The Coalition’s agreement 2016 was instrumental in dislodging the Gambia from the claws of a brutal regime. Certainly, its three years term limit was a decisive factor that unified the parties to reach a seminal agreement.
But the failure of the parties to govern as a unit have rendered the promise a bare promise, making it morally and legally unenforceable.
For now, President Barrow has shown the tenacity to rule the Gambia under the constitutional mandate. To that end this makes the President a believer of our constitution in respect of rule of law.
It is prudent that we allow the constitutional mandate to prevail over the three years Coalition’s agreement. This, will not only preserve the rule of law, but will also allow the smooth reinforcement of freedom, democracy and justice to support our new democratic society.
While reneging on a promise may be morally impermissible, it is morally right to break a promise which clashes with other high moral principles such as providing stable footing for our new democracy. It will not be morally right to deliver a promise inimical to collective interest of the citizens.
In fact the promise to deliver on the Coalition’s three years term was made on the consideration that; the Coalition’s parties will govern together.
In the absence of such unity, the promise has become undeliverable. Consequently, the promisor is allowed to focus his attention on things that best serve the country’s interest, such as the reforms of public institutions, and the expeditious delivery of transitional justice.
A hypothetical promise on a lottery win is not a lottery win. This provides a useful illustration of the circumstances in which a promise maker of a conditional promise can disregard the moral obligation upon him to keep such promise; in the collective interest of the people.
In this regard President Barrow has the right to serve for five years as the declared winner of 2016 election. The Coalition’s agreement, if given effect, will no doubt trump on the President’s political right in the constitution. Pursuant to section 26 of the 1997 constitution, the political right of a citizen must not be ‘unreasonably restricted’ by the State, including public institutions.
While it may be argued that the President’s right cannot be violated because of lack of state action, this argument lacks force for the simple fact that, the political parties that formed the Coalition are public institutions, so their expressed intention to restraint any citizen from exercising their political right fully, is a blatant violation of that fundamental right. The right engaged here is a fundamental right, which can be given horizontal effect in order to prevent its violation by public institutions such as political parties.
Call it what it is, let’s stop using legal jargons to mislead people in order to advance our hopeless academic arguments that are not grounded in the principles of rule of law; and are undoubtedly contrary to the constitution. No one should be allowed to contract your way out of the constitution if we are to maintain the rule of law.
The argument that the President will be in breach of a contract if he stays on as a President cannot be substantiated. That is because the contract one relied on seems unenforceable.
Therefore, the President has the right to rule for the 5 years. The agreement was repudiated for the very fact that some of the parties failed to join the Government and govern collectively, others behaved in such a way contrary to the agreement.
For that reason, their failures to work with the Government for collective good resulted to a repudiatory breach of the agreement. This gives the innocent party (in this case the President) the option to elect and accept repudiation. From contractual stand point the agreement is dead in the water because of the fundamental breaches on the part of the parties.
Certainly, the recent public statement made by OJ to uphold the Constitution mandate sounds dead knell for the agreement, a party to the initial agreement if he publicly announced his support for President Barrow to govern for the constitutional mandate; to my mind, this confirms that the MOU is dead. Surely, you can’t force parties to enforce an agreement when some/all of them call into question the validity of such agreement.
From a utilitarian perspective, the right action is what represents the majority’s interests and the one likely to maximise the happiness of all citizens.
As the President remains committed to delivering his constitutional mandate in accordance with the NDP, Which no doubt, will transform the Gambia to a modern and democratic society.
Therefore, with prudence and foresight we need to allow the President to govern in the exercise of that mandate, so as to allow the Government to focus on creating a fairer and happy Gambia. We must resist the temptation to participate in pointless protests, which is likely to cause mayhem for ordinary citizens’ lives, and potential destabilise our smooth transition to a democracy.
Of course, citizens are at liberty to criticise the Government for malpractices if they can substantiate such claim. But it is plainly reckless to publicly allege corruption without providing specific examples, or credible evidence to support such claim. Engaging in tittle-tattle politics will serve as a fundamental distraction from focusing on the real issues affecting Gambians.
It is only through frank dialogue and honest political discourse that we can create a democratic society, which serves all, not the one that serves a class of people. Gutter-politics has no place in the new the Gambia.
The foundation of any democratic society is tolerance, and broad-mindedness, without which there is no democratic society’. These are principles we must all respect and live by them in order to coexist peacefully in a democratic society.
To this end, I urge all Gambians to stand up and be counted for upholding the supremacy of our Constitution; rather than perpetuating activities that are affront to the rule of law, and in contempt of our Constitution.
Forward with the Gambia.
A well written and well presented argument, but unfortunately flawed, because it is based on FOUR wrong premises, in my view.
POINT ONE: Quote: ” While reneging on a promise may be morally impermissible, it is morally right to break a promise which clashes with other high moral principles such as providing stable footing for our new democracy. It will not be morally right to deliver a promise inimical to collective interest of the citizens.”
Observation: What the writer seems to be saying here is that the 3 Year Term of the Transition President goes against the Constitution, does not bode well “for providing a stable footing for our new democracy” and therefore, “inimical to (the) collective interest of the citizens.” Thus, President has the moral right to renege on it.
Let’s interrogate that a bit. To establish what’s in the interest of the citizens in this regard, we have to remind ourselves what was confronting Gambians and Coalition 2016, and how it (coalition) planned to address this challenge.
Everyone knows from 1965, when we were supposed to have gained independence, to 2016, Gambia ever had only TWO presidents, whilst Botswana for example, a country that gained independence a year after us (1966) had FOUR presidents by 2014. What this shows is that we had a problem of SELF PERPETUATION: the same persons succeeding themselves repeatedly (one for 30yrs; another for 20+years).
The THREE Year Transition Term was meant to break that cycle of self perpetuation and give Gambia a fresh start. How could anyone argue that this was inimical to the interest of the citizens or to building a strong democratic foundation for new Gambia? So, there was no higher moral principle here, as the writer seems to argue. Adherence to the 3 Year Term, as well as the reform programmes, is what was in the best interest of citizens and our new democracy, as current realities on the ground clearly demonstrate.
POINT TWO: Quote: “In fact the promise to deliver on the Coalition’s three years term was made on the consideration that; the Coalition’s parties will govern together.
In the absence of such unity, the promise has become undeliverable.”
Observation: I am assuming, as it seems clear to me here, that the writer is claiming that the refusal of some coalition partners to take cabinet positions went against the Coalition’s promise which “was made on the consideration that the Coalition parties will govern together.” I am not being disrespectful, but I want to know what the writer’s understanding of “governing together” is? Is the writer saying that “governing together” can occur in Cabinet? I hope not.
The reality is that Cabinet Positions is contained in Section 4 of the MOU, titled “GOOD GOVERNANCE.” Here, having laid down how the Cabinet must conduct itself and defined the Cabinet Positions to be filled, the section concluded with the following:
Quote: “All Presidential appointments and removals will be done in consultation with Coalition stakeholders.”
There is not a single provision which states that all must be in Cabinet.
Furthermore, government as we know it, comprises THREE independent, but interdependent ARMS, namely: Executive (Cabinet and Civil Service), Legislature (National Assembly) and Judiciary (Courts and judges). Each of these arms of government is part of the governance process and any position holder is part of the same governance process. So, those who rejected Cabinet positions for National Assembly positions are still part of the governance process and therefore their absence from Cabinet is no reason to nullify the unity of the Coalition, as claimed by the writer.
Quote: “In this regard President Barrow has the right to serve for five years as the declared winner of 2016 election. The Coalition’s agreement, if given effect, will no doubt trump on the President’s political right in the constitution. Pursuant to section 26 of the 1997 constitution, the political right of a citizen must not be ‘unreasonably restricted’ by the State, including public institutions.”
Observation: The argument here seems to be that the MOU is denying the president the enjoyment of his political rights in the constitution, but this is not correct, as the agreement was made on the understanding that the flag bearer and winning candidate will VOLUNTARILY RESIGN after 3 years. Everyone who signed up to that agreement knew that the term of office of the president is 5 years. Everyone who put themselves up for selection as flag bearer knew that the term of office of the president is 5 years. This is the reason why no coalition partner is insisting on 3 years, because they all know that it was entirely dependent on the goodwill and voluntary resignation of the successful candidate, and once he reneged on it, that was the end of that agreement and the beginning of a new reality.
POINT FOUR: Quote: “It is prudent that we allow the constitutional mandate to prevail over the three years Coalition’s agreement. This, will not only preserve the rule of law, but will also allow the smooth reinforcement of freedom, democracy and justice to support our new democratic society.”
Observation: It seems to me that the writer’s claim here is that the 3 Year Term goes against the rule of law; meaning it contradicts the Constitutional Term of 5 Years. How many times has it been shown here and elsewhere that this is a flawed position? Why is this position flawed? Simple, because the Constitution does not establish a MINIMUM TERM for the Presidency; it only established a MAXIMUM TERM of 5 Years: Meaning one cannot do beyond 5 Years, but one can do less than 5 Years.
Therefore, a political agreement which is predicated on the VOLUNTARY (mind you, that is the key word here) resignation of the winning candidate and president does not contradict the Constitution and is not against the rule of law, because whilst the president has the right to serve for 5 years, he/she has the same right to resign after 3 years. That will not be unconstitutional and is not against the rule of law either.
I do agree with the writer, though, that the 3 year Jotna campaign is an attempt to deny the president the right to enjoy his constitutionally guaranteed political right. Once he reneged on the Coalition Agreement, he has the right to serve his full mandate as laid down by the Constitution, the Supreme Law of the land. The best option and the most politically prudent one, under the current circumstances, is to patiently wait for President Barrow at the polls and express our feelings through the ballot box. That’s my view.
Bax,
thank you very much for a thorough critique of the above opinion piece. And thank you for fact-checking some of the writers misconceptions and putting them into proper perspective.
There is however one or two things I would like to express a different view to yours. Here they are:
1. I quote “This is the reason why no coalition partner is insisting on 3 years, because they all know that it was entirely dependent on the goodwill and voluntary resignation of the successful candidate, and once he reneged on it, that was the end of that agreement and the beginning of a new reality”.
It seems to me you are centering the whims and caprices of coalition partners in an issue that clearly has three moral and semi-legal contractual partners. Where is the electorate left when the issue of a reduced term in office is going to be nullified? Yes, if the president renege on his promise to “voluntarily resign”, that’s the beginning of a new reality. This new reality cannot and should not be left to the “coalition partners” to define. The most important partner, being the electorate, has been sidelined through every act or omission of the present government by deviating three sixty from the deal that brought it to power.
Through legal and constitutional means, the new reality should, must and will be set by us the commoners come December-January.
2. No one is trying to deny the president from enjoying any of his presidential prerogatives. In fact he has use the constitution on many occasions to satisfy his personal desires. That’s tantamount to criminality. The same “rights” he has to lead for five years is the same right we have as citizens to demand he steps down in accordance with the promises made to us for our votes. With or without the coalition MoU, Gambians have a right to recall elected representatives from office for a number of reasons. And believe me, Adama should have been impeached a long time ago by parliament. By virtue of all the allegations of financial impropriety and lying about back door deals, the NA has enough to ask him to appear before the house to give sworn testimony on those allegations.
Adama has to cash the bad check his has written. In my mind, this can be prudently done by applying political and economic pressures through dissent and international lobbying.
We shouldn’t be kissing and cuddling an elite ruling class that cheats, lies, steals and kill our people brutally or slowly strangles the entire population slowly to suffocate in the dirty mud of corruption and mal administration.
Yours in the service of The Gambia and Afrikka, I remain.
(Gambia 2016 Election Results
Candidates
-Adama Barrow Coalition 2016 43.3%
-Yahya Jammeh Alliance for Patriotic Reorientation and Construction 39.6%
-Mama Kandeh Gambia Democratic Congress 17.1%
Total 100%)
“…This new reality cannot and should not be left to the “coalition partners” to define. The most important partner, being the electorate, has been sidelined through every act or omission of the present government by deviating three sixty from the deal that brought it to power…”
#Mwalimu, casting sentiments aside, analysis of the above elections results objectively shows majority of Gambians who voted (46.7%) aren’t part of or in supportive of the Coalition MOU; the sane thing to do is to get to the next Constitutionally mandated election cycle & teach Adama Barrow a lesson to remember; not the seeming destructive route being touted about on the 3-years jotna ensuing demonstrations which are potential trouble enticements; love of the Motherland should make any responsible citizen(s) to act & utter responsibly for the maintenance of peace, stability & preservation of life, property & livelihoods at all times….
Rectification please – majority of Gambians who voted (46.7%) aren’t part of or – should read -majority of Gambians who voted (56.7%) aren’t part of or…
Thank you…