I am writing this piece in the hope that the outgoing President, Yahya Jammeh, reads it or somebody with access to him brings it to his attention. I am writing in good faith and for the good of our dear country of The Gambia, a country the Almighty God has blessed us with, to live in and nurture for ourselves and for future generations of Gambians. The events following the recently concluded Presidential elections in which President Jammeh conceded defeat and publicly congratulated President-elect Adama Barrow, adding that the decision was that of Gambians and the will of Allah and that he was not going to contest the results, are well-known. It is also public knowledge that incumbent President Jammeh publicly declared that The Gambia’s election system is the most transparent and is rig-proof.
For respecting both the election system and confirming that it is transparent and rig-proof and, above all, for letting due process govern the conduct of the Presidential election, and demonstrating dignity and statesmanship in accepting defeat and offering your service (in the form of advice) whenever President-elect Barrow needs it, brought joy to all Gambians. It was not only joy at Barrow’s win; it was also joy of the confidence you engendered in the population that they will enjoy and witness a smooth and trouble-free transition to a new government. Many Gambians, including those that admitted to not liking your administration and style of governance, expressed respect for the “bold” step you had taken. You left the skeptics in awe and disbelief, for there was a good section of our population that never expected that President Jammeh was capable of admitting defeat, much less to call the winner of the Presidential election to publicly congratulate him. You earned the respect of Gambians, notwithstanding the anger and despondence felt towards you by some of our country men and women. Gambians started talking about forgiveness and moving our dear country forward.
Yes, it is true that some people tore down images of you on billboards and wherever they could find them; it is also true that some people made very negative remarks about you; I even heard you complain that some people spread the rumour that your mother was dead (presumably at hearing your loss of the Presidential race); we even heard, rather unfortunately, one of the Coalition partners publicly state that you will be prosecuted; and I’m sure there are many other unpalatable things that had been said about you and persons close and dear to your heart. The post election euphoria was at play and that is a natural consequence for any people yearning for change, and it must be allowed to play out. The fact that there are and always will be people who not only disagree with you, but who will vehemently reject you and your style of governance, is a natural phenomenon of politics; nobody can ever succeed in erasing that kind of feeling when it is held by a people.
The attempt to reverse the outcome of the Presidential election by claiming it to be unfair, and taking the further step of calling it “null and void”, has not only come as a surprise, but it has been met with forceful reaction from all quarters of Gambian society and the world over. It was a step not worth taking, especially after publicly conceding defeat. It is not unusual in elections for errors to be discovered in results tallying and corrections made. The ultimate issue is whether the corrections have changed the outcome of the results and the winner of the race. You were gracious in accepting defeat and the people hailed and respected you for that.
I have read the statement of The Gambia Bar Association which I consider to be balanced and measured. Your petition to the Supreme Court has serious hurdles to cross to come close to being successful. Please consider the following:
First Point: there is currently no functioning Supreme Court on account of you firing the last few judges that constituted a quorum of the Court (without following the procedure outlined in the Gambian Constitution); you never replaced them or did anything to reconstitute the Supreme Court so it could sit and continue with its constitutional mandate. Accordingly, any decision at this stage to appoint judges to the Supreme Court to hear and decide on a petition in which you, as appointing authority, has an interest will be tainted and, therefore, not meet the test of transparency, fairness and justice;
Second Point: we read on Wednesday, 21st December that the Chief Justice sat to receive your petition and adjourned the matter to 10th January, 2017. In addition, the Chief Justice is reported to have said that the Supreme Court was constituted in July of this year and its judges are from Nigeria and Sierra Leone. This is questionable for one simple reason: if that was indeed true, the Gambian Bar should and would have known. There already would be several matters filed before the Supreme Court, so why was the Court not empanelled since its appointment in July to hear the appeal matters filed? It will be legally and constitutionally wrong to have any appointment backdated. But here is the real dent in the Chief Justice’s claim. If indeed judges were identified and appointed, it is clear that they had not been sworn in – which effectively serves as their authority to take up office as Justices of the Supreme Court. In that regard, it will be very wrong for you as outgoing President to swear them in to sit and hear your petition;
Third Point: the Bar Association this week sent the Chief Justice a formal letter expressing lack of confidence in him as head of the Judiciary, citing reasons for their position. The reasons I’ve read from the Bar are damning and disqualify the Chief Justice from being eligible to be a part of any panel of Supreme Court Justices that can properly sit and hear your petition. The Chief Justice has already compromised himself through his open and blatant manifestation of bias in favour of you as sitting President and petitioner. This manifestation makes the case of Lord Hopkins in the Pinochet appeal in the UK some years ago angelic; the Chief Justice will know what I’m speaking about here;
Fourth Point: and flowing from the above points, any attempt to appoint or constitute the Court to hear your petition will fail the test of absence of conflict of interest; you are an interested party and, therefore, cannot properly appoint or swear-in your own panel of judges to decide your own petition. That will not meet the legal test that you cannot determine a matter (or any issue related to the matter) in which you have an interest;
Fifth Point: you took the unconstitutional step of declaring the results of the Presidential election as null and void; you did not have that authority and resorting to petitioning the Supreme Court was clearly an after-thought; you have, therefore, tainted the entire process by giving the appearance that justice must be dispensed in your favour – meaning that a panel of the Supreme Court must sanction your call for the people of The Gambia to go back to the polls;
Sixth Point: it is more than likely that you will be estopped from pursuing any argument on your petition after publicly declaring that the election system under which the Presidential election was held is the most transparent in the world and rig-proof and, on that basis, accepting the results, conceding defeat and calling to congratulate the President-elect. You cannot properly go to Court “blowing hot and cold” at the same time;
Seventh Point: you cited (amongst other things) more than 350,000 registered voters not casting their votes as one of your beefs for rejecting the results of the Presidential election. Seriously? This is a ground on which to contest the results of the election? I am sure you know and, in any case, your lawyer should have advised you, that there is no law in The Gambia that makes it mandatory for all registered voters to cast their votes. In all the past elections, a sizeable number of the registered voters did not cast their votes. That’s just how the system is; it is what the state of the law is. Even if more than 50% of the registered voters did not vote, that would have been their choice; they suffer no legal consequence for their decision not to vote. In any case, even if the more than 350,000 registered voters you cited were to vote, there was no indication or guarantee that you would have won all or the majority of those votes; it is simple arithmetic.
Eighth Point: My inquiry reveals that your petition may be bad in law in that it does not include all interested/affected parties. My understanding of election laws is that they are strictly interpreted and the procedures in relation to them are equally strictly applied. As a consequence, the Supreme Court (if it is properly constituted) cannot render a decision against a party that has not been included on the petition. Furthermore, it appears that it is too late to amend the petition and it is, therefore, liable to be thrown out if the law on elections is strictly adhered to;
Ninth Point: by sending a contingent of the security forces to close down the offices of the IEC and stop all the staff of the institution from accessing the office, you have irreparably damaged your own cause in mounting a successful petition (provided there was a Supreme Court that could properly sit and hear the petition); it is anybody’s guess what tampering could have taken place during the period of “occupation”. It could also be that no tampering occurred, but the institution has already been compromised and any reliance on any matter emanating from the institution that is not official (as confirmed by the Chairman of the IEC) and known prior to the “occupation” cannot meet the test of fairness and justice;
Tenth Point: your entire public demeanour in rejecting the results of the Presidential election that you originally publicly accepted raises serious concerns about the seriousness of your petition. Many view your behaviour (and rightly in my considered view as well) as not well-meaning, and the fact is that you intend to stay in power irrespective of what happens; you simply don’t care. If you insist on staying in the Office of President one minute beyond your official term, you will become a rebel; you will be committing treason and cannot rely on any constitutional immunity provision. The same will be the case for those that support you in that endeavour; they will be aiding and abetting a criminal conduct for which they could each be arrested and charged.
In addition to these hurdles Mr. President, you need to seriously consider the fact that civil society groups within the country, including officials aligned to you and/or your government, and the international community have recognised and accepted the outcome of the Presidential election as fair. Adama Barrow has been recognised nationally and internationally as the President-elect. In my considered view, nothing will change that. ECOWAS, AU and UN are not going to back down from their unanimous position.
Your options and chances of success in relation to your petition are extremely narrow to non-existent if considered by an independent, unbiased and fearless Court. Please take counsel from your Hon. Attorney General (notwithstanding that your petition is private) who, from a true professional standpoint, should be able to legally and conscientiously advise you in the interest of the nation and in adherence to the tenets of the Constitution and the rule of law. Please, I beg, do not dismiss the threat from ECOWAS to fiercely resist your attempt to stay in power, which I read as ultimate military intervention to forcibly eject you out of power with assistance from such powers as may be necessary. We have seen the case of Ivory Coast with Bagbo. I do not wish that for you, and certainly do not wish such a possibility for my country and our people.
All hope is not lost. One cannot hide from the fact that many Gambians are incensed with you and for what might have happened to their loved ones during your tenure in office. Some are vex with you for unceremoniously dismissing them from office without cause and without the prospect of future employment in any Government institution. And there are more. Please accept that as reality. But you can be rest assured of one thing: Gambians are a forgiving people. Spare them the agony of uncertainty; spare them from the potential of foreign military intervention. Let grace (and not pride) guide your decisions and actions; let humility become your weapon; listen to reason; and above all, recognise that you still have your life and your young family need their father with them as they grow up. As Gambians we cannot and must not live in the past. We must move on, and we will move on. Use the remainder of your term in office to reconcile with Gambians. It is not too late. Once again, please listen to reason and follow your good conscience. That might just be the primary legacy Gambians will recognize and honour you for.
Sulaiman Jallow
