On Ramza Diab, And the Cabinet Squatters

The Independent (Banjul)
COLUMN
June 11, 2004
Posted to the web June 11, 2004

By Lamin Darbo Barrister And Solicitor of the Supreme Court of the Gambia
Banjul

It is with mounting interest that I follow the debate about whether there
is authorisation under the 1997 Constitution of the Republic of The Gambia
for His Excellency, Alhaji Dr Yahya A. J. J.

Jammeh to fire Ramzia Diab 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 notions of democratic
constitutional theory and practice on the other?

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 centralisation 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 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.

The Constitution's convoluted nature is a glaring manifestation of its
perverse intent. In a laughable, if tragic way, this is a major 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 the President in this highly compromised
and labyrinthine document. The Ramzia affair is a spectacular testimony on
point.

When Pap Ousman Cheyassin Secka in his defence of the President's dismissal
of Ramzia - refers to the entrenchment of separation of powers in the
Constitution, I wonder which document he was referring to. The preamble is
not a part of the Constitution, and even where it would ordinarily
constitute a true reflection of the letter and spirit of the main document,
it was nothing but a perverse fraud in the hands of Dr Jammeh and his cabal
of shallow, unprincipled and opportunistic intellectuals.

I care less whether Ramzia remains an APRC member of the National Assembly.
In more ways than one, she deserved her plight. My interest, and that of
others like Hawa Sisay-Sabally, is public spirited and constitutionally
focused. The Attorney General was disingenuous in his attempt to muddy the
waters by claiming that Sisay-Sabally was meddling in internal APRC
affairs, and that she aims to advance her personal interest. As a former
Attorney General, she is an invaluable source of subtle insight into the
chilling mentality of a Government whose modus operandi is averse to any
notion of democratic accountability. Her efforts were legitimate comments
on a matter of fundamental national significance.

In reaching the conclusion they did on the Ramzia affair, the Attorney
General, and Cheyassin, must have read a document other than the
Constitution. Their analysis of the constitutional issues underlying the
controversy was too partisan, not to mention exceptionally amateurish.

For starters, there is no universally applicable age-long aphorism that he
who has the power to hire also has the power to fire. Under both
constitutional theory and practice in a proper system of democratic
governance, Dr Jammeh should become functus officio in cases where his
hiring power traverses constitutional demarcations.

In other words, he should have no authority whatsoever to fire either
National Assembly members, 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 exempted from legitimate
control mechanisms, but that they not be subject to the capricious whims of
almighty Dr Jammeh and his Executive arm of The Gambia Government. Once
appointments are made in these areas, there must be no removal powers
available to the President as an individual.

On a straight application of the doctrine of separation of powers, the
President can have no authority to fire a member of the National Assembly.
Perversely though, the Constitution permits Dr Jammeh; through a deliberate
loophole; to fire every single elected APRC member of the National Assembly
if he is so inclined. I must emphasise that this is far from a theoretical
possibility. The power is actual (see section 91(1)(d)) and the President
will use it if he felt sufficiently threatened by his party's
parliamentarians. Any such action will trigger a constitutional crisis and
a major power struggle, but with national power so heavily centralised, the
bet should be on Dr Jammeh emerging victorious.

Significantly for the Ramzia affair, such a power is not as a result of
National Assembly membership being categorised a public office.

Notwithstanding the baseless assertions of the Attorney General, and
Cheyassin, the powers under sections 167, and 231(5), are not triggered as
a National Assembly member - nominated or otherwise - is not a public
office. There should be no need to refer to the Interpretation section at
230 as Ramzia is explicitly excluded from holding a public office by
section 166 (4) (a) of the Constitution.

Even a casual reading of Chapter XI, sections 166-171, provides ample
indication of 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 attempt by Dr Jammeh to micromanage
every aspect of national life has spectacularly backfired in the Ramzia
affair. The document is proving to be a minefield, especially considering
Cheyassin's superficial analysis and naïve reliance on section 95 to
conclude and categorise the Speaker, Deputy Speaker, and the entire
National Assembly a public office against the clear command of section 166
(4) (a). If he had thought through the ramifications of his desperate
conclusion, he would never have referred to the Constitution as entrenching
the concept of separation of powers.

In similar vein, the Attorney General's attempt to categorise Ramzia's
dismissal as the functional equivalent of an electoral recall is clearly
unworkable. There has to be legislation to activate the recall provision in
the Constitution. Even assuming that this provision is available to Dr
Jammeh 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 Ramzia do? 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 is bound to collapse.

Instead of a vain search for justification to remove a legitimate member of
the National Assembly, I suggest that the Attorney General direct his
energies to a live case of glaring constitutional law breaking by no less
than the almighty President himself. Dr Jammeh must fire his two illegal
Secretaries of State who are even now making illegal decisions at Local
Government and Lands, on the one hand, and at Communication, Information
and Technology, on the other. The Constitution compels the President to
revoke the appointments of Manlafy Jarjue, and Amadou Scattred-Janneh, the
two American squatters in the Gambian Cabinet. How scandalous to sneer at
the Constitution in this manner against the clear command of section 71(2),
and this by the man who swore to uphold it as the supreme law of The
Gambia.

Although Ramzia must take her own counsel, I join others in urging her to
seriously consider legal action so we could at least have a judicial take
on a major controversy of constitutional significance. The matter is too
fundamental to be settled politically. Whilst Ramzia weighs her options,
section 71(2) of the Constitution is shouting for Dr Jammeh to obey the law
and revoke the appointments of the two American nationals illegally
installed as Gambian Secretaries of State. The Americans have no squatting
rights in the Cabinet. The Attorney General must advise the President that
maintaining these illegal appointments does have unlawful suspense effect
on the Constitution, and by section 6 (1) (a), that is a treasonable
offence. Or is Dr Jammeh outside the boundaries of the law?

Not according to the Constitution, and certainly not under the doctrine of
the rule of law.

Regardless of whether the appointments were deliberate or inadvertent,
there is not a scintilla of justification for Dr Jammeh to continue his
countenance of two major violations of the supreme law of our land. He must
resist making a profession out of violating the Constitution, and then to
either punish or ignore his critics for highlighting his persistent abuse
of authority. The President's penchant for selectively applying the law is
well documented by the usually unjust punishment he metes out to the
fallen, but hitherto untouchable darlings of his Government. For once, he
must obey the Constitution and revoke these illegal appointments in so far
as they constitute major violations of the supreme law of The Gambia.

Obey the law Dr President. Although you are not permitted to dismiss
Ramzia, you are under constitutional compulsion to revoke the appointments
of Manlafy Jarjue, and Amadou Scattred-Janneh, your two Cabinet Squatters!


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