president is the principal assistant to the president in the discharge of his executive functions.

The Constitution makes it mandatory for the president to attend a national sitting 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 mandatory on the president to do.

However, section 77 (2) states “The National Assembly may request the President to attend a sitting of the National Assembly for the discussion of a matter of national importance.” Honourable Ya Kumba should be able to tell Gambians the provision of law she will rely on to force the president to attend in person. If the motion passes, the president may come if he so desires but it is not a mandatory on him to do so. The vice president can represent him. The mandatory provision is Section 77 (3) which states “The Vice-President shall answer in the National Assembly for matters affecting the President, and the President shall be entitled to send a message to the National Assembly to be read on his or her behalf by the Vice President.”

Ya Kumba Jaiteh, a nominated member of the National Assembly has indicated her desire to begin an impeachment process of the President of the Republic. Jaiteh put emphasis that she will move a motion for the president to be summoned before them, as lawmakers.
I want to submit straight away that if the motion passes it will be an abuse of power because the National Assembly lacks powers to summon the President and insists that he should appear in person even though the Constitution states the vice president can represent him before the National Assembly. You can only summon the vice president and not the president. The law is settled on this and there is no lacuna or ambiguity. Whatever you do or whatever powers you have as a National Assembly, it is circumscribed by law.

I wish to indicate that this is the first National Assembly in the New Gambia and therefore, they must be able to act in the public interest as dictated under section 112 of the Constitution. Section 122 states “all members shall regard themselves as servants of the people of The Gambia desist from any conduct by which they seek improperly to enrich themselves or alienate themselves from the people, and shall discharge their duties and functions in the interest of the nation as a whole and in doing so, shall be influenced by the dictates of conscience and the national interest.”

I wish to point out that section 112 of the Constitution is the most violated section of the Constitution by our lawmakers. Section 112 makes it mandatory on lawmakers to apply the dictates of conscience and the national interest when discharging their duties and functions in the interest of the nation as a whole. Recently, the whole country has witnessed lawmakers speaking on sentiments against the public interest but in the interest of their political parties. The public is watching and we will be able to adjudge (by our votes) them at the end of their mandate in 2022.

One would have expected her to speak the language of the law because in addition to her position as a lawmaker, she is also a legal practitioner.
On her impeachment of the president, I want to state that she is putting the cart before the horse. The National Assembly is on a fact-finding mission and this is why the answers of the vice president to the questions raised by Honourable Halifa Sallah, the member for Serrekunda would provide them base to know what to do next. You should have waited for the answers and then come up with whatever you have in mind.

Her statement was not made in the public interest. This is because you have already made up your mind that the president is guilty of your allegation. Your statements and actions should be guided by the public interest and not political sentiments. Lawmakers are not expected to speak on sentiments. If I were a lawmaker, I would have opposed your motion for the president to be summoned because you have scores to settle with him. You are a nominated member of the National Assembly and people would have expected you to remain so and not to display political colour.

In fact, the motion you intend to pass lacks merit. Why do you think the vice president cannot represent the president before the National Assembly? Why do you prefer the president to the vice president?

You cannot use our legislative house to settle your scores with the president. You were dismissed by the president and thereby, became a victim of the law. The courts settled the issue in your favour and you went back to the National Assembly.

Sue the Gambia Government if you believe the president’s actions were contrary to the dictates of the Constitution. Section 4 of the Constitution provides that the Constitution is the ‘Supreme’ law of the land (The Gambia). For the purposes of clarity, section 4 states “This constitution is the supreme Law of The Gambia and any other law found to be inconsistent with any provision of this Constitution shall, to the extent of the inconsistency, be void.” So this section provision of the Constitution makes it the supreme law of The Gambia.

In addition, section 5 provides that “a person who alleges that any act or omission of any person or authority (including the President), is inconsistent with; or is in contravention of a provision of this constitution, may bring an action in a court of competent jurisdiction for a declaration to that effect. The court may make orders and give directions as it may considered appropriate for given, to such a declaration and any person to whom any order or direction is addressed shall duly obey and carry out the terms of the order or direction. The failure to obey or carry out any order made or direction given under subsection (2) shall constitute the offence of violating the Constitution and (a) shall, in the case of the President or Vice President, constitute a ground for his or her removal from office in accordance with section 67.”

So this tells a lot. You will agree with me that if one successfully proves the allegation of contravention of the constitution by the president or vice president, then the court may make orders and give directions as it may consider appropriate.

In summary, Ya Kumba is a lawyer and she ought to know better because her mission is futile. A sober legislative house won’t rely on political sentiments to make a decision. They would rely on evidence. Evidence must be the basis of their decision.

I am calling on all lawmakers to disregard Ya Kumba Jaiteh’s motion. Let them apply conscience and law in the public interest so that the decision they will come up with will be supported by evidence and not sentiments. The motion is brought in the public interest. Ya Kumba Jaiteh’s motion should be rejected by the whole house. It is based on sentiment and the deputies shouldn’t entertain sentimental motions. She has already made up her mind and she wishes to drag our honourable members of the National Assembly into her sentiments.

Madi Jobarteh argued that honourable Halifa Sallah cited the wrong provision of the Constitution when he moved his motion to ‘summon’ the vice president to appear before them and provide them with answers to questions he raised. Jobarteh said Ya Kumba Jaiteh was the one right.

Madi Jobarteh is not sober. He is a politician hiding behind rights activism. Parliamentary privileges are special rights and immunities enjoyed by the members of the National Assembly to enable them to carry out their functions effectively and without external interference. They are conferred mainly by the common law but partly by statute. Contempt herein includes conduct that obstructs or tends to obstruct the function. Any conduct prejudicial to the proper functioning or dignity of the National Assembly can be regarded as contempt. People should take note. Madi and the likes should stop misleading Gambians.
I rest my case.

Yankuba Jallow is a law student at the University of The Gambia

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