By Gambian Outsider
This is Part I of a two parts article dealing with the Agreement that the then Coalition members entered into. The two parts of the article are divided into the two questions raised. Hence, Part I tackles Question I and Part II tackles Questions II.
Ever since the dictator, Jammeh, has been ousted from power to the delight of most Gambians including yours truly, questions about the enforceability of the agreement entered into by the then Coalition members has been a nonstop debate.
All the questions that have been raised may be reduced to two: (1) Whether the agreement entered into by the then Coalition members violates Section 63 of the Constitution of The Gambia? (2) Whether the agreement is binding on the parties, i.e., the Coalition members?
Every Gambian has a right to say what he or she believes are the answers to the two questions. However, just because a person or persons have the right to express their opinions on an issue does not mean their opinion are correct. Some positions taken by certain Gambians are flat out wrong and those who take the opposite position got some points partly correct and partly incorrect.
To start with, the two questions are legal questions and not political questions. To ask whether a certain agreement violates a constitutional provision is a question of law. To also ask whether an agreement is binding on the parties is a question of law. Now that this is clear, it follows that anyone who has an opinion that is not based on a legal principle or does not make a legal argument does not really know what he or she is talking about.
I can stop writing right now by suggesting that anyone interested in the answers to the two questions do their own research before forming an opinion on the matter. But you see, most Gambians who talk about issues related to the two questions raised above do not care about the truth. They want to be heard and to present themselves as knowledgeable about this or that, yet, they are not clear on what they have to say.
Before I get into answering the two questions, I want to say that the democratic Gambia that most of us envision will not happen in our lifetimes. There is nothing right now that would lead a reasonable and objective observer to believe otherwise. This is a hard fact to take but it is what it is. I will use block or capital letters as emphasis so when you come across them, please keep in mind that I am not yelling!
Question 1: Whether the agreement entered into by the then Coalition members violates Section 63 of the Constitution of The Gambia?
The answer is NO. The Agreement does not violate Section 63 of The Gambia Constitution.
Here is why. First, it is worth bearing in mind that one of the few things a constitution does is protect citizens from the State, hence, the REQUIREMENT of STATE ACTION to trigger a constitutional issue. That simply means, for a constitutional issue to arise, there MUST BE STATE ACTION. That is the general rule. General rules, in law, as lawyers will tell you, often have an exception or two. I will get to the exception to the general rule later. But, first, what is STATE ACTION?STATE ACTION means an ACT done by the STATE in a manner that implicates a constitutional provision, which gives a right to a person or persons.
STATE ACTION can be performed by anyone, who works for the government, and has a DUTY to perform such action within the SCOPE of his or her employment. STATE ACTION can also arise where the STATE has a DUTY TO ACT AND FAILED TO ACT OR ACTED BADLY and that results in a violation of a person’s right. Whether the STATE ACTOR is a lower-level government employee or a higher-level government employee does not matter. Whether the STATE ACTOR works for the national government (or a state), county or borough or a town or city does not matter.
THE EXCEPTION: A constitutional provision may give private persons a right to sue other private persons for violating the injured person’s constitutional right. For example, the only place you can find this in the U.S Constitution is the Thirteen Amendment. There is no other provision in the U.S. Constitution where a private person can sue another private person for violating his or her constitutional right. Such a constitutional provision or EXCEPTION to the general rule, as far as I can tell, is NOT present in The Gambia Constitution.
To sum up, in order for a constitutional matter to arise, there must be either a STATE ACTION that violates a constitutional right or a certain constitutional provision that specifically states that private persons may sue other private persons when a certain right given by a constitution provision is violated. So the answer to the question, whether the Coalition agreement violates Section 63 can be answered in the negative, because there was neither STATE ACTION present when the Agreement was entered into by the Coalition members among themselves (i.e., the STATE was NOT a party to the agreement) nor is there a constitutional provision in The Gambia Constitution that SPECIFICALLY gives private persons the right to sue other private persons when their rights have been violated.
Let me put is this way: At the time of the agreement, NO MEMBER OF THE COALITION WAS REPRESENTING THE GOVERNMENT OR WORKING ON THE BEHALF OF THE GOVERNMENT. HENCE, STATE ACTION WAS NOT PRESENT. Contrary to what the Vice President, Mr. Darboe and others may think, this is NOTa constitutional matter.
Let’s get a little deeper: Most of us know what Section 63 says, that the term of office for the president is 5 years. First, when it concerns time, a constitutional provision either sets the FLOOR or the CEILING. Section 63 sets the CEILING meaning a PRESIDENT CANNOT SERVE IN ONE TERM MORE THAN THE STATED 5 YEARS.
It follows that if the Coalition members had agreed, for example, that, if they win the person nominated would serve for 5 years and ONE DAY, that would have violated Section 63 because then that agreement would have gone beyond the stated 5 years (THE CEILING) under Section 63.
Let’s us now look at where the Constitution sets the FLOOR. Section 62 (b) sets the FLOOR of 30 years old in order for a qualified Gambian to run for the office of the presidency. Hence, if the Coalition members were to have agreed that if they win the person nominated to be president could be LESS than 30 years that too would have violated the constitution because under 30 years of age is a disqualification to run for the office of the presidency.
What can you take from what has been said so far? That one cannot go PASS the CEILING (5 years for term of office of the presidency) or go BELOW the FLOOR (that one cannot be under 30 years old to run for the office of the presidency) because either would VIOLATE the Constitution.
Between the CEILING and FLOOR set out in the Constitution, LOWERING the CEILING as the Coalition members have done DID NOT violate Section 63. Had they agreed to a period longer than the stated 5 years term for the office of the presidency, then such an extension would have violated Section 63. On the other hand, if the Coalition members were to agree among themselves that if they win, whoever was to be president must be 50 years old, i.e.; RAISING the FLOOR, then any member of the Coalition who was under 50 years and was part of the agreement WILL NOT in turn be able to get out of the agreement by arguing that section 62(b), which sets the age requirement at 30 years to runfor the office of the presidency is violated by the then agreement of 50 years old. That member would then be ESTOPPED from making such an argument because he or she was aware of the Section 62(b) and went ahead with the then agreement of 50 years old to be president. I mean, this issue as clear as the noonday sun.
THE CONSTITUTION SAYS ABSOLUTELY NOTHING ABOUT POLITICAL PARTIES AGREEING AMONG THEMSELVES TO FORM A COALTION AND CHOOSE A CERTAIN TERM OF OFFICE LOWERTHAN WHAT IS STATED UNDER SECTION 63. SO FOR THE COALITION MEMBERS, TO KNOW EXACTLY WHAT IS STATED UNDER SECTION 63 AND FOR THEM TO AGREE TO A SHORTER TERM OF OFFICE DOES NOTAT ALL VIOLATE SECTION 63. WHY DID THEY CHOOSE 3 YEARS KNOWING WHAT SECTION 63 STATES?
No one, including the Vice President, Mr. Darboe, is able to answer this question. With the amount of brainpower associated with the Executive branch, you would have expected at least some kind of a legal argument to demonstrate how the Agreement is a constitutional matter and not binding on the parties to the agreement. But no one has stepped to the plate. So far, all you hear is that the constitution supersedes the agreement.
The question is not whether the Constitution is the supreme law of the land. The question presented is whether the Agreement is enforceable? This is the only issue because if there was not a 3 years agreement, I won’t be writing about this topic and you will not be reading it right now!
Let us now consider a scenario in which the Coalition members NEVER agreed to the 3 years. Then by default, the stated term under Section 63 is triggered and would therefore apply because a court would draw the inference that members of the then Coalition have knowledge of Section 63 because it is common knowledge and expressly stated in the constitution.
So the fact that they went out of their way to choose 3 years makes the 3 years a term of the agreement binding on the Coalition members. There is a reason why the Coalition members agreed to 3 years instead of 5 years as stated under Section 63.
So a member of the Coalition who agreed to the 3 years is ESTOPPED from later trying to wiggle his or her way out of the agreement when at the time of entering into the agreement he or she was well aware of Section 63. The defense of ignorance of Section 63 would not work for obvious reasons. Ignorance of the law is no defense!