Building The New Gambia By Madi Jobarteh
As we continue to face the unconstitutional and unpatriotic onslaught of Yaya Jammeh, we have also seen how some of his surrogates within his party perpetuating this idea that military intervention is a violation of our constitution and sovereignty. We have seen how typical dishonest African intellectuals in the persons of Elhadj Diouf and Ouza Jallow of Senegal launch a campaign for Yaya Jammeh, which they call the coalition against war in the Gambia. We have also seen even within the opposition and the generality of Gambians how some individuals speak against or doubt ECOWAS and the AU.
Hence it is important to clarify to citizens that the decisions by ECOWAS and the African Union are perfectly in line with our constitution and the treaties and subsequent instruments of these organizations. The Gambia is a bonafide member of these organizations and has been an integral part of the decisions and instruments upon which these sub-regional and regional organizations act. We have signed up to them, and therefore any action ECOWAS and AU take to solve our crisis is in tune with our consent.
In 2001, ECOWAS adopted the Protocol on Good Governance and Democracy. This is an additional protocol to the ECOWAS Mechanism For Conflict Prevention, Management, Resolution, Peacekeeping and Security adopted in 1999. The objective of the Mechanism is to prevent, manage and resolve internal and inter-State conflicts. The Mechanism has set up the Mediation and Security Council under Article 7, and it is empowered under Article 10 to take decisions on issues of peace and security in the sub-region on behalf of the Authority, and implement all the provisions of the Protocol. The Vice President Isatou Njie Saidy signed this Mechanism on behalf of the Gambia.
On the Protocol on Good Governance and Democracy, adopted in 2001 and signed on behalf of the Gambia by Yaya Jammeh, it sets out the principles that should underpin elections, governance and democracy in each and every member state. Among these include the respect and adherence to the principle of separation of powers, the empowerment and strengthening of parliaments and guarantee parliamentary immunity, respect and guarantee the independence of the Judiciary as well as guarantee the freedom of the members of the Bar association.
The Protocol sets out quite clearly that elections must be conducted in a free and fair manner and all stakeholders must respect the outcome of the vote. This has been captured explicitly under Article 9 of the Protocol.
“The party and/or candidate who loses the elections shall concede defeat to the political party and/or candidate finally declared the winner, following the guidelines and within the deadline stipulated by the law.”
Under Article 10, it states that all holders of power at all levels shall refrain from acts of intimidation or harassment against defeated candidates or their supporters. Further, it spoke of the role of the armed and security services under Article 19(1) that,
“The armed forces and police shall be non-partisan and shall remain loyal to the nation. The role of the armed forces shall be to defend the independence and the territorial integrity of the State and its democratic institutions.”
Hence one can see that based on these instruments, which were signed and ratified by the Gambia, the actions of ECOWAS so far, are legal both in terms of Gambian constitution and the objectives of ECOWAS. When Yaya Jammeh and Isatou Njie signed these documents respectively, each of the protocols was then ratified by our National Assembly as required by our constitution thus making the Gaia party to them.
When it comes to the African Union, again there is the African Charter on Democracy, Elections and Governance adopted in 2007 and signed on behalf of the Gambia by Yaya Jammeh. The aim of the Charter as spelt out under Article 2 is to promote adherence to the universal values and principles of democracy and respect for human rights by each State Party. It seeks to also promote and enhance adherence to the principle of the rule of law premised upon the respect for, and the supremacy of the constitution and constitutional order in the political arrangements of the State Parties. It also aims to promote the holding of regular free and fair elections to institutionalize legitimate authority of representative government as well as democratic change of governments. Finally it aims to prohibit, reject and condemn unconstitutional change of government in any Member State as a serious threat to stability, peace, security and development. These are among its key objectives.
Because the AU is aware of the fact that there will be unconstitutional change of governments anyway, it has therefore dedicated Chapter 8 of the Charter to the issue of ’Sanctions in Cases of Unconstitutional Changes of Government’. The first article under this chapter is Article 23 and it states that,
“State Parties agree that the use of, inter alia, the following illegal means of accessing or maintaining power constitute an unconstitutional change of government and shall draw appropriate sanctions by the Union:
1. Any putsch or coup d’état against a democratically elected government.
2. Any intervention by mercenaries to replace a democratically elected government.
3. Any replacement of a democratically elected government by armed dissidents or rebels.
4. Any refusal by an incumbent government to relinquish power to the winning party or candidate after free, fair and regular elections; or
5. Any amendment or revision of the constitution or legal instruments, which is an infringement on the principles of democratic change of government.
One can see that sub-section 4 of Article 23 directly and squarely relates to the Gambia situation right now. We have a situation where the incumbent has lost the election fair and square yet refused to hand over power.
Thus to deal with this situation, the Charter empowers the Peace and Security Council of the AU under Article 24 to,
‘Exercise its responsibilities in order to maintain the constitutional order in accordance with relevant provisions of the Protocol Relating to the Establishment of the Peace and Security Council of the African Union’.
That protocol setting up the AU Peace an Security Council (this is the UN Security Council equivalent in Africa), gives it the power, under Article 7 to,
‘Approve the modalities for intervention by the AU in a Member State, following a decision by the Assembly, pursuant to article 4(j) of the Constitutive Act’.
Under this protocol there is an AU Standby Force created under Article 13 for the purpose of deployment of peace support missions and intervention. Again this protocol was adopted in 2002 and signed by Yaya Jammeh on behalf of the Gambia. Yaya Jammeh, on behalf of the Gambia also signed the Constitutive Act, which is the AU’s bible.
Going back to the African Charter on Democracy, Elections and Governance, Article 25 Subsection 1 has specified the sanctions necessary in the event of an unconstitutional change of Government. In the first place such an illegal government will be suspended. Furthermore, subsection 4 states that,
‘Perpetrators of unconstitutional change of government shall not be allowed to participate in elections held to restore the democratic order or hold any position of responsibility in political institutions of their State.’
To make sure that perpetrators face justice anyway subsection 5 stipulates that ‘perpetrators of unconstitutional change of government may also be tried before the competent court of the Union.’ Subsection 7 of this article further states that ‘The Assembly may decide to apply other forms of sanctions on perpetrators of unconstitutional change of government including punitive economic measures.’ Still subsection 8 provides that where such perpetrators flee from their country, ‘State Parties shall not harbour or give sanctuary to perpetrators of unconstitutional changes of government.’ To ensure no way of escape and impunity at all, subsection 9 clearly states that ‘State Parties shall bring to justice the perpetrators of unconstitutional changes of government or take necessary steps to effect their extradition.’
From the foregoing, it is clear that both ECOWAS and the AU are fully and firmly standing on sound legal and political ground for the position they have taken on the Gambia. It is clear that the Gambia is a legal signatory to these instruments hence the Gambia is in fact a part of the decision that is being taken right now. Thus those who claim ECOWAS is seeking to violate Gambian sovereignty are merely engaged in empty rhetoric for the purpose of supporting an unconstitutional change of government.
According to the concept of subsidiarity in regional and international organizations, AU performs its functions through its sub-regional blocs like ECOWAS. Hence if there is an issue in a country, before AU takes direct action it allows the sub-regional organization to lead. This is because that sub-regional organization is the closest actor to the situation hence it should understand the situation better. This is why AU is standing behind ECOWAS. And at the international level, the same concept applies which is why the UN also is standing behind the AU. Thus ECOWAS is the critical player here unless something fundamentally goes wrong, otherwise both the AU and UN will act based on the advice and direction of ECOWAS.
Therefore let us conclude clearly that what Yaya Jammeh did on December 9 is an act of unconstitutional change of government because he refused to accept the results of an election that was certified as free and transparent and conducted through legal means. Hence it is important for the members of Cabinet and the members of the National Assembly and the security chiefs and heads of public institutions to bear in mind that according to the Africa Union Charter on Democracy, Elections and Governance that they are potential perpetrators of unconstitutional change of government if they continue to stand with Yaya Jammeh. For that mater the sanctions listed under Article 25 directly applies to them. According to these provisions, they potentially risk being banned from politics ever again in the Gambia, and having their assets frozen and other economic sanctions imposed on them as well as risk be denied asylum in any country or extradited to face justice either at home or in any ECOWAS or AU courts. These are the consequences facing all those who support Yaya Jammeh, which they must bear in mind. By supporting Yaya Jammeh, one is not only violating the constitution of the Gambia, but you are also violating the ECOWAS and AU instruments. By extension, you are also violating the UN Charter and all international instruments relating to human rights, good governance, democracy, elections and peace and security.
I wish to therefore call on the members of the Cabinet, the APRC National Assembly members, the CDS Ousman Badgie, the Director General of GRTS, the Managing Director of GAMTEL and any other public servant who continues to support Yaya Jammeh and obstructing the verdict of the people, that you are directly engaged in an unconstitutional change of government at your own peril. Failure to quit and disassociate oneself from Yaya Jammeh until ECOWAS acts on its instruments then one would be considered a perpetrator of an unconstitutional change of government. Time is running out.