(JollofNews) – Clearly my clients, Ba Tambedou and Mai Fatty, have thrown in the towel on this matter. But I suspect that they did so, not because they thought their interpretation of the law is wrong, but because people are so quick (like Gambian Insider!) to accuse them of disregarding the law.
They surrendered for political reasons, not for legal reasons. In Gambian Insider’s own words: “How can we have rule of law in The Gambia when the law is not respected? One cannot claim rule of law but does not follow the directives of the law”.
It is for fear of such baseless claims that, I think, the honourable gentlemen backed down. And I suppose because the Ghost of the Lawless Dictator Yahya Jammeh still traumatises the people of The Gambia.
“Interpretation”
Law is a matter of interpretation. This particularly badly drafted piece of legislation shows all the difficulties involved in legal interpretation. Gambia Insider cannot, on the basis of his own interpretation, accuse others of “not following directives of the law”. It does not matter if he is the doyen of the Gambian legal fraternity. His “interpretation” is as good as that of the newly qualified lawyer – until a judge rules and says his interpretation is the correct one. That ruling of the judge is what is meant by “the rule of law” – not any Tom, Dick and Harry’s “interpretation” of the Constitution. Ours are opinions – to a judge belongs the “interpretation”.
“Gambia Insider’s” Interpretation
Gambian Insider says: “Now to subsection 226(4); This subsection states that: A Bill for an Act of the National Assembly altering any of the provisions referred to in subsection 226(7) shall not be passed by the National Assembly or presented to the President for assent unless:”
Halake says: Forget the “unless”. The fact is that “Age” is not one of the protected entrenched “provisions in 226(7)”. So referendum has nothing to do with “age amendment” – nor does 3-months gazetting.
Gambia Insider says: “Of particular concern lately has been the age limit for the office of the president and vice president respectively … The age limit is repugnant to democratic principles”.
Halake says: I agree 100%.
Gambia Insider says: “The question is how do you change it? The present administration wants to ignore all the requirements of section 226. If this is allowed to happen, then which provision in the constitution is safe?
Halake says: Section 226 was ignored because it does not cover “age amendment”. Simple. Don’t let Jammeh’s White Ghost traumatise you into thinking all Gambians in authority want to subvert the Constitution. The Chief Guardian of the Constitution in The Gambia today is the Lord Chief Justice Hassan Babucarr Jallow and, if this fact does not make you sleep easy then nothing will.
Gambia Insider says: (now stretching his “interpretation” beyond the realms of us ordinary mortals who understand “age” to mean 65 and “term of office” to mean the 5-years a President stays in office between elections!)
“There are those who have made the argument that the age limit provision is not included under section 226(7) and hence the requirements of 226(4) are not required. That, in my view is a wrong interpretation of the provision. Under subsection 226(7)(g) we read: “section 63(1) and the first sentence of section 71(2)(which [respectively] relate to the term of office of the President and the qualifications of Secretaries of State)”. Now section 63(1) refers to the term of office of the president, but before one even begin considering the term of office of the president should we not see if the president and the vice president for that matter are qualified to the respective offices? And what is one of the disqualifications to those offices if not the repugnant age limit”!!!.
Halake says: Editor, Gambia Insider has lost me here! I am not going to debate whether or not “age limit” is not the same as “term of office”. I am out of here, but respect to Gambia Insider: at least he has tried to explain the glaring fact that 226 does not cover “age amendment” … even if the best he can do is to claim that “age” should be subsumed into “term of office”!!
I wish others had tried as hard as Gambia Insider – but it no longer matters: my clients have surrendered for fear of being compared to Jammeh!
Dida, I want to know if there is any legal route to bring this issue before the Chief Justice to rule on it? It seems to me that all those who have been saying that section 226 was not followed always avoid quoting subsection 2 in it’s entirety. ” Subject to subsection (4), a bill for an Act of the National Assembly under this section shall not passed by the National Assembly or presented to the President for assent unless” this is subsection 2. But strangely those condemning the government have failed to explain what “Subject to subsection (4)” means. Can Mr Darbo or anyone who’s condemning the government please clarify this point. Last thing we need is a constitutional crises.
Buba, the Government has withdrawn the Bill – so they will do it all again, presumably under 226 … in which case another group of lawyers can claim it is all illegal using our arguments to back them up!!!!!!!
I think the best route is to amend 226 first and then amend the age provision.
I think what 226 (2) is saying, is easy to understand when we put the terms, “Subject to subsection (4)”, aside for a bit. The reading would then be, “……a bill for an Act of the National Assembly under this section shall not be passed by the National Assembly or presented to the President for assent unless-“. Then we have subsections (a) & (b), which must be met for a bill to pass.
From my layman understanding, 226 (2) is a requirement that must be met by any bill before it is passed, except where exceptions are made, and that’s what the terms, “Subject to subsection (4)” does. It draws our attention to the fact that additional requirements must be met before certain sections can be amended.
These additional requirements are what are set out in subsection (4) and the sections that must meet the requirements of subsection (4), in addition to meeting those in subsection (2) (a) & (b) are the ones spelt out in subsection (7).
In summary:
1. Every bill for an Act of the National Assembly MUST meet the requirements of 226 (2) (a) & (b) before it can be passed;
2. Any bill that seeks to alter any of the provisions contained in subsection (7), MUST meet the requirements of both 226 (2) (a) & (b) AND 226 (4).
That is my take on this issue.
Sorry my in-law, I ain’t biting the bait!
Bax, “Subject to subsection (4)” is an integral part of subsection 2 so it should not be put aside. To be that is like making the constitution fit our argument and not our argument to fit the constitution. With respect, your explanation doesn’t make sense. Subject to in English is conditional on. This case should be decided by the Supreme Court. Trying to second guess what the writers wanted say is wrong. Lets get it properly sorted. If it means having a referendum on the issue then so be it. The constitution was written by human beings and we all know that human beings are fallible. Therefore it is not preposterous to think that they may have made an error.
Buba, I’m not saying “throw “Subject to subsection (4)” away completely”. I agree entirely that it is an integral part of, and even key to, understanding subsection (2). But, like I stated, it’s just my layman’s understanding. Perhaps the Supreme court needs to intervene. I still believe that “Subject to subsection (4)” is simply drawing our attention to the requirements in that section for those provisions in subsection (7).
True it should be interpreted by the Supreme Court. Because i don’t buy this Gambian Insider. His interpretation is full of contradictions. I am a layman as well but my understanding of English is that when something is subject to another then the one that is subject to becomes of a lesser value or conditional to what it is subject to. Example “you will get a drivers license subject to you passing your driving test” “subjected to tough interrogation from the defense attorney” “subjected to torture” “i will reimburse all your expenses subject to receiving receipts from you” and i know Bax you can give a few more examples. Government should not leave this like that just for political convenience.
I think Mr Halake has now taken over the position vacated by Halifa Sallah, in siteing the rules stipulated in the Constitution.
The Hydra,,,opps sorry the coalition take note;
Interesting, my Bravs call me “Dida”, “In-Law”, even “Gambia’s Eminent Luntango”(lol), but the whiteman calls me “Mr. Halake”!!! Me “taking over from Halifa”??? “Taking over from Halifa, Gambia’s No. 1 Constitutionalist”??? That statement is what I would call “Mzungu’s Maximum Mischieve Making”!! have a nice week-end Bravs, I am chilling out.
Guys, I think there is a general consensus within the legal fraternity that the law wasn’t properly followed to effect those amendments. There has been no rebuttals from the legal profession to challenge this “consensus” view; not even from Hon. Mai Fatty, who introduced the Amendments bill. It is we, the laymen/women, who are interrogating the matter further to enhance our understanding of the law and this is good. Perhaps, this may steer some of us towards law courses, even young oldies like me. (hahaha!!!!whatever that means).
Anyway, I have a question to ask : If the age restriction should not follow procedures in subsection (2) (a) & (b), because these supposedly affect only entrenched clauses in subsection (7), which procedure (s) should amendments to age restriction, and by extension, ALL non entrenched clauses follow ?
The Constitution is clear in subsection (1) that no clause is exempt from alteration, subject to the provisions of section 226.
Some call me “Jungle George”
Still shit stirring I see Mr Halake.
You need to get a life Bruv. You should try Viagra for your avowed womenising. It tends to droop at your age. {Not that I discriminating.} Us droopers trooper on.
Damn, calm down Mzungu! U R losing U R cool like a native. Thanks for the offer of Viagara but we Black men have no need for it – just ask the Bravs! The Mzungu invented Viagara for his own problems – as the 93 yr old Mugabe says!
Bax,
WE viewed the coalition as Messiah’s, Sorry to make that mistake. Its just the same old boy’s who couldn’t organise a piss up in a brewery.
Granted Halifa was the only risk taker in those 22 years of debourchery…witch hunters accepted.
But they are taking the Micky…It will all end badly. Gambian’s are no fools.
Bax, I think the Viagara has gone to the Mzungu’s head! “Old boy’s who couldn’t prganise a piss up in a brewery”, he says of our highly educated, experience and able Coalition!
Luntango on steroids. I went out with Mugabe’s secretary 30 Years ago. She told me he was gay. Each to his own am not prejudiced. Jungle George always” rides” again. Still peddling the same old neo racist comments. You really are a sad man. I much prefer Amadou Samba…Now he’s a real risk taker. Clever, rich and famous. God bless him, Xx
Oh and he’s a real Gambian success story.
You should do your old job as Jammeh’s PR man, Equitorial Guinea..is only a 6 hour flight.