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kobo



United Kingdom
7765 Posts

Posted - 30 Nov 2013 :  11:33:13  Show Profile Send kobo a Private Message
1. Darboe talks on UDP candidature, others as he turns 64

From above for The Point news archived last year Wednesday, August 08, 2012, we may recalled that it was reported that;

Founder and party leader of the opposition United Democratic Party (UDP), Lawyer Ousainou Darboe, turns 64 today Wednesday 8th August 2012 and, by this time next year (and already expired by 8th August 2013 turned 65), he will not be eligible to seek the presidency, according to the Constitution of the Republic.

As dictated by the 1997 Constitution of the Republic of The Gambia, Darboe who contested and lost to incumbent President Yahya Jammeh on four occasions since 1996, will no longer be eligible to stand as a presidential candidate as long as the provisions of the Constitution remain the same

"According to Section 62 subsection 1(b) of the 1997 Constitution of the Republic of The Gambia, a person shall be qualified for election as President if he or she has attained the minimum age of thirty years but not more than sixty-five years.".....

Source: The Point News Archived & Full Report

ALSO RECENTLY THESE TWO CRITICAL ARTICLES ON UDP LEADERSHIP WERE PUBLISHED IN KIBAARO FOR RETHINKING AND CHALLENGING THE LEADERSHIP TO MAKE AMENDS; IN ORDER FOR THE UDP BE SEEN AS CREDIBLE ALTERNATIVE

2. What I Expect From Lawyer Ousainou Darboe By Papa Kumba Loum

As a lawyer and responsible citizen etc, etc, I expect Lawyer Darboe to talk about constitutionalism when it comes to removing Jammeh and forging a way forward. Having said that however, I totally agreed with those who are of the view that that Jammeh will never allow himself to be removed by elections. It is my personal opinion that anyone who believes that Jammeh will be removed by a democratic process such as elections is indeed not only a dreamer but politically foolish. I don’t want to delve into the reasons why I am saying so in this piece suffice it to say that Jammeh will only leave power by violent means and or the immediate and real threat of force. Period. Jammeh has everything to lose if he hands over power peaceful. Jammeh is a mad dictator, a raw bully, and lacks human decency.


The UDP and others can idealize and romanticize about the possibility of a free and fair election until dooms day. Meanwhile, Jammeh will continue to brutalize and torture Amadou Sanneh, imprison and murder its [UDP] supporters while we continue to talk about “due process, the rule of law and the laws of natural justice” when we all know that we have a lame duck legal and judicial system....

Source: Kibaaro News & Full Report

3. UDP Leadership’s Unworkable Politics of Diplomacy By Ba Matarr Jaiteh

Amadou Sanneh and co’s unlawful treatment by the Gambian authorities is a stark reminder of what the regime thinks of the United Democratic Party (UDP) and its leadership. This scenario also exposes some breathtaking lack of desire at the top of the party to engage the regime head on, especially when one of their own falls prey to the feared secret police. Only to be treated by the party they selflessly served, as a personal tragedy of theirs. Why? Because the regime, like the rest of us, is aware of the fact that the UDP will not dare lift a finger, for fear of being rounded up. And as it stands, that appears to be just the case. Hiding behind arguments that, any form of organize protest in calling for their release, would send the ransom price ridiculously unaffordable, thereby putting their lives in more danger, is the flimsiest excuse ever made by a party that has seen its overall popularity taking a nosedive over the years. Voters are not stupid and will not therefore take an exception to weak leadership


Already, there are some set of tailor-made beliefs among disillusioned voters that, the UDP and its leadership are fast becoming part of the problem, not the solution....

Source: Kibaaro News & Full Report


4. Related Topics:

Edited by - kobo on 30 Nov 2013 11:43:34

kobo



United Kingdom
7765 Posts

Posted - 02 Dec 2013 :  06:15:44  Show Profile Send kobo a Private Message
Any potential successor of UDP leadership as END OF AN ERA FOR LAWYER OUSAINOU DARBOE who attained 65 (8th August 2013) already and "According to Section 62 subsection 1(b) of the 1997 Constitution of the Republic of The Gambia, a person shall be qualified for election as President if he or she has attained the minimum age of thirty years but not more than sixty-five years.".....

WHO ARE PROSPECTIVE CANDIDATES INCLUDING GMC LEADER LAWYER MAI FATTY IF FULLY PREPARED TO LIQUIDATE GMC PARTY WITH THE MEMBERS AND JOINING UDP ON CONDITION TO FILL LEADERSHIP VACUUM

My best pick and recommendation is RESPECTED Lawyer Lamin J. Darboe (LJD) to take mantle of leadership (as a gift from God and wonderful family inheritance) for a NEW ERA and our next President; surprisingly like dark horse Macky Sallah overcome veterans like Edrissa Secka, Tanor Dieng, Mustapha Niasse, Djibo Kah amongst others in Senegal; IF HE (LJD) IS PREPARED TO TAKE THE RISK AND FACE THE CHALLENGES

PLEASE DON'T SWEEP THIS HIGHLY CONFIDENTIAL AGE CONCERN & ELIGIBILITY SECRET UNDER THE CARPET
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kobo



United Kingdom
7765 Posts

Posted - 02 Jan 2014 :  10:45:39  Show Profile Send kobo a Private Message
The Lawyer Politicians and the Constitution Musa Camara

In touting his party as a bona fide political party in The Gambia, Mr. Mai Fatty of the Gambia Moral Congress (GMC) said in an interview with Freedom Radio that he was the running mate of Mr. Ousainou Darboe of the United Democratic Party in the 2011 Presidential elections. He said the UDP/PPP/GMC alliance contested that election with “Ousainou Darboe as the Presidential Candidate and me as his running mate—the Vice Presidential Candidate.” Unfortunately, neither Mr. Pa Nderry M’bai nor Ms. Fatou Camara challenged Mr. Fatty to provide evidence that he was indeed Mr. Darboe’s running mate in that year’s election. This challenge was necessary because Mr. Fatty and his sidekicks insisted to both interviewers to produce evidence to substantiate the litany of allegations on his character. They should have challenged Mr. Fatty, as he had required of them, to provide evidence that he was Mr. Darboe’s running mate in 2011. The country was never informed of any such arrangement at the time, and since until the interview on Freedom Radio, to exercise the due diligence of public scrutiny on its merits and motivations as should be the case in a credible or aspiring democracy.

It’s true that our Constitution did not explicitly state that presidential candidates must choose their running mates to be placed on the ballots alongside them. However, it requires that Presidents appoint Vice Presidents who should take a prescribed Oath of Office. Mr. Fatty said that Mr. Darboe had picked him for Vice President in the event that their coalition won the election. I find it hard to believe that Darboe, a prominent lawyer in his own right, would be a party to such an arrangement that would have been illegal under the residency requirements for Vice President and President as stipulated in the Constitution.

Section 70 (2) of the Constitution states that:

A person shall be qualified to be appointed as Vice-President if he or she has the qualifications required for the election of the President under section 62.

As this provision shows, anyone not qualified to run for President, is unqualified to be appointed Vice President. Mai Fatty was not qualified to have been appointed Vice President in 2011 nor will he be in 2016. Why? The following section disqualifies him then and now:

Section 62

A person shall be qualified for election as president if-
(c) he or she has been ordinarily resident in The Gambia for the five years immediately preceding the election
;

It’s no secret that Mai Fatty lived in exile well over a year prior to that election. On the mere fact of this information, it wouldn’t take a constitutional lawyer to conclude that Mr. Fatty did not meet the residency qualification to be appointed Vice President. In addition, Mr. Fatty’s prolonged absence from the country might have disqualified him to be a registered voter to choose representatives let alone to represent anyone. Mr. Fatty knew about Sections 62 and 70 of the Constitution when he lectured on the Constitutional role of the Attorney General during the interview. He was right to have said that the only cabinet positions mentioned in the Constitution are: the President, Vice President and the Attorney General. How would he have been appointed to the Vice Presidency had Darboe won that election when he was not qualified under the Constitution as indicated above? Would both of them have disregarded the Supreme Law of the land in spite of spending all these many years accusing Jammeh of breaching and breaking the letter and spirit of the Constitution? Did Mr. Darboe give Mr. Fatty an empty promise he had no intention of honoring? Was this sort of back-room deals the reason the opposition parties could not agree on a clear and concrete plan to unseat Jammeh? Above all, was this agreement between Darboe and Fatty even true? If yes, why was it not declared to the nation? Both Lawyer Darboe and Lawyer Fatty should answer these questions as they are cardinal for 2016. The Gambian people, particularly those opposing Jammeh, deserve explanations. It’s both an issue of character and judgment especially for Mr. Darboe.

Mr. Fatty claimed to form the Gambia Moral Congress (GMC) to inject morality into the Gambian political milieu. He said when Gambians hear about politicians, they too often think about lairs, corrupt and unreliable people. That observation is only true because Mai Fatty is one of those politicians we continue hearing from on Gambian affairs. The morality he teaches to Gambians, he should have taught first to himself. Mr. Mai Fatty more than anyone else is deficient in the values he professes as his strengths.

Source: Maafanta.com

Edited by - kobo on 02 Jan 2014 11:00:04
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kobo



United Kingdom
7765 Posts

Posted - 03 Jan 2014 :  11:45:07  Show Profile Send kobo a Private Message
quote:
Originally posted by kobo

The Lawyer Politicians and the Constitution Musa Camara

Source: Maafanta.com


Following reaction on above is addressed to Maafanta.com Editor:

"Editor,

Tell Musa Camara, the constitution says 'ordinary resident' which is a technical language. If he takes things literally, even the president will not be qualified to run since he too is sometimes absent from the country for days if not weeks.

Mai was out for medical reasons and was not ordinarily resident in any overseas jurisdiction.There is no room for a running mate in our system. The people don't elect the vice president. It is the president who selects him/her and is not obliged under the constitution or indeed any other law to consult the people. He only needs to announce his appointment to that high office. Thus, a presidential candidate can have his own choice of Vice President and is not obliged to tell the people.

However, once in office, he should name the Vice President within a specified period. This is what the constitution requires

By Concerned Gambian"

Edited by - kobo on 03 Jan 2014 11:50:37
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sankalanka

270 Posts

Posted - 03 Jan 2014 :  19:07:18  Show Profile Send sankalanka a Private Message
Editor,

"Tell Musa Camara, the constitution says 'ordinary resident' which is a technical language."

Kobo, it would have been very helpful if this writer can define what is meant by "ordinary resident". Saying merely that it is a technical language doesn't give any clarity to his argument.

And I believe the constitutional argument that Musa Camara cited is correct. "Ordinary resident" means residence of original jurisdiction and there is a stipulation that one should be resident for a period of 5 years. And the residence of original jurisdiction is The Gambia.

You should be resident in the Gambia "continuously" for a period of five years before an election. Continuous can also be a technical term meaning that you should not be out of the country for a lengthy time during a one year period. No matter how technical "ordinary resident" is, you cannot be out of the country for more than one year at any given time, during the five year period, before an election.


"If he takes things literally, even the president will not be qualified to run since he too is sometimes absent from the country for days if not weeks."

This argument is not germane. The president, opposition political leaders are absent from the country for days if not weeks, yet they qualify to run because all of them maintain a continuous residency, and have not been out of the country for any lengthy period of more than a year.

"Mai was out for medical reasons and was not ordinarily resident in any overseas jurisdiction."

It is true that as a Gambian, Mai's original jurisdiction is the Gambia. But the question is has he been absent from the Gambia for more than one year at any given time during the five year residency period. The answer to this question will serve as the basis of qualification and there is no ambiguity.

"There is no room for a running mate in our system. The people don't elect the vice president. It is the president who selects him/her and is not obliged under the constitution or indeed any other law to consult the people." Agreed.

"He only needs to announce his appointment to that high office. Thus, a presidential candidate can have his own choice of Vice President and is not obliged to tell the people." Agreed.

"However, once in office, he should name the Vice President within a specified period. This is what the constitution requires." Agreed.

It then begs the question, why should Mai state that he was chosen as a running mate knowing that "there is no room for a running mate in our system." This is the basis of the argument that Musa Camara raised in this regard.
By Concerned Gambian"
Edited by - kobo on 03 Jan 2014 11:50:37

Edited by - sankalanka on 03 Jan 2014 19:18:27
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Nyarikangbanna

United Kingdom
1382 Posts

Posted - 03 Jan 2014 :  21:36:06  Show Profile Send Nyarikangbanna a Private Message
Rene, I am not sure if I can agree with you. l think this writer has a point.

I take UK for example, you are only considered ordinarily resident in the UK if you have indefinite leave to remain/permanent residence status. Living in the UK legally, no matter how long, does not necessarily make you an ordinary resident.

On the other hand, if you are ordinarily resident in the UK and then become absent from the country for a certain period, i believe its 90 days, you could loose your ordinary residency status but not when absence is based on exceptional circumstances and health is considered one of them. This is how the term 'ordinary residence' is understood here and even in the law courts.

There was a guy who was held in a foreign cell illegally for years. He did not loose his ordinary residence status in the UK as a result.

Giving that Gambia's legal system is based on the British model, I do not see why 'Ordinary Resident' would be interpreted differently in The Gambia.

Legally speaking, Mai Fatty was ordinarily resident somewhere in this world. Thus, if it is not the countries he was receiving medical treatment, you did not contest the writer's claim that Mai was not ordinarily resident in any overseas jurisdiction, then it is The Gambia. It's got to be.

I don't think ordinary residency can be negatived by an absence based on medical grounds especially for somebody who had been mostly confined in a foreign hospital. I think the issue is more about whether or not Mr Fatty has any reason for his absence that could be categorised as 'exceptional circumstance', and there is no doubt in my mind that he had one.

Your interpretation above is only relevant to the word 'resident' rather than the constitutional term 'ordinary resident'. A year is 365 days. That means if you spend a week outside the country, you won't make a year as a resident. If it goes like that every year for 5yrs, then under your interpretation model, you won't have a five year residency record under your belt and therefore not qualified to run for the presidency. That definitely can't be right.

That one year test is your own standard of interpretation and I find it utterly flawed as it is very restrictive and narrow but more so, lacking authoritative support.

The writer is also absolutely right on all the other points he/she raised about the status of the Vice President under our constitution and the fact that it is not an elected office hence, no room for a running-mate under our electoral system.

Thanks

I do not oppose unity but I oppose dumb union.

Edited by - Nyarikangbanna on 03 Jan 2014 23:23:55
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sankalanka

270 Posts

Posted - 04 Jan 2014 :  17:09:31  Show Profile Send sankalanka a Private Message
Rene, I am not sure if I can agree with you. l think this writer has a point.

Nyari, thanks for the response. I prepared a detailed response to your rejoinder yesterday on two occasions but lost both. I am not a lawyer, but if we follow the logic of the arguments, we can make reasonable assumptions that can be legitimate.

I find it interesting that you are drawing inferences of "ordinary resident" and "ordinarily resident" not from any interpretations of the Gambian constitution but from a UK example.

There is no statutory definition of "ordinarily resident" in the UK, but the courts have used the terms of the broader guidelines on "ordinary resident" that is a regular habitual mode of life in a particular place, which is both:

1. adopted voluntarily, and

2. adopted for one or more settled purposes, to also interpret "ordinarily resident."

And much of this interpretation is done for the purposes of tax evaluation. The UK government wants to expand its tax base especially for its nationals living in foreign countries, and there must be evidence of a distinct break from previously held ties in the UK before one can renounce his/her citizenship. Thus these concepts of "ordinary" and "ordinarily" resident stipulation.

A person who is resident(ordinary resident)but not "ordinarily resident" is liable to tax on his UK earnings, but his foreign earnings are taxable only on the basis of the remittance.

A person who is resident(ordinary resident) and also "ordinarily resident" is liable to tax on the totality of his/her earning from employment, irrespective of how little these earning are earned in the Uk or how more of these earning are earned outside the UK.

There are cases in which foreign nationals in the UK, who owned properties but lived in the Uk for less than three years have been deemed by the courts to be "ordinarily resident" in the Uk although their intention was never to stay permanently. The case of Tuczka V. HMRC (2010)UKFTT53 (TC) is one.

Moreover, the guidelines on residency stipulates that a person in the UK permanently or at least for three years is treated as a resident and not as a visitor.

Secondly, there is also a stipulation which states that: "if you are treated as "ordinarily resident" solely because you have accommodation here (UK)and dispose of the accommodation and leave the UK within three years of your arrival, you may be treated as NOT "ordinarily resident" for the duration of your stay, if this is to your advantage." Meaning that for the duration of those three years you would be treated as an "ordinary resident."

You can therefore see the legal implications in these two phrases as they are variously interpreted.


"I take UK for example, you are only considered ordinarily resident in the UK if you have indefinite leave to remain/permanent residence status. Living in the UK legally, no matter how long, does not necessarily make you an ordinary resident."

This statement makes sense because those who have indefinite leave to stay or have permanent resident status, have no residency of original jurisdiction in the UK, they have residency of original jurisdiction in the countries in which they are holding their passports.

That is why you also qualified the statement by saying that even though they can be living in the UK legally, no matter for how long, it would not necessarily make them to be "ordinary resident."

However, in the provision that I cited above even though one could be "ordinarily resident" in the UK, one can also be treated as NOT "ordinarily resident" for the duration of a stay within three years. Meaning that one could be treated as an "ordinary resident".

"On the other hand, if you are ordinarily resident in the UK and then become absent from the country for a certain period, i believe its 90 days, you could loose your ordinary residency status but not when absence is based on exceptional circumstances and health is considered one of them."

Now you can see the dynamics as "ordinarily resident" and "ordinary resident" is played.

You are "ordinarily resident" while in the UK because of your status as having an indefinite leave to remain or having permanent residency, but being absent from the country for more that 90 days you risked loosing your status as "ordinary resident" but if you are allowed after 90 days back into the country due to health considerations your status can be restored as "ordinary resident" and not "ordinarily resident."

The above summation fits into the definition of "ordinary resident" as a habitual mode of life in a particular place, which is both adopted voluntarily and adopted for one or more settled purposes.

The United States have residency laws that are more simple. You are either a citizen, born or naturalized, or have permanent residency. This of course excludes those whose statuses are not yet regularized. Thus one must be continuously resident in the US for five years as a permanent resident before becoming a citizen(3 years if one is married to a US citizen.) And as a permanent resident you cannot be out of the country for more than six months.

This is how the term 'ordinary residence' is understood here and even in the law courts.

There was a guy who was held in a foreign cell illegally for years. He did not loose his ordinary residence status in the UK as a result.

"Giving that Gambia's legal system is based on the British model, I do not see why 'Ordinary Resident' would be interpreted differently in The Gambia."

The Uk courts have a broader guideline as to how to interpret "ordinary resident", even to include considerations for "ordinarily resident" which has no statutory stipulation, and now you are saying that the Gambia, a sovereign country with a sovereign constitution, would not interpret "ordinary resident" different from the Uk.

Gambians in the Uk who have indefinite leave to remain or have permanent residency are "ordinarily resident"in the Uk, but have residency of original jurisdiction in the Gambia. They are sovereign Gambian citizens.

"Legally speaking, Mai Fatty was ordinarily resident somewhere in this world."

Based on our understanding of all of the things discussed above, yes.

"Thus, if it is not the countries he was receiving medical treatment, you did not contest the writer's claim that Mai was not ordinarily resident in any overseas jurisdiction, then it is The Gambia. It's got to be."

I am missing the argument here. It is already established that as a Gambian citizen Mai has residency of original jurisdiction in the Gambia. This has never been questioned.

"I don't think ordinary residency can be negatived by an absence based on medical grounds especially for somebody who had been mostly confined in a foreign hospital. I think the issue is more about whether or not Mr Fatty has any reason for his absence that could be categorised as 'exceptional circumstance', and there is no doubt in my mind that he had one."

All this is based on the arguments of "ordinary" and "ordinarily resident" interpretations as provisions of the Uk legal system, and I would argue that it has no relevance to the constitutional arguments raised in Camara's submission.

"Your interpretation above is only relevant to the word 'resident' rather than the constitutional term 'ordinary resident'."

I would submit that we defer to the constitutional interpretation of "ordinary resident" in the Gambian constitution, that will help to inform the correct interpretation of this phrase. May be you can help in this regard.

"A year is 365 days. That means if you spend a week outside the country, you won't make a year as a resident."

Continuous residency is imperative in this case. For example: in the US you are required as a permanent resident to have continuous residency in the US for five years before you can become a citizen. You can travel in and out of the US as a permanent resident within this five years for period of less than six months and it wouldn't affect one bit the five year residency requirement. Regardless how many times you travel in and out of the country for periods of less than six months, at the end of five years you would still be qualified for citizenship. It is in this context that the one year benchmark was made.


"If it goes like that every year for 5yrs, then under your interpretation model, you won't have a five year residency record under your belt and therefore not qualified to run for the presidency. That definitely can't be right."

Again, the emphasis here is on "continuous" residency and I have explained above what I meant.

"That one year test is your own standard of interpretation and I find it utterly flawed as it is very restrictive and narrow but more so, lacking authoritative support."

I will defer to a constitutional interpretation in the Gambian constitution that is more authoritative. May be you can help in this regard.

"The writer is also absolutely right on all the other points he/she raised about the status of the Vice President under our constitution and the fact that it is not an elected office hence, no room for a running-mate under our electoral system."

I have conceded to this point, and remarked that there was no need to mention a running mate as that was not part of our system. And that was the point that Musa also tried to make.

Thanks
I do not oppose unity but I oppose dumb union.
Edited by - Nyarikangbanna on 03 Jan 2014 23:23:55

Edited by - sankalanka on 04 Jan 2014 19:30:08
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Nyarikangbanna

United Kingdom
1382 Posts

Posted - 05 Jan 2014 :  01:57:08  Show Profile Send Nyarikangbanna a Private Message
Rene's, I make inference from a UK example because the term '0rdinary residence' is a common law concept the definition of which lies at the common law and which applies to all common law jurisdictions including The Gambia. In appears not only in tax cases but also in other areas of law including immigration and family law. This is how it is defined;

"The place where in the settled routine of an individual's life, he or she regularly, normally or customarily lives."

You will agree with me that this definition is broad and allows for exceptional circumstances to be taken on board. This is what the Supreme Court of The Commonwealth of Canada said about "Ordinary Residence" in Thomson v Minister of National Revenue (1946) SCR 209;

"A reference to the dictionary and judicial comments upon the meaning of these terms indicates that one is "ordinarily resident" in the place where in the settled routine of his life he regularly, normally or customarily lives....

"The graduation of degrees of time, object, intention, continuity and other relevant circumstances, shows, I think, that in common parlance "residing" is not a term of invariable elements, all of which must be satisfied in each instance. It is quite impossible to give it a precise and inclusive definition. It is highly flexible, and its many shades of meaning vary not only in the contexts of different matters, but also in different aspects of the same matter. In one case it is satisfied by certain elements, in another by others, some common, some new.

"The expression "ordinarily resident" carries a restricted signification, and although the first impression seems to be that of preponderance in time, the decisions on the English Act reject that view. It is held to mean residence in the course of the customary mode of life of the person concerned, and it is contrasted with special or occasional or casual residence. The general mode of life is, therefore, relevant to a question of its application.

"For the purpose of income tax legislation, it must be assumed that every person has at all times a residence. It is not necessary to this that he should have a home or a particular place of abode or even a shelter. He may sleep in the open. It is important only to ascertain the spatial bounds within he spends his life or to which his ordered or customary living is related. Ordinary residence can best be appreciated by considering its antithesis, occasional or casual or deviatory residence. The latter would seem clearly to be not only temporary in time and exceptional in circumstances, but also accompanied by a sense of transitoriness and of return.

"But in the different situations of so-called "permanent residence", "temporary residence", "ordinary residence", "principal residence" and the like, the adjectives do not affect the fact that there is in all cases residence; and that quality is chiefly a matter of the degree to which a person in mind and fact settles into or maintains or centralizes his ordinary mode of living with its accessories in social relations, interests and conveniences at or in the place in question. It may be limited in time from the outset, or it may be indefinite, or so far as it is thought of, unlimited. On the lower level, the expressions involving residence should be distinguished, as I think they are in ordinary speech, from the field of "stay" or "visit"."

Mai was not in the settled rountine of his life when he was hospitalised and/or recieving medical treatment overseas.

Ordinary residence is akin to what is known in non-common law jurisdictions as 'Habitual Residence'.

I do not find it necessary to respond to your other points.

Thanks


I do not oppose unity but I oppose dumb union.

Edited by - Nyarikangbanna on 05 Jan 2014 02:39:05
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toubab1020



9007 Posts

Posted - 05 Jan 2014 :  02:19:08  Show Profile Send toubab1020 a Private Message
As usual from Nyarikangbanna an excellent and clear response that normal people can understand once the legal jargon has been translated by a sensible clear thinking person.
Thanks


quote:
Originally posted by Nyarikangbanna

Rene's, I make inference from a UK example because the term '0rdinary residence' is a common law concept the definition of which lies at the common law and which applies to all common law jurisdictions including The Gambia. In appears not only in tax cases but also in other areas of law including immigration and family law. This is how it is defined;

"The place where in the settled routine of an individual's life, he or she regularly, normally or customarily lives."

You will agree with me that this definition is broad and allows for exceptional circumstances to be taken on board. Mai was not in the settled rountine of his life when he was been hospitalised or recieving medical treatment overseas.

In UK law, you two regimes applying to two difference set of tax payers; the statutory residence and the domicile regime which is defined by statutory, the Financial Act 2013, and the ordinary residence test which is found at common law.

Ordinary residence is akin to what is known in non-common law jurisdictions as 'Habitual Residence'.

I do not find it necessary to respond to your other points.

Thanks




"Simple is good" & I strongly dislike politics. You cannot defend the indefensible.
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Nyarikangbanna

United Kingdom
1382 Posts

Posted - 05 Jan 2014 :  02:37:59  Show Profile Send Nyarikangbanna a Private Message
Thank you toubab. I am chaffed by your comment.

Cheers

I do not oppose unity but I oppose dumb union.
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toubab1020



9007 Posts

Posted - 05 Jan 2014 :  07:08:54  Show Profile Send toubab1020 a Private Message
No need to be surprised old boy its accurate


quote:
Originally posted by Nyarikangbanna

Thank you toubab. I am chaffed by your comment.

Cheers


"Simple is good" & I strongly dislike politics. You cannot defend the indefensible.
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kobo



United Kingdom
7765 Posts

Posted - 05 Jan 2014 :  07:21:16  Show Profile Send kobo a Private Message
quote:
Originally posted by toubab1020

No need to be surprised old boy its accurate


quote:
Originally posted by Nyarikangbanna

Thank you toubab. I am chaffed by your comment.

Cheers





CHEERLEADER! SAD POLITICAL SITUATION AND PATHETIC WEAK ARGUMENTS BECAUSE "OLD BOY" IS FLAWED BIG TIME

Edited by - kobo on 05 Jan 2014 07:23:49
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Nyarikangbanna

United Kingdom
1382 Posts

Posted - 05 Jan 2014 :  14:02:58  Show Profile Send Nyarikangbanna a Private Message
I am only in my 30s toubab.

Thanks


I do not oppose unity but I oppose dumb union.
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toubab1020



9007 Posts

Posted - 05 Jan 2014 :  15:43:13  Show Profile Send toubab1020 a Private Message
quote:
Originally posted by kobo

quote:
Originally posted by toubab1020

No need to be surprised old boy its accurate


[quote]Originally posted by Nyarikangbanna

Thank you toubab. I am chaffed by your comment.

Cheers






CHEERLEADER! SAD POLITICAL SITUATION AND PATHETIC WEAK ARGUMENTS BECAUSE "OLD BOY" IS FLAWED BIG TIME


OK so I was wrong again, I admit it "OLD boy" should not have been used the rest I STAND BY (my own opinion, U R Welcome yours Kobo)
quote]

"Simple is good" & I strongly dislike politics. You cannot defend the indefensible.
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toubab1020



9007 Posts

Posted - 05 Jan 2014 :  15:45:20  Show Profile Send toubab1020 a Private Message
You give the impression of being VERY experienced and competent hence my comment.
OK KOBO was right this time when he wrote:

CHEERLEADER! SAD POLITICAL SITUATION AND PATHETIC WEAK ARGUMENTS BECAUSE "OLD BOY" IS FLAWED BIG TIME

But Credit where credit is due,do I detect a hint of Jelousy in Kobo's thinking



quote:
Originally posted by Nyarikangbanna

I am only in my 30s toubab.

Thanks




"Simple is good" & I strongly dislike politics. You cannot defend the indefensible.

Edited by - toubab1020 on 05 Jan 2014 15:47:48
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sankalanka

270 Posts

Posted - 05 Jan 2014 :  19:00:20  Show Profile Send sankalanka a Private Message
I copy here the erudite lawyer Lamin J Darboe's letter (KIBARRO NEWS) which deals with most of the issues that are discussed in this tread with respects to Musa Camara's peiece. As a lawyer he has confirmed some of the assumptions I made as a non-lawyer and I will highlight those.

I believe the thrust of the argument from the onset is whether Mai met the residency requirements to be considered as a Vice President or stand as a Presidential candidate.

Lawyer Lamin Darboe agrees with our contention that Mai's absence from the Gambia for the duration that he was absent did not meet the five year residency requirement.

This was the argument that Musa was making, and this is the argument that I tend to sympathize with. Interesting observations though on "ordinary resident" and "ordinarily resident" from Lawyer Darboe.



Dear Musa Camara

As in your article dealing with the illegal appointment, and continuance in office, of Dr Amadou Scattred Janneh, as a Secretary of State, you are again on terra firma in contending that the GMC leader, Mai Fatty (Mai), was constitutionally barred from contesting the Presidency in 2011. Should His Excellency Sheikh Professor Alhaji Doctor Yahya A J J Jammeh (the Professor) take us to election 2016,((( Mai’s constitutional fate would remain the same as far as his legal ability to contest the presidency. To the extent your argument is thus confined, I take no issue with your position.)))

However, your explicit contention that the claimed Vice Presidential agreement between Ousainou Darboe (Ousainou) of the UDP, and Mai of the GMC, was “illegal”, or at the very least, “immoral”, if only potentially, appears faulty from a legal perspective. On the constitutional layout that you relied on, your argument is impossible to sustain. If indeed they agreed as claimed, it would be perfectly legitimate for Ousainu to appoint Mai as Vice President. Constitutionally, Ousainou was under no infirmity in 2011, and any such transaction would have to revolve around him to pass legal muster. (((On the facts as alleged, that was indeed the case. Although Mai could not have been his “running mate” from a strict Constitutional perspective, they were nevertheless free to agree as claimed.))) Whatever your thoughts on the alleged transaction, it was neither “illegal”, nor “immoral”! It would have been a legally permissible political strategy around the Constitutional our architecture.

The provisions of the Constitution that agitate your conscience as far as the claimed agreement between Ousainou and Mai serve no legitimate national purpose other than to oppressively monopolize public power. For any president in full charge of his faculties, the Constitution’s eligibility provisions for election to the Presidency, or appointment to the Cabinet, would have to be immediately suspended upon taking office, and completely dropped, in due time, from any future supreme governing document of The Gambia. There is indeed a legitimate argument to be made for the contention that at least 80% of Constitutional provisions not entrenched must be immediately suspended by a successor government to Professor Jammeh’s APRC if only because of the document’s total concentration of national power in the Executive. It is the suspension of offending provisions – in collaboration with the National Assembly – that would have validated, and legalized, any claimed agreement between Ousainou, and Mai.

In a reaction to the expulsion of Ramzia Diab from the National Assembly, and clamoring for the appointments of Dr Janneh, and Manlafy Jarju, as Secretaries of State, to be rescinded on the grounds of their dual nationality, I argued thus:

“In its original version, the Constitution was a disaster for even the theoretical underpinnings of democratic pluralism. As if that disastrous version did not inflict enough injury on The Gambian body politic, Dr Jammeh caused amendments to be introduced in 2001 which made the document a total tragedy for the Gambian people. In so far as it effectively emasculated the Judiciary, and the National Assembly, by reducing these constitutional pillars of the state to mere appendages of the Executive through the unjustifiable centralization of all power in the President, the Constitution is nothing but a fascist document.

On this point at least, the assertion by the Attorney General and Secretary of State for Justice that the drafters of the Constitution were no fools, is highly questionable. The drafters were clearly no visionaries for saddling us with a document, which must be revamped in the Gambia’s impending Third and final Republic. Its general thrust is inimical to both the doctrine of the rule of law, and the concept of the separation of powers”.

Without question, someone with your demonstrated faculties can clearly appreciate why there are no “legal” or “moral” issues around the claimed agreement between Ousainou, and Mai. If indeed a deal was reached, it was a competent agreement with not a hint of illegality or immorality. In The Gambia, the Vice President is appointed, not elected. Even without suspending the problematic provisions of the Constitution, Ousainou would have been legally able to appoint Musa Camara as Vice President assuming exclusive Gambian citizenship. If you are a dual national who negatively triggered the residency requirements, a suspension of the offending provisions would have legally cleared the way for your Cabinet appointment.

(((On whether the phrase “ordinarily resident” is “technical”, that postulation should not detain us. I have heard the same argument before from our “concerned Gambian” on a different platform, but on the same issue, and it is not compelling at all. Although I accept that “ordinarily resident” can have a legal connotation, it is clearly a common phrase in daily usage. What “technical” meaning it has does not change the fact that for the 2011 presidential elections, Mai was not “ordinarily resident” in The Gambia. Wherever Mai was resident in the run-up to 2011, it was not The Gambia, and the contention that he was ineligible to stand as a presidential candidate in that year, and in 2016 for that matter, is therefore unassailable.)))

(((As to our “concerned Gambian’s” contention that the Professor himself “will not be qualified to run since he too is sometimes absent from the country for days if not weeks”, that cannot be the intent of “ordinarily resident” in our constitutional context. Those are very short absences, and more crucially, on national service. In the UK, “the courts have interpreted ordinary residence as a regular habitual mode of life in a particular place, the continuity of which has persisted despite temporary absences”. In deciding its meaning, a Canadian Court stated that “”ordinary residence” connotes something more than mere temporary presence in a place. It refers to the place in which a person’s lifestyle is centered and to which the person regularly returns if his or her presence is not continuous”.)))

(((In further amplifying the meaning of the phrase, that same Court approvingly stated that “most common law courts understand ordinary residence to mean the place where a person resides in the ordinary course of his or her day to day life. If the inquiry is directed towards a person’s real home as many courts have suggested a person usually will have only one place of ordinary residence notwithstanding the family courts’ early reliance on cases decided in an income tax context where the courts held that an individual can have more than one residence”. As stated earlier, I accept your interpretation that Mai was not “ordinarily resident” in The Gambia in 2011, and that he was therefore ineligible to run for President in that year. For practical purposes, this remains the case for Mai assuming there is a 2016 in electoral terms, and under the Professor’s rules.))))

Notwithstanding, and for reasons earlier stated, I reject your contention that where an agreement was reached as claimed, Ousainou was part of an “illegal” transaction. It follows therefore that I reject your assertion that this alleged Vice Presidential agreement with Mai was “both an issue of character and judgment especially for Mr. Darboe”. If there was indeed a deal, it was neither “illegal” nor “immoral”, and there was never any issue either of “character” or “judgment”. If even in a tortured way, our extant constitutional framework would have permitted the outcome had Ousainou actually offered the Vice Presidency to Mai.

Say hi to our common colleague and friend, the erudite FS.

Lamin J Darbo

Edited by - sankalanka on 05 Jan 2014 19:06:53
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