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Sunday, September 20, 2020

The authoritarian legacy of the AFPRC/ APRC governments, A legal perspective

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Let me first of all, put on record my mammoth gratitude, to my good friend, brother, Civil Service colleague, my former classmate at St. Augustine’s High School, Mr. Momodou Badjie, the present able National Security Adviser at The State House, for kindly nominating me as a Resource Person or a Subject Matter Specialist, for this important workshop, to deliver a lecture on the above-named stimulating topic, although at very short notice (less than 24hours). With God’s help, I do hope I will be able to do justice to this lecture, to your satisfaction.

Meaning Of “Authoritarian”?:- The Oxford Advanced Learner’s Dictionary, by A.S. Hornby, authoritatively defines “Authoritarian” thus:-“Believing that people should obey authority and rules, even when these are unfair, and if it means, that they lose their personal freedoms.”

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Chapter 4 of The Gambia’s present 1997 Constitution, is titled:-“Protection Of Fundamental Rights And Freedoms.” In that Constitution, there are 2 types of clauses, namely:-(1) A General Clause and (2) An Entrenched Clause. To amend A General Clause, The Honourable Attorney General & Minister Of Justice (The Government’s Chief Legal Adviser), has to go to The National Assembly/Parliament, and table a Motion, for its amendment.

If two-thirds (2/3) of The Honourable Members vote in favour of the proposed amendment, then The Honourable Speaker, My Learned Friend, Honourable Mrs. Mariam Jack-Denton, will Officially declare, that the General Clause in question, to be finally amended, after a vote has been taken on the matter, and she will say:-“The I’s have” it (meaning those who have voted in favour of the motion, have won the contest).

But in the Case of An Entrenched Clause, the aforesaid Constitutional procedure for amending A General Clause, must first be fully followed, after that The Honourable Speaker, will then refer the matter to The Honourable Chairman Of The I.E.C., Honourable Mr. Alhaji Alieu Mommar Njai, for him and his able team, to conduct a Constitutional Referendum, concerning that Clause.

If 75% of registered Gambian Voters, vote in favour of the proposed amendment, then the proposed amendment of that Clause, is then Constitutionally completed.

Should the governed subject themselves to governors?:- As a Senior Canadian-Trained Theologian, let me quote a very powerful and appropriate Theological quotation:- “….Obey your earthly/Government rulers, in all things, that are Godly”, from The book of Romans, Chapter 13, Verse 1, The Holy Bible. This simply means, that the governed should only submit themselves to their governors, as long as they are acting in a Godly manner, and in the best interest of the governed.

This in Political Science, is called:-“The Social Contract”, the name of a famous political science book, ably authored in 1762, by an erudite French philosopher, Mr. Jeane Jacques Rousseau.

His other 2 contemporaries were:- Voltaire and Montesquieu, who was both a philosopher and a Lawyer, and he contributed immensely to the formulation of the Constitutional Law doctrine of:- “Separation Of Powers”, which was the figment of the fertile legal imagination, of Mr. John Locke, a British legal luminary and a famous and erudite Constitutional Lawyer.

The A.F.P.R.C. Government:- This was a 2-year Military Government, ruled by The Armed Forces Provisional Ruling Council (A.F.P.R.C.), whose Chairman was Rtr. Colonial Yahya Jammeh, and it was instituted after the bloodless 22nd July 1994 coup, led by Lieutenant Yahya Jammeh, as he then was.

The Gambia’s 1970 Republican Constitution, was suspended, and Parliament was dissolved by the said Military Junta. Therefore The A.F.P.R.C., was both Legislative and Executive. The said Constitution, was assented on 24th April 1970, in the name of Her Majesty Queen Elizabeth The 2nd of The U.K., by His Excellency Alhaji Sir Alieu Sulayman Jack (K.C.M.G.), the then able Acting Governor General Of The Gambia, and the father of the present Honourable Speaker Of The National Assembly/Speaker.

The then Gambian Prime Minister,His Execellency Sir. Dawda Kairaba Jawara (K.C.M.G.), (G.M.R.G.), when The Gambia became a Republican State, metamorphosed from a Prime Minister, to The First Gambian President.

“Vel Primus, Vel Cum Primus” (Latin:- either the first, or among the first)
The A.F.P.R.C. Council, was composed of mainly Gambian Solders, but some Gambian Civilians, were also members, namely:- (1) Honourable Mr. Fafa Edrissa M’bai, Attorney General & Minister Of Justice, (2) Honourable Mr. Bakary Bunja Darboe, Minister Of Finance, (3) Honourable Mrs. Fatoumata Jallow-Tanbajang (our former Vice President), the then Minister Of Health & Social Welfare, (4) Honourable Mrs. Susan Waffa Ogoh, Minister Of Tourism & Culture, (5) Honourable Mrs. Amina Faal-Sonko, Minister Of Youths & Sports, (6) Honourable DR. Bolong Sonko, Minister Of External Affairs, (7) Honourable Mrs. Satang Jow, Minister Of Education etc. Since The A.F.P.R.C. Government, was a Military Government, it inevitably left behind as an authoritarian legacy, a plethora of human rights violations.

Google authoritatively defines “Duress” thus:- “ threats, violence, constrains, or other actions used to coerce someone into doing something against their will or better judgment.” None of the aforesaid Gambian Civilian appointees of both the A.F.P.R.C. Military Government and the A.P.R.C. Civilian Government, will have any liability in law, because they will have the well-known defence of “Duress” in Criminal Law. Yahya Jammeh, who was the then Head of the two aforesaid Governments, was always saying about his enemies :- (1) “… I will put them in my five-star Hotel” (ie our National Prisons, which were State-owned, but he bogusly claimed ownership of them), (2) “… I will bury them alive, six feet deep.”

Official launching of the Revised Laws Of The Gambia:- This grand Official Ceremony, took place on Friday 11th February 2009, at The Attorney General’s Chambers & Ministry Of Justice. The then Honourable Attorney General & Minister Of Justice was, Mr. Edward Anthony Gomez, while the then Solicitor General & Legal Secretary, was my learned Junior, Mr. Pa Harry Jammeh. I was The Chairman &Master Of Ceremonies, for this occasion. In my Opening Speech, I inter alia said:- that Section 7 (c) of The 1997 Constitution says:- “In addition to this Constitution, the Laws Of The Gambia consists of :-(c) the existing Laws, including all Decrees passed by The A.F.P.R.C..” I then pointed out, as I always tell my L.L.B. Law Students at The Faculty Of Law Of The University Of The Gambia (U.T.G.), that Section 7 (c) was wrongly worded, because not all A.F.P.R.C. Decrees, have been saved by the said Constitution. Only A.F.P.R.C. Decrees, that were consistent with the said Constitution, or which where entirely new in our Gambian Laws, (for example The A.F.P.R.C. Economic Crimes Decree), were in fact saved by the said Constitution, and they are still, good and legally enforceable Gambian Laws today.

But those A.F.P.R.C. Decrees, that were undemocratic and authoritarian, were dumped into the legal dustbin of history, and they are no longer good and enforceable Gambian Laws. “Expressio Unius Est Exclusio Alterius”(Latin:-what has been expressly stated by the law, excludes what has not been stated.) .

The A.P.R.C. Government:- On Sunday 29th September 1996, the then able Chairman Of The Provisional Independent Electoral Commission (P.I.E.C.), Mr. Gabriel John Roberts, and his able team, conducted the first Presidential Election, after the bloodless 22nd July 1994 Coup, led by Lieutenant Yahya Jammeh. The then able Vice Chairman Of The P.I.E.C. was, the late DR. Bishop Solomon Tilewa Johnson, Bishop of The Gambia Anglican Church, who later became The Archbishop Of West African Anglian Bishops. He was primus inter pares (Latin-the first among equals), among the said Bishops. Before the said Presidential Election was conducted, The A.F.P.R.C. Government, metamorphosed to The A.P.R.C.

Government (a Civilian Government). The registered Political Parties that participated at the said Presidential Election, mandatorily had their different Political Manifestos, and they campaigned on the basis of these manifestos, when they were having Political meetings/rallies, with The Gambia’s electorate. Under the said Constitution, if a National Assembly aspirant made certain promises to the electorate, and after he or she has won the election, after becoming an Honourable Member Of Parliament, he or she then fails to honour the said promises, then the disgruntled electorate of that Constituency, can sign a Petition Of Recall, and submit it to the Honourable Chairman of The I.E.C., Honourable Mr. Alhaji Momar Njai, for him to conduct a bye-election for that Constituency, since the previous Parliamentary Representative, had been recalled from The National Assembly/Parliament. His Excellency Mr. Donald Trump, the present American President, is now building a wall, between America and Mexico, to prevent Mexicans from illegally entering The U.S.A.. He is now doing so, because this was one of his campaigned promises to the American electorate, during the immediate past American Presidential Election, held on Tuesday on 8th November 2016.

Before the 1997 Constitution, which promulgated The Gambia’s 2nd Republic, entered into force, the then able Chairman of The Provisional Independent Electoral Commission (P.I.E.C.), Mr. Gabriel John Roberts, and his team, ably conducted a Constitutional Referendum for The Gambia’s electorate, on 8th August 1996. This new Constitution, was approved by 70% of registered Gambian voters, with a voter turnout of 81%. Therefore, there was a small percentage (i.e. 19%) of voter apathy (i.e. registered Gambian voters, who are unwilling to vote in an election, organized by the then P.I.E.C., (now The I.E.C.).

Classic Authoritarian Legacy Of The A.P.R.C. Government (Civilian Government):- A classic authoritarian legacy, of the now defunct A.P.R.C. Civilian Government, under the leadership of ex-President Yahya Jammeh was a plethora of illegal/unlawful executions (extra Judicial killings ), that were clandestinely carried out, by the ill-intention so called “jugulars”, of ex-President Yahya Jammeh.

This has been reliably disclosed by the said jugulars, during the recent public hearings of The Truth Reconciliation And Reparation Commission (T.R.R.C.), under the able Chairmanship of His Honour DR. Lamin J. Sise, a Cambridge University-Trained Gambian Jurist. The said important evidence, was indeed “res ipsa loquitor” (Latin:- the thing speaks for itself),and it is indeed relevant and admissible evidence in a Court of Law, for Criminal Charges of“Murder”, “Massacre” and a violation of “the right to life”, expressly guaranteed by Section 18 the said Constitution,
Authoritarian Legacy Of Torture:- The A.F.P.R.C. /A.P.R.C. Governments also has the authoritarian legacy of torture. Torture is expressly prohibited by the said Constitution, because its Section 21 says:-“ No person shall be subject to torture or inhuman degrading punishment or other treatment”. The Gambia became the 165th State Party to The U.N.

Convention Against Torture, when its National Assembly unanimously ratified this very important U.N. Convention, a few years ago. Again the Jugulars testimony, before the ongoing T.R.R.C. public hearings, is indeed clear evidence of torture clandestinely occurring in The Gambia during the eras of both The A.F.P.R.C. and A.P.R.C. Governments. This was simultaneously or contemporaneously, a flagrant violation, of both the said Constitution and the said U.N. Convention.

Authoritarian Legacy of the A.F.P.R.C./A.P.R.C (enforced disappearances) :- Another important authoritarian legacy of The A.P.R.C. Civilian Government, was enforced disappearances of innocent and vulnerable Gambian Citizens, who were not in the good books of the said regime. A classic example of this, was the enforced disappearance, on 7th July 2006, of a famous Gambian Journalist, Chief Ebrima Manneh.In May 2001, when I won a high profile human rights Case for The Gambia Government, during The African Commission For Human And People’s Rights 29th Ordinary Session in Tripoli, Libya, when a Human Rights N.G.O. in Ghana, called “Legal Aid”, filed a Law Suit against The Gambia Government, for allowing the rights of a young Malawian boy, Issac Banda, to be violated on its territory, it was my good Journalist Friend, Chief Ebrima Manneh, who wrote a masterpiece article about this, entitled:- “Legal Victory For Gambia In Libya”, which was published as a front-page article of The Daily Observer Newspaper, on 15th May 2001 with my photograph and the photograph of the then Libyan President, His Excellency Colonel Mommar Ghadaffi.

Two plain clothes Officers of The N.I.A., arrested him at the Office the said Newspaper, and his colleague, Ousman Darboe, witnessed this arrest. Since then Chief Ebrima Manneh was never seen. In the Wednesday 24th October publication of The Point Newspaper, an article titled:-“Intelligence Service Under Pressure Over Enforced Disappearance”, inter alia said:-“ In 2009, Gambia’s then Attorney General, Marie Saine-Firdaus, told Parliament that Mr. Manneh was not in State custody, while others including the current Chief Of Police, claimed he was living in The United States….” The Friday 22nd September 2018 publication of The Point Newspaper, published an article titled:-“President Barrow Signs Five U.N. Treaties.” While attending the 72nd United Nations General Assembly Summit.

In New York, U.S.A. on 21st September 2017, His Excellency President Adama Barrow signed on behalf of The Coalition Gambia Government and the people of The Gambia, the following important five U.N International Treaties namely:- (1) The Abolition Of The Death Penalty as part of the second optional protocol to the International Covenant On Civil And Political Rights.

(2) International Covenant On The Protection Of The Rights Of All Migrant Workers And Their Family Members (3) The International Covenant For The Protection Of All Persons From Enforced Disappearance (4) The United Nations Convention On Transparency In Treaty Based Investor Arbitration and (5) The Treaty On The Prohibition Of Nuclear Weapons. This important act of His Excellency President Adama Barrow, was Legally and Constitutionally correct, because Section 79(1) of the said Constitution, which is titled :-“Foreign Affairs” says:- “The President shall be responsible for (c) the negotiation and subject to ratification by the National Assembly, the conclusion of treaties and other international agreements.”

THE ANNUAL CELEBRATION OF THE SO –CALLED JULY 22nd REVOLUTION:-
Perhaps this highly controversial matter, is not an authoritarian legacy of The A.F.P.R.C. and A.P.R.C. Governments, because “a legacy”, is something inherited, and since our new Democratic Political dispensation on 19th January 2017, when the then Honorable Mr. Adama Barrow,(The President Elect), was sworn into office as The President Of The Republic Of The Gambia and Commander-In-Chief Of The Armed Forces, in The Gambia’s High Commission in neighbouring Senegal, this present Coalition Gambia Government, has never, and rightly so, celebrated the anniversary of the so – called July 22nd Revolution, In fact, it was not a revolution, but an ordinary coup de tat.

A revolution, is a massive political uprising by the masses or a good part of the population of a particular Country/State, agitating for a total or complete change, of the present political status quo, as it happened during The French Revolution in 1789, as it happened during The Russian Revolution, from 8th March 1917 to 7th November 1917, which ended the monarchy and established Russia as a Republic.

A real revolution, with mass public participation, also happened in Libya in 1969, called The 1969 Al-Fateh Revolution or the First September Revolution, successfully conducted by The Free Officers Movement,a group of Libyan Soldiers led by Colonel Mummar Ghadaffi, which led to the overthrow of King Idris The First, who was away in Turkey, receiving medical treatment. He died at the age of 94 years, at The Sultan Palace, in Egypt.

This never happened in The Gambia, on 22nd July, 1994,when a small bunch of Lieutenants in The Gambia Army, led by Lieutenant Yahya Jammeh, unilaterally decided or took it upon themselves, to organize a bloodless coup de tat, which successfully overthrew, the Democratically, elected Civilian Government of, then Gambian President, His Excellency Alhaji Sir Dawda Kairaba Jawara (K.C.M.G.),(G.M.R.G.). Perhaps the only example I know of a Civilian Government, which celebrates a revolution, is France, which now has a very young and intelligent President, His Excellency President Emmanuel Macrom. The French Revolution, started in earnest on 14th July 1879, called “Le Quatorze Juillet”, when those doing the revolution, stormed the prisons, and released all the prisoners. The prisons were called “Bastille”. Upto till today a democratically, elected French Government, is still celebrating this revolution day, and the current President, always Officially declares that day as an Official Public Holiday, throughout France. the fact that France is doing so, does not mean The Gambia should also do so, because we are, an Independent Sovereign State.
Distingusihed ladies and gentlemen, here ends my Public Lecture. May God Bless You All.
Thank You.

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