President Adam Barrow

(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.

Yours sincerely,
Pa Louis Sambou
for  Democracy Watch Gambia (DWG).