By Gambian Outsider
This is Part I of a two parts article dealing with the Agreement that the then Coalition members entered into. The two parts of the article are divided into the two questions raised. Hence, Part I tackles Question I and Part II tackles Questions II.
Ever since the dictator, Jammeh, has been ousted from power to the delight of most Gambians including yours truly, questions about the enforceability of the agreement entered into by the then Coalition members has been a nonstop debate.
All the questions that have been raised may be reduced to two: (1) Whether the agreement entered into by the then Coalition members violates Section 63 of the Constitution of The Gambia? (2) Whether the agreement is binding on the parties, i.e., the Coalition members?
Every Gambian has a right to say what he or she believes are the answers to the two questions. However, just because a person or persons have the right to express their opinions on an issue does not mean their opinion are correct. Some positions taken by certain Gambians are flat out wrong and those who take the opposite position got some points partly correct and partly incorrect.
To start with, the two questions are legal questions and not political questions. To ask whether a certain agreement violates a constitutional provision is a question of law. To also ask whether an agreement is binding on the parties is a question of law. Now that this is clear, it follows that anyone who has an opinion that is not based on a legal principle or does not make a legal argument does not really know what he or she is talking about.
I can stop writing right now by suggesting that anyone interested in the answers to the two questions do their own research before forming an opinion on the matter. But you see, most Gambians who talk about issues related to the two questions raised above do not care about the truth. They want to be heard and to present themselves as knowledgeable about this or that, yet, they are not clear on what they have to say.
Before I get into answering the two questions, I want to say that the democratic Gambia that most of us envision will not happen in our lifetimes. There is nothing right now that would lead a reasonable and objective observer to believe otherwise. This is a hard fact to take but it is what it is. I will use block or capital letters as emphasis so when you come across them, please keep in mind that I am not yelling!
Question 1: Whether the agreement entered into by the then Coalition members violates Section 63 of the Constitution of The Gambia?
The answer is NO. The Agreement does not violate Section 63 of The Gambia Constitution.
Here is why. First, it is worth bearing in mind that one of the few things a constitution does is protect citizens from the State, hence, the REQUIREMENT of STATE ACTION to trigger a constitutional issue. That simply means, for a constitutional issue to arise, there MUST BE STATE ACTION. That is the general rule. General rules, in law, as lawyers will tell you, often have an exception or two. I will get to the exception to the general rule later. But, first, what is STATE ACTION?STATE ACTION means an ACT done by the STATE in a manner that implicates a constitutional provision, which gives a right to a person or persons.
STATE ACTION can be performed by anyone, who works for the government, and has a DUTY to perform such action within the SCOPE of his or her employment. STATE ACTION can also arise where the STATE has a DUTY TO ACT AND FAILED TO ACT OR ACTED BADLY and that results in a violation of a person’s right. Whether the STATE ACTOR is a lower-level government employee or a higher-level government employee does not matter. Whether the STATE ACTOR works for the national government (or a state), county or borough or a town or city does not matter.
THE EXCEPTION: A constitutional provision may give private persons a right to sue other private persons for violating the injured person’s constitutional right. For example, the only place you can find this in the U.S Constitution is the Thirteen Amendment. There is no other provision in the U.S. Constitution where a private person can sue another private person for violating his or her constitutional right. Such a constitutional provision or EXCEPTION to the general rule, as far as I can tell, is NOT present in The Gambia Constitution.
To sum up, in order for a constitutional matter to arise, there must be either a STATE ACTION that violates a constitutional right or a certain constitutional provision that specifically states that private persons may sue other private persons when a certain right given by a constitution provision is violated. So the answer to the question, whether the Coalition agreement violates Section 63 can be answered in the negative, because there was neither STATE ACTION present when the Agreement was entered into by the Coalition members among themselves (i.e., the STATE was NOT a party to the agreement) nor is there a constitutional provision in The Gambia Constitution that SPECIFICALLY gives private persons the right to sue other private persons when their rights have been violated.
Let me put is this way: At the time of the agreement, NO MEMBER OF THE COALITION WAS REPRESENTING THE GOVERNMENT OR WORKING ON THE BEHALF OF THE GOVERNMENT. HENCE, STATE ACTION WAS NOT PRESENT. Contrary to what the Vice President, Mr. Darboe and others may think, this is NOTa constitutional matter.
Let’s get a little deeper: Most of us know what Section 63 says, that the term of office for the president is 5 years. First, when it concerns time, a constitutional provision either sets the FLOOR or the CEILING. Section 63 sets the CEILING meaning a PRESIDENT CANNOT SERVE IN ONE TERM MORE THAN THE STATED 5 YEARS.
It follows that if the Coalition members had agreed, for example, that, if they win the person nominated would serve for 5 years and ONE DAY, that would have violated Section 63 because then that agreement would have gone beyond the stated 5 years (THE CEILING) under Section 63.
Let’s us now look at where the Constitution sets the FLOOR. Section 62 (b) sets the FLOOR of 30 years old in order for a qualified Gambian to run for the office of the presidency. Hence, if the Coalition members were to have agreed that if they win the person nominated to be president could be LESS than 30 years that too would have violated the constitution because under 30 years of age is a disqualification to run for the office of the presidency.
What can you take from what has been said so far? That one cannot go PASS the CEILING (5 years for term of office of the presidency) or go BELOW the FLOOR (that one cannot be under 30 years old to run for the office of the presidency) because either would VIOLATE the Constitution.
Between the CEILING and FLOOR set out in the Constitution, LOWERING the CEILING as the Coalition members have done DID NOT violate Section 63. Had they agreed to a period longer than the stated 5 years term for the office of the presidency, then such an extension would have violated Section 63. On the other hand, if the Coalition members were to agree among themselves that if they win, whoever was to be president must be 50 years old, i.e.; RAISING the FLOOR, then any member of the Coalition who was under 50 years and was part of the agreement WILL NOT in turn be able to get out of the agreement by arguing that section 62(b), which sets the age requirement at 30 years to runfor the office of the presidency is violated by the then agreement of 50 years old. That member would then be ESTOPPED from making such an argument because he or she was aware of the Section 62(b) and went ahead with the then agreement of 50 years old to be president. I mean, this issue as clear as the noonday sun.
THE CONSTITUTION SAYS ABSOLUTELY NOTHING ABOUT POLITICAL PARTIES AGREEING AMONG THEMSELVES TO FORM A COALTION AND CHOOSE A CERTAIN TERM OF OFFICE LOWERTHAN WHAT IS STATED UNDER SECTION 63. SO FOR THE COALITION MEMBERS, TO KNOW EXACTLY WHAT IS STATED UNDER SECTION 63 AND FOR THEM TO AGREE TO A SHORTER TERM OF OFFICE DOES NOTAT ALL VIOLATE SECTION 63. WHY DID THEY CHOOSE 3 YEARS KNOWING WHAT SECTION 63 STATES?
No one, including the Vice President, Mr. Darboe, is able to answer this question. With the amount of brainpower associated with the Executive branch, you would have expected at least some kind of a legal argument to demonstrate how the Agreement is a constitutional matter and not binding on the parties to the agreement. But no one has stepped to the plate. So far, all you hear is that the constitution supersedes the agreement.
The question is not whether the Constitution is the supreme law of the land. The question presented is whether the Agreement is enforceable? This is the only issue because if there was not a 3 years agreement, I won’t be writing about this topic and you will not be reading it right now!
Let us now consider a scenario in which the Coalition members NEVER agreed to the 3 years. Then by default, the stated term under Section 63 is triggered and would therefore apply because a court would draw the inference that members of the then Coalition have knowledge of Section 63 because it is common knowledge and expressly stated in the constitution.
So the fact that they went out of their way to choose 3 years makes the 3 years a term of the agreement binding on the Coalition members. There is a reason why the Coalition members agreed to 3 years instead of 5 years as stated under Section 63.
So a member of the Coalition who agreed to the 3 years is ESTOPPED from later trying to wiggle his or her way out of the agreement when at the time of entering into the agreement he or she was well aware of Section 63. The defense of ignorance of Section 63 would not work for obvious reasons. Ignorance of the law is no defense!
Another insightful addition to the deconstruction of the distortions being perpetrated by those who wish to defend the indefensible at all cost. Thank you Gambian Outsider.
It is very sad that we are even having these discussions, but the unfortunate thing about it all, in my view, is that the main culprit for this situation, Lawyer Ousainou Darboe, enjoys tremendous support from the electorate. Gambians are seeing early signs of bad leadership in Mr Darboe, but we are choosing to ignore all these, much in the same way we chose to ignore the early signs in Yaya Jammeh.
We remember how Jammeh rediculed politicians and promised NEVER to be one. We remember how he assured us that they (AFPRC) will go back to barracks once they fixed the broken system. We remember November 11th and how he refused to be open and clean about it. We remember how he called journalists the “illegitimate sons of Africa.” We remember how soldiers were given a free hand to terrorise citizens. We remember how he humiliated and dehumanised former government officials. In short, Jammeh’s UNTRUSTWORTHINESS and CALLOUSNESS were there in plain view and we ignored it.
How is that relevant here?
The fact that:
1. Lawyer Darboe torpedoed the Coalition Agreement, and created all these confusion and uncertainty, soon after he was released from prison ( an event which would not have occurred if those leaders didn’t put party aside and rally behind one candidate);
2. He continues to put forth arguments against the 3 year term (Gambian Outsider has destroyed that) which even those without legal backgrounds can dismiss very easily;
3. He expressed his intention to turn the Coalition Government into a 100% UDP Government (after Ramadan), despite the political ramifications for the changed achieved in 2016;
4. He accepted the position of VP after the previous holder, who was not a UDP member, was unceremoniously removed and humiliated with deployment into the Foreign Service;
5. He looked at all these coalition partners, some of whom had close and long standing relationship with him, and schemed to undermine their efforts and eventually kick them all out of government;
All these point to a person that is UNTRUSTWORTHY and cannot be trusted. And what an untrustworthy person will do with power, especially ABSOLUTE POWER, is anyone’s guess. But we have experienced it.
The issue is not as simple as it appears.
There are 2 separate but related agreement.
1. The coalition agreement
2. The agreement between the candidate and the citizens who voted.
The germane issue is the term of the President. The coalition agreement called for 3 years. The candidate agreement with voters calls for 5 years. One can reasonably argue that the coalition agreement is on a collision course with the citizen agreement. The question that we must now decide is:
What is binding and also in the interest of the people. Both agreement are binding, but one is more binding and clearly more consistent with the language and intent of our constitution. As a legal matter, I say the citizens contract will be enforced. UDP will serve 5 years.
As a political matter the coalition agreement is favorable to Darboe and he may attempt and succeed in pushing Barrow out after 3 years. After all he owns the party and the power. As a matter of politics, Barrow resigns in 3 years. Darboe spends the remaining 2 years left of the UDP 5 year term.
In conclusions UDP will remain in power for the full 5 year term.
@Bax #1. In reality there was never a coalition agreement. The exercise and accompanying document was a UDP MOS – Memorandum of Survival. The deplorables, The opportunist and The wannabes signed the agreement to exploit the then political reality.
@ Bax #2. The death of the 3 year ideas was assured with or without Darboe. It is impractical legally and politically as I stated in our present dispensation.
@Bax #3. There never was a coalition. It was always UDP and Others. It is noteworthy to point out that PDOIS played a curious role. Hon HS was part of the coalition for one reason and one reason only. Political expediency. Get Yahya Jammeh out at all cost. All his subsequent actions once Yahya was exiled point to his belief that the coalition job was done and it will never survive the significant ideological hurdles and challenges it is bound to face. He made his move as predicted. Not a bad move. It is bold and pragmatic but misunderstood. I think he did the right thing and he understand better than most what the future held for the coalition.
@Bax #5. There is no honor among thieves. They all schemed. The difference was level of concentration and dedication to plan. While most were up at odd hours of the night trying to find ways to steal public funds, some were busy consolidating power. You decide who was doing what.
Lesson learned. Don’t get mad, get even. Educate the electorate to make the best of their opportunity to change the course of history by electing Capable and Honest Leaders.
God Bless The Gambia.
My grandad used to say that, “Book people (educated people) always like to complicate simple matters.” This is a very simple, “Black and White” matter. Seriously, it is. It ALL comes down to this very simple question: Can you trust a person who gave you his/her WORD at the start of a project, even if just verbally, but goes back on it soon after the project is accomplished? The answer is a very simple one for most people. Why do we want to complicate it?
On the issue of which of the two agreements is more binding, I think you missed someything Dr Sarr and it is this:
Whereas the agreement between the Coalition Partners compels the President to serve for THREE YEARS FULL (nothing less, nothing more), the one with the people DOESN’T. In other words, the people have a job that lasts for 5 years, but successful candidates CAN LEAVE before their term ends. So, if you are a person who has entered into an agreement with others to serve only 3 years if you get the job, you cannot turn around and claim that you will serve 5 years because that’s the contract with the people. Actually you can, (as evident today) but that would raise serious questions of TRUST and TRUSTWORTHINESS. Nothing controversial, or unconstitutional or complicated. There is no disagreement about which agreement supercedes which. Obviously, the Constitution is the supreme law but it DOES NOT bar a president from leaving before the end of his/her term. There is no cover there for the advocates of the full 5 year term.
1. You may be right that the “coalition agreement is favourable to Darboe”, but again, that’s missing the point. For starters, we should not always pursue what’s favourable to us, otherwise, we risk becoming selfish persons. There should always be other factors to consider.
We would not be defending those actions of Jammeh which were politically favourable to him, but disastrous to us as a democratic nation, will we? For example, elimination of term limits or 2nd round voting. Why do we seem to defend Darboe’s actions because the situation was favourable to him? He has acted in a way that raised questions about whether he can be trusted with political power or not. My contention is that he CANNOT be trusted, and like we did with Yaya Jammeh, we are deliberately ignoring the early signs of bad leadership.
2. I don’t know why you would want to argue against something that ALL directly involved with, and witnessed from the outside, ACCEPT as existing. That there was a Coalition Agreement is not in dispute at all. Barrow accepts it, Halifa accepts it, FTJ accepts it, OJ accepts it, Hamat accepts it, etc. Why are you saying otherwise?
We know Lawyer Darboe wanted a UDP and others format, but he failed repeatedly to achieve that. For him to achieve that wish through destroying the coalition and creating such confusion and uncertainty should be condemned by ALL of us. It certainly exposed him for what he truly is, politically, and that’s a character we should be wary of, if we learnt anything from the past.
Will react to the bit about Halifa later….
Is the agreement legally and politically practical? I don’t see why it isn’t, if the parties to the agreement are sincere. The practicality of, and/or successful implementation/adherence to, this agreement was entirely dependent on the sincerity of the parties.
But you know what, we have been here before, when the idea of an Independent, non partisan alliance was dismissed as impractical and lacking conformity with international norms. Time has shown that it was practical and delivered beyond the expectations of many. What was dismissed as impractical and lacking conformity became the formular to rout out, through the ballot box, one of the most entrenched regimes of modern times. That is indeed a clear testimony to the political credibility of those who proposed it as a winning formula against all odds.
As an observant and keen follower of PDOIS, I think I will agree with you that one of the reasons for their participation in the coalition of the “unlikes” and “irreconcilables”, was the urgency and need to remove Yaya Jammeh. It was NEVER about power, privilege or consolation of any gains registered for the party. And their understanding, not only of the dynamics that are prevalent in Gambian politics and may come into play upon success, but also of the successful implementation and adherence of the MOU being entirely dependent on the sincerity of the Coalition President, if they win, meant that they took the decisions that insulated them from the humiliation that FJT, OJ, Mai Fatty and Gomez suffered; a fate that awaits Hamat, unless he becomes a griot and praise singer.
The MOU has become impractical because a key partner has put a spanner in the works.
Finally, I don’t know over the conundrum that your position presents to me: on the one hand, you dismiss all politicians, without exception, as thieves, schemers, etc.. but on the other hand, you ask Gambians to vote for good leaders.
Isn’t it the case that seeking political office through elections makes one a politician, and if all politicians are what you say they are, how could you advise Gambians to vote good leaders. I don’t get it.
Ooops!! I meant to write: “I don’t know how to get over the conundrum…..”
Folks, this is a case of Caveat emptor or buyer beware period.
The question of honor is out of the window now and the UDP knows that.
My take? No use crying over spilled milk.
Let’s move on and vote on our clear conscience and/or where our interests lie the next time around.
Sure Andy! Whats been done cannot be undone now. Move on into the future. Hopefully, lessons are being learnt. Unfortunately, the issue pops up now and again. And now and again, we are required to put things into perspective. No cries over spilt milk. Nothing of the sort.
The UDP has made it abundantly clear that there’s no shortage of Gambians that are bent on riding on people’s backs to get to where they want to be. Lessons learnt indeed. So we’ll lick our wounds and be reminded of the Manding saying that, Tulu Bundiro Bika Kungo Teye Bari, ….
Take it from here Bajaw.
Waye Nakk, Olof NJAI IT Neena, KEN DU NAAN CHI NDAA BEH NOPI DI KO HASS!
Food for thought from the diaspora community to the UDP.
I thank Gambian Outsider for the perspectives expressed above. However, convincing as his line of argument for his case may be, he has for some reason or other failed to pose another question that the issue has given rise to. That is: Can a group of like minded individuals or associations agree by way of contract to set a definite constitutional provision out of motion? Besides, one of the parties to the said contract has said for some time now that it has never signed such a contract. The validity of the contract has thus been questioned as well.
The general legal rule that obtains in such a case is that the answer to the question posed above is in the negative. No contract has such force as to displace such an explicit constitutional rule. Just ask jurisdictions where coalition governments are the main rule (Australia and most of the governments of EU-member states)? Great jurists and legal philosophers have expounded on this matter in those parts of the globe for centuries now … and there is as of now a general agreement in these circles that that indeed is the main rule. These parts of the world are after-all full of examples where coalition partners break such agreements in broad daylight to the disadvantage of one or more of the partners.
Is this oversight not a serious one?
I shall leave the politics of the case to those who are more knowledgeable in that sphere than this humble author.
From a legal point of view, is a verbal agreement, attested to by other parties to the same agreement binding in a court of law, even if nothing was signed?
What’s even frustrating is this sense of entitlement to the rewards of the change and the attempt to shut critics up by asking, “where were you…?”, as if they were the only ones who opposed Jammeh.
I was shocked beyond belief to see President Barrow singling out a citizen of the country for his views on his leadership and asking “where was he..?” and “what has he done…?” Seriously, what is our problem?
What’s even more shocking is the fact that the individual in question, left a well paid job abroad to offer his services to the nation, through the UTG. How could our chief servant question the contribution of such an individual, if he truly values the education and training of the youths?
Does everyone have to show that they stood on a political platform or demonstrated and waved banners in the streets to prove that they’ve contributed to the struggle?
This is a joke. It truly is one hell of a joke.
Andrew; all may recall I’m the originator of the “3 years Coalition term” proposal; in our efforts & obligations to the motherland but this was without my consultation of the Constitution at the time; it’s now turned & became a scorching hot potato to handle; since everything were done in haste at the time then, to boot the Evil kanilai Murderdom out & stop the evil killings of humanity, if not for anything else….
Truth is, there’re no saints in politics except for political interests, everywhere & anywhere one can find her/himself….
What’s of paramount essence is for (us/we) all to do our utmost & give our best in all, to make our homeland better place for humanity; relevantly owed to ourselves & for future generations unborn….
For, whether expressly uttered (stated) or not, we (cherished fervently that) all want to return from ‘Tellamba’ (karoninka – abroad), wherever one (we) may find (ourselves) oneself at any given times; & return back to ‘Tenuff’ (home) to Gambia at end of the day, for that retirement for a decent end of life in tranquility….
God bless Gambia…
Andrew; please rectify my poor karoninka; if I mispronounced or say the words wrongly…?
Bax thanks for the question posed above.
The answer depends on the jurisdiction concerned: Countries that follow the Roman Law tradition e.g. most continental European states accept verbal agreements back up by appropriate evidence hereof.
The situation becomes a little complicated as far as Common Law countries are concerned since such countries have traditionally not been inclined to accept agreements without “consideration” (i.e. something given up or offered in return for something received, so to speak). Further, this branch of the global legal family puts a much greater emphasis on formalities than the other legal family, e.g. written documentation of facts. Therefore such agreements are as a main rule not binding without written documentation hereof or some other powerful pieces of evidence in Common Law jurisdictions.
However, as pointed out by Gambian Outsider above, there is a legal jargon that says: There are no rules without exceptions!