QUESTION OF THE DAY
Kawsu wrote the following:
“Even if Adama Barrow is to resign today. The 1997 constitution has expressly stated as to who will step up and occupy the office of the presidency. This can be seen under section 65 of the said condition. The coalition leaders should have done better , most especially those that purports to have a good understanding of the constitution.
If Adama barrow resign today, someone will automatically assume the office of Presidency until the five years mandate expires.
“The issue of constitutional amendment proposed by the coalition members will not deter the presidency to be in power until the end of the five years mandate. If there comes a new constitution that will reduce or presidential term limit, it will in not in any way affect the five years mandate.
“There is a principle called “retroactivity of laws” in the case of Gambia, laws cannot be back dated to corrected wrongs doing in the past. Case in point, Sabally V the State.
If you read the said case, you will understand that, even if the coalition government amends section 63 to reduce the presidential term limit, it will not affect this case in point.
It is my view, that all those that took formation of the 2016 coalition document should not be taken serious thus they are not ready to govern
This is what Gambians should be told and not otherwise!”
This opinion confirms that many Gambians are yet to fully understand the issue surrounding the three year term for the coalition presidential candidate. Hence the need for this medium which has access to facts to carry out its duty to convey the truth in good faith in the national interest. The first point to note is that the coalition did not talk about introducing a constitutional provision that would limit the term of a coalition president to three years. Section 63 of the constitution gives an elected president a term of five years. This is known to all Gambians. This is why we have been having elections every five years. What brought about a three year mandate for the presidential candidate for the coalition? We have explained that the 2016 coalition was not a party led coalition nor a personality driven coalition. It was a coalition of necessity not a coalition of convenience. The aim was to put an end to self-perpetuating rule which threatened to lead to civil war.
Since no single party or personality had the clout to ensure a change of government, a strategy for regime change was introduced whose objective was to empower the Gambian people and create a level ground for multi-party contest that would give rise to the undiluted choice of the people. Hence the agenda was created that would humble the presidency and leave no trace of incumbency in the next following election. The presidency was therefore expected to preside over a nonpartisan cabinet,
work with a nonpartisan national assembly, remedy past injustices and promote the spirit of national reconciliation and conduct constitutional, civil service, security sector and other financial institutional reforms that would provide a solid base of a democratic, accountable, transparent, sensitive and responsive people centred government, which would be inherited by any post transitional administration. All hands were to be on deck to build such architecture to give The Gambia a new start in genuine democratic dispensation. This is precisely the reason why the criteria were set before the convention was held to determine a presidential candidate. That is the first point that every Gambian should note.
The criteria for selecting a coalition presidential candidate was set before a convention was held to select a presidential candidate. Only those who subscribed to the criteria set had a right to participate in the convention. Those who disagreed with the criteria and method of selecting a presidential candidate to the convention such as the current Vice President and the GDC leader abandoned the negotiation. The criteria set to ensure that election following the transition period will be on a level ground and will witness a definitive end to self-perpetuating rule constituted the following: acceptance of a reduced term of three years, declaration not to participate in the election following the transition, declaration not to support any candidate during such an election.
Hence the coalition sought to have a presidential candidate whose major role would be that of a reformer espousing the virtues of self-abnegation, independence, impartiality and a great determination to be a force of example so that self-perpetuating rule would never again raise its ugly head over the Gambia. This was the objective of the coalition. There were no ulterior motives. There was unanimous argument in good faith in the public interest.
The question now arises: Did the criterion of accepting a three year term violate any provision of the constitution? Was there any need for constitutional amendment to enable a coalition president to serve a five-year term? The answers to these questions are in the negative.
Section 65 of the constitution provides for the resignation of the President before the end of the five-year term. This is the provision that the coalition anticipated to be relied on by a president who is committed to a reduced mandate to end his or her term.
One may now ask: What amendment of the constitution did the coalition envisage to accompany the reduction of the five-year term to three years by simply resigning under section 65 of the constitution? The amendment proposed is for election to the office of President to take place within 90 days of resignation or the existence of vacancy by virtue of death or other reason. Does this need to have retroaction application? Even though laws can be made to have retroactive application under section 100(2)(c) which states among other things that “the National Assembly may pass Bills designed to have effect” as long as it does not deprive a person retroactively of vested or acquired rights or alter the decision or judgment of a court to the prejudice of any party, the coalition did not call for any amendment that needs to have retroactive effect, just as section 62(1)(b) of the constitution was amended to remove the 65 years bar to presidential candidature, thus enabling two people who were above 65 to eventually occupy the position of Vice President.
The coalition anticipated that section 65(2) would be amended for elections to take place within 90 days for the president if the position becomes vacant. If it was the mind of cabinet when it was first considered to honour the coalition agreement, the first amendment which would have been proposed would have been the amendment of section 65(2) which is for the election to take place within 90 days of the resignation of the coalition president.
This is the hard fact that all Gambians must learn to chew and swallow before proffering an opinion that should be respected. We repeat again, that as it stands, section 65(2) categorically states that should the office of president become vacant by virtue of resignation, death, etc., the vice president shall assume the office of president for the residue of the term of the office of the former president. Where there is no vice president, the speaker shall assume the office of the former president for the residue of the term.
Hence the point to note is that the coalition agenda was not designed to be confrontational. It was designed to be restorative in espousing democratic principles underpinned by institutional reform embodying an inclusive transitional agenda. The fact that the stakeholders had one way or another departed from the original architecture has created the current situation where people are calling for three years, but are not saying under which section of the constitution if Barrow were to adhere to the three-year call. Instead of accepting that the original agenda of the coalition had been abandoned, they are trying to convince public opinion that the original idea was misconceived. Instead of accepting that new reality has emerged and promote objective debate on what the way forward is under the constitution, they are still calling for a three year mandate without explaining what would happen under the current constitution if the three year mandate is adhered to. Yet they are blaming people of being ignorant of the constitution. We will continue to clarify matters as long as others continue to muddle the issue.