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Thursday, October 22, 2020

Subversion of the Constitution and ‘The Diyaa Kuyaa Principle of Constitutional Interpretation’

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By a Gambian Outsider (a nom de plume)

A Writ of Mandamus: A Writ of Mandamus is a petition that a person who has standing can file with a court of competent jurisdiction to compel the performance of a clear, public legal duty, owed by some person in official or quasi-official position. The duty must be one arising from law and not from contract. Mandamus should not be used to compel the exercise of authority unless there is a duty to exercise that authority.

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In that famous case, Marbury v. Madison, (1803), Chief Justice Marshall wrote for the majority and stated that, “where the head of a department, such as the secretary of state [here James Madison, yes that famous James Madison, the Federalist Writer and who was then President Thomas Jefferson’s Secretary of State] has a mere ministerial duty to perform, such as the delivery of a commission, he can be compelled to perform it by mandamus. If a secretary of state can be compelled to do what a statute requires him to do how much more a constitutional provision? The Vice President debacle in The Gambia is not a statutory issue but a constitutional provision issue. When a constitutional provision is implicated, it demands great attention and action.

 

Section 70 (1) of the Gambia Constitution state in pertinent part: “There shall be a Vice-President of The Gambia who shall be the principal assistant of the President in the discharge of his or her executive functions and shall exercise such other functions as may be conferred on him or her by this Constitution or assigned to him or her by the President.” In The Gambia, according to the Constitution, a Vice-President is to be appointed by the President.

 

As things stand in The Gambia, there is constitutionally no Vice President as such because President Barrow refuses to appoint one. Because President Barrow did not publicly say that he refused to follow the mandate of the Constitution, we can arrive at his position on the matter from the answer that Mr Ousainou Darboe gave when he was asked the question of appointment of a Vice President. Mr Darboe, the Gambian martyr, and Gambia’s very own Nelson Mandela, whether self-anointed or not, and who according to his know-it-all talibés is beyond reproach and criticism answered that, there is no definite time set in the Constitution to appoint a Vice President; which by implication means that President Barrow can appoint a Vice President whenever he feels like it.

 

Now, this is a most absurd answer coming out of the mouth of a lawyer who practiced law for over forty years. To go to court and give such a ridiculous answer to a judge on why a constitutional mandate is not obeyed would be the most laughable thing there is. Can you imagine writing a brief in response to a petition regarding a certain constitutional mandate and thereby argue for the position that the reason why one’s client did not do what a constitutional provision requires him or her to do is because the concerned provision does not set a definite timeline to perform the mandated duty. It is like saying, though the Constitution requires my client to perform that duty, but because the provision in question does not set a definite timeline, my client can perform his or her duty whenever he feels like it.

 

Let it be known that Mr Darboe’s answer to the appointment of a Vice President is not based on any legal authority or principle of legal interpretation, but on his own authority. If Mr Darboe’s position is based on any legal authority beside his own “authority” let him point us to that source. I called Mr Darboe’s principle of interpretation on this matter the “Diyaa Kuyaa Principle of Constitutional Interpretation”!

 

If Mr Darboe’s supporters or for that matter anyone in the current administration, including my big brother, Mr Mai Fatty, can come up with a legal basis to support Mr Darboe’s position please step up to the plate. You see, there is no basis in law to support Mr Darboe’s position. Mr Darboe’s time would be better spent researching a legal basis for his position instead of calling at 2am, his know-it-all crybabies and who also think they own The Gambia, to explain why a certain Gambian lady is working for The Gambia at the UN.

 

Two points worth keeping in mind with regard to Mr Darboe’s absurd answer to the appointment of a Vice President: First the answer does not follow reason and is not based on any legal principle of interpretation whatsoever as I pointed out above. If section 6(2) is not being followed because it does not state a definite time to act, then what exactly is the use of section 6(2) in the constitution? From Mr Darboe’s position, section 6(2) is mere superfluity. If, on the other hand, section 6(2) has no business to be in the Constitution, then there is a way to change it or take it out of the Constitution.

 

Now, one does not change a constitutional provision by ignoring its mandate. And also, one does not ignore the dictates of a constitutional provision because it is inconvenient. The second point that defeats Mr Darboe’s position is that, in a constitutional provision or a statute, where a duty is to be performed and a definite time is not specifically stated, the interpretation is that the duty to be performed should and must be performed “within a reasonable time.”

 

Reasonable time is defined as “that amount of time which is fairly necessary, conveniently, to do whatever is required to be done as soon as circumstances permit.” The period for interpreting a “reasonable time” in most jurisdictions is within ninety days with the exception of unforeseeable circumstances. If there is a circumstance or circumstances happening in The Gambia, and not a constitutional prohibition, as the circumstance that prevent(s) President Barrow from appointing a Vice President, he can say what that is or what those things are? President Barrow has not given a single reason. He has been in office for over six months. That is twice the standard of “within a reasonable time.”

 

The bottom line is that, to say a Vice President is not appointed because the Constitution does not set a definite time to appoint one is nothing other than saying that President Barrow may appoint a Vice President when he sees fit. In other words, the appointment of a Vice President is left to the whims and caprices of Mr Barrow and not by the mandate of the Gambia Constitution. The question then is, who is Supreme in The Gambia?
Section 4 of the Constitution states that “ This Constitution is the Supreme Law of The Gambia…”and President Barrow has refused to do just what “The Supreme Law” of The Gambia has required of him to do. President Barrow’s conduct is loud and clear. He is by implication above the Constitution of The Gambia. There are no ifs, ands and buts about it. Why in the world is the current administration refusing to follow the law? What is so difficult for the current administration to just follow the law? Gambians certainly are not asking for much. Just follow the damn law! Because the law is not being followed, it raises all the alarm bells in the world contrary to what the administration may want Gambians and the rest of the world to belief.

 

Instead of risk being arrested or waste time and resources organising demonstrations to protest why a Vice President has not been appointed more than six months after President Barrow took office, the wise thing to do is to file a Mandamus petition with a court of competent jurisdiction like the High Court in Banjul and hopefully see the case go up to the Supreme Court. If such a case reaches the Supreme Court and Mr. Barrow is compelled to perform his duty, then Gambians will have clarification on whether Mr Barrow is above the law. And if the Supreme Court does nothing then you also have clarification that in The Gambia, the more things change; the more they remain the same. This would be a win-win situation for Gambians to know where the country really stands.

 

Section 6(2) clearly established that the question of standing would not be an issue. According to the dictates of Section 6(2): “All citizens of The Gambia have the right and duty at all times to defend the Constitution and, in particular, to resist, to the extent reasonably justifiable in the circumstances, any person or group of persons seeking or attempting by any violent or unlawful means to suspend, overthrow or abrogate this Constitution or any part of it.” This simple means that any Gambian citizen in good standing (i.e., not including those in jail, the mentally retarded and minors) can file a writ of mandamus or any other petition to any court of competent jurisdiction to defend the Constitution when it is being abused.

 

Now, the elephant in the room is, where art thou, Bar Association of The Gambia! From the legal doctrine of nonfeasance, i.e., to do nothing when one has a legal duty to act, the members of the Gambia Bar Association are well aware that such a person or group will be held liable for failure to act. This doctrine is applicable to both President Barrow and to members of the Bar. In the President’s case for refusing to follow the Constitution, and in the case of the members of the Bar, by virtue of their profession, they have a duty to act by filing a Mandamus or something similar to it and their failure jointly or severally to do so.

 

If for some reason the members of the Bar do not respect the authority of the Constitution, at least they should keep in mind what the highest authority, the Prince of peace teaches us in the Holy Scriptures “To whom much is given, much is expected.” To the laity, because The Constitution is the Supreme Law of the land, President Barrow can be compelled to do what he is constitutionally required to do.

 

The question is whether the legitimate sons and daughters of The Gambia will rise up to defend their “common” mother, The Gambia, when she is being abused? Illegitimate children stand idly by when their mother is being abused. This issue is a test. This is an issue that will separate the sheep from the goats or the wheat from the chaff. Whenever the Constitution of a country is being abused and the citizens of that country stand idly by, there is always a very great and painful price to pay down the line. Sometimes I wonder aloud whether Gambians have learned anything the passed twenty-two years.

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