By Lamin J. Darboe, Juris Doctor, LL.B, BA
Aja Fatoumata Jallow Tambajang’s hurdle remains: section 62(1)(b) of the Constitution not amended.
In his seminal memoir, The Point of Departure, Robin Cook, one of New Labour’s leading luminaries, provided a compelling rendition of conscientious conduct in the public life of a public officer. Then Leader of the House of Commons (the Commons), and having been previously removed as Foreign Secretary over policy disagreements in the great and tumultuous theatre of international politics, Cook resigned from the Cabinet of Tony Blair on 17 March 2003 over the impending war in Iraq. He was unable to vote for “a war without international agreement or domestic support”.
As articulated in the penultimate paragraph of his resignation speech, delivered from the back benches of the Commons, he communicated his intention to join those “tomorrow night who will vote against military action now. It is for that reason, and for that reason alone, and with a heavy heart, that I resign from the government”. Cook’s “resignation speech prompted the first standing ovation in the history of the House and marked the end of the ministerial career of one of Labour’s most brilliant politicians”. This was a man who never sat in the back benches of the Commons but who, on principle, abandoned the perks of high office and left the Cabinet for the reputation and greater good of the United Kingdom.
Cook must have his seat among that pantheon celebrated by John F. Kennedy in his Profiles in Courage, a study of personalities who “at risk to themselves, their futures, even the well-being of their children, stood fast for principle”. Gambians alive in 2017 have reason to celebrate, to be hopeful, and to participate, with decorum of course, in the public conversations of the moment. And those invested with the trust integral to public office must appreciate that “public life is the crown of a career, and to young men it is the worthiest ambition. Politics is still the greatest and most honourable adventure … however we feel about politics, the arena of Government is where the decisions will be made which will affect not only all our destinies but the future of our children born and unborn”.
What heavy responsibility then for holders of the public trust, wielders of public authority!
An important if futile legislative event took place this week, but first the National Assembly (NA). In January 2017, NA members, without colour of law, overwhelmingly voted to extend the term of a defeated president, voted to extend its own life, and voted for a state of emergency all within a few legislative days. Expectedly, and shortly after the conclusive defeat and expulsion of the former president, the same NA reversed its unlawful Acts cavalierly enacted during a trying national period.
As if its recent record of utter legislative irresponsibility was not scandalous enough, the NA was in action again this week purporting to amend, together with another provision, section 62(1)(b) of the Constitution as a special measure to clear the way for the vice presidential appointment of Aja Fatoumata Jallow-Tambajang. That this perverse attempt at tinkering with Gambia’s supreme law cleared the Executive hurdle and reached the floor of the NA is itself a disgrace. “Attempt” because no lawful amendment of section 62(1)(b) took place. The Constitutional provision, with all its odious repugnance, subsists until lawfully amended.
It is no exaggeration to contend that Gambia’s extant public environment will test the democratic credentials of its new leaders in ways unimaginable a mere few months ago. In twenty two years of governmental lawlessness, Gambians of all stripes became politically conscious, invested in the crusade for change, and proudly brought about a new dispensation. Vandalism, whether of the Executive, Legislative, or Judicial variety is unlikely to be ever again tolerated in this new Gambia!
In the circumstances, and notwithstanding the erroneous Executive conduct in shepherding a purported amending Bill, and the incomprehensible Legislative temerity in voting for it, section 62(1)(b) of the Constitution was not amended.
Section 62 of the Constitution states:-
- A person shall be qualified for election as President if:-
- he or she is a citizen of The Gambia by birth or descent;
- he or she has attained the minimum age of thirty years but not more than sixty-five years;
- he or she has been ordinarily resident in The Gambia for the five years immediately preceding the election;
- he or she has completed senior secondary school education; and
- he or she is qualified to be elected as a member of the National Assembly.
- A person who holds the citizenship or nationality of a country other than The Gambia, shall not be qualified for election as President.
- A person who, while holding public office in The Gambia, has been:-
- compulsorily retired, terminated or dismissed from such office; or
- has been found guilty of any criminal offence by any court or tribunal established by law; or
- 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.
A vice-presidential appointee must satisfy all the conditions delineated under section 62. 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)). In no uncertain terms, the law states that no person above 65 years can contest the presidency, and no one above 65 years can be appointed to the vice-presidency. This provision is repugnant to democratic principle but there is no escaping that as matters stand, the Constitution remains the fundamental law of the land.
The President subscribed to a solemn oath to defend the Constitution, the same Constitution that actualised his nomination, and won him the presidency. He cannot, and must not under any circumstances desecrate that Constitution!
What the president can do is initiate legislation to amend the repugnant sections standing in the way of appointing a vice-president above sixty five years, specifically Jallow-Tambajang, and it must be done lawfully and in accordance with relevant Constitutional provisions. The only available mechanism to amend the Constitution lies in the procedure delineated at Section 226, 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:-
- 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
- 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. As of 28th February, the Coalition government was in office a mere forty one days! The mandatory procedure was not followed and any purported amendment was a nullity and of no legal effect.
In presenting the Bill to the NA, the Interior Minister, Honourable Mai Ahmed Fatty argued that the upper age limit for the presidency and the vice-presidency is discriminatory and must be removed. I wholly accept that contention but the lawful mechanism for amending the Constitution must be followed.
As reported in media outlets, the Honourable Minister further stated that as signatory to the Universal Declaration of Human Rights, “we owe it to the international community and the Gambian people to comply with international laws. For the first time in the history of The Gambia, this amendment will also put the country in line with national best practice and enable us to stop for the first time, the violation of a very important international instrument to which The Gambia is a signatory”.
This is a vacuous justification deserving no respect, and the reasoning, forced and self-serving, cannot in any way truncate the requisite mechanism for amending the Constitution.
It is common territory that the Diaspora played a central role in the long fight to see the back of public lawlessness, but some of the leading lights in that theatre, men and women of distinction and character, qualified in all respects to serve their country at its policy councils, cannot currently enter the Cabinet because of repugnant and discriminatory constitutional provisions on nationality and residence. Their talents, refined and amplified by external experience, are needed in the conceptualisation, building, and nurturing of the institutional structures requisite for a transformative public environment grounded in law, fairness, and transparency. What is the Honourable Minister doing about the incapacities bedevilling this category of Gambian?
Notwithstanding its rather complicated standing in Gambian society, the current NA must nevertheless vote against measures that are clearly unlawful no matter the intensity of the passing public umbrage that may ensue. The NA, reprieved from the whip of the master, must now act for the enhancement of the reputation and greater good of The Gambia.
After nearly a quarter century of fighting for change, it is disappointing for a Coalition government seared in the trenches of totalitarian excess to sacrifice process for the temporary fix of convenience. It is incomprehensible that notwithstanding the mandatory Constitutional timelines, such a Bill made it to the floor of the NA at the time it did. New Gambia must embrace the admittedly slow route to accountability in government and reject the fast lane to public lawlessness. In other words, there must be adherence to the principle of legality. It is common territory that the prohibiting constitutional provisions are repugnant but unless they can be lawfully tackled, they remain the law.
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, but even Ministers must learn to reject temptations in engaging in conduct not in consonance with the law. These special measures are at odds with the rule of law and the spirit of democratic governance. They cannot assist in the growth of our democracy and can only shackle the project of holding the wielders of public power to account.
As head of Government, and the person whose reputation is directly at stake, the President cannot and must not assent to the unlawful amendment of section 62(1)(b) of the Constitution. The drip-drip effect of this vice-presidential issue is threatening to develop into a festering wound and the President must be mindful of its scandalous potential. In the circumstances, his only honourable alternative is to return the Bill to the NA unsigned as permitted under section 100(3) of the Constitution.
Ditto the purported amendment of section 141(2)(b) of the Constitution.