(JollofNews) – During the dictator’s time in office, one of the narratives of UDP was that it was the major opposition party and hence the “smaller” opposition parties should dance to its tunes.
The head of the new coalition government is a UDP member, who ran as an independent candidate, but the UDP leadership does not see Mr. Barrow as a person who ran as an independent candidate but as a person who ran as a UDP candidate and hence “those other small parties” with the exception of Hamat Bah’s party and the one man party of Mr. Mai Fatty, should dance to the UDP tunes. Nothing has changed here folks! Of course, this is contrary to the MoU that the Coalition signed at its inception. Here are some indisputable facts:
(1) At the time the Coalition was being formed Mr. Co-President Darboe was in jail. Here one wonders whether the Coalition would have been formed if Mr. Co-President Darboe was not in jail.
(2) If UDP did not play the “major opposition party” card during the negotiation leading to the formation of the Coalition, would Mr. Barrow have been nominated as the leader of the Coalition? Here one needs to look at all the criteria one should look at in order to nominate a qualified person for the office of the presidency. By the way, before the formation of the Coalition, there were UDP militants who wrote and said that Mr. Barrow did not have the qualifications to be president.
(3) Among the conditions that the members of the Coalition agreed to in the MoU they signed, there are at least two conditions precedent that the members of the Coalition insisted upon:
(a) Three years transitional government should the Coalition wins; and
(b) That Mr. Barrow was to run as an independent candidate.
(4) The major issue of contention arose from this single point of view:
(i) Majority of Gambians see Mr. Barrow as a
President who ran as an Independent candidate; UDP members do not see Mr. Barrow that way at all. UDP members see Mr. Barrow as a UDP candidate who ran for president. Take this point away and you almost have no disagreement.
If all the arguments about “separation of powers” and “conflicts of interest” are seen from the above analysis, then one sees why UDP does not have a logically valid argument hence it relies on the “majority party” card. It is laughable when you read or hear UDP militants accusing persons who point out this weasel-like behavior as tribalist. LOL! Much has been written about “Separation of Powers” and most of it has not been accurate. I suggest reading and re-reading Federalist 51.
The question presented is whether Mr. Barrow is a president who ran as an Independent candidate or as a UDP candidate? If Mr. Barrow ran as an Independent candidate then why he is governing under a UDP platform? How could a person who ran as an independent candidate governs as a party candidate on the platform of a party that did not nominate him?
Why would a person who signed a MoU to run as an independent candidate only to completely disregard what he agreed to do? This seems possible only because that is what the UDP leadership wants. Instead of showing respect to the agreement it signed, UDP is showing total disregard of that agreement simply because it is the ”Majority Party” and it can do as it sees fit. There is so much intellectual dishonesty in this debate it is mindboggling. The only justification UDP has demonstrated so far is that, it is the “Majority Party.”
The brother, Mr. Solomon Demba’s analysis of the Coalition’s agreement as being in violation of section 63(1) is way off and demonstrates a lack of understanding of both Contracts law and Constitutional law. The Coalition’s agreement to a three years transitional government does not violate the Constitution in any way whatsoever.
If the Coalition government is held to the three years transition government it agreed to, whose constitutional right is violated? No one. It is a fundamental principle of constitutional law that a constitutional right cannot be violated without government action. This simply means that a person not under government control or directives cannot violate the constitutional right(s) of another person. An entity that is not under government control or related to a government in anyway cannot violate the constitutional right of another person or entity. I believe, besides the learned Mr. Lamin J. Darboe, almost all writers on Gambian constitutional issues miss this fundamental principle.
It is also a fundamental principle of contracts law that parties to an agreement are held to the terms of the agreement they signed absent mistake, misrepresentation, illegality, duress or fraud. If the three years agreement for a transition government the Coalition members signed was a mistake they have to say how it was a mistake. If they signed the agreement under duress or there was fraud or misrepresentation they will have to explain how that happened. And, if the agreement is illegal that too, they have to explain why it is illegal. To hold signers of an agreement to the terms of the agreement they signed absent the exceptions I listed above is not government action.
Again, where there is no government action there is no constitutional violation. The signers of the agreement were not forced to sign the agreement against their wills. They signed the agreement as one condition among others that made it possible for them to agree to the formation of the Coalition. Therefore, the agreement to the transition period was crucial to the formation of the Coalition.
One argument that could be raised against the three years transition agreement is that it is against public policy but that is a weak argument because there is no public policy issue that the agreement affects. The signers of the agreement knew what the constitution, section 63 (1), says about the term of office of the presidency. It would be a totally different matter if the Coalition were to agree and subsequently signed a transition period beyond the five years term mandated by section 63(1). That would be a clear violation of the constitution.
The office of the presidency is not a fundamental rights issue. And even if it was, there are directives where the president could be kicked out of office. See subsection 63(3). Another very important point is that, this is not a case where the National Assembly is trying to change section 63(1) without the directives of that jealous subsection 226(4).
If brother Solomon Demba wants to argue that the Coalition members would have agreed to form the coalition without signing the three years transition agreement, he can write about it and we are all ears! Let anyone tell us why the members of the Coalition chose three years transition period and not five years. Let anyone tell us whose constitutional right is violated by the three years transition period. Let anyone make the argument that holding the Coalition to the three years transition period is government action.
By Gambian Outsider
There is behaviour that is legal, and there is behaviour that is unconscionable. Legal means behaviour that is “allowable or enforceable by being in conformity with the law of the land and the public policy; not condemned as illegal” whilst unconscionable is being related to the word conscience, [add the un], and you can see that it refers to something done without applying good moral judgment” . It is conduct that is unethical, amoral, immoral, unprincipled, indefensible, wrong! Surely unconscionable conduct must trump all legal conduct that can be deemed unethical, amoral, immoral, unprincipled, indefensible, wrong!
In fact at its simplest application in contract law, an unconscionable contract is one that is unjust or extremely one-sided in favor of the person who has the superior bargaining power”.
The question then becomes: hypothetically, if the President were to renege on his promise to the Gambian people in contract – social contract, or what ever?- expressed in the words”‘vote for me [Adama Barrow: “if you cherish and love democracy, because, I promise to serve ONLY for three years” vs Jammeh: “if you cherish and love like development” ) in reliance on the provisions of the constitution which as implied by his statement above, he impliedly disapproved of. Could such a conduct, hypothetically be construed by a properly constituted court as legal, but unconscionable, and therefore struck down, on the basis that, though legal, it was nevertheless unethical, amoral, immoral, unprincipled, indefensible, wrong, unjust or extremely one-sided in favor of the President who has the superior bargaining power ?
Gambian insider, Section 63(1) of the constitution cannot be changed by an act of parliament alone, it has to go through a referendum. To fulfill their three year transition agreement, the coalition has two options. Either amend Section 63(1) or amend Section 65(2). Each of this has a potential to jeopardize our fledgling democracy. The second option will be to leave things as they are and for President Barrow to resign at the end of three years. The second option may result in Ousainou Darboe or some other UDP member becoming the president because we can’t tell who might be the Vice President at that time. That will be far worst than Barrow staying on for five years. I think the coalition should have a long chat amongst themselves and with the public about the three year transition period proposed and agreed to by all of them. I believe the Gambian public will be understanding when all they are given all the facts.
Buba Sanyang, did I not refer to that “jealous section 226(7)” in my article? Please read the article again. And in it I made a typo because the “jealous section” is actually 226(4) and not 226(7). If you read my article again, you notice that that typo has been corrected because I wrote to the editor and ask him/her to make the change. Brother I am not worried about who becomes president but that things should be done as the constitution stands until altered as directed by section 226. I wrote somewhere in one of the comment sections that while three years term may touch on the office of the presidency, the agreement is not a constitutional issue. The gravamen of the issue is contractual and not constitutional and I think this is the point you missed. I can tell you are not a lawyer because if you were you will have noticed that. The issue of the three years transition period should be analyzed a contract/agreement matter and not as a constitutional matter. Here is one important thing you always need to keep in mind. When there is no government action, there cannot be a constitutional issue. Now, holding the Coalition members to the agreement they signed is not government action. Any signer of the agreement may file a complaint when the three years period ends to enforce the terms of the agreement. It cannot get any clearer than that. Thanks.
Samba, i do understand the legal arguments you have put forward and accept them. I think the difference between us is that you are thinking as a lawyer and i am thinking as a politician. Like you said, any signer can file a complaint at the end of the three years to enforce the agreement. The outcome of that as the constitution stands can be politically messy. That’s why Samba i kept saying that the coalition should have a frank discussion amongst themselves and with the public so that we won’t get to that stage. The recent fiasco on how to contest the national assembly elections should be a lesson to all concerned.
I hear your legal arguments and I respect them but beg to differ.
A legal argument tends to have at least two sides so it is up to the parties to articulate the best point that supports their respective positions. Being a lawyer does not mean you have an expert knowledge in the application and interpretation of law. In fact, lawyers are mostly responsible for creation of bad and incoherent laws.
The argument, is only government action capable of engaging constitutional rights seems misleading, and way off with contemporary legal thinking. Governments have both positive and negative obligations to protect individual’s fundamental rights enshrined in most constitution.
It follows that Governments’ inactions are bound to engage the constitution when they failed to protect citizens’ rights. It is also the case that Public and private bodies’ actions may engage the constitution if they are entwined with state actions. So, the centrality of your argument cannot stand as a serious coherent legal argument.
Moreover, even undergraduate degree law student knows that a contract can by terminated by the conduct of parties if the conduct makes it impossible to performance the agreement. Admittedly you sated that, there is a public policy consideration but weak for not holding election at the end of the three years. It is striking for you ignore the dire status of Gambia’s economy. Certainly election will impose huge financial burden of the Government. Let us be realist and stay away from utopian narrative.
Let me make it clear here, taking a position on the current Gambia’s political situation does not make anyone a UDP support. I have no affiliation with political parties in the Gambia whatsoever. Divisive issues are not the best way to conduct rational argument. Let’s disagree without shouting.
Please do refer to me as brother because that is false and patronising.
It is bit rich for you to use anonymised name (The Gambia Insider) while you take the liberty to shout my name in your article. At least I have the courage to assert my name on my article.
The space here is provided for us to have mature discussions that include divergent views. Legal argument is not about shouting sound bites. Your arguments are respected but not persuasive for my stand point
I hear your legal arguments and I respect them but beg to differ.
A legal argument tends to have at least two sides so it is up to the parties to articulate the best point that supports their respective positions. Being a lawyer does not mean you have an expert knowledge in the application and interpretation of law. In fact, lawyers are mostly responsible for the creation of bad and incoherent laws.
The argument is only government action capable of engaging constitutional rights seems misleading, and way off with contemporary legal thinking. Governments have both positive and negative obligations to protect individual’s fundamental rights enshrined in the most constitution.
It follows that Governments’ inactions are bound to engage the constitution when they failed to protect citizens’ rights. It is also the case that Public and private bodies’ actions may engage the constitution if they are entwined with state actions. So, the centrality of your argument cannot stand as a serious coherent legal argument.
Moreover, even undergraduate degree law student knows that a contract can by terminated by the conduct of parties if the conduct makes it impossible to performance the agreement. Admittedly you stated that there is a public policy consideration but weak for not holding an election at the end of the three years. It is striking for you ignore the dire status of Gambia’s economy. Certainly, the election will impose a huge financial burden on the Government. Let us be a realist and stay away from the utopian narrative.
Let me make it clear here, taking a position on the current Gambia’s political situation does not make anyone a UDP support. I have no affiliation with political parties in the Gambia whatsoever. Divisive issues are not the best way to conduct a rational argument. Let’s disagree without shouting.
Please do refer to me as a brother because that is false and patronising.
It is bit rich for you to use anonymised name (The Gambia Insider) while you take the liberty to shout my name in your article. At least I have the courage to assert my name in my article.
The Space here is provided for us to have mature discussions that include divergent views. The legal argument is not about shouting sound bites. Your arguments are respected but not persuasive for my stand point
Tsm, welcome to this debate. In my response to Kara in an earlier debate “Is President Barrow A Man of His Word?” I have raised the point that sticking to a three year timetable can result in the presidential elections, two national assemble elections and a referendum within a three year period. I am not a lawyer, am a pragmatist so i would like to hear suggestions on how this issue should be resolved in order to avoid a repeat of what has happened with the national assemble elections.
I hear your legal arguments and I respect them but beg to differ.
A legal argument tends to have at least two sides so it is up to the parties to articulate the best point that supports their respective positions. Being a lawyer does not mean you have an expert knowledge in the application and interpretation of law. In fact, lawyers are mostly responsible for the creation of bad and incoherent laws.
The argument is only government action capable of engaging constitutional rights seems misleading, and way off with contemporary legal thinking. Governments have both positive and negative obligations to protect individual’s fundamental rights enshrined in the most constitution.
It follows that Governments’ inactions are bound to engage the constitution when they failed to protect citizens’ rights. It is also the case that Public and private bodies’ actions may engage the constitution if they are entwined with state actions. So, the centrality of your argument cannot stand as a serious coherent legal argument.
Moreover, even undergraduate degree law student knows that a contract can by terminated by the conduct of parties if the conduct makes it impossible to performance the agreement. Admittedly you stated that there is a public policy consideration but weak for not holding an election at the end of the three years. It is striking for you ignore the dire status of Gambia’s economy. Certainly, the election will impose a huge financial burden on the Government. Let us be a realist and stay away from the utopian narrative.
Let me make it clear here, taking a position on the current Gambia’s political situation does not make anyone a UDP support. I have no affiliation with political parties in the Gambia whatsoever. Emotive issues should not be the basis for any rational argument purported to raise public awareness. Let’s disagree without shouting.
Please do not refer to me as a brother because that is false and patronising.
It is bit rich for you to use anonymised name (The Gambia outsider), while you take the liberty to shout my name in your article. At least I have the courage to assert my name in my article.
The Space here is provided for us to have mature discussions that include divergent views from all stakeholders. The legal argument is not about shouting sound bites. Your arguments are respected but not persuasive from my stand point.
Buba,
your points are sound, the issue here need serious consideration the one that all parties have to discuss and agreed to in order to prevent instability and uncertainty lingering, Certainly, spelling out the issues clearly to the public will be a good start. Law has to be contextualised to meet the needs of the society if not, it will lose its transformative value. Pluralistic democracy requires participation of all groups.Indeed, you do not have a lawyer to make a good legal argument. Well done to all of for keeping the debate simply and relevant to different perspectives.
Tsm, putting your name on what you write is no courage at all. That has nothing to do with courage. If you know me you will realize why I chose not to put my true identity out there. I have no relationship with any political party. I left Gambia before a few years before Jammeh came to power and of course before UDP was formed. I do not have to refer to you as a brother and no I am not patronizing a person by addressing him or her as brother or sister. Being from the same country and discussing issues of importance allows me to refer to a fellow countryman or woman as a brother or a sister. I am not shouting at anyone either. As I understand it, to shout, means to write and capitalize one’s words and I did not do that. I underline and highlight what if you bring them together, you see that they are either a major premise to a syllogism, a minor premise or a conclusion. To say that you lack understanding in both contracts law and constitutional does not mean I have expert knowledge. You will never ever hear me say that I have expert knowledge in anything. You made an argument that demonstrates lack of knowledge in what you said and I simply pointed it out. Why are you taking this personally? We are both engaged in public debate and people will respond to what you and i say, and some of it we will like and other we won’t.
Now let me get to the legal issues you raised. This is what you said:” The argument is only government action capable of engaging constitutional rights seems misleading, and way off with contemporary legal thinking. Government have both position and negative obligations to individual fundamental rights enshrined in the most constitution.” First, how can government positive action be a constitutional issue? When you read government actions it refers to conduct that infringes on a constitutional right or try to limit or take away a constitutional right. Let me here repeat what I said in my article: “It is a fundamental principle of constitutional law that a constitutional right cannot be violated without government action. This simply means that a person not under government control or directives cannot violate the constitutional right(s) of another person. An entity that is not under government control or related to a government in anyway cannot violate the constitutional right of another person or entity.” You said:” It follows that Governments’ inactions are bound to engage the constitution when they failed to protect citizens’ rights. It is also the case that Public and private bodies’ actions may engage the constitution if they are entwined with state actions. So, the centrality of your argument cannot stand as a serious coherent legal argument.” Please compare what I said and what you said. Where govern is required to act and it fails to do so, that is government action- the decision not to act. And if it acts and does so badly that too is government action. You can give specific examples to rebut my point.
On Contract: You said: “Moreover, even undergraduate degree law student knows that a contract can by terminated by the conduct of parties if the conduct makes it impossible to performance the agreement. Admittedly you stated that there is a public policy consideration but weak for not holding an election at the end of the three years.” I do not follow what you mean by “if the conduct makes it impossible.” May be you meant to say if performance is impossible. I did not mentioned the defense of “impossibility” because it is not applicable in the agreement the coalition signed. I mean there is nothing impossible to prevent adherence to the agreement. Here are other contracts defenses I did not mention for the same reason: infancy, insolvent, unconsionability; insanity, and the like. The list I gave are the likely defenses that the coalition could use to avoid being held to the agreement they signed. You do not seem to follow your your own teaching. You said, “Law has to be contextualised to meet the needs of the society if not, it will lose its transformative value.” If you apply the defenses I specifically listed in context with regard to the coalition agreement then you see why, impossibility and the other defenses I omitted do not apply. Lastly, there is no where I said you are a UDP supporter. I suspect you are Solomon Demba. I never said anywhere that you are a UDP support. Everything I said regarding the argument you advance was to point out why I thought it was not sound. I never write an expect anyone to agree with what I write. I expect more disagreements than agreements. We can disagree and I disagreed with your analysis and I said why I disagreed. I could easily have said I disagreed with what you said and left it at that but how does that help the readers if I do not set out my reasons for disagreeing with what you said? I do not know you and have no personal issue with you. Let’s stick to the issues.