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Friday, October 30, 2020

The siren of silence

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By Morro K. Ceesay

hassan jallow 1

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By allowing nominated member of Parliament Ya Jaiteh’s replacement to be sworn in while the issue of the president’s authority to remove her is still unsettled, our supine Supreme Court has set our young democracy on fire and people will die as a result. We can only guess the reasons why it has done this, but the toxic brew of greed, cravenness, and tribalism are strong suspects.

At the heart of this crisis concerning Ya Kumba Jaiteh are two competing goals. One is the need for our young democracy to defend itself and keep dictatorship in abeyance, versus the desperate need of President Adama Barrow to cling to power despite his solemn promise to stay for only 3 years, leave, and never return. This is a struggle as clear and as profound as good vs evil.

Breaking the promise to leave after 3 years is an impeachable/removable offense under section 67 of our Sacred Constitution which states that removal (impeachment) of the president is warranted where there is found to be (1) abuse of office, willful violation of the oath of allegiance or the President’s oath of office, or willful violation of any provision of the Constitution or (2) misconduct. What constitutes a more brimful abuse of power, violation of the oath of office or the constitution, or misconduct, than breaking a quintessential promise that is the basis of an election? Perhaps only murder and treason could be worse. But the day is young and even those dreadful things may yet come to pass. It is worrisome to me that the spines of our institutions seem to bend in distinctive Igor curvature in subservience to our Frankenstein president. The Supreme Court with its graveling Chief Justice Hassan Jallow seem utterly unprepared for the bedazzling assault of evil and is lost. This is only the beginning.

Felling this monster constitutional and political crisis won’t be easy and with the Supreme Court lost, we are decidedly shorthanded. Parliament is our only champion and section 67 of the Constitution its sword and shield. Of the 58 members of Parliament, 53 are elected by the people and 5 are nominated by the president. To remove the president from office, two-third or 39 members of parliament must vote to remove. But if Barrow can keep 19 members of parliament in his corner, removal will fail. You can see why having the power of removal over 5 nominated members is so critical to him. Ya Kumba Jaiteh is his moment of T-Rex testing the electric fence. If he has the power to remove one, he has the power to remove and replace all 5 with his own loyalists. Having commandeered 5 votes in Parliament, he only needs 14 more to survive.

Trouble is, the president has no explicit power to remove a member of Parliament, the Supreme Court can only infer it. We can scour all Sacred pages of our Sacred Constitution with our two eyes and find no such explicit power. Every Justice can look with its 3 eyes, nay even 4, and find no such power. (Why “Sacred Constitution”? It came from our former dictator who had as much propensity for made up names and titles as he had lust for pillaging the state coffers. From a simple name Yahya Jammeh at the start of his regime, it grew to “His Excellency Sheikh Professor Alhaji Dr. Yahya Abdul-Aziz Awal Jemus Junkung Jammeh Naasiru Deen Babili Mansa and Chief Custodian of the Sacred Constitution of the Gambia.” Again, why “Sacred”? I guess, it is like the delicious irony of calling a 600 pound man “Tiny” or a Black woman with platinum blonde horse hair “Blondie”. The constitution was neither sacred nor even well written; it was replete with errors and designed to keep the former president in power.)
If there is no explicit power to remove, it may be found through a jurisprudential vehicle called inference. If the president’s power to remove is to be inferred/implied, the argument seems to be that power to nominate implies the power to un-nominate. This is an acceptable statement of principle but oddly out of sync with the crisis. President Barrow duly nominated Ya Kumba Jaiteh for Parliament, and no doubt he has the power to do so under Section 88(1) of our Sacred Constitution. If the president wished to un-nominate Ya Kumba Jaiteh, he had the implied power to do so, when she was still a nominee. However, Ms Jaiteh has gone well beyond nomination. She was duly sworn in as a member of Parliament under Section 88(2). She has served in this capacity for 2 years already. Clearly, she was no longer a nominee but a full member of Parliament with all rights and privileges conferred by such membership.

Section 91 explicitly speaks to how elected members of parliament are removed, but remains deafeningly silent as to nominated members. The question arises, where the Scared Constitution is copiously vocal with respect to removal of one set of members of Parliament but pointedly mute with regard to others, should the Supreme Court infer powers where the framers decidedly refused to confer? The answer is a resounding no. There are good reasons for the denial of this explicit power to the president, including:
(1) Preservation of the power of Parliament to investigate,
(2) Preservation of the power of parliament to legislate, and
(3) Preservation of the integrity of our democracy.

All of these face an existential threat if the president is imbued with a conjured power to remove. Imagine for example such a power in the hands of a president needing exactly 5 votes in Parliament to stave off his own removal from the presidency. If he has the power to remove a nominated member of Parliament, he can remove anytime he needs votes to accomplish an important legislative initiative or defeat impeachment. Literally, he can remove and nominate new members on a daily basis, as long as there is a willing Speaker to swear them in.

The power to terminate a thing cannot be inferred from a mere contribution to its genesis or existence. I will give an example. A loving man and woman may decide to lay together and from this holy union is born, by the Grace of God, a living breathing baby. Despite the man and woman’s undisputed contributions to the creation of that child, no right of the mother or father to murder their unruly teenage child may be inferred. Likewise, nomination is part of the process of creating a member of parliament but it is not the whole process. Removal is an act of homicide the president has no power to commit. The silence of Section 91 is the deafening siren our Supreme Court failed to hear. It careens forwards determined to plunge our young democracy into a fiery chasm, by handing over the country to a budding dictator.

The capitulation of the Supreme Court is devastating. Even if every member of Parliament is ready to remove the president from power, removal is uncertain at best. Parliament cannot remove the president if the investigative tribunal hand-picked by the Chief Justice and perhaps even chaired by him, under Section 67 of the Constitution, fails to return a finding of removable/impeachable acts. If the Supreme Court is willing to conjure a nonexistent power in favor of the president, there is dim hope an investigative tribunal set up and perhaps even chaired by our craven Chief Justice Hassan Jallow will ever return a finding of removable offences. An effort to remove Barrow will simply die a slow bureaucratic death at his feet.

It is sad to say, but if reason is not the foundation for this horrendous course charted by our Supreme Court, then we must look for other answers. Where reason has failed, power, greed, cravenness and tribalism have found a common purpose. A budding dictator who has forgotten a president is a servant of the people and not their lord as King, is emboldened and prowls the land. When a servant has mistaken or forsaken his broom stick for a scepter, he is neither willing nor fit to serve. The people and their Parliament must resolve to remove this menace, as uncertain as the outcome may be. Where constitutional safeguards fail, look to civil disobedience. Refuse to be ruled. This regime must be collapsed and burned to the ground like a steaming pile of rubbish. If any lack spines for this difficult struggle, may I suggest a quick visit to the nearest cemetery. Your ancestors are less in need of their backbones than you are.

Ultimately, as Gambians, we are all in this fight together against Barrow and we all support and recognize the United Democratic Party (UDP) as the tip of the spear in this struggle. But let it be known this mess festered largely due to mismanagement by the UDP itself. The incomprehensible self-immolating stubbornness of some of its leadership brought us to this point of staring down another 22 years of dictatorship. The UDP must learn to listen and irrevocably commit to the following:
1. Wipe the Supreme Court clean,
2. Do away with nominated membership in parliament,
3. Amend the constitution to remove all constitutional impediments to Diasporan participation at all levels of government including the presidency;
4. Amend the constitution to give Parliament sole authority to remove a president, and
5. Honestly seek federation with Senegal.
If it won’t commit to these, we must find some other vehicle for our struggle. We can no longer afford to blindly follow. The consequences are too deadly.

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