Hamad Omar Sallah
The National Assembly is a coequal branch of government. It makes the laws of the land and by implication, has sole, unfettered ability to whip the Executive into shape especially when it acts in a shockingly wayward manner, as was recently demonstrated by President Barrow in the unconstitutional sacking of Ya Kumba Jaiteh.
Interference with a duly constituted National Assembly member by the President, even if he appointed her, without following due process is a shameful act of unprecedented executive overreach and should warrant censor. The National Assembly should use its legislative powers to clip the wings of the Presidency with a view to deter any occupant of the office, here on, from overzealously acting in a manner inimical to the principle of separation of powers.
By this action, it is very clear that President Barrow had broken the bounds of normalcy and has started to reintroduce what was synonymous with Jammeh’s administration. Such an overreach is not what we expect in our young experiment in democracy; it is unheard of anywhere in high-minded democratic societies. It is very heartening to see the National Assembly register its discontent over President Barrow’s intrusive overreach and fanaticism to control the machinery of government.
The action of the NAMs to call him out in that bipartisan manner, at the door steps of Parliament, was the appropriate and proper thing to do. By doing so, Parliament did not only assert its independence but also made it abundantly and loudly clear to President Barrow that unlike previous Parliaments, this parliament is no pushover. Indeed, without a syllable of doubt, passing the resolution right on the heels of the firing incident says a lot about this Parliament. From now on it is very clear to all that this Parliament has an uncanny ability to quickly see eye to eye in matters that adversely affect its members directly. I hope it will find the same zeal and vigour in reaching a consensus on this issue to also deal with the many burning issues (healthcare, education, jobs, environment, etc.) that confront The Gambia.
Having said that, I would like to state, categorically, that the National Assembly should not just end the feud with the president on just passing the resolution. In my view, President Barrow must be made to suffer the full consequences of his unwarranted assaultive behaviour on the legislative arm of government. The National Assembly must punish him by reining him in through the legislative process. In other words, Parliament should show him who the boss really is.
Such a move would be good for Parliament, good for the Presidency and good for the country and its experiment in democracy. It will, for example, break the long standing tendency of Parliament to act too cosy, too complacent and too willing and ready to go along with the dictates of the President’s office which is how we create dictators. In the unlikely event that it becomes necessary, the NAM should support Hon Jaiteh and refer the matter to the Supreme Court.
Unfortunately, many people are affected by convoluted thinking. An elected NAM is not Nominated by a President. He or she is elected by a given Constituency not Nominated as the woman was. Therefore, only a loss of position through an election, Recall by Petition or removal from the National Assembly by the Proscribed National Assembly Procedures laid out in a given Constitution to address wrong doing by a given NAM. No such thing applies to a nominated official. Nominated individuals or officials do not have immunity from being removed or fired by the person who nominated them. No attempt to apply a flawed and repugnant Constitution can change this fact. That is, Nominated officials serve at the discretion of the person who nominated them, in this case, Adama Barrow nominated aka employed the woman and can fire or remove her. She did not run for the position nor did she win the position by being elected by the Voters of a Constituency. This later circumstance and or situation is what immunizes the NAMS who are elected, Not nominated individuals such as the woman in question who was nominated aka employed by Adama Barrow. Gambia and Gambians have more serious issues to endeavor to resolve and this issue is not one of them. It may be an issue for UDP PARTY MEMBERS and those who support the woman but definitely not an issue for the rest of the Gambia and Gambians.
Well said Sidi,you have just come in at a time when there is too much noise influenced by UDP political pundits.I know a lot of them take advantage of President Barrows intention to maintain peace and tranquility through real democratic means as he always assures,but they should know that President Barrow also seeks advice in all important acts as President. He has with him lawyers in the caliber of the Attorney General and the Chief Justice who are all at his service. Anyone feeling offended should just take up the right measures to address his/her grievances ;and that is taking the matter to the law courts rather than polluting the whole country with uncertain accusations.
Mr. Baldeh, the unholy alliance between you, Sidi Bojang and president Barrow will not last. Applauding him for an attempted dismissal of a law maker is a low energy. It only confirms where political hearts lie. And yours are not for Barrow but merely against any effort to ensure justice and reckoning for jammeh’s ills.
Barrow was an UDP selected candidate before he became coalition flagbearer. Therefore his political background is udp and by extension he is what he is today thanks to the UDP membership. Of course, as president he is representing everyone. But it is not a reason to start being hostile to the very party that helped him to ascend to where he is today. in other words, he cannot take all the credit for becoming the president of the Country.
I accept, UDP cannot & should not dictate his actions and in the case of UDP spokesman Tall, no one can deny his privilege to revoke Taal’s appointment. Although here too due diligence and reason for firing someone is a precondition for transparency and good governance.
BUT THE CASE of Hon. Kumba Jaiteh is different. President’s authority to expel her expired immediately after she took oath of office. Simple as that. She is not going to relinquish her seat to pursue a fruitless court case (SOLO Sandeng’s case is still hanging more than 2 years running).
The prove that the president has authority to fire a national member must be brought forth by the president and his justice minister. That is not the job of Hon. Kumba Jaiteh. She is staying put and I hope Barrow does not embark on enforcing her removal by the means of the police force. That will be unfortunate and shall be met with equal force.
Sometimes, it takes a crisis to expose flaws and I think this unfolding crisis has just done that. I would agree, in principle, with those who fault President Barrow for attempting to remove a NAM because of the need for the INDEPENDENCE of that Institution, but common sense should dictate that where Power is granted to appoint, especially when that power is arbitrary (needing no consultations and/or confirmations) such must also go with the power to terminate the said appointment(s).
And where it seems that the Constitution is silent on removal of “Nominated Members”, how else would they lose their seats, except through termination by the President, who nominated/appointed them in the first place? At least, that’s how it looks to non legal minds like my humble self. I hope Samba will help here, as he seems to have a legal mind.
This remnant of our m0narchical past, and all such laws in our constitution, should be thrown out, as they have no place in a Constitution fit for a Republican State. NA should only be occupied by the ELECTED. Period.
Then help in that direction by rejecting an attempt to dismiss a law maker. Colluding with those supporting such deviation from good governance is not going to help throw out the monarchical laws in the constitution. Just because it concerns a UDP leaning politician should not cloud your good judgment or undermine your principle.
Even Sidia Jatta of pdois sees the attempt null & void.
True, it’s a UDP politician that is affected, but it wouldn’t have made any difference to me, if it was a politician from a different party.
Nominated NAMs have no place in the NA and their very presence undermines the independence of the institution.
Furthermore, how are they RECALLED if their performance is not satisfactory? We know Elected Members can be RECALLED (removed) by their constituents if they fail to deliver, and that process can begin through signed petitions. Why? Because we are the authority that put them there.
How are Nominated Members RECALLED, if they fail to live up to the task? It can only be through the authority that put them there, in the first place.
Bax,
Bax, can you explain to me and the wider readership, citing relevant law and examples, how RECALLING an elected NAM would work?
Then I would explain how the authority that nominated a national assembly is not authorized to dismiss a national assembly. And the 2 scenarios available to dismiss a lawmaker- irrespective of being nominated or elected in the first place.
A very simple example is the nomination process for Supreme Court judges in the US. The president nominate the judges, but after taking oath of office, the president of the US cannot dismiss a Supreme Court judge or any other judge.
Kinteh (Kemo), Section 92(a) & (b) states as follows:
Quote: “Recall of members 92: An Act of the National Assembly may make provision for the recall of an elected member of the National Assembly. Such an Act shall-
(a) require that a petition for recall shall be supported by at least one-third of the registered voters in the constituency and
(b) prescribe the grounds for recall and the powers of, and procedures to be adopted by, the IEC on receipt of such a petition.” (end of quote)
Herein lies the basis for recall of ELECTED NAMs, and even if the NA had failed to carry out its duty to enact an Act to lay the grounds of recall and procedures to be adopted by IEC, as required by Section 92, that failure DOES NOT negate the existence, in law, of the power of the electorate to recall their elected NAM, where they are dissatisfied with his/her performance.
As you can clearly see, this provision refers to ONLY elected members. It does not mention nominated Members, probably for the obvious reason that they have no constituencies and constituents.
So, I ask you again: in the absence of the power to recall nominated members if they are found to be incompetent in the performance of their duties, how do they get removed and by who? You may refer to the US and how its done there, but there is little relevance of that to us in The Gambia.
As we embark on the creation and adoption of another Constitution, what should concern us more than the incompetence of the SG and undemocratic tendencies of the President, is the flaws and existence of remnants of monarchical influences in our law, as well as the seeming contradictions therein.
The power to Nominate members to the NA seem to contradict Section 96 of the Constitution, which states:
Quote: “General Election 96: There shall be a general election of ALL the members of the National Assembly which shall be held three months after the date of the election of office of the President.” (end of quote) (my own emphasis added).
Question that comes to mind is this: Does ALL really mean ALL? Or is there a way of going round Section 96?
Bax, in the absence of the legislation that was not be during the jammeh years ( and tellingly that didn’t prevent the terrible (Jammeh) to dismiss and detain aprc MPs), then there is no effective legislation that laid down the exact procedure of RECALLING an elected MP. Therefore, we can abduce that an intention was spelt out in Section 92(a) & (b) of the constitution but the constitution merely referred the job of creating the technicalities of Recalling / dismissing an elected MP to the parliament. As it stands today, recalling an elected MP is practically impossible even if the required 1/3 constituency signatures were gathered and submitted to the speaker of the national assembly Because the said legislation does not exist. ( Are you not worried about having just 1/3 of the electorate of a constituency to push for dismissal of a an elected NAM a problematic undertaking?)
Therefore, citing Gambia Bar Associations standpoint on the issue, the only possibilities to dismiss a national member are A. Negligence of duty. concretely that a member staying away from national sittings may be discipline at the initiative of the national assembly speaker that could lead to dismissal by a motion backed by not less than 2/3 of the members ; B. A conviction by a duly constituted law court that can provide the speaker the right to open dismissal proceedings against a member and again any dismissal must be backed by at least 2/3 NAMs. These are the known practicable means of getting rid of a NAM who is neglecting duty or has become criminal. There is now law or an intention by the drafters of the constitution to have 5 MPs at hostage of the whim and mood swings of a president. ( even though that was the open intention of the president who commissioned the constitution).
The intention and spirit was not to have a MP ( elected or nominated to the position ) to be at the mercy of the executive they were sworned to control or exercise oversight powers over.
Again, I hereby refer you to the Bar association statement dismissing Barrow’s attempt to get an active lawmaker dismissed.
Again I am not the fan of nominations to the national assembly. For me the whole issue is about abuse of office, precedence setting and quite frankly the separtion of powers. The intention cannot be that a NAM who enjoys full lawmaker obligations and equal voting right, is not equally protected from arbitrary dismissal. That does not make sense and in the absence of clear procedure, the status quo for all NAMS remain. That is, they are protected equally until the NA itself decide to remove the immunity of one of her members. At the very latest the voters have their verdict at the polls. By the way, the same goes for the president. A clueless president cannot be dismissed just like that. It requires impeachment proceedings and the backing of 39 gambian NAM to send a president packing.
Grounded on these reasons, Hon. Jaiteh is not going to sue anyone. She is still a NAM until the NAMs decide that she did something wrong and open proceeding against her. Until then she is staying put. Sympathisers of the president or other agendas are free to go to court and force her dismissal through the courts.
Kinteh (Kemo), at least you and I agree that there should not be any room for “Nominated Members” in the National Assembly. Our efforts should now be focused on how to stop the same or similar provisions being put into the new Constitution.
I am convinced that President Barrow will NEVER contemplate removing an elected NAM, never mind dare to attempt it.
I agree that the absence of an Act to bring the route to recall into effect makes it impossible to carry out, but what I was pointing out was the existence of this route for elected NAMS and asking whether the equivalent of this provision for Nominated Members is not the power of removal by the President.
Something that works lime this: The voters vote for the elected, so they can RECALL them; the President nominates the Nominated, so he can RECALL them. (this is not a legal opinion, just my simple, common sense reasoning)
Because, whereas both elected and nominated members are subject to removal as per Section 91, (1) (g)(h), only elected members are subject to removal by Section 92 (a)(b) {provided an Act to give it effect was enacted}.
This would seem to me that 1. either the drafters of the constitution had deliberately sought to give nominated members a more secure tenure of office than the elected members or
2. they had anticipated that the power of the President to remove nominated members, being the authority that puts them in the National Assembly, is equivalent to the power of the voters to recall an elected member.
In any case, since I don’t want to see them (Nominated Members) in the National Assembly, I don’t care how they are booted out because their presence in that institution undermines its independence.
And yes, I am worried about the one-third requirement. I think two-thirds of voters should be the requirement for the IEC to initiate the recalling process.
I think it is also worth remembering that the office of Nominated Members was created just to give the executive a degree of influence and control over the National Assembly, hence that is why the office of Speaker and Deputy Speaker are reserved exclusively for Nominated Members.
And traditionally, nominated members have played that role very well by always supporting the agenda of the President and his ruling party, both in the first and second republics.
So, its a bit rich for people to accuse the President of abuse of power, whilst they ignore the abuse of the privilege by the nominated member. Both are guilty of abuse: one of the power to nominate; the other of the privilege of the office.
The nominated member should resign her position, if she wants to stand on the platform of a political party and criticise the President.
Could you kindly inform us about the abuse of privilege Hon. Kumba Jaiteh purportedly committed? Did the president not knew from the beginning that both the Hon. Denton and Hon. Jaiteh are prominent leaders in the UDP party? That in any ambiguity, the likelihood is that these figures remain loyal to their party?
That is what am trying to underscore. Nominations doesn’t mean someone will dance to your tune. A sincere nomination or selecting someone to a job position entails background checks and a good judgment on the part of the nominating person or selector. If nominations is done and a person is confirmed in a position in a democratic dispensation that is related to separation of powers, the executive cannot come again and “revoke a nomination”. The power to revoke a nomination is freezed in a period. That state is over as soon as the nominated member is duly confirmed and sworned in as a fully fledged NAM.
Because the period of nomination expired immediately after the person took oath of office in parliament or in the case of judiciary took office as judge.
If I have to believe you or your line of argument, then the drafters of the constitution ( to my knowledge Halifa Sallah being one of them) , explicitly want that the nominated members are at the mercy of the president whims and caprice. Unfortunately, they didn’t spelt that out in the constitution. But what they did however is to equip a nominated member of parliament with all the powers and privileges equal to an elected NAM. Where doubt exists, equal rights and privileges for all NAMs take precedence.
And the known method of dismissing a lawmaker is highlighted above and does NOT include a president revoking a “nomination”.
Therefore, and as the Gambian Bar Association concluded, any NAM can only be removed by the aforementioned dismissal procedures.
What is the exact abuse of privilege Hon. Jaiteh purportedly did? The president knew from onset that Hon. Jaiteh And Hon. Denton are prominent figures of the UDP. I imagine that any wise person would see it as a possibility that these 2 people will remain loyal to their parties. I guess it would be at that very moment, during a nomination process, you vett loyalty if that is the important criteria.
In many democratic dispensation, there are positions in the legislature and judiciary that occupied at the suggestion of the president a process called nomination. This nomination is a temporary state and cannot be extended to cover a whole legislative period or a life time as is the case with judges in some democratic countries.
Because the nomination period is temporary, revoking a nomination ( as written by SG of the president) can only happen during the nomination process. After the person is confirmed and/or took the duly legally binding oath of office, the person is legally protected and enjoys the same immunity protection as every other NAM. The person’s enumerations, voting powers, sanctioning or in worst case dismissal follows the same procedures like every other member of parliament.
That is the position of the majority of the Gambian NAMs and the Gambian Bar Association.
Bax, you’ve raised very salient points here that are worthy of further discussion.
Thanks
Gambian politics has been and is still fraught with opportunistic tendencies and the unending quest for name recognition and cheap popularity.
Do we see anything wrong with that?
Andrew, opportunistic politicking is prevalent in Gambian albeit also in many countries. Perhaps the difference is the lack of integrity and principle in the actions and utterances of our people and politicians. I have attributed this problem to ignorance ( not merely lack of western education) but sheer shortsightedness. That we so often see short term interest and our impulse to rush and grasp that “ opportunity “ irrespective of the far reaching risks inherent in such a pursuit.
Watching the testimony of Alagie Kanyi (Ex Sergeant GNA) before TRRC, the thought that bordered me much was how a person who has nothing to gain from the actions of his instructors, willfully or under extreme duress, kill his own comrades and in some cases people from the neighboring villages where he hailed.
Among the regrets he uttered was a.) the victims families, b.) the life hereafter and C.) that all along he hadn’t gain anything monetary or position wise from his actions in aiding the junta extrajudicially slaughter his comrades and in some instances his kins.
I am confused by the testimony to be frank and I hope jollofnews will publish a transcript of Alagie Kanyi’s testimony for a thorough review.
Because I see parallels with what you term as quest for recognition and cheap popularity.
Kemo, you’ve touched the crux of the problem of the perennial shortsightedness on the part of both leadership and the general public in The Gambia.
Quite often Gambians cannot draw upon and relevant perspectives that can bring meaningful change in the traditional mindset.
For instance when Barrow proclaimed that the Gambian mindset must, of necessity, be changed, the fellow himself had no clue as to the attributes required to bring about the change. The question is why!
Again to your comment on western education, it is highly likely that you’ve also asked yourself the question that formal, tertiary or higher education does NOT serve to instill/impart relevant perspectives, refinement, awareness and pertinent moral thinking onto certain segments of Gambian society. Could the dearth of foregoing elements in Gambian society lead to the prevalence of shortsightedness, thievery, the tolerance of mediocrity and rampant opportunistic behavior?
The question that everyone on this medium must seek to answer is why folks that claim to hold advanced university credentials would shove every moral edict to the side, put a very low premium on the public trust and willfully go on to wallow in the muck!
Gambians cannot draw upon relevant perspectives I meant to say.
Good you made mention of Kayni aka Killer!
Soldiers from now on better be taught a better understanding of their oath of duty – …, *and, to protect the lives and properties of citizens. As a soldier, in such a state of calamity where, I am ordered to slaughter my own brothers for what I knew was nothing, but clearly a set up to summarily murder them, I would rather say my last prayers and swing that A-che 37 on that gang of thuggish cannibals calling themselves a “council” instead of on those they kidnapped. If all those residents soldiers in the barracks were peeping through nail holes in the windows seeing their fellow brothers being taken to their innocent deaths and yet doing nothing, how dare such soldiers flash in military uniforms bragging about ; I Am A Soldier!, around in the communities? Our soldiers were the most cowards in the world for the fact that they cannot keep peace in a civil war but they can abduct, terrorize and kill civilians and fellow Gambia soldiers whom their duty was to protect.
Edward, Peter …, they really could be this deadly? God save the Queen’s Britain … and they got dumped in the Gambia. I think they have had the perfect opportunity in the Gambia to live their childhood war dreams in real life. That bloody firing range should be closed if we want to respect the lives of those soldiers, known and unknown, who were extra judicially slain there. The firing range is also and insult to the neighborhoods in the middle of which it sits.
Soldiers who may be vital witnesses of other killings of civilians and soldiers by the criminal junta from 1994 – 2017, need not think twice to declare themselves before the commission. These soldiers are in the Gambia and the diaspora as well. Some of them might have absconded as late as 2015 – 17. They should step forward, wherever they are, if they have by now drawn upon a relevant perspective of what the taxpayers money really means in maintaining an army. Any soldier who is a witness to any extra judicial killing and have not done their duties at the time to protect the lives of those victims, better come out now and do their duty by voluntarily appearing before the TRRC. Obey and complain orders are effective only when a nation is at war with another, in instances where you might need to order a soldier to sneak close to the enemy lines.
Yaya, Edward, Sana, Yankuba, Peter, Mboob and all of them in the USA, UK, Europe, South America, Africa, Asia and the Gambia, need to declare themselves right now. People like Sana better know, making a nurse now pretending to be a life safer, won’t be able to exonerate him of his terrible crimes. A maximum security underground prison is where all those citizen killer coward ass soldiers should spend the rest of their lives. At least Gambians don’t want to watch them being hanged at the McCarthy Square. There should be no excuse or pardon for citizens or residents’ lack of abilities in ‘drawing up relevant perspectives’ that are essential to the lives and good health of the masses.
In the mean time, can’t help but closely follow the discussion on the un/constitutionality of the president’s attempted sacking of a nominated NAM, where I thought he has not drawn up the relevant perspectives when he was making that decision.