Pa Louis Sambou Questions Three Years Jotna’s Demands for 1997 Constitution Amendment

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By Pa Louis Sambou

If anyone was opposed to the ‘Three Years Jot Na’ (three years is due) holding their protest for fear that it would turn violent, today’s historic and textbook display of peaceful people’s power should reassure them that the notion that protests are risks to be avoid is one which holds no water. On the contrary protests are useful democratic tools which can be utilised peacefully and effectively; this has been proven by today’s march. Every democracy requires such in order to thrive.

On this occasion, the authorities called it right at last by trusting in democracy and, not hindering the exercise of the right to free assembly. Likewise, the protesters could also not have conducted the exercises of their right to free assembly any better; it felt like a carnival with the only smokey scent anyone would have sensed coming from the popular ‘attaya, bradda ak kaas’ (green tea being brewed) on the move rather than emerging from a torrent of rubber bullets or tear gas. This is enormous progress and, credit to the protesters and authorities.

I guess I am be speaking for the majority of people in saying: let this not be a one off but one of many. This is a standard which we must maintain: peaceful assembly under a climate of mutual respect and compliance.

The Demands

For our democracy to thrive, snake oil salesmen must be locked out of public life. Unless we are prepared to hold politicians to their promises, achieving the aforementioned would simply be a mere fantasy. Never-mind the supposed lack of legal enforceability (by the parties to the agreement) of the agreement, the promise made to the voters by candidate Adama Barrow in 2016 is in my view a separate political ‘agreement’ which must either be honoured or renewed. The former may not be feasible or pragmatic but the latter is. Some thought must certainly be given to the latter.

‘Three Years Jot Na’ as I understand it are seeking the honouring of the ‘agreement’ with the voters (not the Coalition parties to the agreement) rather than a renewal of the same. This, is where ‘Three Years Jot Na’ lost people like me. Here is the thing, there are two democratic options available to President Barrow, he has a choice to either step down as promised or, renew the promise with the voters. Unlike ‘Three Years Jot Na’ I do not believe stepping down is the only available option, it just isn’t.

Having examined the demands of the ‘Three Years Jot Na’ movement, I must say that whilst I applaud their courage and gall in seeking to hold President Barrow to his promise, I cannot say the same of their demands. I say this for the following reasons:

Amendment to s.46

The demand for an amendment to this provision in order to enable an early election before the end of President Barrow’s term is one demand which even if accommodated to the letter, will be wholly unhelpful to the reason for which such a demand is made. This demand is one which requires revisiting if not discarding altogether. To put it mildly, the reasoning behind this demand rests on a fatally flawed misconception of the Constitution.

S.46 is applicable to Presidential elections but, in circumstances where the incumbent has served their full term. Those provisions which deal with circumstances where the incumbent’s term of office is not exhausted are ss.63 and 65. Without belabouring the point, the relevant provisions for the purposes of this demand ought to have been ss.63(3) & (4) and 65(2). For reasons already stated, I must reluctantly say that this demand is unfortunately void.

1997 Constitution Clause 46

1997 Constitution Clause 46 – Election of President

3 Yrs Jotna Protest Demand Amendment Clause 46

3 Yrs Jotna Protest Demand Amendment Clause 46

President Barrow to Step Down

The President’s Constitutional mandate is 5 years albeit his democratic mandate is only 3 years. The former trumps the latter and, legally there is no mechanism through which the demand for the President to step down can be meaningfully pursed. This renders such demand a bit of a hopeless fantasy. It is a demand which would highly unlikely be complied with by the President and whose compliance ‘Three Years Jot Na’ appear to have no levers whatsoever to enforce. It therefore begs the question: why even bother at all?

Fresh Elections

Another demand is that fresh elections be held after the President agrees to comply with the above demands. ‘Three Years Jot Na’, it appears, prioritised the objective of their cause over and above the roadmap and process through which such can be achieved. This tunnel-vision approach to what may otherwise be a very noble cause might have just cost them.

My sincere apologies for being the bearer of bad news but, even if all the above demands are complied with, fresh elections will not follow. S.65(2) clearly states words to the effect that if an incumbent leaves office before the end of their term, the Vice President or Speaker will assume office and serve the remainder of the term.

1997 Constitution Clause 65

1997 Constitution Clause 65 – Vacancy in the office of President

The way forward

In my view, ‘Three Years Jot Na’ should, in light of the above now lobby and encourage the National Assembly Members to consider making use of s.63(3)&(4). A vote of no confidence, if passed by two thirds of the National Assembly (38 NAMs) will trigger a referendum (within thirty days) for the Gambian voters to have a public vote on whether or not President Barrow should stay in office.

Alternatively, President Barrow can and should do what is right by the nation and the integrity of our democracy and, seek a renewal  of the promise he made to the voters by 1) voluntarily engineering a referendum on the question of his continued Presidency in accordance with the above or, 2) by seeking an amendment to s.65(2) so that elections will be held when he resigns, resign and re-contest the Presidency if he so wishes. If not, his continued Presidency beyond his 3 years democratic mandate could invite accusations of illegitimacy and despotism and with some credence I hasten to add. I doubt this is a graffiti he wishes to have on him and his legacy.

Honestly in public life is as important and sacrosanct as the integrity of our democracy and, it can certainly not simply be overlooked or given a convenient pass.

 

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