Thanks Daffeh for providing a judicial take on Schedule 2. Considering the express provisions of Section 22, the Constitution is clearly engaged in double speak. It is of course a political document that stands no chance of survival under a new dispensation. These adverse judicial decisions notwithstanding, the fundamental point remains that the PPP made no effort whatsoever to even place its property claims on the national table.
Under those circumstances, BB cannot blame Gambian "elites" for not standing up for the PPP's rights. I appreciate your position that the legal terrain was too unfavourable and as such any effort by the PPP would amount to a futile wastage of financial and other resources. Can this same argument not be applied to opposition parties contesting presidential elections in a system so heavily rigged against them?
I am unsure of the factual layout of the saga, i.e., time properties were seized and when the PPP on notice regarding that development. This is a vital question considering the Constitution came into force 16 January 1997, some two and half years after the PP's ejection from power. I accept that that whole period was infused with a terrifying display of brutal power by the AFPRC junta but a political party in power for over three decades must have the moral fibre to assert some position on its extra-judicially seized properties. The PPP was in absolute disarray and that was supported by BB's on-air admission only last year that he did not read Sir Dawda's KAIRABA, all
these years after publication
On Halifa and the 1997 Constitution, there is no question the document's architectural mechanisms suffer from major faults. However, Halifa's civic credentials are not in doubt and my view is that he embraced the Constitution on the admirable philosophy of incremental democratisation, i.e., stop the rule by draconian decrees, and consign the guns to the barracks. Unlike the junta, Halifa played by good faith principles and did his best for a stabilised
public space. Whatever was driving his choices is moot given the course of events. The Professor's strategic credentials must never be underestimated given the way he pruned his immediate surrounding of close associates over the past two decades. He never intended to play by the rules and many a hope was shattered by this propensity to operate in an utterly lawless environment. Would it have mattered had Halifa opposed the proposed Constitution? I cannot give a definitive answer, but my gut feeling is to think not.
Clearly, he did
not benefit from any special favour offered by the Junta. Even today, Halifa is pro-actively engaged with national questions of seminal significance. Outside the courts, Halifa is at the forefront of Constitutional education inside the Gambia and this is why he and his colleagues are generally the first port of call for many a dispossessed Gambian.
What disagreements I have with Halifa and PDOIS' leadership are rooted in strategy over a united opposition front against a totalitarian political system and hopefully lessons are learnt
on that crucial front.
I hope you are able to reach a truce on heated language with our man in the Great Apple. Both of you are independent, honest and open communicators, and I am pleased to have encountered you in this struggle for a Gambia grounded in democratic institutionalism. As you both have recognised voices, I hope what unflattering language you have to say to each other in future is exclusively centred and confined.
LJDarbo
Lamin, Coming back to your argument about Section 22, I would like to remind you that this provision was prayed at the High Court as recently as 2011 in CIVIL SUIT NO 216/2000 involving the AMRC, and it was dismissed on the grounds of lack of jurisdiction by virtue of the provisions of paragraph 13(1), (3), and (5) of Schedule 2 of the 1997 Constitution. This is because these Schedule 2 provisions are ouster clauses with explicit manifestations. They effectively oust the jurisdiction of the courts in respect of an act or
omission alleged to be in contravention of any laws whether substantive or procedural or any action that was done by or under the instructions of the Armed Forces Provisional Ruling Council (AFPRC) notwithstanding the property rights proscribed by Section 22 of the 1997 Constitution . This is what the Supreme Court of The Gambia said in ANTOINE BANNA V OCEAN VIEW RESORT LTD Civil App[.No. 2/2006 per NIKI TOBI JSC about ouster clauses;
“As a matter of law, courts of law are bound to uphold ouster clauses in appropriate and relevant cases. It is my understanding of the above case law that where the language of an ouster clause is clear, court of law are entitled to refuse jurisdiction in the matter. Where however, the language of an ouster clause is ambiguous and capable of hearing two meanings, courts of law should interprete the clause to preserve their ordinary jurisdiction”.
In Bakary Bunja Darboe v. The Attorney General, (originally listed as Civil Suit No. 101/04) The Gambia Court of Appeal had this to say;
“there is no white washing the wordings of paragraph 13 (3) which divests courts or tribunal of the jurisdiction to question any action taken or purported to have been taken by the AFPRC as a unit or government or their appointees in the exercise of that executive, legislative or judicial power”.(See also The Gambia Court of Appeal Decision in Asset Management Recovery Corporation v Saloum O.B Njie and Others, Civl Appeal 32/06 delivered in July 2010.)
From the above, I don't see how PPP stand a chance of being successful in a law suit to recover confiscated properties. This is my view. Now you can see why Halifa should be given a fine beating for scaring the conscience of an entire nation through his selling of the 1997 constitution to The Gambian people on the back of half truth, grotesque deception and fearing mongering.
Thanks
Daffeh
On Thursday, 1 May 2014, abdoukarim sanneh <
[log in to unmask]> wrote:
Suntou
I am coming to say goodbye to Gambian politics pretty soon. It is been turned very dangerous opportunistic driven venture with classical definition of city anf rural folks.
Date: Thu, 1 May 2014 15:51:27 +0100
From:
[log in to unmask]Subject: Re: The PPP Debate; Former VP BB Darboe Reacts to Gainako's reporting
To:
[log in to unmask]
Guys leave Halifa alone. We in Wulli are happy with Sedia, to the extent we took him away from Sutukoba to Nyakoi and give him a young bride. Halifa is someone who put his ideas in the public domain and that should be appreciated. And I think, in as much as we disagree with some of what he writes or says, it is paramount we maintain a good decorum.
That aside, it is palpable that, some want to have a romanticised perception of the PPP. Take the first 10 to 15 years of the PPP aside, what you will have is degeneration and looting by certain elements. When less credible individuals encircled Sir Dawda, he was done and dusted. The rule of law and democracy masked serious failings, however, I will prefer that to blatant murder and killings, although things needed to change.
We from the Provences have little to gloat about the PPP or our elites that emanated from our region. Some within the old PPP want to have massive aura and nothing else, they want us to put them on high pedestal and look high up to them. Hence, not all provences folks support the PPP. The City boys together with their accomplished from Upcountry bankrupt many institutions, whilst the APRC finished us. And are rapeing the living daylight of Gambians. No PPP romanticism please.
We need complete overhaul to all political parties and diaspora organisations. When we thought CORDEG was going to be different, what did we see? A grouping of individuals with few exception, hoping to operate as if it is business as usual, this is 2014, we are all wide awake. The constitutional debate is interesting, great stuff. brother Karim, slow down and ponder...we can do much better. Thanks
Suntou
On Thu, May 1, 2014 at 1:37 PM, abdoukarim sanneh
<[log in to unmask]> wrote:
Lamin
Sorry for my remark on family allegation. I am very sorry for making that comment out of the tense debate. I know you and alcknowledge your position on APRC and even people you disagree with and as long as there serve on the the APRC and comes into truth your moral standing is their individual freedom. I have work and associate with you for five years under this principles. I wish you a happy bank holidays!
Regards!
Abdou karim Sanneh
Date: Thu, 1 May 2014 12:36:32 +0100
From:
[log in to unmask]Subject: Re: The PPP Debate; Former VP BB Darboe Reacts to Gainako's reporting
To:
[log in to unmask]
Karim
To each his own, and thanks for quietly dropping the "family" allegation.
I know your views about the APRC, and if you are unaware of my position, that is quite worrying, though unsurprising.
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