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I invite reference to an eye-catching frontpage article published by my learned junior Barrister Lamin J Darbo, in the Monday 18TH May 2020, publication of the widely-read Standard Newspaper, titled:
“President’s term cannot start from 2017.”
The article inter alia started thus: “As the debate on the two-term limit on the Draft Constitution rages on, a leading Constitutional Lawyer, has agreed with The Cabinet, that President Barrow’s first term cannot start form 2017.”I have already written and published a legal article in Gambia Radio Stations, which was in tandem with the Cabinet’s opinionon the aforesaid Constitutional matter of paramount importance. This is indeed “Concensus Ad Idem” (Latin:a meeting or convergence of minds). As a senior Canadian-trained theologian, let me say: “A people fall, when there is no counsel, but with the multitude of counselors, there is safety”- The Holy Bible.
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Gambia Radio Stations has recently published the Cabinet’s serious and far-reaching concerns about certain provisions in the Final Draft, notable among them was the two-term limit, which certainly and unjustifiably bars/disqualifies His Excellency President Adama Barrow, from contesting another presidential election, after the 2021 presidential election, to be ably conducted by the IEC.
My learned junior, Mr Lamin J Darbo, a Barrister was speaking as a panelist, on the Paradise TV national discussion on the Final Draft Constitution, recently (ie last Saturday). Mr Darbo rightly said that, if His Excellency President Adama Barrow wins the 2021 presidential election, then his first term should start from there. Mr Darbo attempted to justify his statement, by wrongly quoting Section 102 (c) of our present 1997 Constitution, which he wrongly said, prohibits retroactive legislation. Either my learned junior misquoted the correct Section or the journalist wrote the wrong Section because Section 102 (c), has nothing to do with retroactive legislation, and it reads:“In addition to the other powers conferred on the National Assembly by this Constitution or any other law, the National Assembly may – (c) examine the accounts and expenditure of the Government and other public bodies funded by public monies, and the reports of the Auditor General thereon.”Section 102 (c), is the Official Constitutional mandate, of the National Assembly’s joint Committee, which is composed of both: (1) Public Accounts Committee (P.A.C.) and Public Enterprises Committee (P.E.C.), abbreviated as P.A.C./P.E.C. Committee.
The correct Constitutional provision which expressly prohibits retroactive legislation, is Section 100 (2) (c) of the said Constitution, which reads:“The National Assembly, shall not pass a Bill (c) to alter the decision or judgment of a Court, in any proceedings to the prejudice of any party to those proceedings, or deprive any person retroactively of vested acquired rights, but subject thereto, the National Assembly, may pass Bills, designed to have retroactive effect.”
It is of paramount Constitutional importance to also highlight the fact that, this very important Constitutional provision has also been ippissima verba (Latin: verbatim), and rightly so incorporated in the aforesaid so-called “Final Draft Constitution.” In my humble legal opinion, “The Final Draft Constitution”, is not yet final, it is so-called, because it contains a few unacceptable Constitutional deficiencies, which must be regularized/corrected right now by the CRC pro bono publico (Latin:for the public good), before the Honourable IEC Chairman (Mr. Alieu Momarr Njai) and his electoral experts, organize a Referendum on it, for The Gambia’s electorate, in the not too distant future. One of the three classic Greek philosophers, Plato (the other two were: Socrates and Aristotle), in his masterpiece Political Science/ Government book titled: “The Republic”, authoritatively wrote: “The price wise men pay, for not taking part in Government, is to be governed, by foolish men.”Since as a result of respect for women’s rights, we now have women occupying high positions in Government, therefore if Philosopher Plato, should be writing for today’s reading public, he would have written: “…. to be governed by foolish men and women….”
Since the so-called Final Draft Constitution is clearly saying that His Excellency President Adama Barrow’s term has started in 2017, this is a flagrant violation of Section 100 (2) (c) of our 1997 Constitution, which is still in force. Section 102 (2) of the so-called Final Draft Constitution says: “No person shall hold office as President for more than two terms of five years each, whether or not the terms are consecutive.”This simply means that the present five-year presidential term of His Excellency President Adama Barrow has been wrongly counted by the CRC drafters. The landmark United Nations 1948 Universal Declaration of Human Rights, “The mother of all International Human Rights Conventions”, has long been signed and ratified, by both The Gambia and neighbouring Senegal, and the said International Human Rights Convention/Declaration, expressly prohibits Member States which are State Parties to the aforesaid Convention, from making any retroactive law in their Nations/States.
On Sunday 28th March, 2016, a Constitutional Referendum was held in neighbouring Senegal, and 62% of registered voters who cast their votes confidently voted “Yes”.The said Referendum which was proposed by the incumbent President, His Excellency Mr. Macky Sall, was meant to Constitutionally amend, two “Entrenched Clauses”in The Senegalese Constitution, namely: (1) The duration of the Presidential term was reduced from 7 years to 5 years, and (2) after the Constitutional amendments had been made, no sitting Senegalese president shall hold the Office of the President for more than two terms. It is of paramount importance to note with glee, that the two aforesaid important Constitutional amendments, via a Constitutional Referendum, rightly did not in any way affect the incumbent Senegalese President, His Excellency Mr. Macky Sall. The aforesaid Constitutional amendments therefore rightly entered into force in 2019. This is International best practice, therefore why should the CRC Chairman, Justice Cherno Jallow and CRC Members, attempt to make The Gambia to act as an island in “The Comity of Nations”, by doing something that is diametrically opposed to International best practice, and then making frantic efforts to hide behind the debatable doctrine of “National Sovereignty”, in Jus Gentium(ie Public International Law or the Law of Nations)? “Prevention is better than cure”, as the age-old and time-honoured adage goes.
The locus classicus (Latin: best known), The Gambia Supreme Court Case, on this important Constitutional provision is: Kemesseng Jammeh Vs The Attorney General, which was decided by the said apex Court on 29th November, 2001, and coincidentally, our present and learned Honorable Lord Chief Justice (Honorable Mr. Justice Hassan B. Jallow –CRG), ably delivered the landmark Judgment, when he was then a Judge of The Gambia Supreme Court (TGSC), our apex or apogee National Court, during that time.
It is very important to take Judicial Notice (ie a fact which need not be proved), that Justice Cherno Jallow is presently and substantively a Judge of TGSC. Therefore, when he was presiding over official meetings and deliberations of the CRC as its Chairman, one wonders like “Alice in Wonderland”, by Lewis Carroll, (a celebrated Irish novelist), why on earth Justice Cherno Jallow, did not remind his colleagues at the CRC about the aforesaid very important, sacrosanct and inviolable case of TGSC? In fact, some members of the CRC are my learned friends or senior Gambian lawyers who obviously know the aforesaid important TGSC case very well. But unfortunately, I think the majority of them might have decided, (1) to either turn a blind eye to the aforesaid important The Gambia Supreme Court case, or (2) they might have been outvoted, when this important matter was put to the vote, during one of the CRC official sessions. Two of my learned juniors namely: (1) Mr Gaye Sowe and (2) Mr Lamin S Camara are also members of the CRC.
According to the doctrine of “Stare Decisis” ( Latin: let the decision stand), which is a cornerstone of The Common Law, all inferior courts in the hierarchy of National Courts, are legally bound to follow to the letter and spirit of the law, those previous decisions which had been made by their learned Judicial superiors, in past identical cases. The only 2 legal exceptions to this indispensable Judicial Rule are: (1) If those previous decisions, were made “per incuriam” (Latin:in error or ignorance of the law) and (2) if the facts of the cases concerned are radically different. But if the differences between the cases concerned are very minute then the “Stare Decisis”Judicial doctrine will still be applicable in that legal scenario because of the famous Common Law maxim, “De Minimis Non Curat Lex” (Latin:ie the law does not concern its self with little things, or inconsequential trivialities).
According to the Judicial doctrine of “Stare Decisis”, it is only apex or apogee National Courts (which in the Case of The Gambia is- The Gambia Supreme Court), which has the authority or Judicial mandate to depart from its previous decisions. But all other inferior Courts in the hierarchy of National Courts are firmly bound by their previous decisions. Section 4 (3) of The Supreme Court Act (1999), reads: “The Supreme Court may depart from a previous decision, when it appears to it right to do so, and all other Courts, shall be bound to follow the decisions of The Supreme Court, on a matter of law.” In Jurisprudence, when we talk about “The apex Court departing from its previous decision”, this means that, such an important Judicial decision must be taken by the apex Court itself when it is in official session. Therefore,the decision of Justice Cherno Jallow and his CRC colleagues to radically depart from the previous decision of The Gambia Supreme Court in respect of The Kemesseng Jammeh case was clearly made when the said apex National Court was not in official session. Therefore, the aforesaid decision of Justice Cherno Jallow and his CRC colleagues, was unconstitutional and null and void ab initio (Latin: ie from the beginning). “He who comes to equity, must come with clean hands”, as the famous Equity maxim goes. The locus classicus (Latin: ie best known) British case which firmly established the doctrine of “Stare Decisis” was Young Vs Bristol Aeroplane Company.
Mr Madi Jobarteh’s habitual, monumental legal nonsense
In his letter to The Standard’s Editor, published in the Tuesday, 19th May, 2020 publication of Gambia Radio Stations, Mr Jobarteh bogusly and maliciously inter alia said: “.… first among these, is the issue of the Presidential term limit, as it relates to President Barrow’s first term. I find the point by Lamin J. Darbo, that the final draft is retroactive and discriminatory, as unfounded. This final draft is not a law, that has taken away vested or acquired rights of Mr. Barrow. The fact is, President Barrow is currently serving his first term as President, which he will enjoy to the end. Hence when the final draft stipulates that, a Presidential tenure, shall be maximum of ten years for any Citizen, and the counting begins in 2017, this does not deny the incumbent of anything……”
My legal analysis
Firstly, when Mr Jobarteh wrote: “… I find the point by Lamin J. Darbo that the final draft is retroactive and discriminatory as unfounded ……”, this is very legally wrong. I am putting it to Mr Jobarteh that if he seriously reads Section 33 of our present 1997 Constitution, which is still in force, to know how “discrimination”, has been authoritatively and broadly defined, he will instantaneously retract his aforesaid bogus statement with a monumental apology to all readers, both nationally and internationally.
Secondly, when Mr Jobarteh wrote: “This final draft is not a law, that has taken any vested or acquired right of Mr. Barrow.” This is also legally wrong because: (a) the final draft is not yet a law, it is a proposed Supreme Law of the land. It only becomes a law and therefore legally enforceable, after 75% of Honourable parliamentarians have voted in its favour and after it has been officially adopted by a clear majority of our Gambian electorate, in a Constitutional Referendum. Mr Jobarteh is indeed Constitutionally bankrupt.
Thirdly, if this proposed Supreme Law is discriminatory in its effect, then automatically when it actually becomes law, it will inevitably take away “vested and acquired rights”of His Excellency President Adama Barrow, which had been given to him and all Gambians by the aforesaid important The Gambia Supreme Court case and Section 26 of the said Constitution, titled: “Political Rights”, and Clause (b) reads :- “Every Citizen of full age and capacity, shall have the right, without unreasonable restrictions, (b) to vote and stand for elections, at genuine periodic elections, for Public Office.” The aforesaid unacceptable Constitutional provision in the so-called Final Draft Constitution is not only discriminatory against the incumbent Gambian President (His Excellency President Adama Barrow), but it also shocks the high sense of decency of human rights lovers and defenders, because it is also calculated to disenfranchise the incumbent for no justifiable legal reason whatsoever.
What the so-called Final Draft Constitution is wrongly saying (ie that the term of the incumbent President, His Excellency President Adama Barrow, has started in 2017, is therefore Constitutionally wrong. It should be instantaneously amended, so that it now rightly reads: “That the term of the incumbent Gambian President, starts in 2021, since this is a transitional term to The Gambia’s 3rd Republic, and it is against both National and International Law, for The Gambia to make a retroactive law.” Finally, it will be of paramount importance if this important Constitutional matter is quickly referred to The Gambia Supreme Court, (our apex or apogee National Court), which replaced Her Majesty’s Privy Council in London for it to quickly exercise its Original Jurisdiction, under Section 5(a) of The Supreme Court Act, so that this highly controversial Constitutional controversy will be fully cleared and finally laid to rest, once and for all.
Mr Madi Jobarteh has now made it a hobby of regularly distorting the lawand pretending to be a lawyer. He can be rightly charged under The Gambia Criminal Code, with the heinous Criminal Offence of: “impersonation of a Gambian lawyer”. I know he enjoys doing this for cheap popularity, and hiding behind the right of “freedom of speech and expression”, which is inter alia guaranteed by our present 1997 Constitution. I am vociferously putting it to him, that the aforesaid human right indeed has both Legal and Constitutional limitations. His younger brother, Mr. Kutubu Jobarteh, was one of my brilliant L.L.B. Degree students, at the Faculty of Law of the University of The Gambia. He is now my learned Junior and the able legal adviser of PURA. Let me strongly advise Mr Madi Jobarteh, to be humbly taking his articles to Mr Kutubu Jobarteh, for the necessary legal vetting, before they are published in national newspapers and on the social media, and this will save him from a lot of public embarrassment, from people who know the law more than him. “A word to the wise, is quite sufficient”, as the famous adage goes.
I rest my case.
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