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Opinion: UDP’s Taal On Darboe’s Conviction & The Presidency

Updated: Oct 2, 2020

Opinion: Monday 28 September | Dida Jallow-Halake. 

UDP’s Taal On Darboe’s Conviction & The Presidency  (Lawyer Taal’s views are courtesy of the Standard newspaper)  As I wrote four days ago, “the 1997 Constitution is on Lawyer Darboe’s side” as far as his eligibility to contest the 2021 election as the UDP’s presidential candidadte is concerned (see my article in the Freedomnewspaper linked below). Lawyer Taal of the UDP agrees but he also raises the doubts that I raised:-

1. Says Lawyer Taal:- “ ... those laws were definitely and obviously unjust and in a society where you have unjust laws innocent men and women and people who are fighting for justice will always be imprisoned by unjust laws”.  Halake:- Here I agree with Lawyer Taal, and I mentioned the Apartheid laws that sent Nelson Mandela to jail for 27 years ... and that did not prevent Mandela from becoming President. 2. Says Lawyer Taal:- “Darboe has since gone back to the same court to try and expunge that from the records and the courts have continued to uphold the law as it is.”  Halake:- And therein lies the problem. Lawyer Darboe was considered “de-facto” President when “he went back” to the Supreme Court, not “same” now because it is presided over by Darboe’s Government’s appointee Chief Justice Hassan B. Jallow (like Darboe a native of Bansang, a long-time friend and colleague, and also like Darboe a victim of Yahya Jammeh). Jallow’s court decided to uphold the colonial Public Order Act used by Jammeh to jail Lawyer Darboe – and thus, ipso facto as the lawyers would say, upheld Darboe’s conviction. 3. Says Lawyer Taal:-We have to look at this critically and see whether there are not people who want to use legal proceeding to really either discriminate against a person of Mr Darboe’s stature or to try and perpetuate their self-rule.”  Halake:- It is called politics Lawyer Taal! Legal proceedings Congressional inquiries against Donald Trump were planned before he took office and have not ceased even for a single day during his Presidency. “Critical assessment” should avoid emotional terms like “discriminate”! All politicians, like those in sports, will do all they can do legally to win – and if Barrow’s camp think they can go to court to bar Darboe from contesting the Presidency, they will ... and that is normal in politics! 4. Says Lawyer Taal:- “To cut a long story short, Darboe was released by a court on bail. I don’t even know how that went after the change of government ... the first executive act of President Barrow was to pardon not only Darboe but over 20 others who were all convicted for political reasons and this was gazetted. It is there and it is official. Now the jurisprudence on pardons is not very well developed in The Gambia but in the US where it has been used extensively, when you are given a pardon it expunges and cleanses your records completely.”  Halake:- As far as the "bail" issue is concerned, I think that is covered by the Presidential pardon - so Darboe is no longer on bail! I am not familiar with the USA aspect of a Presidential pardon as mentioned by Lawyer Taal, but I would just ask this question: if one of my colleagues as a teacher has been jailed for child abuse, and is thus struck off the register of teachers, would a Presidential pardon “expunge and cleanse his record completely” – and allow him back into the classroom again?! Similarly, would a fraudster convicted of stealing millions and pardoned by the President be allowed to work as Governor of Gambia's Central bank?! Such examples tell me that a Presidential pardon may get you out of jail - but it should not as a matter of common sense "expunge" the record of your crime. I am just arguing Lawyer Taal’s claimed effect of a Presidential pardon here ... not the facts of Lawyer Darboe’s politically motivated conviction by Jammeh’s "mercenary" court. 5. Going back to Lawyer Taal’s first sentence:There is no basis, no reason whatsoever why Mr Darboe will not be eligible to contest in 2021”.  Halake:- That is a political statement and it is Lawyer Taal’s “belief” as a politician. As Lawyer Taal the lawyer, he certainly has doubts because he can see the legal arguments that “the other side” will use when they ask the IEC or the courts to bar Lawyer Darboe from contesting the 2021 elections.  6. Lawyer Taal says:- “ ... there is a court of public opinion which is always open and recording the deeds of everybody who chooses to participate in public space because ultimately, it is elections that are going to make presidents or members of parliament and the people are no more going to play by those rules of intimidation that Yahya Jammeh had done for 22-years of his rule”. Halake:- Now this is totally political and it may be UDP's strongest card and it is something that “the other side” will have to take into account. Any attempt to bar Nelson Mandela from the 1994 elections would have seen South Africa burn as a country. I think Lawyer Taal is alluding to the same dangers here if Lawyer Darboe is barred from contesting the 2021 elections. I think wiser heads might argue that it is better to allow Lawyer Darboe to contest, and possibly lose, than to bar him and risk social unrest from his sizeable support. If Gambia's treasured peace requires that Lawyer Darboe be allowed to run for the Presidency, then let him run would be the best advice. On the other hand, the other side might decide, like Jammeh did for 22 years, that Gambians don't actually take personal risks for their personal beliefs, the likes of Solo Sandeng (RiP) excepted. But there is a risk here too because Jammeh oppressed with brutal force using guns and, as Lawyer Taal says: "the people are no more going to play by those rules of intimidation that Yahya Jammeh had done for 22-years of his rule". I would personally advice that we avoid the risks to societal peace - and just allow Lawyer Darboe to contest the Presidency in 2021. In conclusion, I agree with Lawyer Taal that Lawyer Darboe’s convictions under Jammeh’s rule were political – and I agree that Lawyer Darboe was fighting for people’s rights against a dictatorship when he was convicted. But no one knew that more than Chief Justice Hassan B. Jallow’s Supreme Court when it handed down a judgement which effectively meant that Lawyer Darboe will have to live with that Jammeh conviction forever. More importantly for Lawyer Darboe’s 2021 candidacy, would Chief Justice Hassan B. Jallow’s court side with Lawyer Taal’s arguments on behalf of his client Lawyer Darboe? I cannot answer that questioning without risking a charge of contempt! 

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