As the political fissure over the attempted sacking of Ya Kumba Jaiteh from the National Assembly by president Adama Barrow festers, we flit down memory lane with this seminal article by lawyer Lamin J Darbo on a situation with striking similarities during the tyranny of president Yahya Jammeh.
Hon. Ya Kumba Jaiteh received a letter purportedly from the president revoking her nomination as MP
Gambia: On Ramza Diab, And the Cabinet Squatters
It is with mounting interest that I follow the debate about whether there is authorisation under the 1997 Constitution of the Republic of The Gambia (“the Constitution”) for His Excellency, Alhaji Dr Yahya A. J. J. Jammeh to fire Ramzia Diab (“Ramzia”) as a nominated member of the National Assembly. Is there indeed incontrovertible authorisation for the President to nominate National Assembly members, or is section 88(2) nullified, or at the very least seriously called into question, by section 96 of the Constitution, on the one hand, and by accepted notions of democratic constitutional theory and practice on the other?
In its original version, the Constitution was a disaster for even the theoretical underpinnings of democratic pluralism. As if that disastrous version did not inflict enough injury on The Gambian body politic, Dr Jammeh caused amendments to be introduced in 2001 which made the document a total tragedy for the Gambian people. In so far as it effectively emasculated the Judiciary, and the National Assembly, by reducing these constitutional pillars of the state to mere appendages of the Executive through the unjustifiable centralisation of all power in the President, the Constitution is nothing but a fascist document.
On this point at least, the assertion by the Attorney General and Secretary of State for Justice (“Attorney General”) that “the drafters of the Constitution were no fools” is highly questionable. The drafters were clearly no visionaries for saddling us with a document which must be revamped in the Gambia’s impending Third and final Republic. Its general thrust is inimical to both the doctrine of the rule of law, and the concept of the separation of powers.
The Constitution’s convoluted nature is a glaring manifestation of its perverse intent. In a laughable, if tragic way, this is a major blessing in that under properly mounted challenges against routinely arbitrary Executive conduct, the courts will find it impossible to anchor sensible and defensible decisions favouring the President in this highly compromised and labyrinthine document. The Ramzia affair is a spectacular testimony on point.
When Pap Ousman Cheyassin Secka (“Cheyassin”) – in his defence of the President’s dismissal of Ramzia - refers to the entrenchment of separation of powers in the Constitution, I wonder which document he was referring to. The preamble is not a part of the Constitution, and even where it would ordinarily constitute a true reflection of the letter and spirit of the main document, it was nothing but a perverse fraud in the hands of Dr Jammeh and his cabal of shallow, unprincipled and opportunistic intellectuals.
I couldn’t care less whether Ramzia remains an APRC member of the National Assembly. In more ways than one, she deserved her plight. My interest, and that of others like Hawa Sisay-Sabally (“Sisay-Sabally”), is public spirited and constitutionally focused. The Attorney General was disingenuous in his attempt to muddy the waters by claiming that Sisay-Sabally was meddling in internal APRC affairs, and that she aims to “advance her personal interest”. As a former Attorney General, she is an invaluable source of subtle insight into the chilling mentality of a Government whose modus operandi is averse to any notion of democratic accountability. Her efforts were legitimate comments on a matter of fundamental national significance.
In reaching the conclusion they did on the Ramzia affair, the Attorney General, and Cheyassin, must have read a document other than the Constitution. Their analysis of the constitutional issues underlying the controversy was too partisan, not to mention exceptionally amateurish. For starters, there is no universally applicable “age-long aphorism that he who has the power to hire also has the power to fire”. Under both constitutional theory and practice in a proper system of democratic governance, Dr Jammeh should become functus officio in cases where his hiring power traverses constitutional demarcations.
In other words, he should have no authority whatsoever to fire either National Assembly members, or judicial officers ranging from Magistrates, to Justices of the Supreme Court. In similar vein, constitutionally envisaged independent agencies like the Independent Electoral Commission must reside outside the purview of presidential influence. This is not to suggest that these category of officers are exempt from legitimate control mechanisms, but that they not be subject to the capricious whims of almighty Dr Jammeh and his Executive arm of The Gambia Government. Once appointments are made in these areas, there must be no removal powers available to the President as an individual.
On a straight application of the doctrine of separation of powers, the President can have no authority to fire a member of the National Assembly. Perversely though, the Constitution permits Dr Jammeh – through a deliberate loophole – to fire every single elected APRC member of the National Assembly if he is so inclined. I must emphasise that this is far from a theoretical possibility. The power is actual (see section 91(1)(d)) and the President will use it if he felt sufficiently threatened by his party’s parliamentarians. Any such action will trigger a constitutional crisis and a major power struggle, but with national power so heavily centralised, the bet should be on Dr Jammeh emerging victorious.
Significantly for the Ramzia affair, such a power is not as a result of National Assembly membership being categorised a public office. Notwithstanding the baseless assertions of the Attorney General, and Cheyassin, the powers under sections 167, and 231(5), are not triggered as a National Assembly member – nominated or otherwise – is not a public office. There should be no need to refer to the Interpretation section at 230 as Ramzia is explicitly excluded from holding a public office by section 166 (4) (a) of the Constitution.
Even a casual reading of Chapter XI, sections 166-171, provides ample indication of the Constitution’s understanding of public office, especially at: 168, on Head of Civil Service; 170, on Restriction of Political Activity; and 171, on Retiring Age. The attempt by Dr Jammeh to micromanage every aspect of national life has spectacularly backfired in the Ramzia affair. The document is proving to be a minefield, especially considering Cheyassin’s superficial analysis and naïve reliance on section 95 to conclude and categorise the Speaker, Deputy Speaker, and the entire National Assembly a public office against the clear command of section 166 (4) (a). If he had thought through the ramifications of his desperate conclusion, he would never have referred to the Constitution as entrenching the concept of separation of powers.
In similar vein, the Attorney General’s attempt to categorise Ramzia’s dismissal as the functional equivalent of an electoral recall is clearly unworkable. There has to be legislation to activate the recall provision in the Constitution. Even assuming that this provision is available to Dr Jammeh – and it is not - the Constitution suggests that it must be a serious matter as one third of registered voters in a constituency must support the recall petition. What did Ramzia do? If indeed the Constitution authorises the President to nominate one in every ten members of the National Assembly, the fate of this category of member must not be left to chance as sooner or later a political relationship is bound to collapse.
Instead of a vain search for justification to remove a legitimate member of the National Assembly, I suggest that the Attorney General direct his energies to a live case of glaring constitutional law breaking by no less than the almighty President himself. Dr Jammeh must fire his two illegal Secretaries of State who are even now making illegal decisions at Local Government and Lands, on the one hand, and at Communication, Information and Technology, on the other. The Constitution compels the President to revoke the appointments of Manlafy Jarjue, and Amadou Scattred-Janneh, the two American squatters in the Gambian Cabinet. How scandalous to sneer at the Constitution in this manner against the clear command of section 71(2), and this by the man who swore to uphold it as the supreme law of The Gambia.
Although Ramzia must take her own counsel, I join others in urging her to seriously consider legal action so we could at least have a judicial take on a major controversy of constitutional significance. The matter is too fundamental to be settled politically. Whilst Ramzia weighs her options, section 71(2) of the Constitution is shouting for Dr Jammeh to obey the law and revoke the appointments of the two American nationals illegally installed as Gambian Secretaries of State. The Americans have no squatting rights in the Cabinet. The Attorney General must advise the President that maintaining these illegal appointments does have unlawful suspensive effect on the Constitution, and by section 6 (1) (a), that is a treasonable offence. Or is Dr Jammeh outside the boundaries of the law? Not according to the Constitution, and certainly not under the doctrine of the rule of law.
Regardless of whether the appointments were deliberate or inadvertent, there is not a scintilla of justification for Dr Jammeh to continue his countenance of two major violations of the supreme law of our land. He must resist making a profession out of violating the Constitution, and then to either punish or ignore his critics for highlighting his persistent abuse of authority. The President’s penchant for selectively applying the law is well documented by the usually unjust punishment he metes out to the fallen, but hitherto untouchable darlings of his Government. For once, he must obey the Constitution and revoke these illegal appointments in so far as they constitute major violations of the supreme law of The Gambia.
Obey the law Dr President. Although you are not permitted to dismiss Ramzia, you are under constitutional compulsion to revoke the appointments of Manlafy Jarjue, and Amadou Scattred-Janneh, your two Cabinet Squatters!
Lamin J. Darbo