Opinion: UDP’s Lawyer Ousainou Darboe - Is He Barred From Running For the Presidency?
General public discuss has for sometime regularly featured the subject of the UDP Secretary General, Lawyer Ousainou Darboe’s eligibility to run for the Presidency under the existing Constitution. The public interest in this particular subject has since been exacerbated following the voting down of the now historical draft Constitution whose section 94(1)(d) was designed to put this very issue to rest. However, as it turned out, the draft Constitution was ironically put to rest instead — rendered ‘dead’ as “reform pessimists” (according to Justice Jallow) would say or, in a ‘coma’as reform fantasists steadfastly believe.
Never-mind which of the above metaphoric characterisations is a more fashionable description of the status of the much discredited framework, what’s clear is, as per section 22(1) of the Constitutional Review Commission (CRC) Act, the CRC stands dissolved as of 22 October 2020 and by default bringing to an end the legal effectiveness of key aspects of the Act. The “late draft Constitution”, coined by Lawyer Lamin J Darbo is, from now on a more fitting description of the relic.
Now, just before you finish processing that thought, no,I’m not using this as a convenient opportunity to lay into the ‘late’ draft but, informed commentary on the subject matter would be incomplete if the designed remedy of the above-mentioned ‘late’ draft Constitution provision is omitted. Hence this designed remedy would in light of events highly unlikely become law before December 2021, it’s perhaps prudent to hinge my commentary on the eligibility (or not) of Lawyer Darboe on the existing law being the existing 1997 Constitution.
It has been and continues to be stated in many quarters that Lawyer Darboe’s conviction in 2016 and his dismissal in 2018 as Vice President render him constitutionally barred from vying for the Presidency. I’m tempted to at this point draw a very simplistic conclusion but, that’ll perhaps not do justice to such a fundamentally important political question, therefore I won’t. The relevant Constitutional provision is section 62(3) and it states:
“A person who, while holding public office in The Gambia has been-
(a) compulsorily retired, terminated or dismissed from such office, or
(b) has been found guilty of any criminal offence by any court or tribunal established by law; or
(c) has been found liable for misconduct, negligence, corruption or improper behaviour by any commission or committee of inquiry established by law shall not be qualified for election as President.”
Not that the importance of the above provision could be overemphasised but, suffice it to say, the appropriate answer to the question: ‘is Darboe barred from running for the Presidency?’ squarely rests on the interpretation of the above provision and by extension, sections 156 and 230 of the Constitution.
Before proceeding any further, it must be stated that, for one to be barred under section 62(3), they must have been a holder of “public office” at the time the adverse event occurred. For anyone who keenly follows the lively commentary around this very subject, one notices how the definition of what is meant by “public office” in this context is often conveniently interpreted to suit the bias of the punditry. We all have our biases, don’t we? Sadly, as entrenched and interesting these may be, they do not override the respective legal definition at section 230 which states that “public office”:
“includes an office the emoluments attached to which are paid directly from the Consolidated Fund or directly out of monies provided by an Act of the National Assembly, and the office of a member of a local government authority or the staff of a public Enterprise”
Helpful definition? Perhaps not. But, let’s unpack the logic by tracing which “emoluments” (salaries, fees or profits earned from employment) are paid from the “Consolidated Fund”. This takes us to section 156 of the Constitution which at subsection (2) expressly identifies the office of the “Vice President” as one whose holder’s “emolument” are paid from the “Consolidated Fund”. Therefore, under the Constitution, the office of the Vice President is indeed a “public office” and certainly so for the purposes of section 62(3).
To digress slightly away from the focal subject, references at section 156 to “monies provided by an Act of the National Assembly and… office of a member of a local government authority or… staff of a public Enterprise” by extension, widen the definition and scope of those to whom section 62(3) apply to include pretty much anyone whose gainful employment is remunerated by public funds of whatever description.
Having established what a “public office” constitutes for the purposes of section 62(3), it is obvious that the leader of an opposition party not employed by the State in any capacity is not a holder of “public office”. So, factually speaking, any finding of guilt by any “court or tribunal” or adverse finding by any “Commission or committee of inquiry” in respect of any events which predate the appointment of Lawyer Darboe as Minister of Foreign Affairs are not relevant for the purposes of section 62(3). His conviction in 2016 etc. fall within the aforementioned category and do not render him barred.