Bailo
 
I appreciate your query on Section 62 (c) of The 1997 Constitution of the Republic of The Gambia (the Constitution) vis-a-vis the ability of Mai Fatty to contest the presidency in 2011. That we are even discussing the eligibility of a Gambian citizen - with no apparent disability other than absence from the country - to contest for the Office of President is a rather tragic commentary on the political system the Constitution undergirds. 
 
The operative phrase in 62 (c) is "ordinarily resident", and you carved an exception for Mai Fatty from the strictures of this particular provision based on his illness and absence from the country on medical grounds. Enticing as it may sound, this argument is unlikely to cut muster with the decision maker, in this case the Supreme Court of The Gambia (the Court), as the judicial organ with original jurisdiction in the interpretation of the Constitution.
 
Section 62 (c) appears not to be an innocent provision, and to decide whether Mai Fatty is able to contest the presidency in 2011, the Court would have to pronounce its understanding of "ordinary residence". It can either take a literal view of the phrase, or adopt a purposive approach in attempting to discern its meaning. A literal approach is likely to equate "ordinary residence" with actual physical presence in The Gambia for all the five year period in question, except for short absences on business, and, or other matters. This is a strict approach, and the Court is unlikely to carve an exception for Mai Fatty, regardless of how unreasonable such a position may appear to an outside observer.
 
An alternative rule of statutory interpretation - the purposive - is capable of accommodating your view by accepting the argument that Mai Fatty was absent from The Gambia, not of his own volition, but because of circumstances outside beyond his control. Under such a scenario, a difficult, if plausible argument may be advanced to the effect that placing a Constitutional impediment to his presidential ambitions is unreasonable, and runs counter to the intent of the framers. I merely mention that we are here operating on the assumption that the available facts are capable of sustaining the argument that a medical necessity was in operation during the whole period of Mai Fatty's absence.
 
In a roundabout way, 62 (c) is cast in imperative terms, and I do not envisage the Court accepting any exception along the lines you are contending for. Again, there may be reason to to the inclusion of this particular provision in the Constitution. Supposing an ambassador spent three  years in Washington commencing in September 2001. If he was recalled in September 2004, and contrary to practise, actually returned, and approached the IEC for nomination as a candidate, either as an Independent, or for another Party, for the 2006 presidential contest, his candidacy would fit under your understanding of 62 (c). His argument may be that he was effectively in The Gambia, in the sense not only that he was a bona fide employee of the Gambia Government, but that he was working in sovereign Gambian territory, i.e, the embassy, if only theoretically. As should be evident, if your argument for Mai Fatty is accepted, its logical analogies will be
 so many that the efficacy of 62 (c) is likely to be eviscerated. 
 
As 62 (c) touches on the very survival of Professor Jammeh, the Court is unlikely to accord you the interpretation you seek for the provision.  And in my view, any outcome that denies your desired interpretation is likely to be in line with propriety in so far as the law in its current form is concerned. 
 
 Regards
 
 
 
 
 
LJDarbo
 

--- On Fri, 30/1/09, bailo jallow <[log in to unmask]> wrote:

From: bailo jallow <[log in to unmask]>
Subject: Re: Gambia Moral Congress (GMC)
To: [log in to unmask]
Date: Friday, 30 January, 2009, 11:39 AM







Lamin, 
  
Thanks for sharing your perspectives with us on this latest national political evolution of the founding of a new political party, the Gambia Moral Congress. 
  
However as a layman in the interpretation of the Laws of The Gambia, I consider your legal opinion on the matter of Mai’ Fatty’s absence from The Gambia and the implication thereof on his qualification to contest the Gambian presidency should he so desire, to be rather strict or restrictive. If I had the privilege to interpret Section 62 (C) of the constitution in a Court of Law relative to Mr. Fatty’s personal circumstances, I would have considered him to be “ordinarily resident� in the Gambia for at least the past 12 months in contrast with your view that he “had been continuously absent from The Gambia for at least the past twelve months, and clearly failed the Constitutional test�. I am of my perspective for the following reasons: 
  
ü  Mr. Mai Fatty had been ordinarily resident in The Gambia prior to being evacuated to Senegal for access to life-saving Medical treatment/facilities not available in The Gambia; 
  
ü  Since the 2006 Presidential election Mr. Fatty had not been ordinarily resident outside The Gambia prior to his evacuation to Senegal on medical grounds; 
  
ü  His presence in Senegal or in the UK is primarily for medical treatment and therefore a matter of absolute necessity and as such out of the ordinary; 
  
ü  Had he not left the Gambia for Senegal to undergo essential life-saving treatment, he would most probably have been no more by now. 
  
If on the other hand, Mr. Mai Fatty opts to remain outside the Gambia upon completion of his medical treatment as certified by qualified medical practitioners, then he should be duly considered not to be ordinarily resident in The Gambia. Until such a time, I implore you to reconsider your verdict on Mai Fatty’s residential status relative to his qualification to contest the 2011 Presidential election should he so wish. 
  
Sincerely, 
  
Bailo

--- On Thu, 29/1/09, Lamin Darbo <[log in to unmask]> wrote:

From: Lamin Darbo <[log in to unmask]>
Subject: Re: Gambia Moral Congress (GMC)
To: [log in to unmask]
Date: Thursday, 29 January, 2009, 7:05 PM











YJ
 
It appears The Gambia Echo has an exclusive on what is dubbed "The Maiden Speech of the National Executive Chairman" of the GMC. I am unsure if the caption is that of  Chairman Fatty,  or if it was The Echo's way of introducing the piece. I encourage you to read the piece in full as it deals - though not in any detail - with Fatty's "stance on unity, human rights, education and the lot more".
 
I agree with your "theme for the next presidential election", i.e., to "support the best candidate that will uproot Jammeh and restore hope and confidence (good governance) to Gambians and their friends". If it is possible for Fatty to contest the next presidential election, that would be fantastic news for Gambians in the sense that The 1997 Constitution of the Republic of The Gambia would have ceased to be the supreme law of our country. Stated differently, and contended for strictly in the ordinary run of events, Fatty is unqualified to contest the 2011 presidential elections as a candidate. Is Fatty aware of the Constitutional limitation to his ambitions? I would suppose so!
 
Under Section 62 (c)  of the Constitution, a Person must have "been ordinarily resident in The Gambia for the five years immediately preceding the election" to be "qualified for election" to the office of President. Fatty had been continuously absent from The Gambia for at least the past twelve months, and clearly failed the Constitutional test. I must concede that it is possible for him to contest the 2011 elections, but for this to materialise, Jammeh must have been out of power, and the Constitution abrogated, or at least suspended. Is this a realistic scenario? Considering the uncertainty underlying our political condition, it is not inconceivable for the 2011 presidential elections to take place without Jammeh's participation. 
 
What troubled me about Fatty's piece is whether it was a speech, as captioned in The Echo, or simply a written articulation of his vision for a Gambia under a GMC government. If it was a speech, where was it delivered, and who was in the audience? Why were the other Movement/Party leaders not introduced to the audience at this important first meeting? This is important because Fatty's refers to "other leaders", without mentioning any names. 
 
If the piece was a written articulation of Fatty's vision, where did he "issue" it, and again, who were the other members of the leadership? He was in Senegal. and there is credible information that he now lives in the United Kingdom. Why did Fatty not inform his intended audience, i.e., those of us now reading this material, and for whom it is supposedly intended, as to his location? I certainly appreciate no confidentiality about the location of an individual who is in no objective immediate danger of his physical security.
 
Another matter that Fatty touches on was his "life threatening injuries". The importance of those injuries lies in their cause, and we should not be left speculating on the matter. As reported in some media, Fatty's injuries were as a result of an assassination attempt in The Gambia. Others take the view that those "life threatening injuries" were attributable to an innocent, if terrible accident. Fatty danced delicately around the issue, leaving us none the wiser as to the facts, even as he himself understood them. 
 
A yet more intriguing aspect of Fatty's piece is the issue of why he conveyed the impression that it was delivered, or "issued", in The Gambia. At the beginning of his piece, he stated that he was not in The Gambia. However, in express terms, Fatty specifically claimed to be in The Gambia, as exemplified by the following statement. "This we DECLARE for and on behalf of generations of Gambians here at home and around the world". In yet another section of the piece touching on those Gambians who left the country as refugees, Fatty states that they "shall once again, reunite with your families, loved ones and friends here back home, in dignity, freedom and prosperity". For someone currently outside The Gambia, why are such misleading statements necessary?
 
If the foregoing observations trigger no concerns, the overall message of the GMC as articulated by Fatty positively appeals. For me though, the concerns are overwhelming, and I intend to approach the GMC with absolute caution. The struggle against Jammeh's  dictatorship is too critical for one Gambian to utilise as an avenue to hustle on other Gambians. 
 
 
 
 
 
 
LJDarbo
 
 
  
 
     

--- On Wed, 28/1/09, Y Jallow <[log in to unmask]> wrote:

From: Y Jallow <[log in to unmask]>
Subject: Gambia Moral Congress (GMC)
To: [log in to unmask]
Date: Wednesday, 28 January, 2009, 11:31 PM


http://thepoint.gm/africa/gambia/article/lawyer-mai-fatty-forms-political-party



For a start, I congratulate him for initiating a political party. This, by far is a step in the right direction. I only hope he will represent the plight of the ordinary people. I honestly look forward to his full agenda disclosures, i.e. to say his stance on unity, human rights, education and the lot more. 


The theme for the next presidential election should be: Support the best candidate that will uproot Jammeh and restore hope and confidence (good governance) to Gambians and their friends. 

To add, this is coming at a time when most Gambians are looking for a change and direction.



What say others on this?

Regards,
yj


-- 
yj

There is no god but Allah and Muhammad is His messenger.
造造造造造造造造造造造造造造造造造造造造造造造造造造造造造造造造造造造造造造造造造造造造造造造造造造造造造造造造造造 To unsubscribe/subscribe or view archives of postings, go to the Gambia-L Web interface at: http://listserv.icors.org/archives/gambia-l.html 
To Search in the Gambia-L archives, go to: http://listserv.icors.org/SCRIPTS/WA-ICORS.EXE?S1=gambia-l To contact the List Management, please send an e-mail to: [log in to unmask] 造造造造造造造造造造造造造造造造造造造造造造造造造造造造造造造造造造造造造造造造造造造造造造造造造造造造造造造造造造 
����������������������������� To unsubscribe/subscribe or view archives of postings, go to the Gambia-L Web interface at: http://listserv.icors.org/archives/gambia-l.html 
To Search in the Gambia-L archives, go to: http://listserv.icors.org/SCRIPTS/WA-ICORS.EXE?S1=gambia-l To contact the List Management, please send an e-mail to: [log in to unmask] �����������������������������
¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤ To unsubscribe/subscribe or view archives of postings, go to the Gambia-L Web interface at: http://listserv.icors.org/archives/gambia-l.html 
To Search in the Gambia-L archives, go to: http://listserv.icors.org/SCRIPTS/WA-ICORS.EXE?S1=gambia-l To contact the List Management, please send an e-mail to: [log in to unmask] ¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤ 




¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤
To unsubscribe/subscribe or view archives of postings, go to the Gambia-L Web interface
at: http://listserv.icors.org/archives/gambia-l.html

To Search in the Gambia-L archives, go to: http://listserv.icors.org/SCRIPTS/WA-ICORS.EXE?S1=gambia-l
To contact the List Management, please send an e-mail to:
[log in to unmask]
¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤