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The Constitutional law of The Gambia – A book Review. by Lamin J. Darbo

Book Title: The Constitutional Law of The Gambia, 1965-2010                                 AuthorHouse Publishing Bloomington Indiana, USA.                                                  377 pages

Author:      Ousman A S Jammeh

Review by Lamin J Darbo

To a request from a potential buyer for a concise summation of The Constitutional Law of The Gambia, I responded that the book combines a historical and current account of our republican constitutional law and jurisprudence interspersed with a passionate articulation for executive restraint within the rule of law if we are to stand any chance of maintaining sustained ‘peace’ and uplifting The Gambia’s political economy.
In this seminal work, Ousman A S Jammeh – ‘Master’ as popularly known in legal circles – provides the first systematic general survey of the constitutional landscape of The Gambia with particular focus on the republican period from 1970. Granted an argument may be advanced that discussing the 1970 Constitution is of no practical significance considering its suspension in 1994 and wholesale abrogation in 1997.
It is nevertheless incontestable that the 1970 Constitution provides useful comparative material with the second republican constitution that came into effect in January 1997. In light of the underlying justifications for forceful governmental change in 1994, the jurisprudential backdrop of rights enshrined in the 1970 and 1994 cardinal documents of Gambian governance is significant if only to better inform ourselves of comparative judicial vibrancy under the two dispensations. Although Master provides the principal raw material for reaching a judgement on the issue in Chapter 4, First Republican Constitution 1970-1994, and Chapter 5, The Second Republican Constitution -1997, the question and its discussion is diffused throughout this excellent work.
A corollary determination and readers are invited, albeit without explicit statement, to reach their own judgements on the significant question of whether a constitution can effectively function outside the contours of a prevailing dominant political culture. Stated differently, can a constitution’s beauty alone suffice in ensuring a beautiful, i.e., democratic and accountable political dispensation. Answering this question necessarily entail a comparative analysis of the cultural perspectives of the apex leadership in Gambia’s first and second republican dispensations vis-a-vis the thorny issue of subjugating transient executive power to the majestic glory of transparent and accountable law.
The Constitutional Law of The Gambia is not a mere regurgitation of provisions enshrined in the governing instruments of 1970, and 1997, but a compelling and authoritative discussion of generally accepted legal principles and how they are implemented, not only in The Gambia, but in other parts of the common law world. The architecture of these broad principles, discussed in Chapter 2, Foundational Principles of Constitutionalism, clearly demonstrates Master’s enviable appreciation of such finer principles of constitutionalism as the separation of powers, the role of the judiciary, and the supremacy of the philosophical tenet that promotes the  subjecting of power to the control of law.
Indeed, it is in this chapter that Master demonstrates his nuanced understanding of constitutional law and jurisprudence not only in pre-eminent domestic rule of law jurisdictions like the United States and the United Kingdom, but also in culturally nearer “emerging” countries like South Africa, Mauritius, Ghana, Botswana, Nigeria, Kenya, and Zambia (p. 15). Master effortlessly discusses cases decided by American jurists in the mould of Justice Marshall, the first Chief Justice of the US Supreme Court – and some of their sublime legal principles that stood the test of centuries of rigorous ventilation – as he is at home discussing some of Gambia’s critical constitutional cases over the decades spanning its first and second republics. But there must exist an enabling political environment!
In analysing a Marshall pronouncement, Master contends, at page 15:
When reduced to its barest proposition, a constitution is like a deed of trust, between each citizen, with public power entrusted in the trustees charged with exercising it on behalf of, and in the general interest of the citizenry. As such, this trust is either lawfully  and justly discharged, or abused in breach of trust. Between the two options, there  is no middle ground. The experience in Africa tends to obscure this proposition through declarations of adherence to the rule by law, instead of the rule of law, whereby weak institutions shield formal constitutional authority, through legal formalism, but which in reality is at variance with every acceptable norm and fundamentals of constitutional trusteeship.
In Chapters 6, 7, and 8, Master discusses the respective constitutional roles allocated to the Executive, Legislative, and Judicial arms of The Gambia government. Although material herein may be accessed by consulting the actual text of the 1997 Constitution, an astute professional’s explanatory and user-friendly analysis comes in quite handy. Master fulfills that role spectacularly, particularly in the case of constitutional stipulations dealing with the Legislature, and Judiciary. Indeed, he exhaustively treats the legislative process from conception in the policy councils of a pertinent ministry, through the office of the parliamentary counsel in the Attorney General’s Chambers, to eventual enactment by the National Assembly with the required assent of the President (pp. 153-161).
Master highlights that it is not unknown for the National Assembly to act in excess of its legal powers but because of the “weak institutions” earlier mentioned, laws are still on the books, including in the Constitution, notwithstanding judicial decisions invalidating them. A good example is Kemeseng Jammeh, No 2, entailing “the amendment of an entrenched [constitutional] provision without a referendum” (see p. 162). Again, without an accountable political system, a constitution, no matter its exquisite crafting in letter and spirit, cannot protect the rights of the individual. All government needs to do is ignore judicial decisions adverse to its short term interests. An exemplification is Kemeseng Jammeh, No 2!
Chapters 9, 10 and 11 are of particular significance in that they deal with the various mechanisms for enforcing the 1997 Constitution. Here again, Master draws from a wide range of sources to articulate a reasoned case for enforcement of constitutional rights in the courts. Overall, there is no denying that the quality of the jurisprudence on difficult if straightforward constitutional disputes is varied, and the reader is again invited to comb through the decided cases for a view on where to root the likely causes of differential judicial attitudes to constitutional rights in the courts.
As the consummate scholar, and without emotion, Master provides a clue:
Whatever perspective or predisposition one may have about the ideals of Constitutionalism, and by extension the rule of law, it is important to realise that Constitutions are designed to endure with time if not to outlive generations yet unborn.
The legal basis for a Constitution is to establish a foundational law on which existing and future laws receive validity. One undeniable merit of an enduring constitution is one that ensures among other things, certainty, consistency, continuity and a degree of permanence. Invariably, these attributes have proven over time that the founding fathers of the United States including the indefatigable Federalists and the anti-Federalists, are indeed selfless and inspired visionaries. (pp 348-349)
The Constitutional Law of The Gambia is a book for all active participants in the ventilation of issues of public concern. Although of practical significance to practitioners and students of law, it is quite useful for politicians, journalism professionals, civil society, and other observers and commentators on the political economy
I wholeheartedly commend The Constitutional Law of The Gambia to all who are concerned in, and with, public affairs in our country. Master’s professionalism ensured a well-researched, well written, and well argued work.
The book is available online from the publishers AuthorHouse USA/UK; Amazon.com, and at Timbuktu Bookshop, at Garba Jahumpha Road, in The Gambia.
Lamin J Darbo
 
About Ousman A S Jammeh
 
Ousman Jammeh was born in Bakau, in the Kombo Saint Mary’s Municipality of The Gambia in 1963. He attended primary and secondary Schools in The Gambia, before joining the Gambian Judiciary, in 1984. He attended Universities in Guyana, Malaysia, and Barbados, West Indies. He is a member of The Gambia Bar and a foundation member of the National Council for Law Reporting. He also served as Secretary to The Gambia Law Foundation, and the Judicial Service Commission, as well as a part-time tutor in Para-legal studies at The Gambia Technical Training Institute, GTTI. He was a stipendiary Magistrate, Master and Registrar of the Supreme Court, and of the High Court of The Gambia, from 1994 to 2001. He practiced law in The Gambia, as Senior Partner, with Temple Legal Practitioners, TLP, from 2002 to 2005. He joined the United Nations International Criminal Tribunal for Rwanda, in Tanzania, in 2005. He is married to Madame Fatou Marenah – Jammeh, and they have three children.
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Colonized waters of West Africa

As the nations of La-Guinea, Sierra Leone, Liberia, Bissau, Gambia, and Senegal are mired in proxy internal conflicts, much of them fueled by their former colonial masters, their rivers and shorelines become a haven for illegal fishing trawlers from Europe (Portugal, Spain, France, UK, Greece), China, Japan, and South Korea.

5.25.2012 source: Al-Jazeera

Inland fresh water and ocean intruded salt water fish provide a valuable source of revenue for local artisanal fishermen and nutrient-rich fish for the populations of these nations. Generally in the multi-ethnic nations of West Africa, trades and industry follow along ethnic and tribal lines. The riverbanks, islands, and archipelagos are dotted with villages of these professional tribes whose sole occupation and livelihood revolves around harvesting fish and other seafood. As these waters become depleted of their fish and other aquaculture, more and more turn to farming on land risking poorer and poorer harvests inured by seasonal droughts and over-used and inadequately or poorly fertilized soils. Despair, induced by unemployment and hunger, leads to base notions of internecine conflicts. An ominous vortex that can threaten the very social fabric of even the more sober of these nations. The UN then busies itself with food aid, humanitarian aid, and all manner of listlessness. The political life of the weak democracies is joined in eternal vortex, softened up for justified but undue meddling and colonization by the more ambitious predator nations.

The predators brazenly violate the international waters and rivers of West Africa in much the same way as they do Somali waters. In Somalia, the last resort of the fishermen tribes is and remains piracy on the high seas because instead of assisting the locals with protective navies that can effectively ward off seafood thieves and bandits, the criminals charge piracy to allow them the requisite impunity to further destitute the fishing communities. More and more, the fishing communities of West Africa are having to rely on themselves to protect their livelihood on the waters inland and offshore. This, as the local economies of Portugal, England, Spain, Italy, and Greece contract into hallmark recessions.

Drug-running and pirate fishing provide feasible means to plunder former colonies in cycles of despair and decrepitude for relief in the colonial enterprises. Under the guise of foreign investment for development, some of these enterprises have negotiated fishing licenses in Guinea, Sierra Leone, Liberia, Benin, and Senegal where a facsimile of structured government exists and in the failed-states of Gambia and Bissau, front companies and criminal enterprises set up shop while fleets of their boats ravage the rivers and shores. The looted fish is carted further offshore to waiting refrigerated vessels from Europe, Korea, Japan, China, and Latin America where they are offloaded for onward shipment overseas. Increasingly, the markets of Asia and Europe are awash with a confounding variety of West African fish from grouper, snapper, sardines, shrimp, salmon, squid, mullet, to lobster. Some of these companies do engage in properly and legally-negotiated fishing licenses, but the local authorities do not have the means or capacity to regulate the allotments of these licenses. The result is that state revenue from these legal fishing licenses become inadequate to compensate local artisanal fishing villages much less to improve the local industry. In addition to the loss in billions of dollars in fisheries revenue, when the governments are handicapped by internecine conflict and comprehensive decrepitude, any effort to monitor or administer fishing licenses falls by the wayside.

There is an ominous risk of profuse piracy and conflicts on the high seas in West Africa and we encourage more democratic nations and the FAO to help empower local fishing villages on the archipelagos and islands in the Peninsula of Guinea, Bissau, and Sierra Leone to avert the impending dangers. An ounce of prevention is better than a pound of cure. Greater employment which can earn more livable wages for these and neighboring communities can be provided by more robust coast guards, navies, and riverkeeper mechanisms that will both ward off illegal pirate fishing vessels and protect the local artisanal fishing industry. Outboard motors wont cut it. This will have the attendant effect of reducing internecine tensions and cyclical rushes to humanitarian and food aid.

The GDP Team.

Further reading: http://af.reuters.com/article/guineaBissauNews/idAFL5E8E9AOZ20120315?pageNumber=3&virtualBrandChannel=0&sp=true

Something is still rotten in the state of Gambia. By Foday Samateh

Something is still rotten in the state of Gambia

By  Foday Samateh

Yahya Jammeh and his diehard supporters can slaughter hundred or thousand cows for a merry feast. They can throw all manner of sumptuous parties in all the seven regions of The Gambia for the fourth presidential election he had been declared the winner. All the celebration and chest-beating will not alter a damn truth about this drama of falsehood masqueraded as democratic election. Night will never be day and a cat will never be a dog no matter how many times the claim is made. So too a police state will never be a free nation by mere lip-service. This election, like the previous three, is nothing but a coup by the ballot box to renew the conferment of democratic legitimacy on a petty dictator.

The purported victory serves only one purpose. Further perpetuation of the status quo of a single man who is under the influence of messianic delusions and cheered on by a groveling troupe of mendacious loudmouths, gullible expendables, shameless opportunists, unprincipled apologists, flatterers for hire and happy know-nothings. The official
election result isn’t so much disappointing as it is offensive in that an avowed autocrat continues to exploit the democratic process to keep tightening his grip on power.

The supporters have two recurring defenses for the regime. The first is that Yahya Jammeh is a democratic president because the people voted for him. The people voted for Hitler too, but no one ever considered the Nazi madman to have been a democratic leader of Germany. Saddam and Mubarak had also won elections, but no one ever paid any credence to their landslides. The second is that he has brought transformational development to the country. Then why is The Gambia still sitting at the bottom rung of the Highly-Indebted Poor Countries in the UN development ranking index.
Put another way, in all the thirty years of the previous president, the national debt amounted to three billion dalasis. In seventeen years, this regime accumulated twenty-five billion dalasis in our name for some modest development. If Jawara had ever enriched himself in office, Yahya Jammeh has flamboyantly transformed himself from a destitute usurper to one of the wealthiest men in all Africa.

Yes, the regime has built schools as it should, but the annual West African Examination results show that the standard of education has deteriorated. The regime has built hospitals as it should, but the mortality rate hasn’t dropped a nick and life expectancy hasn’t improved a notch. The regime has built a television station, but only to turn it into a propaganda bureau to brainwash the nation into believing that we are blessed with a great leader endowed with divine powers. The regime established a university but deprived it of even a semblance of academic freedom for credible scientific research and critical debate on public policy and national affairs.

Too much is made of the regime’s vaunted developments; Schools, roads and hospitals are essential but very basic requirements for any modern nation-state. They have been built in both democracies and autocracies, by both transparent and corrupt governments across the world. The difference is not the physical presence of the structures but
the function they provide for the public good. Kim Jong-il of North Korea also built schools and hospitals and roads. Freedoms and democratic pluralism are the proudest boasts of civilized governments. Oppressive regimes everywhere justify their stranglehold as necessary for stability. The world knows the truth. Democracies are stable over the generations
while dictatorships hardly outlast a single regime. It says volumes about the state of the economy when remittances from citizens striving and scraping for a living in foreign countries constitute a major component of the GDP and every youth is desperate to travel elsewhere for opportunities.

Just about any head of state with average ambition can build schools, roads and hospitals. What sets Yahya Jammeh apart is his misplaced self-image as a man of destiny, gliding on the sweeping wave of history. Listening to him, an act of unbearable mental torture, one hears a jumble of crude vocabulary of a self-anointed republican, patriot, nationalist,
field marshal, prophet, genius, shaman and humanitarian. A breathing definition of a multiple personality disorder. He wants to impress upon his audience that he doesn’t only embody the dreams and spirit of the nation but attains a greatness so unique that it defies all categorizations and comparisons. That he is a one-off phenomenon in all the vestiges and vistas of time.

    Such blinding if not archaic hubris and heroic pretensions are quite familiar. Like all egomaniacs, he is the opposite of greatness. He is a petty, aggrieved, insecure, venal, paranoiac, pernicious, depraved, intolerant, crass, corrupt, deceptive, dishonest, avaricious, intemperate, dishonorable, untrustworthy, misinformed, semiliterate, inarticulate, thuggish, malcontent, violent, tribalist, lying little man. Someone needs to tell him that the Holy Quran is not for carrying around. The sacred Revelation is not a prop for
gimmicky display of piety. The Words of the Almighty are meant for recitation to acquire wisdom and guidance. If this ignoramus really knows how to read the Book of all books, he would be doing so every morning and night on national television and leading every Friday prayer at the State House mosque. Just like he is no professor or doctor of any sort, he is no sheikh. He is an empty pretender. A vain extrovert infected with infantile and fetish need for attention. From his overdressing, raving and ranting to uncouth mannerisms, the sane mind is conflicted over determining whether he is a scarecrow or clown with the keys to the highest office in the land.

    For whatever developments that will take place in the next five years if he stays in power, the following too will happen. More defenseless citizens will be rounded up and whisked to Mile Two Maximum Security Prison he called the “five-star hotel” for his enemies. The country will remain a “hell,” as he put it, for journalists until the last of them becomes his crowing praise-singer. He will own more businesses to amass more wealth to drive out competition for monopolistic control of the economy. He will further crush dissent, buy support and influence, and institutionalize patronage into the whole system for access and success to strengthen his clutch on power. He will further promote superstition over science and make new claims that he possesses “miracle cures” and herbal elixirs for more medical conditions. He will continue to court and befriend the endangered species of like-minded despots and unsavory
characters around the world. He will continue to run the affairs of the state like a Mafia boss of the underworld. He will pile up more debt on the nation, raise taxes ever higher, his regime will remain unaudited while a financial time bomb ticks for the country. For supporters and opponents alike, prepare for a painful reckoning when the lease of time for his
nefarious reign is up.

Gambia: Nov. 24th, 2011 Presidential Elections. What Happened?

We have once again been treated to a marvel of an election, this time with Yahya gaining an average of 70% in all constituencies, even the traditionally secure strongholds of Kiangs, Jarras, Wullis, Kombos, Nianis, and Sandu. This while in the duration between 2006 and 2011, arms and amunition coming from Iran and destined for Kanilai were intercepted in a Nigerian Port, a billion dollar’s worth of cocaine was found in Bonto riverside village resulting in a Dutch citizen’s murder, Assets of Pristine Consulting Biometric registration were confiscated and impounded upon, the Gamcotrap-2 have been illegally arrested and are still being gratuitously prosecuted, Yahya’s relationship with his friend Chavez of Venezuela is on the rocks for the former’s antics against his former friend Gadhafi to save his own hyde, Baba Jobe was murdered to dispense with potential witnesses to the Sierra-Leone-Liberia Blood Diamond saga, and Yahya and his wife’ss implication in the assassination attempt on the life of La-Guinea President Alpha Conde’.

As in 2006, 2001, and 1996, The Gambia’s voter rolls include citizens of Senegal particularly from the region of Cassamance where the rearguard of Yahya’s Kanilai enclave hails from. On occasion, these illegal voters were housed at The University of Gambia and some have been intercepted in the southern border region between Senegal and Gambia.

Yahya has total control of state resources to include the national television and radio which he uses to the stealthy exclusion of opposition messaging and campaign. On several occasions, the national radio and television station refused to broadcast meeting advertisements of the opposition political parties and the inspector of police refused to grant permit for the conduct of opposition rallies. On one such occasion when the opposition United Democratic Party held a meeting without a permit, an officer of the UDP, Hon. Femi Peters was arrested and remanded in prison for using a loudspeaker and leading a public procession. In the runup to the election, the opposition parties were allowed 11 days of public campaigning while Yahya has been campaigning for 5 years. Public officials, including Seyfolu and Alkalolu, used their state vehicles, fuel, and other logistical resources to openly campaign for Yahya and his APRC gang.

Prior to election day, bands of the Green boys and girls groups went on an intimidation campaign to inform would-be opposition voters that hidden cameras were installed in the voting booths to survey how voters voted and that those who vote for the opposition parties would be found out and dealt with after Yahya’s foregone win.

On election day itself, voting marbles were issued to both illegally registered voters and unregistered voters.

On election day, labels were removed from ballots and re-labelled according to weight and improper labels attached. All the while, opposition representatives were prevented from monitoring the ballot totes/drums until the deed is done.

Friends, Gambians, and countrymen/women, this was the manner of your election on November 24th, 2011.

The GDP Team.

The Clearest Choice for Gambia in Election 2011

The Clearest Choice for Gambia in Election 2011

By former Magistrate Hon. Lamin J. Darbo
As the sun went down on the campaign period, and Gambia embraces the very eve of Election 2011, the clearest and most compelling choice for president on November 24 is Ousainu N Darboe (Ousainu) of the UDP and allied parties.
That Gambians are now full adherents of the political view that “enough is enough” is clear and palpable. And even whereas the government of His Excellency Sheikh Professor Alhaji Doctor Yahya A J J Jammeh (the Professor) must have recognised this changing national mood as evidenced by recent reports of verbal attacks on Freedom Radio and its iconoclastic Editor-cum-presenter by higher echelon APRC stalwarts at campaign meetings, this  suggests the ‘no criticism’ mentality so endemic in the current establishment persists. Our nation cannot heal its deep wounds in that kind of governance climate, and genuine national healing is what we are in most need of.
The man for that task and for comprehensive national development in peace is Ousainu.
An accomplished Barrister and human rights advocate committed to a public space anchored in institutionalism and the rule of law, Ousainu has the wherewithal to usher in the requisite sanity imperative to averting the crisis of internal stability that stares Gambia in the face due mainly to the lawless propensities of the current government.
What is my evidence Ousainu will accord due fidelity to institutionalism and the rule of law?
In a two-hour dedicated conversation on political matters some two years ago in London, I asked Ousainu why he failed to grab one of the international opportunities that came his way over the years. In characteristic humility and consideration for others, he told me his leadership of the UDP caused untold suffering – arrests, detentions, disappearances, even death – for Gambian citizens. He will not walk away from those who suffered on his account in the difficult project of decapitating public lawlessness in Gambia.
I am also fully convinced that notwithstanding failure in attaining total opposition unity in this year’s presidential contest, Ousainu fulfilled his promise to reach out to other opposition leaders with a view to crafting a united front against the Professor this year.
With neither inclination nor capacity, Ousainu will not divide Gambia along any partisan lines. He will not arrest, detain, or incarcerate any citizen, or resident, of the Gambia outside the ambit of law. He will never torture, abduct, or disappear any citizen, or resident, of the Gambia. That is the development Gambia requires, the development that ensures our territorial integrity is not compromised by the cannibalism inherent in civil conflict.
I join my friend Yero (Dalton) Jallow of Gainako Online Newspaper and other neutrals who, with inspirational erudition, made a cogent case for a UDP-led united front against the APRC. Here I recall the pleas of Gambians like Mathew K Jallow, Momodou B Krubally, Prince Obrien Coker, Professor Abdoulie Saine, Foday Samateh, and others.
As you make your final calls tonight and tomorrow morning to those in homeland dearest with whom you have some influence, please remind them a vote other than for Ousainu will be a wasted vote on November 24.
By voting Ousainu, you and your family and friends are participating in the creation of a Gambia anchored not only in law and institutions, but a Gambia where the protection of human dignity is the highest practical value.
Ousainu N Darboe for president on November 24!
Long live the Gambia our homeland
Lamin J Darbo