By Bakary Fatty
PRESIDENT YAHYA JAMMEH’S OCCUPATION OF THE STATE HOUSE WILL BE UNLAWFUL AFTER 18th JANUARY 2017!
First of all, I want to unequivocally state that President Jammeh will no more be the legally recognized President of the Second Republic of the Gambia base on the following legal analysis. But before going further, I want you to note that since the 1997 Constitution came into force it has been printed twice.
To begin with, according to section 63 (2) of the 1997 Constitution (2002 printed version), “the person elected President shall assume office sixty days following the day of his or her election, and in any case where the candidature of a person contesting the election is unopposed, such candidate shall be declared unopposed and elected to the office of the President on the day following the making of such declaration”.
The above provision is no longer applicable because it has been amended by Act No. 6 of 2001 which has also been amended by Act No. 9 of 2006 in Volume 1 of the Revised Laws of The Gambia. Below is the full extract of the valid law I have cited above.
Section 63 (2) Vol.1 Revised laws of The Gambia 2009 states that “the person declared elected as President shall take the prescribed oaths and assume office on the day the term of the incumbent President expires”. {Act No. 6 of 2001. Act No. 9 of 2006}
If you compare the law under s.63(2) here and the law in s.63 under the 2002 print out of the Constitution contained in a small pale green book as highlighted above, you will notice that there is a difference. There is no indication that an outgoing President shall stay in office for sixty days in the new law. The law that is captured in the extracted law from Vol. 1 Revised Laws of The Gambia prevails for it is more latter.
Act No.9 of 2006 is the latest law which is now incorporated in the Revised Laws and found in Vol.1 of the same Act. I assume the reason why the incumbent wish to resist the 19th January inauguration is as a result of his misconception of the current law and thus placing reliance on old s.63 (2), which no longer prevails.
The Attorney General, Mama Fatima Singhateh, has failed in her legal responsibility to properly advise President Yahya Jammeh that he cannot be in power for 60 days from the date of declaration of Adama Barrow as the winner of December 2nd election by reason of impression they had, which predicates on the old law.
To put this in layman parlance, section 63(2) captured in the latest printed version of the pale small green 1997 Constitution is no longer applicable due to the amendment that took place in 2006 by Act No. 9 in the Revised Laws of The Gambia 2009. It means that after every Presidential election, whoever is declared the winner by the IEC Chairperson automatically becomes the President-elect and the incumbent cannot ipso factor be in office for sixty days. It is difficult to grasp this legal fact, for many senior legal personnel fumble on it. But if you pay much devotion to the two provisions I have expounded on above, you would be able to draw a logical conclusion on the point my argument is premise on.
I can therefore safely conclude that the final declaration of December 2016 Presidential election results made by the IEC Chairman, Mr. Alieu Momarr Njai, marks the countdown of President Jammeh’s term, and shall end on the 19th January, 2017. This is because Jammeh was sworn in office on 19th January, 2012. Therefore Jammeh’s 5 year mandate ends on the 19th, 2017. Seen from this stand point, it is now a matter of choice for President Adama Barrow and the Coalition members to go ahead with the inauguration on 19th of January.
It must be stated, without any reservation, that the practice of an outgoing President to stay in power until after sixty days is no longer applicable in our current laws.
BY BAKARY FATTY.
FINAL YEAR LAW STUDENT, UNIVERSITY OF THE GAMBIA.
1 Comment
Bakary I think you are being kind to Jammeh by giving him the benefit of doubt but I can assure you that Jammeh is in no illusion about the amended section of the constitution. He is just bent on destroying the country. If not for that he would have been coming up with the excuse that he should stay on for sixty days. Remember he has been using every gimmick since the 9th Dec 2016 trying to stay on. Don’t waste your energy and intellect on Jammeh and his cohort. They are not worth.