Constitutional Malfeasance – President Barrow’s Illegal Action against nominated MP, Ya Kumba Jaiteh

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By Bambo Jarsey

I am shocked and bewildered by President Adama Barrow’s purported “withdrawal” of his nomination of Ms. Ya Kumba-Jaiteh as a nominated member of the National Assembly. His attempt to do so, is contained in a letter dated 25 February 2019, apparently from the Office of the Secretary-General and Head of the Civil Service. Enough has been said about the blatant illegality of the President’s action by other commentators that I run a risk of rehashing already made compelling arguments, that lay bare the flawed or inexistent legal basis for Barrow’s action.

Simply put, the Constitution makes no provision for the President to (un)nominate, or as he called it, “withdraw” the nomination of a serving national assembly member. Once an individual has been nominated to the august Assembly, takes the prescribed oath and assumes office, she/he serves for the full term unless circumstances arise, pursuant to Section 91 of the Constitution, by which she/he can be lawfully removed. In the case of nominated members, such removal can only take place in two situations. The first is where such a member absents him/herself from parliament without the Speaker’s permission or for other good cause, for ten or more sittings in a session of the National Assembly; the second situation is where the member is found in contempt of Parliament by the affirmative vote of three-quarters of all members of the National Assembly.

The Constitution makes no provision, direct or indirect, express or implied, for the President to remove from office a nominated member of Parliament. For these reasons, President Barrow’s purported action is illegal. It is a violation of the Constitutional framework and the principle of separation of powers between the Executive and Legislature as co-equal arms of Government. Considering that President Barrow’s action is motivated exclusively by political considerations and a desire to consolidate his grip on power, his actions constitute an abuse of power and authority. His actions against MP Jaiteh are not dissimilar to his attempt, early this year, to interfere with criminal proceedings and pervert the course of justice in the trial of those accused of murder in Faraba Banta, an action be only walked back from following widespread condemnation by Gambians at home and abroad. By these actions, President Barrow is engaged in acts of constitutional malfeasance for which he potentially exposes himself to impeachment proceedings and removal from office.

The illegality of the President’s actions aside, the more important question is, what should Gambians do about this latest manifestation of Barrow’s inclination to ride roughshod over the Constitution, and to behave illegally and irrationally, in pursuance of his singular obsession to remain in power at all costs?

In answering this question, I suggest Gambians must never forget our recent history of dictatorship under Yaya Jammeh and the conspiracy of silence on the part of Gambians at large, that made it possible. Given that history, I further suggest that unless Gambians speak out openly and come out in their numbers to defend the Constitution, we would be heading for a worse dictatorship than what we endured under Jammeh’s tyrannical regime. If his recent behavior is anything to go by, Barrow is capable of excesses far beyond what Yaya Jammeh inflicted on our peaceful and law-abiding citizens. Gambians must stand up and speak out to confront this budding Barrow dictatorship before it is too late.

In this regard, I welcome the action of the thirty-one serving members of Parliament, who wrote a letter condemning the President’s actions as illegal, and expressing solidarity with Ms. Jaiteh. I am equally heartened by the strength, poise and bravery of Ms. Jaiteh herself in her response to the ultra-vires letter from the Secretary-General’s office which sought to convey President Barrow’s “withdrawal” of her nomination. As Ms. Jaiteh rightly pointed out, the Secretary-General has no administrative jurisdiction or authority over a sitting member of parliament, let alone writing to a such member in an attempt to terminate her membership of the august legislative body. The Secretary-General heads the civil service. His remit is limited to the executive branch of Government, including the civil and public services such as Government parastatal entities. The National Assembly does not take instructions from the Secretary-General, or indeed the Secretary-General’s boss, the President of the Republic. As a separate and co-equal branch of Government in a democracy, the National Assembly is charged with the primary oversight function over the executive so as to guard against government excesses and abuse of power.

Going forward, I would like suggest that President Barrow must withdraw his illegal action. In other words, he should be brave and honest enough to admit that his purported action is illegal. The right thing to do under the circumstances, is to recall his illegal attempt to withdraw Ms. Jaiteh’s nomination. That is what leaders of integrity would do.

However, whether President Barrow does so or not is really of little consequence, because the Speaker and other members of the National Assembly must do the right thing by defending the Constitution; they must refuse to endorse a blatant illegality and an unconstitutional act by the President. For this reason, they must continue to admit Ms. Jaiteh to the National Assembly and give her audience. Any attempt by the security agencies, including the Police, to deny Ms. Jaiteh access to the national assembly premises or to perform her functions, must be resisted by all members of the national assembly and ordinary Gambians. It is Ms. Jaiteh today, it will be someone else tomorrow!

In addition, I invite the newly elected executive of the Gambia Bar Association, and other civil society organizations, to seize this opportunity to commence a public-interest action before the Supreme Court of The Gambia for a definitive interpretation of the Constitution on this point. The Supreme Court has original and exclusive interpretive jurisdiction pursuant to Section 127(1) of the Constitution. In doing so, they should seek the Court’s opinion on whether the President has power under the Constitution, especially the provisions of Sections 88 to 91 thereof, to withdraw the nomination of a serving national assembly member for reasons other than those provided in Section 91. In my view, and given its express provisions, any argument that the power to withdraw a nomination to parliament can be implied from the Constitution, would be flawed and a direct affront to the principle of the rule of law as the basis of all governmental action, including the age-old principle of the separation of powers. Consistent with the spirit of good governance, justice and fair play in the conduct of public affairs, it is sincerely my hope that the judiciary will not shy away from deciding on these matters, critical as they are to our current democratic dispensation, as well as our collective aspiration to live as a dignified people free from tyranny and dictatorship. NEVER AGAIN!

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