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Momodou
Denmark
11602 Posts |
 Posted - 20 Aug 2024 : 20:14:53
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Constitution Series
By Madi Jobarteh
Presidential Term Limit: A Crisis in the Making.
Gambians must brace themselves for a future crisis if this Cabinet-drafted constitution passes with its current text on presidential term limits. In Section 5 of Schedule 5 on ‘Transitional and Consequential Provisions’ the Cabinet has provided this text on the ‘Term of Office of Incumbent President’,
“The person duly elected President of The Gambia prior to the effective date and serving in office as at the effective date shall be the first President of the Third Republic of The Gambia and shall continue to hold the Office of President in accordance with the provisions of this Constitution.”
Of course, it is basic knowledge that the president in power at the start of the Third Republic will be its first president. But when does the presidential term limit itself begin exactly? The provision did not say that thereby making it the cause of a future political turmoil in this country. The provision is totally meaningless yet severely controversial.
Does the term limit begin during the term in which the constitution comes into force (suppose that is before 2026) or does the term limit start after the current term (i.e., 2021 – 2026). In other words, if the constitution is approved in a referendum in 2025 does that mean Pres. Barrow, who was re-elected in 2021 will be serving his first term up to 2026 or that his first term would instead start at 2026? That is what the draft should establish but woefully failed to do so.
With this provision, it is effectively opening the gates to any kind of interpretation. That is, if the constitution comes into force before 2026, will Pres. Barrow be able to stand in the 2026 elections or will 2026 be the end of his two terms given that he was elected in 2017. Otherwise, will he say his first term 2017 – 2021 does not count, and even 2021 to 2026 would also not count because that was when the new constitution came into force? Will this therefore mean Barrow will claim that his first term should start in 2026, which also makes him eligible to stand in 2031 for his second term? If he wins all these elections, it means he will have served 20 years as President just like Jammeh!
Already the Minister of Information Ismaila Ceesay and presidential advisor Saihou Mballow have said that Barrow’s first term started in 2021, and not in 2017. They said 2017 – 2021 was not to be counted as Barrow’s first term because that was the term of the coalition government. Judging from this narrative, it appears the drafters of this Cabinet draft constitution are eyeing 2026 to be the start of Barrow’s first term after already serving for 10 years in office.
Therefore, they have cunningly crafted the above provision thereby playing a dangerous game of interpretation on Gambians which may end up at the Supreme Court hopefully to rule in Barrow’s favour. This game has not started with the Gambia but has been the story around West Africa for a while.
History recalls when Senegal’s former Pres. Wade sought a third term in 2012 amidst deadly riots across Dakar. Wade was first elected in 2000 and re-elected in 2007. In 2008 he conducted a constitutional referendum to reduce the presidential term from seven to five years. Because of that referendum, Wade said therefore he was eligible to stand in the 2012 elections because the new constitution had reset his tenure. Amidst the chaos he ran to the constitutional court of Senegal which approved his candidacy for a third term.
Next it was Macky who was first elected in 2012 after defeating Wade, and then re-elected in 2019. In 2016, Macky also triggered a constitutional referendum. Since then, he insisted that his first term under the old constitution should not be counted. Unfortunately for him, unlike Wade there was a strong political movement, PASTEF, with strong leaders which mobilized the masses in unending protests. After attempting every means to silence Senegalese people unsuccessfully, Macky was forced to concede in July 2023 not to seek a third term in March 2024. Because of him tens of Senegalese were killed and millions destroyed.
The same scenario unfolded also in Côte d’Ivoire where Pres. Alassane Ouattara was first elected in 2010 and then re-elected in 2015. In 2016, he carried a constitutional referendum which got approved and immediately said his first term does not count because the constitution came into effect in 2016. He also went to the supreme court which ruled in his favour that the new constitution in 2016 had reset his presidency.
We saw another attempt in Guinea where former Pres. Alpha Conde sought a third term by manipulating a constitutional referendum in 2020. Conde was first elected in 2010, and again in 2015. Like Wade, Sall and Ouattara before him, Conde also claimed his first term under the old constitution did not count as the 2020 referendum had reset everything anew. Once again, he went to the constitutional council which ruled in his favour. Unfortunately for him, after winning the 2020 election for his third term, in September 2021 the military overthrew him.
In Senegal, Guinea, and Côte d’Ivoire like similar places across Africa, incumbents have used referendums and new constitutions to entrench themselves in power. As a result, they cause massive bloody protests and deadly riots in which hundreds of lives would be lost while millions of damages in properties thereby further exacerbating insecurity, polarization, corruption, and poverty in their countries.
Is this what we are going to face in the Gambia too thanks to this Cabinet constitution? Another political impasse after having gone through one terrible experience in 2016/17 when Tinpot Dictator Jammeh refused to hand over power.
I hereby alert NAMs and indeed all citizens to this extremely dangerous provision which must be re-written to bring definite clarity that the presidential term should begin in 2017. The Year 2017 was the end of the dictatorship and the beginning of the hard-fought and hard-earned liberation of the people for democracy. This Cabinet constitution is intended to entrench self-perpetuation in power which must be rejected. No Gambian should serve as president for more than 10 years.
For The Gambia, Our Homeland
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A clear conscience fears no accusation - proverb from Sierra Leone |
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Momodou
Denmark
11602 Posts |
Posted - 22 Aug 2024 : 18:02:39
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Constitution Series 2
By Madi Jobarteh
Creating an Over Powerful President at the Expense of Good Governance
The gazetted Barrow Papers which are said to be derived from the 2020 Draft Constitution has severely undermined transparency and accountability by excluding the National Assembly from appointments of all key public office holders. The International Parliamentary Union of which the Gambia is a member has stated that, “there can be no democratic system of government without transparency and accountability, and that the primary responsibility in this field falls squarely on the shoulders of parliament.”
A review of the gazetted Barrow Papers clearly shows that the Executive has removed all obligations for transparency and accountability by excluding the National Assembly on appointments so that the President can conduct public office as he likes. In other words, the Barrow Papers has given immense powers of appointment to the President such that it potentially makes the Gambia Government the private field of the President.
In all appointments and removals including disciplinary actions, it is always stated that the President “in consultation with” either the Public Service Commission (PSC) or the Judicial Service Commission (JSC). Yet, the members of these bodies (PSC and JSC) themselves are appointed by the same President under sections 249 and 188, respectively. Effectively this means, the President will have overbearing power to decide who works in the Government and what decisions or actions they should take or not. This is the recipe for dictatorship when officials are beholden to the President.
By the powers given to the President in these Barrow Papers, it is obvious that the objective is not to build a modern democratic state that is transparent, accountable, and effective. These papers will only undermine good governance and encourage dictatorship as public officials and security chiefs will have to serve at the pleasure of the President to secure their tenure. The constitution a country needs is one that should limit executive powers and put them under check hence the need for parliamentary oversight.
Public office is too important with far-reaching implications to hand over to any individual. Hence anyone who holds public office should possess the necessary academic and professional qualifications, experience and character. This is because public office and public officials handle life and death responsibilities and huge resources which impact the lives and future of citizens and society. This is why parliamentary confirmation is required for key public office holders.
Parliamentary oversight is crucial in checking excesses on the part of the government. The very concept and purpose of the rule of law are hinged on the need to restrain the powers of the organs of the state and its agents. Therefore, no organ of the state or official such as the President should have unchecked power to decide and act as they like.
For example, the US Constitution, under Article II (2) provides that the president "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for." The US president nominates all federal judges in the judicial branch and specified officers in cabinet-level departments, independent agencies, the military services, the Foreign Service, and uniformed civilian services, as well as U.S. attorneys and U.S. marshals. No wonder the US Government, like similar governments, produces excellent professionals and efficient officials that you cannot ignore their competence.
In Ghana, the Constitution gives power to their parliament to approve or otherwise of presidential nominees for appointment as Ministers, Deputy Ministers, Chief Justice and other Justices of the Supreme Court, Members of the Council of State and other public offices specified by law.
What about the Gambia? Just look at the foreign service alone to see the poor quality of officials there. Because there is no transparency and accountability for these appointments the foreign service has been turned into a dumping ground of fraudsters, failed politicians, stooges, and unconscionable technocrats, and a place for favouritism and nepotism. Similarly, if you look into the Cabinet or public enterprises and the civil service, one could see a host of officials holding key and strategic positions without any requisite academic or professional qualification, with questionable character and abysmal track records.
It is for this reason there is an urgent need to ensure that the President does not appoint these officials directly all by himself. He should rather nominate individuals who will be scrutinized by the National Assembly to determine that they are men and women who have character, patriotism, knowledge, and experience thus qualified enough to hold public office. Public office does not belong to the President. Public office belongs to Gambians and whoever holds it requires to be screened by the National Assembly on behalf of Gambians.
Next, Constitutional Series 3 for the analysis of the outrageous presidential appointment powers.
For The Gambia, Our Homeland. |
A clear conscience fears no accusation - proverb from Sierra Leone |
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Momodou
Denmark
11602 Posts |
Posted - 23 Aug 2024 : 20:11:15
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Constitution Series 3
By Madi Jobarteh
Creating an Over Powerful President at the Expense of Good Governance
The Barrow Papers have established a governance system never seen in the Gambia since colonial times. Worse than both the 1970 and 1997 constitutions, the Barrow Papers have dumped all appointments to all key and strategic public institutions into the hands of one person, i.e., the President without any oversight.
It is important to note that parliamentary oversight does not take away the powers of a president. Rather parliamentary oversight only makes a president to be responsible and act in the public interest and uphold ethical and professional standards when he appoints individuals to handle public office.
A review of the type, function and purpose of these public institutions which cut across the public and civil service, security agencies and independent bodies clearly indicate that the intention of the Barrow Papers is to create dictatorship and not build and strengthen democracy.
For example, Section 72 concerns the Independent Boundaries and Electoral Commission (IBEC) whose commissioners are appointed by the President in consultation with the JSC and PSC. The standard practice in democracies around the world such as Ghana, electoral commissioners are nominated or removed by the President subject to the confirmation of the parliament to guarantee their independence and fairness. This is what the 2020 Draft Constitution also provided. But where the President is also a candidate in the political game, if he has the powers to unilaterally appoint the referees of the game, would he not pick those who will favour him?
In Section 105 of the Barrow Papers, absolute power is given to the President to appoint ministers without any parliamentary confirmation as suggested in the 2020 Draft Constitution. Barrow Papers went even further to lower the bar for qualification for minsters (Section 106) to only attain “senior secondary school level and can speak and write the English language well.”
Ministers oversee not only ministries but also departments and agencies which protect human rights and provide goods and services. Therefore, ministers should be quite competent individuals who know their job well and will perform and serve the country without fear or favour!
Section 121 of the Barrow Papers is about the Director of Public Prosecutions (DPP) and control of prosecutions. Here again, the President has been given absolute power to appoint the DPP. The 2020 Draft Constitution provides that the DPP should be appointed by the President on the recommended of the Public Service Commission subjected to confirmation of the National Assembly.
The independence and security of tenure of the DPP is crucial to guarantee citizens access justice. The DPP should not be politicized lest they impose trumped up charges on innocent citizens as was the case in the Jammeh days.
Independent institutions are crucial bodies necessary to protect human rights, ensure public institutions are transparent and effective to perform their functions to fulfill the needs of society. Therefore, the members of independent bodies should not be under the control of any person or authority. Under Section 197, the Barrow Papers empower to President to unilaterally appoint members of the National Human Rights Commission, Anti-Corruption Commission, Ombudsperson, Auditor-General and the Central Bank of The Gambia. This is a recipe for politicizing, undermining and weakening the functions, effectiveness and independence of these bodies hence undermine human rights and good governance.
Similarly, between Sections 240 and 243 of the Barrow Papers, the President is given same absolute powers to appoint and remove people in the public service such as permanent secretaries, heads of public services such as the Public Service Commission and the Local Government Service Commission, and Secretary General and Head of Civil Service.
Further, under Schedule 4 of the Barrow Papers, the President has absolute power to pick five people as nominated members in the National Assembly without any oversight by anyone.
To further cement this absolutism, Section 133 of the Barrow Papers further empower the President to also remove these nominated members. The 2020 Draft Constitution abolished Nominated Members.
It is an open secret that in the Gambia public enterprises are generally corrupt, inefficient and highly politicized. This is precisely because of excessive Executive control thanks to the 1997 Constitution which gives absolute power to the President to appoint and dismiss boards and MDs of SOEs as he likes. Because of this, corrupt leaders such as Yaya Jammeh were able to interfere and loot SOEs without mercy.
Sadly, Barrow Papers, under Section 254 want to maintain the same bad culture of appointing the board members and MDs of SOEs which can only lead to entrenching corruption and inefficiency thereby perpetuating poor service delivery as currently characteristic of public enterprises.
The standard practice in democracies that have professional and stable armed and security services is that there is effective civilian control, especially by the parliament. In such societies, the top echelons of the military are nominated and then confirmed by the parliament. But in Section 259, the President is empowered to appoint the CDS, Deputy CDS, and commanders of the Army, Navy, Air Force and Republican National Guards all by himself.
Similarly, Section 263 of the Barrow Papers give the President power to appoint and remove the IGP on his own without any oversight. In this same regard, the President has absolute power to appoint the members of the Internal Security Service Council under Section 264.
The agencies listed under this council are the Gambia Police Service, the Gambia Fire and Rescue Service, the Gambia Prison Service, the Gambia Immigration Service, and the Drug Law Enforcement Agency of the Gambia. It is obvious that if the President could exercise such unchecked powers, then the tendency for these security chiefs to act at the pleasure of the President is high which poses severe threats to human rights and democracy.
The National Council for Civic Education is a body that deserves to be independent so that they can provide unfettered civic education to citizens to know their constitutional rights and duties. Without effective civic awareness, it will be difficult to obtain active citizen engagement which is indispensable in building democracy and ensuring good governance.
Hence every protection should be provided to ensure that NCCE is left independent. But where the Barrow Papers are giving absolute power to the President under Section 274 to appoint and remove members of the body without any checks by parliament then the dream of an active, informed and participatory citizenry will be difficult to attain.
Check out ‘Constitution Series 4: Lowering Democratic and Human Rights Standards’.
For The Gambia, Our Homeland |
A clear conscience fears no accusation - proverb from Sierra Leone |
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Momodou
Denmark
11602 Posts |
Posted - 26 Aug 2024 : 21:46:54
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Constitution Series 4
By Madi Jobarteh
Lowering Human Rights Standards
In a democratic republic, a fundamental purpose of the constitution is to provide all rights to citizens and then place obligations on the State to respect, protect and fulfill these rights. A democratic constitution creates all safeguards to ensure that the State and no one else violates human rights in the first place. While some human rights inadequacies exist in the 2020 Draft Constitution and the 1997 Constitution is even weaker in terms of rights, the Barrow Papers are much worse. Not only have Barrow Papers lowered the bar but also went further to take away critical rights.
For example, both the 1997 Constitution and the 2020 Draft Constitution guaranteed the right to life. In guaranteeing the right to life both documents also provided some elaboration as to the extent and circumstances of this fundamental right. But in the Barrow Papers, Section 30 merely states, “every person has the right to life.” No more. No less. This is very concerning.
The right to life has been recognized by international human rights law to be sacrosanct, inviolable and non-derogable. The UN Human Rights Committee states that, “The right to life is the supreme right from which no derogation is permitted, even in situations of armed conflict and other public emergencies that threaten the life of the nation.”
For this reason, both the 1997 Constitution and 2020 Draft Constitution fall short of international standards for the protection of the right to life as both documents provide permissible grounds for the taking of life. The 1997 Constitution allows for the death penalty while the 2020 Draft Constitution permits deprivation on grounds of effecting arrest or suppressing a riot, among other conditions.
But for the Barrow Papers, there are no conditions whatsoever provided either for the protection or deprivation of life, which is even worse. Such open provision poses a severe threat to life by allowing for a potential arbitrary deprivation which is tantamount to no protection of life.
The 1997 Constitution and the 2020 Draft Constitution have recognized the right of individuals and groups or organizations to seek redress at the high court to defend human rights. But in the Barrow Papers, Section 26 on the ‘Enforcement of fundamental human rights and freedoms’ that right to go to court has been given to only a person, and not to entities such as groups or organizations. In the protection of human rights, it is necessary that such right be also accorded to organizations to act on behalf of or for individuals who may not have the means to go to court. Hence it is a huge limitation of human rights where only a person affected could go to court, but no organization could act on his or her behalf.
Section 31 of the Barrow Papers on the ‘Protection of Liberty’ has removed the 1997 Constitution standard that when a person is arrested, he is informed immediately but, in any case, within 3 hours, the reasons for the arrest. The Barrow Papers only said a person arrested will be informed ‘promptly’ with no timeline. This provision is indeed open to abuse because it could take the police any amount of time to inform. This puts a suspect at the mercy of the police.
Furthermore, the 2020 Draft Constitution provides that a person could only be detained within 48 hours, as opposed to the 72 hours provided in the 1997 constitution. But the Barrow Papers have reverted to 72 hours. The State must not be keen to suppress rights, hence every effort must be made to ensure that citizens always enjoy freedom as soon as possible. The police must be professional, efficient and diligent so that they do not arrest or detain unnecessarily.
Under Section 38 on ‘Freedom of Expression’ the Barrow Papers said this right does not include propaganda for war, incitement to violence or to break law and order, hatred resulting in vilification of others or incitement to cause harm, hatred that is based on any ground of discrimination. On the surface this may sound reasonable because hate, war, violence, and discrimination are despicable which should not exist in any civilized democratic society.
However, these are also broad terms which can potentially threaten free speech. Such provisions should not be in a constitution but rather in subsidiary law so that they are well defined and not left to the discretion of law enforcement and justice delivery institutions and officials.
The way this provision is expressed in the Barrow Papers is open to abuse in which a mere opinion or criticism by any citizen, or by critics, activists, political opponents could be perceived as advocating for hate or vilification of someone if the Government does not like it. This provision has the potential to undermine citizens’ demand for transparency and accountability as it limits their ability to express grievances against public officials or calling for public mobilization to demonstrate.
Under Section 39 on the ‘Freedom of the media’, the Barrow Papers introduced a worrying article that, “the right to own and operate media in subsection (2)(a) shall be limited to only Gambians.” The right to freedom of expression is an internationally recognized right which extends to all human beings. Hence to deny a non-Gambian to operate a media house inside the Gambia is discriminatory and a violation of the fundamental right of both the non-Gambian and citizens alike.
This is because such foreign-owned media offers Gambians the ‘freedom to seek, receive or impart information or ideas’ which is a right guaranteed in Section 38 of the same Barrow Papers, thus contradicting themselves. Secondly, as a business entity, foreign owned media houses also offer job opportunities to Gambians which the Barrow Papers now seek to deny as well.
Under Section 39(5), the Barrow Papers deleted an important safeguard from the 2020 Draft Constitution which states that, “The State shall not penalize any person for any opinion or view or the content of any broadcast, publication or dissemination.”
By deleting this provision, the Barrow Papers are now saying a media house, a journalist and indeed anyone could be penalized for expressing a divergent and dissenting opinion that they don’t like. Freedom of expression and the media have been considered the lifeblood of democracy. Hence to penalize citizens for their views means to criminalize opinion, silence voices and thereby kill transparency and accountability and so encourage abuse of power, incompetence, inefficiency and corruption in the public sector.
Under Section 42(1) on the right to ‘Freedom of assembly’ the Barrow Papers stated that, “Every person has the right, peaceably and unarmed, to freedom to assemble, to and demonstrate,” but deleted the second part, which is the right “to picket, and to present petitions to public authorities or private institutions” which is guaranteed in the 2020 Draft Constitution.
This is a huge setback for human rights, democracy, and good governance as it denies citizens the ability to assemble in front of the gates or premises of a public institution or a private company to express their grievances. Furthermore, it denies citizens to submit a protest letter or statement as a petition to elaborate their issues, concerns and demands to public institutions and private companies.
In all democracies worldwide, the rights of citizens to picket and petition are fully guaranteed. Every day we see these on our television screens in Dakar, Accra, Kenya and even in dictatorships such as Uganda where citizens gather in front office buildings to protest and hand over petitions to their officials. In 2020, I led a picket for Black Lives Matter in front of the US Embassy on Kairaba Avenue and handed over a petition letter to the embassy officials.
But today, Pres. Barrow and his Cabinet ministers say picketing and petitioning will not happen in the Gambia. If that is the case, then all steam has been taken out of demonstrations as they are rendered useless and ineffective. It means when the Barrow Papers become law in this country, citizens will now have to go to the bush to protest as the IGP has been imposing on citizens.
Section 49 of the Barrow Papers is about the right to education. Both the 1997 Constitution and the 2020 Draft Constitution guarantee the right to both primary and secondary education and to be made available freely. Unfortunately, the Barrow Papers does not recognize the right to secondary education as it has deleted it.
Secondly, the Barrow Papers intends to progressively introduce free TVET and tertiary education, just like the 1997 Constitution and the 2020 Draft Constitution stated, but what is missing in all of these documents is the timeframe for the introduction of free education. There is no point in providing a right that will not be fulfilled.
The entire provision on consumer protection has been deleted by the Barrow Papers. The 2020 Draft Constitution created this provision to guarantee the rights of consumers to have quality goods and services provided by both public and private entities, to obtain the right information about goods and services, to protect the health, safety and economic interests of consumers and to compensate consumers for loss or injury due to defective goods and services.
Even though there is the Consumer Protection Act 2014, constitutionalizing consumer protection provides stronger protection thus highlighting the importance of the health and safety of consumers who are citizens. By removing this provision, the Barrow Papers are therefore serving the interests of businesses and public institutions more than the welfare of citizens as it lowers the bar for them.
The 2020 Draft Constitution provides for the Independent Boundaries and Electoral Commission (IBEC) to conduct a continuous registration of voters. But the Barrow Papers have replaced ‘continuous registration’ with ‘periodic and supplementary registration’ in its Section 66 on the right to be registered and to vote.
Continuous registration is the ideal form of voter registration as it prevents a citizen from losing the opportunity to register by missing the periodic or supplementary registration. The opportunity to register at any time is necessary in protecting this right. Secondly, continuous registration reduces the burden on the IBEC to mobilize financial, material and human resources and logistics to organize specific registration periods.
Above all, continuous registration prevents illegal voter registration and errors which are characteristic of mass registration at specific periods. Continuous registration allows the IBEC to better organize and manage the voter register and make it transparent for stakeholders as well.
Check out Constitution Series 5 on Lowering Democratic and Good Governance Standards.
For The Gambia, Our Homeland |
A clear conscience fears no accusation - proverb from Sierra Leone |
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Momodou
Denmark
11602 Posts |
Posted - 28 Aug 2024 : 18:57:05
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Constitution Series 5
By Madi Jobarteh
Lowering Democratic Governance Standards
Democratic governance is a system where institutions and officials function according to democratic processes and norms. By doing so, they reinforce each other thus preventing conflict while promoting stability, managing crisis and facilitating economic and social progress. Democratic norms are basically the rule of law, separation of powers, citizen participation, transparency, accountability and respect for human rights among others.
In a democratic republic, the aim of the constitution should be to attain and strengthen democratic governance. Such a constitution recognizes that power must not only be restrained but also checked to prevent abuse and corruption which are the basis for human rights violations. The 2020 draft constitution has attempted a great deal to establish a democratic governance system in the Gambia which the Barrow Papers have now come to bulldoze in favour of Dictatorship.
In the first place, a worrying phenomenon I noticed in the Barrow Papers is how they replaced the word, ‘State’ with ‘Executive’ in matters referring to local governments. Why? The Executive is one branch of the State. Local councils deal with more than one organ of the state. That is why the 2020 draft envisaged that the entire State system should support local governments.
But in the Barrow Papers, in Section 5 on ‘Decentralization of Government’, the Executive is used in place of the State. The only reason for this is to accumulate all power in the hands of the Executive, i.e. the President and Cabinet so they can control local governments. This can only lead to conflict, corruption and inefficiency within local councils as we have been seeing.
In Section 96(2) of the Barrow Papers, on the issue of vacancy in the office of the president, it provides that the vice president or in his absence the speaker will assume the position of president for the rest of the term. This is a huge setback for democratic governance because it means a person who has no mandate of the people is made to lead the country. In the 2020 draft constitution, it is provided that within 90 days of the vacancy there will be elections. This is one standard in democratic countries.
The other way round this is the introduction of a running mate system so that a president is elected together with his running mate as vice president. In the US, when the president dies or resigns, the vice president continues under Section 25 of their constitution. In Nigeria, contrary to the claims by Ismaila Ceesay, their 1999 constitution introduced in Section 142(1) a running mate. Hence the proposal in the Barrow Papers for a vice president or speaker to continue the entire term of a president who died or resigned is undemocratic.
A key feature of democratic governance is transparency and accountability for the purpose of preventing and detecting corruption. This is why asset declaration is required for persons elected or appointed to public office and after their removal from such office. This requirement also extends to their spouses and those who held their business interests in trust. But in section 93, the Barrow Papers deleted a provision of the 2020 draft constitution which requires the spouse of the president to declare his or her assets to the Anti-Corruption Commission.
Similarly in Section 109, the Barrow Papers deleted provisions of the 2020 draft which required the vice president and ministers to disclose, within three months of leaving office, all assets they acquired when they were in office. Not just that, but their spouses will also not disclose their assets acquired during the VP or minister’s tenure to the Anti-Corruption Commission.
It is common to have public officials put stolen wealth in the name of their spouses and children to cover up their ill-gotten wealth, hence the need for them to disclose their wealth after leaving office.
Therefore, to delete these provisions means to cover up potential corruption, hence undermining democratic governance. It means a VP or minister could accumulate huge amounts of wealth through bribery and corruption while in office and he will not be held accountable because he is prevented from disclosing his assets after leaving office. If such wealth is in the name of his spouse, he will still be protected because the spouse is also prevented from disclosure.
Another element of bad governance in the Barrow Papers is how they added the word, ‘gross’ in front of the grounds for the impeachment of a president. In the 2020 draft constitution, the grounds for impeachment include abuse of oath of office, violation of a provision of the constitution, and misconduct. But in the Barrow Papers, Section 98 on the ‘Removal of the President by Impeachment’, they added ‘gross’ in front of ‘abuse, violation, and misconduct. Why?
At first glance, one may argue this is justified since impeachment must not be easy to come by. But on a deeper look, what value does ‘gross’ add to these provisions? After all, to impeach a president will require strong arguments and convincing of 75% of NAMs which is daunting. Hence to add ‘gross’ is only intended to further complicate matters unnecessarily just to protect the president from accountability, no matter what. The debate to establish the level of ‘gross’ would have rendered the whole need for accountability unnecessary.
To further expose the attempt by the Barrow Papers to shield the president from accountability and undermining democratic governance, they have raised the bar for impeachment from one half as suggested in the 2020 draft constitution to two thirds majority of all members of the National Assembly in Section 98(3). Effectively, the machinations around Section 98 are intended for nothing other than to raise the president above scrutiny and accountability.
From the foregoing, it is abundantly clear that the intention and purpose of the Barrow Papers is to create a government that is like a Ruler and not a Governor. Despite its shortcomings, the intent of the 1997 Constitution, and especially the 2020 draft constitution is to establish and operate a democratic governance system in the Gambia.
This is why Section 1 subsection 2 of the 1997 Constitution states that sovereignty resides in the people of the Gambia, and the State and all its organs and agents derive their legitimacy and authority from the people and perform their functions on behalf of and of the welfare of the people. Apparently, the Barrow Papers want to subvert the sovereignty of the people.
Check out Constitution Series 6 on Threats to Independent Bodies
For The Gambia, Our Homeland |
A clear conscience fears no accusation - proverb from Sierra Leone |
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Momodou
Denmark
11602 Posts |
Posted - 04 Sep 2024 : 11:11:58
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Constitution Series 6
By Madi Jobarteh
Explaining the Explanatory Notes 1
At a time when conscientious political leaders and honest pragmatic technocrats around the world are moving their nations towards democracy, good governance and accountable leadership, in the Gambia it is the opposite. The Barrow Papers 2024 is the blueprint of the country’s political leaders and their technocrats who, in their wisdom, think that the Gambia should rather go the opposite direction by building a corrupt autocratic dispensation. Now that they have issued their Explanatory Notes, their true intentions for the ‘Mission to Dictator Land’ have become jaharang!
I have gone through the Explanatory Notes and could not find any explanation or justification therein that is geared towards building and strengthening democracy and ensuring accountable leadership in this country. Rather, I find only poor quality justifications that only confirm that the Minister of Justice cannot even defend these Papers.
The justifications they provide flout basic democratic norms while violating international human rights laws and standards. I can state without any fear of exaggeration that the Barrow Papers is purposely and squarely intended to legalize dictatorship and entrench corruption in the Gambia.
For example, the Barrow Papers 2024 deleted Section 47(5) in the 2020 Draft Constitution which states that “the State shall not penalize any person for any opinion or view or the content of any broadcast, publication or dissemination.” The explanation given in the Barrow Papers for deleting this safeguard is that freedom of expression should be balanced with the need to protect individuals and prevent hate, incitement or cause disinformation.
But this is a misinterpretation of freedom of expression hence the Explanatory Notes is not responding to the deleted provision. No one limits, in fact threatens freedom of expression as the Barrow Papers is doing in the name of preventing hate speech.
By deleting that provision, the Barrow Papers is rather effectively empowering the State to suppress freedom of expression. It means if a citizen says anything that the State does not like, it could penalize that citizen or the media outlet which broadcasts that speech when there is no element of hate speech, disinformation or threats to public morality in that speech. Hence the only reason the Barrow Papers deleted that protection for free speech is to silence the media and citizens from holding the Government accountable.
To further clampdown on rights, the Barrow Papers removed from Section 50 of the 2020 Draft the right to picket and petition public and private institutions. The meaningless explanation provided is that they want to “balance the protection of rights with public interests”. Denying citizens to assemble in front of public or private institutions and submit a petition is the heart of the right to the freedom of assembly without which a protest becomes totally meaningless and ineffective, hence shielding public institutions and private businesses from accountability.
In its General Comment 37, the UN Human Rights Council which oversees the monitoring of the International Covenant on Civil and Political Rights (ICCPR) states that Article 21 of the Covenant on freedom of assembly includes the right to picket. Similarly, the right to petition is recognized as a fundamental human right.
Hence, to remove picketing and petition out of the right to freedom of assembly is a violation of international law, not to mention the fact it denies citizens to express their grievances as they should in a democracy. Protecting public interests cannot in any way mean that picketing and petition cannot take place at the same time.
Picketing and petitioning are in themselves public interest tools. Hence to deny Gambians to picket and petition can only mean denying them from holding the State accountable, defend democracy and demand quality goods and services, etc.
Check out for Part 2 |
A clear conscience fears no accusation - proverb from Sierra Leone |
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Momodou
Denmark
11602 Posts |
Posted - 05 Sep 2024 : 14:34:48
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Constitution Series 6
Explaining the Explanatory Notes 2
By Madi Jobarteh
Still on the review of the Explanatory Notes to the Barrow Papers 2024…
The deletions, additions and modifications made to the provisions of the 2020 Draft Constitution severely lower the bar for democratic governance and human rights. While immense powers have been bestowed on the President and public institutions at the same time necessary checks and balances were curtailed as major fundamental rights and freedoms were taken away. This means significant reductions in state obligations thereby limiting their duty to protect and fulfil human rights, hence the creation of an autocratic dispensation.
For example, the explanation provided for the removal of free secondary education on the basis that the Government does not have enough resources is the most outrageous. If the Government can buy a vehicle for D12 million just to carry a minister from home to office, how can it justify that it does not have money to provide free secondary education? One only needs to look at the various Auditor General’s reports or Janneh Commission Report to see how public wealth is being pillaged by public officials, yet the Government now says they do not have enough resources!
The most urgent and necessary investment any government should make is in the education of its citizens. Every advanced society in history has prioritized education as the most consequential investment because the present and future of society depend on it. Thus, to disregard secondary education, which is a critical bridge between primary to tertiary education, is to abandon the very survival and development of citizens and country.
The Barrow Papers 2024 also deleted the entire Section 65 of the 2020 Draft dealing with consumer protection with the explanation that there is already a “Consumer Protection Act and an established Commission to enforce consumer rights”. Constitutionalizing consumer rights only serves to strengthen both the Act and the commission. There are several laws and established institutions which are also constitutionalized such as elections and IEC hence the explanation given for the deletion of consumer protection is frivolous.
The 2020 Draft provides that a state of emergency can be extended by parliament for 60 days. But the Barrow Papers pushed it up to 90 days just as it is in the 1997 Constitution without providing any explanation. A state of emergency is a difficult situation where human rights are under severe threats. Hence a democratic state is interested in limiting the extension of a state of emergency to protect rights. Since there is the possibility of periodic extensions, the shorter the extension the better as it provides for greater protection of rights, and accountability of the state.
Furthermore, to expose how Barrow Papers is not interested in the protection of rights, it has removed ‘forced labour’ from the list of non-derogable rights that should not be limited or taken away but to be protected in full even during a state of emergency. There are a set of rights which are non-derogable in international law even during a state of emergency. Forced labour is one of them which the Barrow Papers now removed.
Check out for Part 3 |
A clear conscience fears no accusation - proverb from Sierra Leone |
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Momodou
Denmark
11602 Posts |
Posted - 05 Sep 2024 : 14:35:04
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Constitution Series 6
Explaining the Explanatory Notes 3
By Madi Jobarteh
Still on the review of the Explanatory Notes to the Barrow Papers 2024…
In Section 81(3) of the 2020 Draft, before the President appoints IBEC commissioners they are first subjected to National Assembly confirmation. But the Barrow Papers have deleted this requirement claiming that it will lead to “bureaucracy” and “undue bottlenecks”, and delays hence affect “prompt and quality electoral administration.” They want the President to just appoint and remove electoral commissioners just like it is in the 1997 Constitution.
The argument in the Explanatory Notes is meaningless as it ignores the fundamental principles and standards of good governance and transparent, free and fair elections. Contrary to their misguided view, having parliamentary confirmation only ensures that electoral commissioners are men and women of character and competence.
This process also makes electoral stakeholders such as political parties, candidates, and society in general have trust and confidence in the electoral commission. This is necessary to ensure credible elections, popular participation in elections and prevent the rejection of election results and electoral violence because people trust the institution and the process.
It must be emphasized that parliamentary confirmation does not interfere, delay or create bottlenecks in decision making processes, nor do they take away power from the president. Rather parliamentary confirmation helps the president to identify qualified and competent men and women of integrity to serve in public office.
Therefore, it is in the interest of any president to have the parliament vet your nominees because they help you identify fit and proper individuals who, when they perform well in public office, the credit goes to the president because he appointed them in the first place. Those who object to parliamentary confirmation have other not so good intentions.
Therefore, the only reason the Barrow Papers do not wish to have parliamentary confirmation is that they want to create an electoral commission under the firm control of the president and his party, hence undermining free and fair elections in the Gambia. Many countries are plunged into turmoil after elections because of the control and interference the incumbent has over the election body. After having our own experiences in this regard, one wonders who would not want to have an independent IBEC free from Executive control?
Check out for Part 4 |
A clear conscience fears no accusation - proverb from Sierra Leone |
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Momodou
Denmark
11602 Posts |
Posted - 06 Sep 2024 : 12:29:39
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Constitution Series 6
By Madi Jobarteh
Explaining the Explanatory Notes 4
Still on the review of the Explanatory Notes to the Barrow Papers 2024…
On assets declaration or disclosure, the attempt to legitimize and cover up acts of corruption and protect corrupt officials especially at the highest echelons of Government has become glaringly apparent.
There is enough evidence around the world that corrupt public officials do register some of their assets, liabilities, and business interests in the names of their spouses or children just to hide. Hence it is a common practice in national laws across the world to impose disclosure obligations on the spouses and children of public officials. This is what is provided in the 2020 Draft under section 103 which the Barrow Papers removed. Such practices can be found in numerous countries across the world. (chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://knowledgehub.transparency.org/assets/uploads/helpdesk/381_Asset_declaration_regimes_in_selected_Asian_countries.pdf)
Their explanation is that such disclosure obligation on spouses would infringe on the privacy of the spouse and expose the spouse to undue scrutiny, “and therefore distract the process and dilute the effectiveness of the transparency measures.”
This explanation is a complete misrepresentation of disclosure obligations of spouses of public officials and can only be intended to aid and abet corruption. Disclosure by spouses is only intended to determine that the official did not engage in any illegal acquisition of wealth and using the spouse to cover up. If in the disclosure process the spouse was found to be clean, such disclosure will neither be made public nor pursued legally. Hence disclosure by spouses fully protects their privacy.
The same misguided explanation is given for the removal of mandatory disclosure obligations for the vice president and ministers when they leave public office. Rather the Barrow Papers says such obligations should be a discretionary matter for the Anti-Corruption Commission. Again, they said disclosure requirements are intrusive into the private life of these public officials. It appears the Barrow Papers is not aware that a vice president and ministers are put in charge of public resources for which they must be held accountable in how they had used them.
It is common in the Gambia and in many countries that when a person is elected or appointed into public office to see him or her start building homes and acquiring lands and vehicles and dramatically transforming his or her lifestyle beyond his or her legal earnings.
For example, during his 22-year tenure as president, Yaya Jammeh built a whole palace in Kanilai with a ranch covering acres upon acres of land with a zoo full of all sorts of wild animals. Yaya further went on to acquire hundreds of landed properties across the country as well as dozens of luxury vehicles with millions of cash in several bank accounts as well as hundreds of sorts of livestock among others. We can recall the multimillion-dollar house Jammeh bought in the posh Potomac area around the US capital Washington DC! Clearly Jammeh’s salary, allowances and per diems as president could not afford him this vast wealth!
Similarly, within 8 years in power, we have also noticed how Pres. Barrow built a huge mansion in Mankamang Kunda, while also acquiring a number of landed properties and other materials when he declared his assets before the IEC in 2021. In fact, currently Barrow is given state property illegally which must be returned to Gambians. Sooner or later.
There are stories of some of his ministers building mansions and acquiring land and other kinds of properties in the Gambia, Senegal, Morocco and other parts of the world. Is their legal income enough to legitimately earn them these materials?
To answer that question is the reason therefore there should be a mandatory disclosure of assets when they leave public office. This will determine if their acquired wealth was legal or illegal so that at the end of the day society is protected from being defrauded. This is why mandatory disclosure is necessary. If the disclosure is subject to the discretion of the Anti-Corruption Commission, it has the tendency to be selective and the application of different standards for different people. This will potentially put some officials off the hook, hence rendering the entire exercise ineffective and undermining the fight against corruption.
Therefore, why would any reasonable person prevent such a mandatory measure by describing it as an intrusion into privacy?
Check out for Part 5 |
A clear conscience fears no accusation - proverb from Sierra Leone |
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Momodou
Denmark
11602 Posts |
Posted - 09 Sep 2024 : 22:34:32
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Constitution Series 6
By Madi Jobarteh
Explaining the Explanatory Notes 5
Still on the review of the Explanatory Notes to the Barrow Papers 2024…
Three areas worthy of attention concern the presidency. They reflect the primary intention of the Barrow Papers to not only create an all-powerful president but also to fence the president in such a way as to make it utterly difficult to hold him accountable, much more remove him through constitutional means.
First, the 2020 Draft has restricted a serving president from engaging in any other work or business for which he receives income other than his official duties as president. But the Barrow Papers exempted agriculture from the provision thereby allowing a president to engage in an agricultural venture. The justification they provide is that by allowing the president to engage in agriculture it will promote the sector and will not affect his functions.
The reason a president is prevented from any other business including agriculture is precisely because of the privileged position he has. The power and influence of the president is far and wide which touches all aspects of society. Hence allowing a president to engage in agriculture has a direct negative impact on farmers, businesses and the entire economy. This is because the president is in a position to receive such vital information and engagement which he could divert to his own benefit.
We recall the case of Yaya Jammeh when he got involved in agriculture after he amended the 1997 Constitution in 2006 to remove such restrictions. Immediately we saw him become the biggest farmer in the country. Not only did he utilize official information and resources to his advantage, but he also took a series of lands from communities for his farming interests.
Then we saw how civil servants, security forces, students and ordinary citizens from all over the country were mobilized to work on his numerous farms for free. His Kanilai Farms became so big that it dwarfed all farms and agricultural ventures in the Gambia thanks to his position as president.
Second. In the 2020 Draft, section 106 calls for elections within 90 days if there is a vacancy in the office of the president. This is an international standard. But the Barrow Papers removed this and provided that a vice president or speaker or even chief justice as the case maybe, will continue in the office of the president for the rest of the term. The Explanatory Notes states that such arrangement maintains stability and prevents chaos and is cost effective.
Contrary to this misplaced justification, the democratic principle is that no one leads a people without their consent. The people did not elect the vice president nor the speaker or the chief justice hence to make them serve as president is not only undemocratic but threatens national stability and good governance. Such a dangerous provision has the potential to create dynasties where a president appoints his or her spouse or child as vice president since there are no standards as to who to appoint as vice president.
Third, Section 108 of the 2020 Draft provides for the removal of the president by impeachment. It says the grounds for impeachment are ‘abuse of office’, ‘violation of a provision of this constitution, and ‘misconduct’ among others. This is also standard. But the Barrow Papers added, ‘gross’ in front of each of these words hence ‘gross abuse, gross violation and gross misconduct’. Why? The justification provided is that it “sets a higher threshold for the removal of the President and requires more serious misconduct…”
This may sound plausible on the surface but what is the real definition of ‘gross’ in terms of abuse of office, or violation of the constitution or misconduct? What difference or value has ‘gross’ added on to the offences originally set in the 2020 Draft? In my opinion, the 2020 Draft is adequate as it is, hence the Barrow Papers only wishes to make it quite difficult, if not impossible to impeach a president, hence raise the president above accountability.
Check out for Part 6 |
A clear conscience fears no accusation - proverb from Sierra Leone |
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Momodou
Denmark
11602 Posts |
Posted - 11 Sep 2024 : 22:40:07
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Constitution Series 6
By Madi Jobarteh
Explaining the Explanatory Notes 6
Still on the review of the Explanatory Notes to the Barrow Papers 2024…
In a bid to maintain the National Assembly as a purely people’s parliament, the 2020 Draft abolished the position of ‘Nominated Members’ from the National Assembly. It provided that only elected representatives will be members. But the Barrow Papers brought back the Nominated Members and then also gave power to the president to remove them from office. This is unprecedented in the history of the Gambia for a president to have the power to sack a National Assembly Member.
In early 2019, Pres. Barrow attempted to do that when he illegally sacked Nominated Member Ya Kumba Jaiteh. She took the matter to the Supreme Court which ruled in her favour that the President does not have the powers to remove a member of parliament, hence Barrow’s actions were declared unconstitutional, null and void. From this experience it is obvious that Barrow now wants to constitutionalize the power for the president to freely sack Nominated Members.
Their justification for keeping Nominated Members is that they want all sectors to be represented in parliament to promote inclusion and diversity. But there are many other ways and places to promote inclusion, diversity and enrich legislative discussions through democratic means without having Nominated Members and the power to remove them. Therefore, one is tempted to ask, if the Barrow Papers’ intention is truly about strengthening democratic governance in the Gambia or merely to create a monarchial president?
As its name and function imply, the National Assembly should be constituted of only elected representatives and so only the electorate must have the power to recall their representatives. Hence by giving the president such powers, not only does it give the president a monarchical character but also it interferes with the principle of separation of powers. By nominating and removing parliamentarians, the independence, dignity and integrity of the parliament will be severely compromised hence weakening their oversight and accountability functions.
In a democratic republic that is worthy of its name, a president cannot be given the function and power to put individuals into the parliament by himself. By doing so it means those nominated members will be obliged to owe allegiance to the president first and foremost than to the republic. Such a situation can only weaken the role and function of the parliament in holding the president and his government accountable. This is even more worrying where the Speaker and his deputy are elected from the Nominated Members thereby making the president the determiner of who should lead the parliament.
The evidence of this is glaring from the days of Jammeh to the present. By having the speaker and deputy coming from the Nominated Members, we have seen how these members ended up serving Jammeh and not the Gambia. For example, the current Deputy Speaker Seedy Njie was a Nominated Member, but we saw how he abandoned the Gambia in 2016 to stand with Jammeh to reject the verdict of the people.
In January 2017, Speaker Abdoulie Bojang failed to stand with Gambians in fulfillment of his constitutional obligation to ensure the 2016 election results were protected. Rather he allowed the National Assembly to unconstitutionally extend the life of the president and the parliament thereby annulling the election results. Thus, in effect what the Barrow Papers is seeking to do is to create a president who controls both the Executive and the Legislature hence threatening good governance, democracy and accountability.
Check out for Part 7 |
A clear conscience fears no accusation - proverb from Sierra Leone |
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Constitution Series
