Government Appointments Must Conform to Law

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By L. J. Darbo, JD, LL.B

Banjul, The Gambia—From the outset, I contend that legality, its nurture and development, constitute the software of a meaningful democratic polity. Without it, the mainframe is but a mere carcass!

Even a cursory examination of the architecture of The Gambia’s overall legal regime exposes the dual anomaly of laws that are differentially applied on the one hand, and laws that internally conflict, are incoherent, schizophrenic even, on the other. In and of itself, differential application of laws may not connote their inherent unsoundness, or necessarily that of the prevailing legal regime. However, systemic incoherence of a legal regime in terms of conflicting provisions on the same issues present a more profound challenge to the meaningful existence and survival of any nation that prides itself as a plural democracy anchored in the Separation of Powers under the Rule of Law.

In the hierarchy of law, it is common currency that the constitution of a nation sits at the apex. In The Gambia, that state of affairs is expressly enshrined in the actual text of The 1997 Constitution of the Republic of The Gambia (the Constitution) as a supremacy statement over all other law(s) (section 4). Notwithstanding its claim, the Constitution does not meaningfully separate power. By deliberate design, it concentrates power in the Executive to the detriment of pluralism and accountability.

However viewed, this is a matter of great concern, but some observers may retort that its systemic difficulties support the contention that there is nothing anyone can do except sit out the political dispensation responsible for the state of affairs referenced above. In other words, no matter how beautifully crafted, law that will continue to be either differentially applied, or not applied at all, present no compelling case for reform as long as its underlying political system holds sway. About beauty and law, not many are likely to accuse the Constitution of aesthetic excellence.

No challenge is more profound to national cohesion and survival than a Constitution that serves only the interest of a fraction of the overall polity, in this case, the Executive. “At the heart of any failed state is a constitution that is not performing – either because the balances its drafters struck between competing demands on the document were wrong, or because the machinery, will and resources to make it work are woefully inadequate” (The Gazette 2012). This existential point cannot be overemphasized!

As a national document, the constitution of a democratic state must settle public authority in a manner that avoids concentrating power in any one segment of a political system. In no small way, the Constitution comprehensively failed this basic test. Notwithstanding theoretical delineations between the traditional arms of a democratic polity, and the Constitution’s self-serving claim of separating power, the reality is completely different. Meaningful national power is entirely concentrated in the Executive. In the most benign hands, such a state of affairs can only erode the freedoms essential to creating and nurturing a transparent and accountable government.

Even where the call for a properly balanced Constitution is heeded, the recognition must nevertheless remain that no matter how beautifully crafted, and appropriately balanced, law has no capacity for self-implementation. It relies on the responsiveness of a political system to the rule of law, both as abstract doctrine, and a reliable instrument of practical governance. “Worldwide, constitutional setups are in a state of flux. As states across the Middle East, Africa and Asia look for successor arrangements to dictatorship, minority rule or anarchy, the pressure on new constitutions to provide a stability that can be hard-wired into the foundations of the state is immense” (The Gazette 2012)

In The Gambia, the Constitution is devoid of serious artistic beauty due mainly to the apparent absence of any real intention to ground the polity in objectively verifiable rule of law. This may be attributable to the fact that the political midwives of the Constitution were also present at the critical juncture of its creation. As they were interested, had absolute power, and wielded the veto, the resulting product was way short of the minimum standards a document like a national constitution must acquire to pass the requisite test of balance and neutrality, a document, so to speak, that can serve as a fitting legacy for posterity.

Unsurprisingly, what resulted is a document with immense potential for violence against the citizen, and of stalemate and paralysis in governance. A crisis, any crisis in governance is therefore only solvable via the agency of raw power, not through the more sublime avenues of political and legal negotiation in a public environment equally responsive to the legitimate needs of all its members. Undoubtedly, The Gambia’s “…successor arrangements to dictatorship …” is yet to materialise. Its current Constitution cements dictatorship in spectacular fashion!

Enter The Third Republic!

That it augurs an environment likely to test the democratic credentials of Gambia’s new leaders was recognised as a given years before 01 December 2016 and its aftermath. In twenty two years of relentless totalitarianism, many acquired education at home and abroad, became politically conscious, and a good number embraced the activist strain of politics from their distant and safer international abodes with the principal aim of helping usher in a new dispensation in their native country.

With Babili Mansa defeated, self-humiliated, and forcefully ejected from the country he claimed to have owned, we have now entered the brave new world of political pluralism. The announcement of Aja Fatoumata Tambajang as the Vice-President of the incoming Coalition government, and the energetic and diverse reaction it generated in all manner of media within a mere forty-eight hours is a harbinger of things to come, and a clear statement that the leadership will be tested in the arena of democratic governance as never before.

Unquestionably, the project of dislodging an entrenched totalitarian polity was a collaborative one between the ground and Diaspora, and embedded in this transaction is the fact that Gambians everywhere are stakeholders in the new Coalition dispensation. This much is discernible in the energetic debate on the extant question of whether Aja Fatoumata Tambajang – on age alone – can legally serve as Vice-President in the Coalition government. One reaction on an online newspaper even threatened a court challenge in the event the appointment is not rescinded.

In its magnificent glory as the supreme law of the land, the Constitution, at section 62, states:-

(1)   A person shall be qualified for election as President if:-

(a)    he or she is a citizen of The Gambia by birth or descent;

(b)   he or she has attained the minimum age of thirty years but not more than sixty-five years;

(c)    he or she has been ordinarily resident in The Gambia for the five years immediately preceding the election;

(d)   he or she has completed senior secondary school education; and

(e)    he or she is qualified to be elected as a member of the National Assembly.

(2)   A person who holds the citizenship or nationality of a country other than The Gambia, shall not be qualified for election as President.

(3)   A person who, while holding public office in The Gambia, has been:-

(a)    compulsorily retired, terminated or dismissed from such office; or

(b)   has been found guilty of any criminal offence by any court or tribunal established by law; or

(c)    has been found liable for misconduct, negligence, corruption or improper behaviour by any commission or committee of inquiry established by law,

shall not be qualified for election as President.

To be eligible for appointment as Vice-President, all of the conditions delineated under section 62 must be met. In express terms, the Constitution states that “a person shall be qualified to be appointed as Vice-President if he or she has the qualifications required for the election of the President under section 62 (see section 70(2)).

Without prevarication, the legal position is unequivocal. No one above 65 years can contest the presidency, and no one above 65 years can be appointed to the vice-presidency. Age is by no means the only restricting provision on appointment to the vice-presidency. In the due diligence requisite for the Coalition government’s lawful appointing process, 62(1)(c) is crucial, and 62(2) is central. Both are non-negotiable. In my view, these provisions are repugnant to democratic principle but there is no escaping that as matters stand, the Constitution remains the fundamental law of the land.

Whilst we are on the issue of government-level positions, and because the issue cannot be wished away, it is necessary to investigate the legal position on who qualifies for ministerial appointments. Section 71(2) of the Constitution mandates that “a person shall not be qualified to be appointed or hold the office of a Minister if, he or she is a member of the National Assembly or if he or she holds the citizenship or nationality of any country other than The Gambia. In addition, a person shall not be qualified to be appointed Attorney-General unless he or she is a legal practitioner of at least five years standing at The Gambia Bar”.

Here again, the legal position, extremely undemocratic it may be, is crystal clear. On ministerial appointments, the central difficulty is embedded in the nationality question. Anyone who holds the nationality of another country cannot be appointed a Minister under the Constitution. It is therefore incumbent on participants in the ministerial appointing process to ask prospective ministers whether they hold the nationality of any other country. The process would be failing in the requisite due diligence if the question of nationality is skirted. No question that the legal position on ministerial qualification is equally repugnant to democratic principle but it is the Constitution speaking.

With determination, all is not lost but the only way to appoint a vice-president above sixty five years, or one with dual nationality, is to amend sections 62 and 70 of the Constitution.  Equally, no person with dual nationality can be appointed a Minister without amending section 71(2) of the Constitution, an entrenched provision. The amendments can be triggered via the procedure delineated at Section 226 of the Constitution, which states, at 226(1):- “subject to the provisions of this section, an Act of the National Assembly may alter this Constitution”.

According to section 226(2), “Subject to subsection (4), a Bill for an Act of the National Assembly under this section shall not be passed by the National Assembly or presented to the President for assent unless:-

(a)    before the first reading of the Bill in the National Assembly, the Bill is published in at least two issues of the Gazette, the latest publication being not less than three months after the first, and the Bill is introduced into the National Assembly not earlier than ten days after the latest publication, and

(b)   the Bill is supported on the second and third readings by the votes of not less than three-quarters of all the members of the National Assembly”

Considering the constitutional timelines stipulated above, a pertinent Bill in at least two issues of the Gazette, the latest publication being not less than three months after the first, and the Bill is introduced into the National Assembly not earlier than ten days after the latest publication, it will take at least a hundred days before the way can be cleared for appointing a currently unqualified vice-president, and at least nine months for an unqualified minister since 71(2) is entrenched and any attempted amendment must go to a referendum.

When he contacted me, the Editor of GON asked for my take on the integrated issues of age and the Vice-Presidency, whether the Constitution permits discrimination, the intent behind the age restriction, and whether the restriction is itself unconstitutional.

According to section 33(1) of the Constitution, “all persons shall be equal before the law”, and that “subject to the provisions of subsection (5), no law shall make any provision which is discriminatory either of itself or in its effect” (see section 33(2)).  Section 33(5) states, among other restrictions, that “subsection (2) shall not apply to any law in so far as that law makes provision … (b) with respect to the qualifications prescribed by this Constitution for any office”. Suffice to say that as entrenched provisions, the amending process for sections 33 (5)(b) and 71(2) is more involved than those for sections 62, and 70.

In a nutshell, the legal position is that a vice-president above 65 years, and, or, a dual national, or a Minister, with dual nationality, cannot be appointed to the Coalition government, i.e., to the Cabinet of President Adama Barrow.

I accept there is a political and philosophical angle to this debate. That Babili Mansa continues to affect Gambia’s processes from his political grave is a matter of great consternation. Indeed, he appointed several ministers outside constitutional permission and I did oppose two of those appointments in 2004. I was not only ignored on that occasion but Babili Mansa went on to appoint several constitutionally unqualified ministers in later years.

What is not in doubt was the utter lawlessness of Babili Mansa’s government. After nearly a quarter century of fighting for change, is it prudent for the Coalition government to sacrifice process for the temporary fix of convenience? Regarding the questions currently on the table, it must be recognised that our difficulties lie not in the domain of interpretation but on express constitutional commands.

In other words, our new dispensation must adhere to the principle of legality, but it must be emphasised that this means the “existence of legal authority” but not necessarily “the quality of that authority”. As earlier stated, the prohibiting constitutional provisions herein discussed are repugnant but unless they can be lawfully tackled, they remain the law and not even the courts can “impeded or restrict the working” of the Constitution.

To reiterate, the legal position is that a vice-president above 65 years, and, or, a dual national, or a Minister, with dual nationality, are prohibited from serving in the Coalition government, i.e., as members of the Executive in the Cabinet of President Adama Barrow.

Legality requires that we protect our polity by removing “certain basic and fundamental values out of the reach of transient political majorities” (Fifty Years of the Supreme Court of India: Its Grasp and Reach, Oxford University Press, 2000). It requires lawful amendment of repugnant provisions to clear the way for utilising the talents of all of our citizens.

I hope we are not about to compete Babili Mansa in his speciality of lawlessness!

Lamin J. Darbo

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