(JollofNews) – Dear President Adama Barrow,
The unsettled Constitutional question, its hairy effects and the way forward
Following our earlier correspondence dated Tue 28th Feb 2017, we hereby write to you again with regards to the subject of the said correspondence (the issue of the office of the Vice President (VP), amendments of sections 62 of the Constitution and the Elections (amendment) Act 2015).
The DWG would like to commend the decision by your Justice Minister Mr. Abubacarr Tambadu to advice you not to assent the above mentioned amendments due to the attributed unconstitutionalities. To do justice to the matter we have to acknowledge that such humility and candidness is unprecedented and we hope it is an indication of the type of administration Gambians are to expect under your Presidency between now and 18th Jan 2020 when your democratic mandate is set to expire.
May we first start by drawing your attention to the relevant aspects of Section 65 of the Constitution with regards to what must happen in the event your office become vacant before 18th Jan 2020 for whatever reason. Section 65(2)) states:
“Whenever the office of President becomes vacant in the circumstance set out in subsection (1), the Vice-President, or if there is no Vice-President in office at the time, the Speaker shall assume the office of President for the residue of the term of the former President.”
In light of the above, we would like to use this opportunity to highlight in our following deliberation, the importance of the office of the VP and the counterproductive prospects its continued unnecessary and unexplained vacancy present our fragile state of affairs.
It is worthy of note that the spirit of Section 65 with respect to normal day-to-day government operation and outside of those circumstances spelt out in Section 65 (1) is that the VP temporarily assumes the responsibilities of the Head of State at any given time the President happens to be away from Gambian territory. In essence, where there is no VP (which is the case now) the aforementioned responsibility automatically vests in the Speaker of the National Assembly to whom you will agree it will be circumstantially unconscionable for such power and responsibility to be vested.
However, the question now is: During your recent travels, was Speaker Bojang delegated the responsibilities of the President as implied by this provision and if not, why not? We hope you will appreciate that under the circumstances it is reasonable, legitimate and in the interest of transparency, accountability and probity for the public to know who their Head of State designate in your absence is and whether such is Constitutional.
Section 73 (1) of the Constitution states:
“There shall be a Cabinet which shall consist of the President, the Vice-President and the Secretaries of State.”
It goes without saying, that the implication of the above provision in letter and spirit imposes a mandatory requirement (“shall”) for there to be a VP at all times thereby explicitly highlighting the sacrosanct importance the Constitution accords the office in question and why its vacancy in itself continues to be in serious breach of the Constitution which has the effect of denting your reputation and legacy. The democratic instruction given at the ballot box by the people on the 1st Dec 2016 was to end the contempt of our Constitution among other vices.
Section 78 (1) states that:
“There shall be a National Security Council which shall consist of-
(a) the President;
(b) the Vice-President;
(c) the Secretaries of State responsible for defence and internal affairs;
(d) the Chief of Defence Staff and two other members of the Armed Forces appointed by the President;
(e) the Inspector General of Police;
(f) the Director-General of the National intelligence Agency; and
(g) the intelligence adviser to the President.”
Section 78 (1) which details the mandatory (“shall”) composition of the “National Security Council” (NSC) ( a body whose existence is also constitutionally mandatory) also imposes a mandatory requirement for there to be a VP as part of the said body for such to be fully constituted. The continued vacancy of the office of the VP in essence means that an intrinsic National security apparatus such as the NSC is not fully constituted and by default is dysfunctional. The undesired consequence of this is that unless the above national security apparatus is fully constituted according to Law, its existence is and continues to be unconstitutional likewise any activity / activities it engages in whatsoever and whether wholly or in part.
In shining white light to this avoidable but dangerous state of affairs brought about by the continued and unexplained failure to appoint a VP, it is important to re-echo the NSC’s status as the pinnacle of our National security infrastructure whose very important Constitutional responsibilities are set out in Section 78 (2) as follows:
“The National Security Council shall be responsible for advising the President on all matters relating to the security of The Gambia and the integration of domestic and foreign policies relating to its security, and, under the direction of the President, shall take appropriate measures to safeguard the internal and external security of The Gambia and to provide for the co-operation of the departments and agencies of the Government in that regard.”
Given all of the aforementioned, it goes without saying that the continued vacancy of the office of the VP apart from dangerously incapacitating the NSC and putting at risk our National Security, it also by default creates an unnecessary but avoidable fertile ground for the emergence of a Constitutional crisis akin to the bruising post-election impasse which requires urgent attention.
Given the above facts, it is indeed a settled argument that your continued failure to appoint a VP continues to:
• be in serious breach of the constitution as authoritatively illustrated above;
• breed a looming but avoidable Constitutional crises which the nation can do without
especially after the bruising post election impasse; and
• unnecessarily put our National Security (whose jealous protection must be your single
most important priority) at grave but unnecessary risk.
We would like to appeal to and urge you to as a matter of urgency, consult your Attorney General and Minister of Justice and any relevant advisers with a view to adequately addressing and putting the above Constitutional and National Security lapses to rest in the best interest of our beloved nation.
On the specific issues of the aforementioned amendments to which your Attorney General rightly came to the defence of the Constitution by advising you against assenting to them, we would like appeal to you not to redeem the situation by re-presenting the said amendments to the National Assembly for a second time ahead of holistic Constitutional reform proposals. Alternatively, we will recommend the following:
• consult your Attorney General to work towards constituting a Constitutional review
commission in order to set the basis for a wholesale Constitutional reform and third Republican Constitution;
• work towards the introduction of a single repeal bill (‘New Gambia Bill’) in consultation with relevant civil society bodies in order for such a bill to serve as a grand conduit to repealing all existing undemocratic Acts of the National Assembly ranging from the Indemnity Act, Media Commission Act, Sedition laws and so forth.
We must admit that as someone elected by a resolutely determined and change-driven electorate who wanted to take back democratic control of the destiny of their nation, there is every reason to believe that you and your administration are listening. Therefore, there is no doubt in our mind that you will give these few words of ours the appropriate thought and consideration they deserve. Be rest assured that the DWG will not be spectators to this arduous task of nation building but we will be active and productive partners, willing and determined to play our rightful civic part and contribute to the process at every step of the way.
In conclusion, we hope we have provided sufficient information to assist you in your evaluations with regards to the matters raised. However, should you require any further information or wish to get in touch for any other reason, please do not hesitate to contact us.
Pa Louis Sambou
for Democracy Watch Gambia (DWG).