By Gambian Outsider!
This is Part II of a two parts article wherein I make the argument that the then Coalition Agreement is enforceable against the members of the Coalition. Whatever I said below strictly concerns the question presented. For starters, the Coalition agreement as an agreement and its enforceability has absolutely nothing to do with Section 60 of The Gambia Constitution. If the requirement of Section 60 was not satisfied, we won’t be talking about the Coalition Agreement. I do not believe some of the members of the Coalition at the time of coming to the Agreement contemplated ALL that I say below. However, that does not affect the enforceability of the Agreement until one can show the defense of mutual mistake or unilateral mistake or other defenses. Capital letters, highlights and the like are for emphasizes only. Here we go:
Question 2: Whether the agreement is binding on the parties, i.e., the Coalition members?
Suggested answer, YES. The agreement is binding on the Coalition members. I have already shown in Part I that the Coalition Agreement is not a Constitutional matter because it lacks the elements that would make it a constitutional matter. In order to see why the Agreement is binding, a little bit of Contracts law analysis is required. But before getting into a contractual analysis, what is A promise since in every agreement or contract a promise is present. After defining a Promise, What is an Agreement and what is a Contract?
A Promise is an undertaking, however expressed, either that something shall happen, or that something shall not happen, in the future.
An Agreement is a manifestation of MUTUAL ASSENT by two or more legally competent persons to one another.
A Contract is an agreement between two or more parties creating obligation that are enforceable or otherwise recognizable at law.
All Contracts are Agreements but not all Agreements are Contracts. Agreement would include any arrangement between two or more persons intended to affect their relationship whether legal or otherwise to each other. One thing that makes an agreement binding is the intent of the parties to the agreement. For example, why did they agree to such and such? Did they expect to be held to such an agreement? If not, then why did they agree at all? Why enter into an agreement when NO ONE WILL BE HELD TO THE TERMS OF THE AGREEMENT? Another indication of a binding agreement is WHAT the parties EACH gave up in order to enter into the agreement? To answer this question, we now turn to contract analysis. I say Contract analysis because there is nothing in law called Agreement analysis. Whether an agreement is enforceable is analyzed in the same manner as if the agreement was a Contract.
In every binding contract/agreement, there must be three things present: OFFER, ACCEPTANCE, and CONSIDERATION.
An OFFER is a “manifestation of assent that empowers another to enter into a contract by manifesting assent in return.” Let me please make this point clear, an ORAL contract/agreement is as binding as a WRITTEN contract. Or in other words, a written contract/agreement is NOT more binding than an oral contract/agreement with limited exceptions not worth mentioning here. A written contract only makes proving that a contract/agreement exists easier, that’s it.
An ACCEPTANCE of an offer is an expression of assent to the terms of the offer made by the person (offeree) to whom the offer is directed in a manner requested by the person (offeror) who made the offer.
A CONSIDERATION is what is defined as “THE BARGAINED FOR EXCHANGE” meaning “If it is sought by the promisor in exchange for his promise and is given by the promisee in exchange for that promise.” In lay language, it is giving up something that you have a legal right to in order to get something else that the other person has a legal right to. Consideration does not necessary have to be a material thing, it can be a PROMISE. What is needed is that you have a LEGAL RIGHT to the thing that you BARGAINED FOR EXCHANGE WITH THE OTHER PARTY (OR PARTIES) TO THE AGREEMENT AND THE OTHER PARTY (OR PARTIES) ALSO HAVE A LEGAL RIGHT TO BARGAINED FOR EXCHANGE IN WHAT THEY ALSO GIVE UP. Understanding the doctrine of consideration is very important in order to see why and how the Coalition agreement is binding. YOU CANNOT HAVE A LEGALLY BINDING CONTRACT OR AGREEMENT WITHOUT A CONSIDERATION. There is a situation where the law through a legal fiction creates a consideration where one does not exist at all but that is not at issue here.
Now that you have some knowledge of what a CONSIDERATION is, if there is no CONSIDERATION in the Coalition Agreement then the Coalition Agreement IS NOT BINDING and on the other hand, if there is CONSIDERATION then it IS BINDING.
What is the “CONSIDERATION” in the Coalition Agreement? It is what the Coalition members gave up in order to form the Coalition. And what did they each gave up? They each gave up their “LEGAL RIGHT” to run for the office of the presidency in their individual capacities BY AGREEING THAT SHOULD THEY WIN, THE FLAG BEARER SHALL BE IN OFFICE FOR 3 YEARS. And what did each gain in return? They each GAINED A SHORTER WAIT PERIOD OF TIME, THAT IS 3 YEARS, TO RUN FOR THE OFFICE OF THE PRESIDENCY IN THEIR INDIVIDUAL CAPACITIES INSTEAD OF 5 YEARS WAITS HAD THEY NOT ENTERED INTO THE AGREEMENT. THE 3 YEARS AGREEMENT WAS THE “HOOK” if I may use such a term THAT BROUGHT THE COALITION MEMBERS TOGETHER TO AGREE TO FORM THE COALTION. IT WAS THE GIVING UP OF A LEGAL RIGHT TO RUN FOR THE OFFICE OF THE PRESIDENCY THAT MAKES THE AGREEMENT BINDING. THIS IS THE ONLY LEGAL WAY TO UNDERSTAND WHY THEY AGREEED TO 3 YEARS KNOWING WHAT IS STATED IN SECTION 63. This is the point that almost everyone failed to see. So to say the Agreement is not binding is ignorance of what is really involved.
As I stated in Part I, NO ONE in the Executive so far have come up with a valid legal argument to show why the Agreement VIOLATES Section 63 and therefore not enforceable. Some have argued that one cannot contract their way out of the Constitution. Those who take this position failed to understand the “FREEDOM TO CONTRACT.” Contract/Agreement is left to the parties to set the terms of their Contract/Agreement so long as it is NOT illegal. Beside illegality, there are other things that can make a contract/agreement VOID OR VOIDABLE. If the Coalition Agreement is ILLEGAL or something makes the Agreement VOID OR VOIDABLE, Mr. Darboe and Co., or ANY PERSON can step up and make a legal argument for that position. Again, as I indicated in Part I, any agreement that goes above the CEILING is illegal.
WHO CAN ENFORCE THE AGREEMENT?
ONLY MEMBERS OF THE COALITION CAN ENFORCED THE AGREEMENT BECAUSE (1) THEY WERE THE ONES WHO GAVE UP THEIR LEGAL RIGHTS TO RUN AND AGREED TO THE 3 YEARS. (2) THEY DID NOT ENTER INTO THAT AGREEMENT FOR THE BENEFIT OF A THIRD PARTY. THIS MEANS, ANOTHER PERSON WHO IS NOT A MEMBER OF THE COALITION CANNOT ENFORCE THE AGREEMENT. THE COALITION MEMBERS DID NOT ENTER INTO THE AGREEMENT WITH THE INTENT TO BENEFIT GAMBIANS BUT THEMSELVES. SO TO MAKE THE ARGUMENT THAT GAMBIANS ARE AN AGGRIEVED PARTYTO THE AGREEMENT IS INCCORECT UNLESS THE ONE CAN SHOW THAT THE COLATION MEMBERS SPECIFICALLY ENTERED INTO THE ARGREEMENT FOR THE BENEFIT OF GAMBIANS AND GAMBIANS WERE AWARE THAT THE COALITION MEMBERS ENTERED INTO THAT AGREEMENT FOR THEIR BENEFIT.For those who are trying to argument for a third party beneficiary, I suggest you please do some little research on what a third party beneficiary means, how it is formed and how it is enforced. If you do, you will then see that the Coalition agreement is not close to being a third party beneficiary agreement at all. That brings me to what Lawyer Mboge said in a recent interview.
Mr. Mboge is a Maverick and I admire him for that, but he is dead wrong when he said that he might sue to enforce the Agreement. Mr. Mboge can sue on the BEHALF of any Coalition member who HIRES him to represent him or her, but Mr. Mboge cannot sue on his own behalf. He does not have “STANDING” to sue. By that, I mean Mr. Mboge, not being a member of the Coalition, he cannot demonstrate an “actual” or “imminent harm” in order to have standing to sue. And because the Coalition members did not enter that Agreement for the benefit of third parties, no one who is not a member of the Coalition have “standing” to go to court. If Mr. Mboge sues on his own behalf, his case should and must be thrown out.
Because the Coalition Agreement is silent on whether a majority of Coalition members must first agreement in order to enforce the Agreement, “any individual” member may enforce the Agreement. I mean any individual member of the Coalition has “Standing” to enforce the Agreement. This is what Mr. Barrow and Mr. Darboe risked when they kicked out some of the Coalition members who were in the cabinet. And a member like, Mr. Sallah or my big bro Mai Fatty, who is not a member of the cabinet still has “standing” to enforce the agreement if either one of them chooses to do so. Another fundamental flaw in Vice President Darboe thinking is that to quote him “ in all coalition governments the majority party makes the decision.” That seems to be the norm but Mr. Darboe never elaborate why most coalition governments do not work or fail. The reason why almost all coalition governments fail is because before coming to power they relied on the axiom that “ The whole is greater than the part.” But once in power that axiom is abandoned for “the majority party should make all the decisions to the exclusion of all others.”
The ball is in the court of all or any member of the Coalition to enforce the Agreement should he or she wants to enforce the 3 years agreement by filing court papers NOW. And there is no better time to initiate a suit, than NOW! If the ball is to roll, it needs to start rolling NOW so that the court can make a decision, which in turn would give the Independent Electoral Commission ample time to start the process early. Mr Njie, the Chairman of the Independent Electoral commission recently made a comment that he does not see early elections in The Gambia. With due respect to Mr. Njie, it is not his job to say whether there will be an early election or not. Whether there will be an early elections or not depends on the out of the case if it goes to court. If a court decided for a challenger to enforce the Coalition agreement, then neither the President nor Mr. Njie can prevent an election from taking place. The IEC is an independent government agency and Mr. Njie needs to keep that in mind. In fact, there is much that Mr. Njie does not know about the IEC.
Now that the picture is clearer, here is my worry; based on what I have seen so far, I do not believe the Supreme Court is independent enough to decide that the Agreement the Coalition members entered is enforceable. Personally, my biggest disappointment with the new dispensation in The Gambia is the Supreme Court. I am not disappointed with the Executive or the Legislative branch because I was not expecting much from either anyway. As to the Supreme Court, I was expecting great things from that institution and so far the court has failed Gambians in a magnitude far greater than the Executive and the Legislature combined. Unfortunately, most Gambians, just like during the dictator’s time, only pay attention to the Executive branch. We have history repeating itself.