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Momodou
Denmark
11512 Posts |
 Posted - 25 Feb 2019 : 14:40:07
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JUST IN: Furious Gambian Lawmakers Savage Barrow, Say he has no Power to Fire Ya Kumba Jaiteh
The Fatou Network: February 25, 2019
By Lamin Njie
http://fatunetwork.net/just-in-furious-gambian-lawmakers-savage-barrow-say-he-has-no-power-to-fire-ya-kumba-jaiteh/
No fewer than 31 members of the National Assembly on Monday slammed President Adama Barrow over his decision to sack a nominated national assembly member Ya Kumba Jaiteh.
President Barrow on Monday ordered that Ms Jaiteh’s nomination as a national assembly member be revoked. The order is contained in a letter signed by secretary general and head of the civil service Ebrima Camara.
But members of the National Assembly have held an emergency causus on Monday on the issue.
“We the undersigned members of the National Assembly hereby resolve as follows: That the members of the national assembly are hereby disassociating themselves from the letter purporting to dismiss nominated member Ya Kumba Jaiteh,” the lawmakers said.
According to them, “the president has no powers or authority to dismiss any member of the national assembly and that it is unconstitutional nor is it in the spirit of constitution to revoke the nomination of any member of the national assembly.”
“The national assembly is therefore not recognising or accepting the purported revocation of the nomination of Honourable Ya Kumba Jaiteh and considers it null and void,” they added.
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A clear conscience fears no accusation - proverb from Sierra Leone |
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Momodou
Denmark
11512 Posts |
Posted - 25 Feb 2019 : 15:01:26
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The National Assembly Must Institute Impeachment Proceedings against the President
By Madi Jobarteh
The letter written by the Secretary General Ebrima O. Camara on behalf of the President Adama Barrow is a direct affront on the authority, dignity and legitimacy of the National Assembly hence a direct affront to the very sovereignty of the Gambian People. In the first place the Secretary General is totally inconsequential to arrogate to himself the job of writing a dismissal letter to a National Assembly Member. This is an act of gross insubordination, misconduct and total irresponsibility. The Secretary General has overstepped his limits and he must be held to account, severely!
Secondly how can the Secretary General write a letter from the Presidency to a sitting National Assembly without putting it on the official letterhead of the Presidency with the national Coat of Arms? Why didn’t the SG use the official letterhead of the Presidency? It means both the SG and the President know that their action is unconstitutional and criminal hence decided to use a mere piece of paper to insult the very dignity and sovereignty of the Republic of the Gambia. That is an impeachable act! By this act alone the Secretary General has demonstrated his total lack of respect for his office and more seriously for a sitting National Assembly Member.
Thirdly Mr. Camara has grossly broken all protocols by directly writing to a sitting National Assembly Member on a matter like this without first writing officially to the Speaker of the National Assembly. By this letter the Secretary General has transformed himself into a tool of disrespect and shame while further disrespecting the National Assembly as an institution. I urge Hon. Ya Kumba Jaiteh to throw this piece of blank paper letter into the garbage bin where it rightful belongs!
Fourthly and most seriously, for the President to have taken this decision and to allow his Secretary General to write on a blank piece of paper demonstrates the President’s total disregard and violation of the Constitution and his utter contempt of the National Assembly which tantamount to impeachment. The President should have known that he has no right, authority or power in anyway imaginable to sack a sitting National Assembly Member.
The fact that the Constitution gives power to the President to nominate a National Assembly Member does not mean the Constitution guarantees him the power to control that National Assembly Member. The moment a nominated person takes an oath of office as a National Assembly Member he or she is no more under the control of any person or authority in the Gambia other than the National Assembly itself. The removal process of National Assembly Members is well spelt out in the Constitution which do not involve the President in anyway.
I urge National Assembly Members to therefore not only reject this disrespectful and empty piece of paper totally and completely but also to go further to seek the impeachment of the President for this blatant violation the Constitution. If National Assembly fails to impeach the President and punish the Secretary General for their gross misconduct, then the National Assembly would have been the greatest accomplice in the killing of democracy in the Gambia thus constituting the highest level of betrayal of the people of the Gambia.
The time has come for the National Assembly to stand their ground to defend the Constitution and the Republic as required by them by the Constitution. The instances of violations of the Constitution by Pres. Adama Barrow and his Government are too numerous to count and it is the National Assembly that must put a stop to this misconduct once and for all by impeaching this President.
Finally, members of the Cabinet must bear in mind that they bear equal responsibility for the decisions and actions of the President hence they must not stand aside to watch such blatant violation of the Constitution to take place. Ministers with conscience must either tell the President the truth to immediately withdraw this blank paper letter or they resign. Ministers must be seen to defend the Republic of the Gambia against the whims and caprices of one person regardless of his position. I would expect the Minster of Justice Abubacarr Tambadou to be the first to resign!
We must not allow one man to become a despot over our heads once again as we allowed and created Yaya Jammeh became a dictator!
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
11512 Posts |
Posted - 26 Feb 2019 : 22:19:54
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PRESS STATEMENT - THE GAMBIA BAR ASSOCIATION
The Gambia Bar Association is seriously concerned by the recent Executive decision purportedly revoking the nomination of Hon. Kumba Jaiteh as a National Assembly Member. This decision was conveyed by a letter referenced PR/C/66/VOL.4/(66-EOC) and dated the 25th of February, 2019 from the office of the President and signed by the Secretary General.
The Gambia Bar Association is of the strong opinion that the Executive decision purportedly revoking the nomination of Hon. Kumba Jaiteh is not in accordance with our Constitution. The power vested on the President by section 88(b) of the 1997 Constitution is limited to the nomination of five (5) National Assembly Members. Furthermore, there is no provision in the Constitution that grants the President the power or authority to revoke, dismiss, terminate or end the tenure of a nominated or elected member of the National Assembly.
It is pertinent to note that a nominated member of the National Assembly upon taking the prescribed oath, enjoys all the rights, privileges and protection afforded to all members of the National Assembly. Therefore, the only legal grounds upon which a nominated National Assembly Member can be removed are stipulated in sections 91 (as amended) and 93 of the Constitution. In the circumstances, the Gambia Bar Association considers the Executive decision purportedly revoking the nomination of Hon. Kumba Jaiteh as unconstitutional and ultra vires.
Furthermore, we wish to draw the attention of the Executive to the fact that a National Assembly Member is not under the purview of the Public Service by extension the Executive by virtue of section 166 (4) (a) of the Constitution which is reproduced below;
“In this Constitution, an office in the public service does not include-
the offices of President, Vice President, Speaker or Deputy Speaker of the National Assembly, Secretary of state or a member of the National Assembly (our emphasis)”
In light of the aforementioned, the Executive through the Secretary General has no jurisdiction over any nominated National Assembly Member once they are sworn into office. To this end, the purported revocation is functus officio.
The Gambia Bar Association strongly advises the Executive to take cognizance of the sacrosanct principle of the separation of powers and respect for the rule of law. The powers exercised by the Executive arm of government, like other arms of government (judiciary and legislature) are subject to the limits set by the Constitution.
We therefore urge the Executive and those acting on their behalf to desist from preventing Hon. Kumba Jaiteh from discharging her duties as a member of the National Assembly.
For the Gambia our homeland.
Signed
Salieu Taal
President of the Gambia Bar Association |
A clear conscience fears no accusation - proverb from Sierra Leone |
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Momodou
Denmark
11512 Posts |
Posted - 27 Feb 2019 : 14:34:59
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Division at Assembly: Minority claims resolution not binding
The Point: Wednesday, February 27, 2019
http://thepoint.gm/africa/gambia/article/division-at-assembly-minority-claims-resolution-not-binding
The minority leader and member for Niamina Dankunku Constituency, Hon. Samba Jallow, has described the so-called resolution made at the All Party Caucus as not binding and does not represent the decision of the Assembly in chambers.
The Majority Leader Kebba Barrow, the lawmaker for Kombo South, on Monday told journalists they will not accept or recognise the dismissal of Ya Kumba Jaiteh who was nominated by the president.
It is claimed that a resolution was signed by 31 lawmakers who expressed their disagreement with the decision of the head of state.
But in Tuesday’s press conference at the National Assembly, the minority leader refuted these claims, saying the resolution does not represent the decision of Assembly in chambers.
“The resolution read by the majority leader of the Assembly, at the end of the All-Party Caucus yesterday, is not binding and does not necessarily represent the decision of the Assembly in chambers,” the minority leader said.
He clarified that they are neither in nor against the revocation of Ya Kumba Jaiteh’s nomination as members of the house, citing that the issue is an ambiguity over a constitutional provision.
Jallow went on to say if the resolution was meant to have the backing of the Assembly, it should have been properly channelled to the clerk of the National Assembly for it to be included in the chamber’s forthcoming session scheduled in March; during which the matter could be addressed owing to the legalities involved in the issue.
The Niamina Dankunku lawmaker said the position of the caucus was for them to seek legal advice from the Attorney General’s Chambers to guide them in the prospective decision they might have to take.
“I wish to put on record that the resolution made at the All-Party Caucus is not binding and does not represent the decision of the Assembly in chambers,” Jallow emphasised. In addition, the circulated signature list of 31 legislators does not stand or suffice as a support for, or an agreement to, the said resolution but it was a mere attendance list for those who attended the All-Party Caucus.
“There were different views at the All-Party Caucus and those views need to be reflected.
“We call for us to seek legal opinion on the matter and to follow due process.”
Author: Sankulleh Gibril Janko |
A clear conscience fears no accusation - proverb from Sierra Leone |
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toubab1020
12237 Posts |
Posted - 28 Feb 2019 : 08:44:27
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Do you want your voice heard ? Then Post. SIMPLE Eh ?
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QUESTION OF THE DAY
On Monday Foroyaa published what was purported to be a resolution signed by 31 National Assembly members. Yesterday, Foroyaa was again invited to a press conference by the minority leader claiming that a list of attendees to a meeting to discuss the issue was attached to a petition he does not agree with; thus creating doubts regarding the position of the National Assembly members.
February 27, 2019
In any discussion, attendees should always bear in mind the peculiarities of the participants which should be reflected in drafting any resolution so that it would have the endorsement of all.
Despite many voices, the central question still remains, is it prudent for the executive to be seen to be removing a member of the National Assembly from his/her seat. President Barrow and his government should question what is to be gained by the removal of a nominated National Assembly member.
http://foroyaa.gm/are-different-voices-of-nams-on-ya-kumba-jaitehs-case-of-revocation-surfacing/ |
"Simple is good" & I strongly dislike politics. You cannot defend the indefensible.
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toubab1020
12237 Posts |
Posted - 28 Feb 2019 : 08:48:56
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By MUHAMMED S. BAH February 27, 2019
Samba Jallow, the Minority Leader and Member for Niamina Dankunku, has disassociated himself and his Office from being part of the resolution that was read by the Majority Leader, on the dismissal of Nominated Member, Yakumba Jaiteh.
Samba Jallow made this disclosure at a Press briefing held in his office in Banjul, on Tuesday February 26th 2019. The briefing was attended by members of the Press and some Lawmakers. Jallow told journalist that, the resolution read by the Majority leader is not binding and does not necessarily represent the decision of Members of the National Assembly in Chamber.
The Member for Niamina Dankunku clarified that his office together with other parliamentarians, are not for or against the revocation of Ya Kumba Jaiteh’s nomination; that because the issue concerns an ambiguity or an argument over a Constitutional provision; that when they got the news about the revocation of Jaiteh’s nomination, the Majority leader by tradition, consults with his office and suggested an All-party caucus meeting. The Minority Leader further stated that if the resolution was intended to have the backing of the National Assembly, it should have been drafted as a motion.
In addition, the Minority Leader said in condemning the act, the motion should have been submitted to the Clerk for inclusion in the business of the Assembly, in the forthcoming Session, scheduled in March.
Minority Leader Jallow said the effect of such kind of motion is limited, because the issue at hand is about a Constitutional provision; that on the legality of the act, “Section 127 (1) (a) of the 1997 Constitution provides that the Supreme Court has the exclusive original jurisdiction for the interpretation or enforcement of any provision of the Constitution. For me and some of my colleagues, our position at the caucus was for us to seek legal advice or opinion from the AG Chambers. We may know the next line of action to be taken as a National Assembly,” he said.
He said the National Assembly has powers to hold the Executive to account but not in such a way; that the person affected is a nominated member, and that NAMs should be very careful on how they deal with the issue as the person who nominated her, can give reasons why he revoked her nomination.
Majonko Samusa another Nominated Member, said the decision taken by the Majority Leader was unfortunate because he did it without proper consultation with the rest of the members; that he was saddened that this was happening during the new dispensation and by a transition government that is task to promote the country’s democratic principles.
Samusa said he believes the Majority leader misled the public; that his statements are capable of undermining the National Assembly.
It could be recalled that the Majority Leader on Monday February 25th 2019, briefed the press at the National Assembly complex that thirty one Members have signed a resolution condemning the alleged dismissal of nominated Member Jaiteh.
http://foroyaa.gm/minority-leader-disassociates-himself-from-resolution-on-jaitehs-dismissal/ |
"Simple is good" & I strongly dislike politics. You cannot defend the indefensible.
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toubab1020
12237 Posts |
Posted - 28 Feb 2019 : 22:03:23
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By Mafugi Ceesay 28/02/2019
A day after the Gambia Bar Association argued that president Barrow cannot sack a nominated member of the national assembly, lawyer Ibrahim Jallow has told The Standard that it is the constitutional right of President Adama Barrow to hire or fire nominated members of the National Assembly.
Kumba Jaiteh’s nomination was reportedly revoked by the president last weekend causing a big debate and split among Gambians in the assembly and elsewhere.
Lawyer Jallow pointed out that with the law and practice of presidential constitutionalism, it is always the prerogative of the chief executive to nominate and revoke, appoint and fire, recommend and rescind etc.
“The reality, however, is that the powers of President under the 1997 Constitution, are still one of the most misunderstood aspects of our constitutional process and discourse.
“I also believe that, given the mechanized character and formation of the Government and the National Assembly, it is quite possible that the resolution passed by some members of the National assembly rejecting the revocation of the nomination of Kumba Jaiteh by the President, is a cooked strategy to gradually deny the President of his powers ahead of the most anticipated power struggle in the history of The Gambia,” he said.
“The question is how far can the President go to exercise his powers under the 1997 Constitution of the Republic of The Gambia? For a start, the 1997 Constitution provides in Section 76 (1) as follows: “The executive power of The Gambia is vested in the President and, subject to this Constitution, shall be exercised by him or her either directly or through the Vice- President, Secretaries of State or officers responsible to him or her.”
Furthermore Subsection (2) provides thus: “In addition to the powers conferred on him or her by this Constitution, the President shall have such powers and responsibilities as may be conferred on him or her by or under an Act of the National assembly.”
Section 91 (1(b) of the Constitution further provides thus: “A member of the National Assembly shall vacate his or her seat in the National Assembly-
“(b) subject to subsection (2), if any circumstances arise which, if he or she were not a member, would cause him or her to be disqualified for election as a member or nomination as a member;”
Section 231 Subjection (1, 2, 3, 4, 5) particularly subsection (1) of the Constitution also provide thus:
“Where any power is conferred by this Constitution to make any proclamation, order, regulation, rule or pass any resolution or give any direction or make any declaration or designation, it shall be deemed to include the power, exercisable in like manner and subject to like conditions if any, to amend or revoke the same.”
Subsection (5) provides: “Without prejudice to the provisions of section 167, but subject to the other provisions of this Constitution, the power to make any appointment to a public officer includes the power to dismiss any person so appointed.”
Jallow said the constitutional law in The Gambia as stated above is that, including the Vice President who may come into office on a joint ticket with the President, and all other members of the cabinet, whether appointed or nominated by the President into public offices, except where specifically established by the Constitution or an Act of the National Assembly, hold their appointments or nominations as the case maybe at the pleasure of Mr. President.
“Section 231 (1) read together subsection (5) restate the exclusivity of the President’s power to appoint and fire, nominate and revoke, as the case maybe. The implication of the above provisions of the law is that, since the President is the initiator using a constitutional right and power to nominate Kumba Jaiteh as a National Assembly member, the process of her removal as a National Assembly member, can as well be initiated by the President by revoking his nomination.
“The right and power of the President to revoke the nomination of a National Assembly member, is equivalent to the right and power of the electorate in any constituency to recall an elected National Assembly member from that constituency, if the National Assembly member failed to deliver the promises he was elected for under section 91 (1(f) and section 92 (a and b) of the constitution of The Gambia. This is common sense.
The constitution generally makes it clear that the appointment and dismissal or nomination and revocation of the nomination of public office holders by the President is an executive power, and those appointed or nominated by the President shall be at the President discretion, with the practical exception of those elected into public office in accordance with an Act of the National Assembly.
“If the constitution gives such powers to the President to appoint and fire, or nominate and revoke, why would it become unconstitutional for the President to do away with appointees and or a nominated member of the National Assembly by the President, if the nominated member of the National Assembly has become a political and or moral liability to the President or the administration of the state? For a nominated member of the National assembly serving in a self-respecting arm of government, the gravity of the dissatisfaction of the person who nominated her, was enough for her to promptly tender her resignation as National Assembly member if only to save the National Assembly from a degraded public esteem.
“I have read the National Assembly unconstitutional and inconsistent resolution rejecting the Presidents revocation of his nomination of Kumba Jaiteh as National Assembly member – as null and void. The National Assembly would claim that its position is stemmed from the provision of the constitution or other laws even though the National Assembly cited no particular section of any law or the constitution in support of its resolution. Ironically, the National Assembly declared that it is okay for the President to nominate Kumba Jaiteh as member of the National Assembly, but that the President has no right or power to revoke his nomination – what a theatre. With due respect to the National Assembly, I greatly disagree, and submit that the right and power of the President to revoke his nomination of Kumba Jaiteh as a National Assembly member is constitutional.”
https://standard.gm/?p=53427 |
"Simple is good" & I strongly dislike politics. You cannot defend the indefensible.
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Momodou
Denmark
11512 Posts |
Posted - 01 Mar 2019 : 10:24:53
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Differing opinions is part of democracy.
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A clear conscience fears no accusation - proverb from Sierra Leone |
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Momodou
Denmark
11512 Posts |
Posted - 02 Mar 2019 : 10:00:05
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PDOIS STATEMENT ON 22ND JULY 2013. THE YOUNG SHOULD BE TOLD THE TRUTH. Part 1146
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Are nominated Members Secure? What does Ramzia's Expulsion From APRC Mean?
(as published in 2005).
ISSUED BY HALIFA SALLAH SECRETARY GENERAL
President Jammeh has long said that as far as he is concerned, politics is dirty. We of course disagree with him. There is decency in politics. It all depends on the form of politics. The APRC however is indeed washing its dirty linen in public.
On Friday 2nd April 2004, it was announced that Ramzia Diab, a nominated member in the National Assembly, has been expelled from the APRC. Since then, many of our readers asked whether the nominated member could retain her seat in the National Assembly. The mere expulsion of the nominated member from the APRC party cannot automatically lead to the vacation of her seat at the National Assembly. In this respect, the seats of nominated members are more secure than those of elected members who would have to face by elections if they cease to be members of a political party of which they were members at the time of their elections.
Section 88 of the Constitution makes the five nominated members of the President, full members of the National Assembly in addition to the 48 elected members. A nominated member could be made to vacate his or her seat if he or she is found to lack the qualification to be a National Assembly as established in Section 89 of the Constitution or implied in Section 90 and 91. The qualifications stipulated in Section 89, include citizenship, attainment of the age of twenty - one years, proficiency in English, and declaration of assets amongst others. The criteria of disqualification mentioned in Section 90, deals with the holding of dual citizenship, conditions of mental illness, imprisonment for more than six months, being found guilty of corruption or abuse of public office. Section 90 does not have any provision where a nominated member would vacate his or her seat as a result of censure to be a member of a political party. A nominated member could be expelled for being absent from ten or more sittings of the Assembly during a session.
Foroyaa will watch and see what the president will do. Any National Assembly member has the option to resign. However, it would constitute a mockery of the independence of the National Assembly and the principle of the separation of powers if the President removes a nominated member from office. We would then campaign for the position of nominated members to be expunged from the Constitution. In short, a person who can be hired and fired by the president is not fit to be a National Assembly Member.
The preamble of the Constitution States categorically that, the functions of the arms of the state have been clearly defined and their independence amply secured with checks and balances to ensure that they work towards our common good. If the President exercises the power to hire and fire a National Assembly Member, the independence of the National Assembly would be the casualty. It would be indefensible for over 23,000 registered voters in Serrekunda Central to vote for one National Assembly Member if a single President can put five members in the National Assembly and then remove them at will. This would be one dictatorial power we would combat and isolate. |
A clear conscience fears no accusation - proverb from Sierra Leone |
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toubab1020
12237 Posts |
Posted - 04 Mar 2019 : 12:48:52
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By
Madi M.K. Ceesay -
February 27, 2019
The information that reached the office of the Majority Leader on the revocation of the nomination of Hon Ya Kumba Jaiteh which soon found itself all over in the social media; with some referring to it as sacking or dismissal of a sitting member of the National Assembly by the President of the republic of the Gambia Adama Barrow. This is a very unfortunate action by the president of the republic.
The very unusual thing about the letter said to have come from the office of the President which was signed by the Secretary General and Head of the Civil Services Ebrima .O. Camara was that the text of the letter was not on any government letter head. Very unusual and one would even wonder if that was an official communication from the office of the President.
The text was just on an ordinary A4 paper with no stamp; strange is it not? The letter’s reference is PR/C/66/Vol/ (66-EOC).
The content of the letter reads: I here-by write to convey Executive decision to revoke your nomination as National Assembly Member, with immediate effect .By copy the Clerk of the National Assembly is here-by duly notified.
The irony is that the letter is dated 25 February 2019 and information was received since the 21 February 2019. Was the letter written on or before the 25 February 2019?
Where the President or his Advisers got it all wrong is that the President’s power stops at nomination stage and not approval stage.
It is not when the approving authorities already approved and the status of the nominated person change from nomination to a member of the National Assembly that the President can assert authority. It’s wrong and unconstitutional of the president to act the way he acted.
The constitution is clear on how one can become a member of the National Assembly; which is either by election or nomination of candidates by the President subject to the approval of the members of the National Assembly.
The constitution is also clear how a sitting member also vacates his or her seat at the National Assembly. Not a mention of revocation of nomination is in the constitution as way of one losing his or her seat. So how can the President’s pronouncement of revoking nomination hold water?
Where the President got it all wrong is that his powers only stops at nominating, once we pass the nomination stage the person becomes a member of the National Assembly and full stop.
The President then has no powers at all to remove a member of the National Assembly. No matter how the member becomes a member of the National Assembly.
It is rather the other way round, that is, it is the members of the National Assembly who can impeach a President. The power to dismiss a President lies in the hands of members of the National Assembly but not the President dismissing members of the National Assembly.
Is the President ignorant of the laws and if he is where is his legal advisers? How then can the President be allowed to write such a letter or agree for such letters to emanate from the Office of the President.
Mr. President Nominations and appointments are two different things; you only nominated but never appointed Hon Ya Kumba Jaiteh to the National Assembly. She is not a civil servant and cannot sack her.
http://dailynewsgm.com/president-barrow-got-it-all-wrong/ |
"Simple is good" & I strongly dislike politics. You cannot defend the indefensible.
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Momodou
Denmark
11512 Posts |
Posted - 15 Mar 2019 : 13:45:38
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The Supreme Court Rejects Jaiteh’s Injunction
The Daily News: March 15, 2019
By Almamo Kamaso
http://dailynewsgm.com/the-supreme-court-rejects-jaitehs-injunction/
The Supreme Court of the Gambia today at its ruling in the injunction case against the swearing of Foday Gassama as a replacement to Hon Yakumba Jaiteh is rejected. It is until the revocation of her nomination by the President she was one of the fifth nominated member of the National Assembly.
The five man team of the Supreme Court rejects Ya Kumba Jaiteh’s restraining order to prevent the nomination of Foday Gassama.
This means Gassama can be sworn in as a nominated lawmaker pending the outcome on the substantive case to determine the constitutionality of the revoking Hon Kumba’s nomination. The court will now move into the substantive case.
However, Gassama will likely take oath on March 18 2019, when the National Assembly began its first seating of the fifth legislature.
Now the Supreme Court will go into the substance of the case as to whether the President can dismiss a sitting member of the National Assembly by revocation of a nomination. |
A clear conscience fears no accusation - proverb from Sierra Leone |
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Momodou
Denmark
11512 Posts |
Posted - 22 Mar 2019 : 18:28:53
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The Honourable Ya Kumba Jaiteh and the Imperative of Executive Adherence to Legality
With mounting interest I follow the debate on whether there is authorisation under the 1997 Constitution of the Republic of The Gambia (“the Constitution”) for His Excellency, Adama Barrow, President of the Republic of The Gambia, to fire the Honourable Ya Kumba Jaiteh (“Jaiteh”) as a nominated member of the National Assembly.
Is there indeed incontrovertible authorisation for the President to nominate National Assembly members, or is section 88(2) nullified, or at the very least seriously called into question, by section 96 of the Constitution, on the one hand, and by accepted principles of democratic constitutional theory and practice on the other? According to section 96 (1), “there shall be a general election of all members of the National Assembly which shall be held four months after the date of election of office of the President”.
What schizophrenic Constitution!
Our Constitution is a disaster for even the theoretical underpinnings of democratic pluralism, effectively emasculating, as it did, the National Assembly, and Judiciary, by reducing these constitutional pillars of the state to mere appendages of the Executive through the unjustifiable centralisation of all power in the President. Be that as it may, the Constitution remains valid and I approach the Jaiteh controversy in that context.
The Jaiteh saga is a spectacular rerun of Ramzia Diab’s firing in 2004 by our eminent man of letters doubling as President of the Republic. Entering the ring on the side of his employer, then Attorney General S T Hydara postulated the highly questionable assertion that “the drafters of the Constitution were no fools”. Writing out of the jurisdiction, I advanced the counter contention that 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 as its general thrust was inimical to both the doctrine of the rule of law, and the concept of the separation of powers”.
Witness the establishment of the Constitutional Review Commission!
Some fifteen years later, and a peoples revolution as backdrop, our nation is faced with an incomprehensible replay of the Ramzia affair under circumstances more egregious and unjustified than that original Executive misadventure into forbidden terrain.
Without question, the Constitution’s convoluted nature is a glaring manifestation of its perverse intent. In a laughable, if tragic way, the hope was nurtured that this may constitute a blessing in that under properly mounted challenges against routinely arbitrary Executive conduct, the courts will find it impossible to anchor sensible and defensible decisions favouring any President in this greatly compromised and labyrinthine document.
That hope is clearly misplaced as spectacularly demonstrated by the Supreme Court in its interlocutory decision in the Jaiteh saga!
In the debate that ensued over Ramzia’s dismissal, the late legal luminary, Pap Ousman Cheyassin Secka of respected memory – in his defence of the President - refers to the entrenchment of separation of powers in the Constitution. Then as now, I wonder which document that postulation refers to. The preamble is not a part of any Constitution, and even where it would ordinarily constitute a true reflection of the letter and spirit of the main document, it has no edifying character as regards our law of laws.
As in 2004, my interest in the Jaiteh saga is public spirited and constitutionally focused. But how little times have changed! In reaching their conclusion on the legality of Ramzia’s dismissal, then Attorney General, and Cheyassin, that late giant of jurisprudence, contended that there is a universal “age-long aphorism that he who has the power to hire also has the power to fire”.
Then as now, I emphatically reject that proposition as a principle of general application.
Under both constitutional theory and practice in a proper system of democratic governance, a president who nominated, and, or, appointed, a NAM, or Judge, should become functus officio on the basis of the doctrinal logic that a particular hiring traverses constitutional demarcations.
In other words, he should have no authority whatsoever to fire either NAMs, or judicial officers ranging from Magistrates, to Justices of the Supreme Court. In similar vein, constitutionally envisaged independent agencies like the Independent Electoral Commission must reside outside the purview of presidential influence. This is not to suggest that these categories of officers are exempt from legitimate control mechanisms, but that they must not be subjected to the whims of the Executive as preeminent wielder of the police power. Once appointments are made in these areas, there must be no removal powers available to the President as an individual.
As demonstrated by the overwhelming public interest in the Jaiteh saga, the values at play constitute the silent tributaries along which the streams and rivers of democratic life flow to the great seas and oceans of personal conscience and freedom. We must learn to restrain our leaders within the boundaries of legality and their legitimate authority. The presidency is a majestic office with awe-inspiring powers, but that notwithstanding, it is a short-term tenancy, and a tenant must not have the capacity to destroy the landlord’s estate. As landlords, our estate, The Gambia, its nurture along the paths of tolerance and pluralism, must remain our supreme project.
It is common territory that the Constitutional text is silent on how a nominated NAM should be unseated. In that case we must step outside the document to examine the architecture of democratic governance and the underpinnings of republicanism with its entrenched values of limited government anchored in separated power and the rule of law.
On a straight application of the doctrine of separation of powers, the President can have no authority to fire a NAM. Notwithstanding baseless assertions by some commentators, the powers under sections 167, and 231(5) are not triggered as a NAM – nominated or otherwise – is not a public office, thereby making it unnecessary to refer to the Interpretation section at 230 as Jaiteh is explicitly excluded from holding a public office by section 166 (4) (a) of the Constitution.
It is indeed instructive that Jaiteh’s dismissal, communicated through no less a figure than the Secretary General - that great supervisor of the Public Service, sounding board of the President, and his preeminent confidant in normal times - relied on no authority other than a baseless Executive Directive for such a momentous missive. It was disconcerting for the SG to convey a Directive of such magnitude without anchoring it in any legal provision. The holders of the great offices in public service must learn to say no when occasion demands.
Even a casual reading of Chapter XI, sections 166-171, provide insight into the Constitution’s understanding of public office, especially at: 168, on Head of Civil Service; 170, on Restriction of Political Activity; and 171, on Retiring Age. The perversity of the Constitution to clothe the Executive with power to micromanage every aspect of national life has needlessly triggered a constitutional crises in the Jaiteh affair. The document is proving to be a minefield, especially considering the plethora of superficial analysis against the clear command of section 166 (4) (a).
In similar vein, the attempt by some commentators to categorise Jaiteh’s purported dismissal as the functional equivalent of an electoral recall is clearly unworkable considering there must be legislation to activate the recall provision in the Constitution. Even assuming that this provision is available to the President – and it is not - the Constitution suggests that it must be a serious matter as one third of registered voters in a constituency must support the recall petition.
What did Jaiteh do? Absolutely nothing going by the letter from the Secretary General! If indeed the Constitution authorises the President to nominate one in every ten members of the National Assembly, the fate of this category of member must not be left to chance as sooner or later a political relationship in a developing democracy like ours is bound to poisonously collapse.
In the Constitution, power is theoretically separated between the Executive, the Legislature, and what the document itself calls the Judicature. Globally, these are the traditional demarcations in constitutional democracies. The abiding principle is that power must not be concentrated in one branch of government, a philosophical position triggered by the conduct of the mighty monarchs of Europe in the long stretch of history to the Enlightenment, also known as the Age of Reason. “Enlightenment thinkers in Britain, in France and throughout Europe questioned traditional authority and embraced the notion that humanity could be improved through rational change”.
Enlightenment thought was the inspiration and precursor of the great and hugely transformative revolutions in America and France in the eighteenth century, an era when absolute power was fully located in European monarchies. The clamour for diffusing power led to the establishment of the legislature and the judiciary as independent arms of government. Then as now, it was always the Executive that needed restraining due to its centrality to public life and same applies in the Gambia of modern times.
When a president is accorded authority and opportunity to overreach he will do so and that is a historical fact. A brilliant example was the relationship between President Eisenhower and Earl Warren, his nominee to the US Supreme Court. Both were blue blooded Republicans but on the bench of its hugely influential Supreme Court, Warren stood for America and its enduring values of equality before the law as enshrined in the pivotal and liberalising fourteenth amendment to the U S constitution. Eisenhower referred to his appointment of Warren as “the biggest damn fool thing I ever did”.
When in later years he was asked whether he made any mistakes, Eisenhower eagerly answered “Yes: two. And they are both sitting on the Supreme Court”. The other mistake was William Brennan Jr., one of the great liberal jurists to sit on the Court in the twentieth century. Like Warren, and Brennan, to Eisenhower, Jaiteh too owes President Barrow nothing. Her loyalties must first and foremost be to The Gambia and her dismissal as a NAM on the grounds of disloyalty was wrongful and regrettable.
The closest thing to our nominated NAMs is the United Kingdom House of Lords. After nomination by the political leadership and appointment by the monarch, the appointing authority became functus in the fortunes of a member of the Lords. Any removal must be done within the rules of the Lords but not by an unhappy political leader or monarch.
About unhappiness and redress, Jaiteh went to the Supreme Court for a declaration of the invalidity of the President’s attempt to remove her as a NAM. She also asked for a restraining order to forestall the wrongful swearing of her replacement. Although a decision on the substantive question remains pending, her application for a restraining order was refused on the grounds of “… the presumption of regularity of all official acts [and] the applicable principles of law relating to the grant of interim restraining orders”.
The Supreme Court was wrong in its conclusion.
The decision was a Judicial Directive in that offered no reasoning on what it meant by “… the presumption of regularity of all official acts [and] the applicable principles of law relating to the grant of interim restraining orders”. Jaiteh went into the Court whole and came out reduced. She came back empty handed and shackled by the weapon she pleaded with the Court to interpose between her and her traducers.
For the benefit of the reading public, there are settled principles around the grant or refusal of interlocutory injunctions/restraining orders. It is of course an accepted legal position that the grant or refusal of an interlocutory injunction lies squarely within the jurisdiction of the Court (Madikarra Jabbi v Alhagie Lansana Sillah (2014-2015) GSCLR 246, at 253. An injunction is an equitable relief and consequently it is granted at the discretion of the court. It is not granted as a matter of grace. The discretion must be exercised judiciously and judicially” (see Ayorinde v AG Oyo State (1996) 2 SCNJ 1998).
The Court’s discretion notwithstanding, a judicious application of that discretionary power based on law and reason anchored on the particular facts before the Court is expected (Madikarra Jabbi v Alhagie Lansana Sillah (2014-2015) GSCLR 246, at 253. “For a Court to declare whether or not to grant an injunction ... it has as of legal necessity to go into the consideration of the competing legal rights of the parties to the protection of the injunctive relief. It is a duty placed on an applicant seeking injunction ... to establish by evidence in affidavit(s) the legal right she seeks to protect by the order which of necessity makes it mandatory for the court to go into the facts to determine whether such entitlement has been established” (Aboseldehyde Laboratories Plc v. Union Merchant Bank Limited & Anor. (2013) 54 (Pt. 1) NSCQR 112, at 144).
According to the Gambia Court of Appeal “a discretion is judicially and judiciously exercised if it is done with regard to what is right and equitable in the peculiar circumstances of the case, the relevant law, and is directed by conscionable reasoning of the Trial Judge to a just result” The State v Isaac Campbell (2002-2008) 2 GLR 354).
The Supreme Court offered no reason whatsoever for its conclusion!
In its highly celebrated decision in American Cyanamid Co. Ltd v Ethicon Ltd (1975) 1 AER 504, the widely considered primer on interlocutory injunctions, the United Kingdom House of Lords, as it then was, stated that in considering an application for an injunction, regard should be had to the following:
1. Legal right
2. Substantial issue to be tried
3. Balance of convenience
4. Irreparable damage or injury
5. Existence of alternative remedy
6. Conduct of the parties
That Jaiteh has a legal right in retaining her status as a NAM is clearly uncontested.
On that basis alone, there is compellingly a substantial issue to be tried.
As to the balance of convenience, Lord Diplock, in American Cyanamid Co. Ltd v Ethicon Ltd (1975) 1 AER 504, supra, at 507, states:
... when an application for an interlocutory injunction to restrain a defendant from
doing acts alleged to be in violation of the plaintiff's legal right is made upon contested
facts, the decision whether or not to grant an interlocutory injunction has to be taken at
a time when ex hypothesi the existence of the right or the violation of it, or both, is uncertain
and will remain uncertain until final judgment is given in the action. It was to mitigate
the risk of injustice to the plaintiff during the period before that uncertainty could be resolved
that the practice arose of granting him relief by way of interlocutory injunction; but since the
middle of the nineteenth century this has been made subject to his undertaking to pay
damages to the defendant for any loss sustained by reason of the injunction if it should be held
at the trial that the plaintiff had not been entitled to restrain the defendant from doing
what he was threatening to do. The object of the interlocutory injunction is to protect the
plaintiff against injury by violation of his right for which he could not be adequately
compensated in damages recoverable in the action if the uncertainty were resolved in his
favour at the trial; but the plaintiff's need for such protection must be weighed against
the corresponding need of the defendant to be protected against injury resulting from his having
been prevented from exercising his own legal rights for which he could not be adequately
compensated under the plaintiff's undertaking in damages if the uncertainty were resolved
in the defendant's favour at the trial. The Court must weigh one need against another and
determine where" the balance of "convenience" lies.
The Supreme Court settled for a Judicial Directive by reaching a conclusion without offering a scintilla of reasoning in support of that result.
On the “...presumption of regularity of all official acts …” it has no relevance to this case.
On whether non-lawyers can competently comment on this matter, I merely state that a Barrister-at-Law designation is not a dispenser of super wisdom or of any wisdom at all. Gambia’s public intellectuals must engage with the public space and help dissect the great issues of the day for the benefit of larger society. I urge them to emulate the likes of Anthony Lewis, legal columnist for the New York Times, “… an American public intellectual and journalist” who covered the United States Supreme Court for his paper. “Early in Lewis' career as a legal journalist, Supreme Court Justice Felix Frankfurter told an editor of The New York Times: "I can't believe what this young man achieved. There are not two justices of this court who have such a grasp of these cases". Eulogizing Lewis, the Dean of Columbia University’s School of Journalism said: "At a liberal moment in American history, he was one of the defining liberal voices".
I therefore urge our Nieman Fellow, and our Country Representative of the Westminster Foundation for Democracy, among others, to plough on and empower their people.
In his anger, the President wronged Jaiteh and the country he leads. On one of these moonlit nights, I urge him to take a lone walk along the serene grounds amidst the beautiful flowers and trees of the national house he calls home. I urge him to reflect on the rise and fall of the previous tenants-in-chief of that house, to come to terms with his mortality, and the transiency of his office. Let him survey the majesty of the presidency and reflect on the purpose for which he was sent to Number 1 Marina. The monuments we will remember and celebrate him for are not going to be the physical structures he left behind but the unseen symmetric beauty of governance under law.
The President was wrong to purportedly fire Jaiteh, and the Supreme Court was wrong to restrain her whilst refusing her application to restrain her replacement and others from violating her accrued legal rights under colour of law.
Lamin J. Darbo |
A clear conscience fears no accusation - proverb from Sierra Leone |
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Momodou
Denmark
11512 Posts |
Posted - 28 Jan 2020 : 15:16:09
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Breaking News: Barrow Loses As Supreme Court Passes Judgment In Ya Kumba’s Favour
The Fatu Network: January 28, 2020
By Adama Makasuba
https://fatunetwork.net/breaking-news-barrow-loses-as-supreme-court-passes-judgment-in-ya-kumbas-favour/
The Supreme Court today upheld a judgment in favour of Ya Kumba Jaiteh whose nomination was revoked by President Adama Barrow.
In Tuesday’s judgment, Hassan B Jallow, chief justice, said: “The purported termination of nomination of Ya Kumba Jaiteh through an executive letter was unconstitutional, null and void.”
“The third defendant Gassama’s nomination is unconstitutional, null and void,” he added.
The court also advised Mr Gassama to desist from presenting himself as a nominated member of the national assembly anywhere.
More follows… |
A clear conscience fears no accusation - proverb from Sierra Leone |
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toubab1020
12237 Posts |
Posted - 28 Jan 2020 : 23:18:38
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What happens NOW is the question that must be on everyones mind
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quote:
Originally posted by Momodou
Breaking News: Barrow Loses As Supreme Court Passes Judgment In Ya Kumba’s Favour
The Fatu Network: January 28, 2020
By Adama Makasuba
https://fatunetwork.net/breaking-news-barrow-loses-as-supreme-court-passes-judgment-in-ya-kumbas-favour/
The Supreme Court today upheld a judgment in favour of Ya Kumba Jaiteh whose nomination was revoked by President Adama Barrow.
In Tuesday’s judgment, Hassan B Jallow, chief justice, said: “The purported termination of nomination of Ya Kumba Jaiteh through an executive letter was unconstitutional, null and void.”
“The third defendant Gassama’s nomination is unconstitutional, null and void,” he added.
The court also advised Mr Gassama to desist from presenting himself as a nominated member of the national assembly anywhere.
More follows…
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"Simple is good" & I strongly dislike politics. You cannot defend the indefensible.
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Momodou
Denmark
11512 Posts |
Posted - 29 Jan 2020 : 14:01:38
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quote:
Originally posted by toubab1020
What happens NOW is the question that must be on everyones mind
Gambia Government Reacts to Supreme Court Decision in the Case of Ya Kumba Jaiteh Vs Attorney General
Foroyaa: January 29, 2020
https://foroyaa.gm/gambia-government-reacts-to-supreme-court-decision-in-the-case-of-ya-kumba-jaiteh-vs-attorney-general/
The Government of The Gambia, through the Attorney General’s Chambers and Ministry of Justice, on Wednesday said it has taken note of the Decision of the Supreme Court in the case of Ya Kumba Jaiteh vs Clerk of the National Assembly & Others delivered on 28 January 2020.
The Government said it wishes to further assure the general public that notwithstanding its disappointment, it will fully comply with the Supreme Court’s Decision with immediate effect.
A press release issued by the Ministry of Justice reads: “This is the position expected of a Government that is committed to respect for the rule of law and democracy. It demonstrates that no matter our individual opinions or divergent views especially on matters of national interest, we are all subject to the law and that no person or groups of persons are above the law.”
It adds: “Decisions like these were unthinkable only three years ago and it goes to reinforce the extent to which the independence of our judiciary has come in this short period of time under this administration. The Government therefore calls upon everyone in this country to be law abiding and to make use of democratic processes, including the courts, to address their grievances.”
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A clear conscience fears no accusation - proverb from Sierra Leone |
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Momodou
Denmark
11512 Posts |
Posted - 06 Feb 2020 : 11:40:48
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Lawyer Mboge wants the Supreme Court to restrain Ya Kumba Jaiteh
Foroyaa: February 6, 2020
By Yankuba Jallow
https://foroyaa.gm/lawyer-mboge-wants-the-supreme-court-to-restrain-ya-kumba-jaiteh/
Lawyer Lamin K. Mboge has on Wednesday, 5th February 2020 filed a motion for the Supreme Court to restrain Ya Kumba Jaiteh from assuming her seat at the National Assembly.
Mboge wants the apex court to restrain Ya Kumba pending the hearing and determination of his appeal (known as review in the legal parlance). The full bench (seven judges instead of five) of the Supreme Court has the jurisdiction to review its own decision. Section 127 of the 1997 Constitution gives the Supreme Court the power to review its own case and come up with a determination. If the motion sought succeeds in the review case, the previous judgment will be set aside.
Lawyer Mboge told Foroyaa he filed the motion seeking the court to restrain Ya Kumba on Wednesday, 5th February 2020.
“I am still within time and I will file my case very soon. The motion is seeking the court to restrain her (Ya Kumba) pending the hearing and determination of the review case,” Mboge told Foroyaa.
Mboge told Foroyaa he has 15 days to file his case before the Supreme Court for review.
“I am working on something and if I am done, I will file the case. I have up to 15 days. This means I am still within time,” Mboge said.
The Supreme Court judges on the 28th January, 2020 delivered their judgment and held that the purported termination of Ya Kumba’s nomination as a member of the National Assembly was unconstitutional because the President lacks such powers under Gambian laws.
President Adama Barrow nominated Ya Kumba Jaiteh as a member of the National Assembly in 2017 and on the 25th February 2019, her nomination was purportedly terminated by a way of an Executive Decision communicated to her by letter. The Supreme Court held that the purported termination was unconstitutional, invalid, null and void and of no effect. The court declared that Ya Kumba is a member of the National Assembly and her seat has not been vacated as provided by law and that the purported nomination of the 3rd defendant, Foday Gassama, as a member of the National Assembly is null and void and of no effect. The court made orders for Foday Gassama not to, in any form or manner, act or present himself as a member of the National Assembly.
The Ministry of Justice issued a press release expressing the government’s desire to comply with the decision.
“The Government wishes to further assure the general public that notwithstanding its disappointment, it will fully comply with the Supreme Court’s Decision with immediate effect. This is the position expected of a Government that is committed to respect for the rule of law and democracy. It demonstrates that no matter our individual opinions or divergent views especially on matters of national interest, we are all subject to the law and that no person or groups of persons are above the law,” the release stated.
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A clear conscience fears no accusation - proverb from Sierra Leone |
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Furious Gambian Lawmakers Savage Barrow
