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Political Impasse In The Gambia: The Facts, The Lies And The Bad Precedent (1) By Ibrahim M. Attahir, Esq. This age which is prided as information age, can also be an age of serious misinformation. This assertion became clearer to me regarding the political impasse in The Gambia. Since the beginning of the impasse I followed the unfolding events with keen interest. I even wanted to write an article then. However, I tarried for a while to see how the events were unfolding. As God decreed, I suddenly travelled to The Gambia along with other colleagues in connection with an assignment related to the legal tussle that followed the political impasse. While I was in The Gambia, I read, watched and listened to so many stories in the conventional and social media. So many experts, not-so-experts and non-experts continued to bare their minds on the political/legal impasse. I realized that, what was on the ground in The Gambia was contrary to what people were being fed with. I saw the scenario as a manifestation of a statement attributed to a former US President, Thomas Jefferson that: “The man who reads nothing at all is better educated than the man who reads nothing but newspapers.” This serious misinformation prompted me to write this piece as my humble contribution on the events in The Gambia. I hope it will put some records straight and separate the grain from the chaff, at least, for posterity. THE FACTS The facts can be classified into three. There are facts that are commonly known. Some of such facts relate to the country and some others relate to the political impasse. The ones that are commonly known on The Gambia are that the country is a tiny one almost surrounded by Senegal. They also include that the country has a small population and by extension a small army. Other facts are that the population is predominantly Muslim and the tribes are Mandinka, Wollof, Fula (Fulani/Fulbe/Pullo), etc. The facts related to the impasse are that the then President Sheikh Professor Alhaji Dr Yahya A.J.J. Jammeh Babili Mansa (as he wanted to be addressed but to be herein simply referred to as “former President Jammeh”, for economy of space) contested the presidential election of 1st December, 2016. It is a fact that the election was conducted, the results were collated and the Independent Election Commission (I.E.C) declared Adama Barrow (now the President of The Gambia) winner of the election on 2nd December, 2016. Former President Jammeh initially congratulated the declared winner. However, he later changed his mind when the I.EC. admitted making some errors and had recount and announced another result on 5th December, 2016. Then narratives followed that the ECOWAS was trying to persuade him to relinquish power or else he would be removed by force. The facts that are not commonly known include that the country is very peaceful, orderly and has a very good weather that makes it a destination for tourists especially from Europe. Other facts include that the people are hardworking, dedicated, disciplined, peace-loving, law-abiding, honest and accommodating. At 2.00am one can see even women going about their normal businesses without any fear of molestation or harassment from any quarter. In our stay for two weeks, we did not see a single road traffic accident. In fact, we heard somebody blowing the horn of his car once. It was in front of market where there was congestion. Yet the driver blew the horn gently. A true evidence of their respect for law and order was when I saw somebody riding a bicycle with proper lightings in the night. I had such experience here only in the early seventies when I was young. In Nigeria today, people even drive a vehicle in the night without head light or without proper lightings. Our children have never seen a bicycle with lights. It is also a fact not commonly known that oil was recently discovered in The Gambia and you can guess the implication. Other facts not commonly known are that former President Jammeh did so many good things for the country. One can keep on counting them: schools, hospitals, new airport, road network, national stadium, street lights, tourism, free education, etc. The facts not commonly known regarding the political impasse include that the difference of votes between former President Jammeh and President Barrow is just slightly over 20, 000 votes. Former President Jammeh initially annulled the election but was advised that it was unconstitutional and he filed election petition before the Gambian Supreme Court. That means he de-annulled the election. He also appointed a Mediator General to explore amicable resolution of the political impasse. There are many facts that are deliberately suppressed. One of such facts is that the I.E.C. after making a declaration of the election results later stated that it discovered some errors in the computation and tally of the declared results. Thus, there were two declarations of result in respect of one election: one on the 2nd December, 2016 and another on 5th December, 2016. That prompted former President Jammeh and his party, the Alliance for Patriotic Re-orientation and Construction (APRC) to start questioning the election. They made findings and discovered that there were serious cases of election malpractices which include disenfranchisement of Jammeh Supporters, over-voting in some polling stations among other things. Other facts deliberately suppressed are that there were voters numbering over 20, 000 among the supporters of former President Jammeh who were disenfranchised that filed a petition. There were, in all, three petitions pending before the Supreme Court of The Gambia.
THE LIES There were so many lies that were spread about the political impasse in The Gambia. But before going into that, there is also the fallacy of democracy itself. One of the biggest fallacies of our time is forcing people to embrace democracy hook, line and sinker. Incidentally, when I was in The Gambia I listened to the Mozambican President on the BBC saying that as a person who read political science he could not understand the Electoral College system in the US election. He said that if it were in an African country that a candidate with the highest popular votes did not win the election; there would have been hue and cry that it was undemocratic. It is unfortunate that Africa is not allowed to practice democracy in its own way. If we look at European countries, they have so many things in common. Yet, their political systems are different. Some of them have presidential system; some of them have parliamentary system; some of them even have monarchical system blended with parliamentary system.
One of the big lies is that former President Jammeh was portrayed as if he had no single supporter in The Gambia. The scores of the candidates in the 1st December, 2016 election as shown in the second declaration of I.E.C. on 5th December, 2016 are as follows: President Barrow – 227, 708 votes; former President Jammeh – 208, 487 votes; Mama Kandeh – 89, 768 votes. The difference between former President Jammeh and President Barrow is slightly above 20, 000 votes and there were thousands of former President Jammeh’s supporters that were disenfranchised. If it were in a parliamentary system, former President Jammeh and Kandeh with a total of 298, 255 votes (a difference of over 70, 547 votes over Barrow’s) could have formed a coalition government. It is a fallacy of the presidential system and the media mischief that portrayed President Barrow as having highest popular votes. But in reality President Barrow’s supporters are the minority. Unfortunately, Africans including Nigerians have abandoned parliamentary system which is easier and cheaper to operate and more in tune with our culture in favour of presidential system.
I heard one of the so-called prodemocracy activists alleging that Nigerian judges were hired to go and assist former President Jammeh to manipulate the judicial process. It is sad that people who only sit in the comfort of their offices and read newspapers are crowned “experts” by the media. If the activist cared to make a research, he could have found that Nigeria had always assisted The Gambia with military, judicial, legal, medical and educational personnel. Anybody in doubt about these facts can verify from the Directorate of Technical Aid Corps of the Federal Ministry of Foreign Affairs. The immediate past Chief Justice of the Gambia is a Nigerian who worked there for 16 years and rose from a state counsel in the Ministry of Justice to become head of the Judiciary. There are many others that worked there as Magistrates, Directors and Lawyers in the Ministry of Justice, High Court Judges, Court of Appeal Justices (Judges) and even Supreme Court Justices (Judges). Unfortunately, uninformed persons parading themselves as experts (or rather mischief makers) with the aid of media spread the lies that because of expertise of Nigerian judges and lawyers in corruption they were drafted by former President Jammeh to go to The Gambia and do “what they know best”. It is sad enough that Nigerians were in the forefront of those spreading such mischievous and wicked propaganda disparaging fellow Nigerians.
The desperation of those forces against former President Jammeh was such that they were not ashamed of fabricating stories about his government functionaries. We were in our hotel one day when we read that the then Attorney General and Minister of Justice of The Gambia fled to Senegal after her police orderly allegedly abandoned his duty and ran away. Incidentally, we were scheduled to have a meeting in her office that day. So we drove to her office thinking that we would meet a surprise. One of the first persons we saw on our arrival at the Ministry of Justice was her orderly. We met the Hon. Attorney General in office and had our meeting. She told us that she received several telephone calls from many persons that read the publication. Similarly, there was another false story that the then Chief Justice of The Gambia fled to Senegal. Three days thereafter when we were at the Banjul Airport to travel back home we saw the gentleman.
It is surprising that journalists reporting for reputable media establishments either do not understand judicial proceedings which they are eager to report or deliberately report what did not happen. For example, many media houses reported that the then Chief Justice of The Gambia refused the application for injunction restraining various government agencies and their officers from swearing-in/inaugurating Adama Barrow (then President-Elect). I was in the Supreme Court of The Gambia on 16th January, 2017 and watched the proceedings and the rulings in the various petitions. What happened was that the lawyer representing APRC and former President Jammeh had so many pending applications before the Court. He moved the application for substituted service of the processes in the petition on Adama Barrow who was evading service. The Court granted that application and similar applications in all the three petitions. Then the lawyer drew the attention of the Hon. Chief Justice that there was an application for injunction in which time was of essence. He asked for that application to be fixed against 18th January, 2017. The Hon. Chief Justice asked about the nature of the prayers in the application. The lawyer read them out. The Hon. Chief Justice then made a ruling in which he stated that his office was affected by the application. Therefore, he could not invoke his jurisdiction as a single Justice of the Court to hear such application that affected his office directly. He, consequently adjourned the application to May, 2017 when Judges from Nigeria and Sierra Leone were expected. He further stated that whenever judges were available, hearing notices with new dates would be served on the parties.
After the ruling the Hon. Chief Justice made many notable pronouncements off the record. He appealed to ECOWAS and other sister jurisdictions in West Africa to consider releasing judges to facilitate earlier hearing of the pending application and the substantive election petitions. He stated that there were appeals from the Court of Appeal that were also ripe for hearing before the Supreme Court. He admonished the Mediator General appointed by former President Jammeh, the ECOWAS, the political, community, religious and other leaders to employ dialogue to resolve the dispute. He decried the negative report in the media on the appointment of Judges from Nigeria. Ibrahim M. Attahir Gombe 27/2/2017 Political Impasse In The Gambia: The Facts, The Lies And The Bad Precedent (2) By Ibrahim M. Attahir, Esq.
THE BAD PRECEDENT
The ECOWAS has set a very bad precedent in the manner it handled the political impasse in The Gambia. Probably, the ECOWS leadership was not properly advised or the regional leaders deliberately wanted to satisfy a vested interest. I will not be surprised if there was no proper advice because one professor was wrongly equating what happened in The Gambia with what Paul Koroma did in Sierra Leone in the 1990s and what Laurent Gbagbo did in Cote d’Ivoire in 2010. It is wrong and misleading for anybody to compare what happened in the two countries with what happened in The Gambia in 2016. Unfortunately, opinion of such experts might have some influence.
In case of Sierra Leone, Koromah seized power in a military coup but ECOWAS made several peace moves to allow Kabbah return to power as the democratically elected president. Under the October 1997 peace agreement Koromah was allowed to rule up to 1998. He, however, breached the agreement and refused to leave. How can that circumstance be compared to that of former President Jammeh who lost election and filed a petition before the Supreme Court of The Gambia in accordance with the country’s constitution? It is sad that in case of Koromah (a coup plotter) he was given grace to enjoy the fruits of the offence he committed up to a chosen time agreed between him and ECOWAS. However, former President Jammeh who respected the constitutional and judicial process could not be allowed the “luxury” for his petition to be heard and determined. All the ECOWAS was telling him was to just go!
In case of Cote d’Ivoire, Gbagbo lost election in 2010. He neither respected the constitution nor the judiciary. He interfered with and thereby truncated the electoral process. A supporter of Gbagbo was shown on television seizing and destroying the result sheet while the declaration of result was going on in a bid to cause confusion similar to what Orubebe did in 2015 in Nigeria. Gbagbo did not file any petition to seek for judicial remedy in accordance with constitutional process. He just remained defiant. That created serious tension and ethno-religious hatred. Lives were lost and properties were destroyed. There was fear that the country could be plunged into a civil war. That was not the case in The Gambia. No life was lost, no property was destroyed and even during the state of emergency declared by former President Jammeh one could go out at night and move about in Banjul and its environs freely and unmolested.
What happened in the Gambia was partly related to a lacuna in the country’s constitution. The tenure of the incumbent who lost election was coming to an end. However, the incumbent, his political party and some voters filed separate petitions before the Supreme Court of The Gambia. There was a pending application seeking for an injunction to restrain any person or authority from swearing in or inaugurating the declared winner of the election. There is no provision in the Constitution of The Gambia similar to that of Nigeria where head of the legislature could act as president in the circumstances. There was going to be a vacuum. Worst still, the Supreme Court could not hear the application on injunction and the substantive petitions due to lack of quorum of Justices and the fact that the Hon. Chief Justice of The Gambia was affected by the application for injunction.
There were better legal options to avert a vacuum. Doctrine of necessity could have been invoked to allow the head of the parliament to act as president. Doctrine of necessity was invoked in Nigeria when the then President Yar ‘Adua was on medical treatment and he did not give acting capacity to the Vice President. The Council of Ministers/Federal Executive Council did not invoke its constitutional powers to set in motion a process of verifying whether or not the President was incapacitated. There was a vacuum. The Senate resorted to the doctrine of necessity to allow the then Vice President, Goodluck Jonathan to act as President. Alternatively, an interim national government could have been put in place in The Gambia until final determination of the petitions. By the Gambian laws, the petitions could have been determined within few weeks.
The anti-Jammeh elements kept on hammering on the fact that he initially conceded defeat. It is true that he first conceded defeated and later changed his mind. They ignored the fact that the I.E.C. caused his change of mind. The electoral body said it discovered errors in the earlier declared result. Yet, when he changed his mind he decided to approach the Supreme Court. He did not use force. He was only exercising his fundamental right as a voter and a candidate in the election. ECOWAS should have commended him. In Nigeria we have example of candidates that conceded defeat and later changed their mind to challenge the election before the tribunal. Nobody faulted them because they were exercising their constitutional right to have their civil rights and obligations determined by a competent judicial authority in a civilized manner. The right to have access to courts of law for the determination of civil rights and obligation of any person and the right to be heard by such a court or tribunal is recognized and guaranteed by both the Gambian Constitution and international conventions, treaties and other instruments. Section 127 of the Constitution of the Republic of The Gambia, 1997 confers exclusive jurisdiction on the Supreme Court of The Gambia “on any question as to whether or not any person was validly elected to the office of the President....” Section 49 of the Constitution gives right to any political party or any independent candidate to apply to Supreme Court to determine the validity of election of a President by filing a petition. Sections 97 and 98 (1) (a) and (b) of The Gambian Elections Act, 1996 gives right to even an ordinary voter and a candidate in an election to question the validity of the election. It was under this provision that supporters of former President Jammeh who were disenfranchised filed a petition. At the regional and African level, Article 3 (1) and 7 (1) of African Charter on Human and People Rights (ACHPR) provides that: “Every individual shall have the right to have his cause heard. This comprises, (a) the right to an appeal to competent national organs against acts of violating his fundamental rights as recognized and guaranteed by conventions”. Article 1 (h) of the ECOWAS Treaty on Democracy and Good Governance, 2001 provides that “The rights set out in the African Charter on Human and People’s Rights and other international instruments shall be guaranteed in each of the ECOWAS Member States; each individual or organization shall be free to have recourse to the common or civil law courts, a court of special jurisdiction or any other national institution established within the framework of an international instrument”. Furthermore, Article 7 of the said Protocol provides for adequate arrangements to be made for the hearing and disposal of petitions. Article 4 (g) of the Revised Treaty of ECOWAS, 1993 recognizes the fundamental human rights of citizens of the Community. The Revised ECOWAS Treaty, 1993 under Article 4 (f) and 76 (1) provides for peaceful resolution of disputes. Where peaceful resolution fails, Article 76 (2) provides for recourse to the Community Court of Justice for resolution. I heard one of the experts arguing that the era of non-interference in the domestic affairs of sister countries under AU and ECOWAS had gone. He cited an example that the AU had removed the non-interference clause from its texts. It is true that regional forces can now be deployed to a member country to maintain or restore peace. However, the interference should not be in a wild manner. There are statutory provisions governing the interference under the ECOWAS Protocol on Democracy and Good Governance 2001 and the Protocol Relating to the Mechanism For Conflict Prevention, Management, Resolution, Peacekeeping and Security, 1999. Furthermore, neither of the two protocols contemplates interference by a military force when there is a pending process seeking for judicial redress. This is where the expert goofed. Probably it is such experts that misled the ECOWAS leadership. The ECOWAS has succeeded in rubbishing the provisions of the Constitution of Republic of The Gambia, 1997, the ECOWAS Treaty and other Texts and Instruments all of which guarantee fundamental human right of access to court to determine one’s civil rights and obligations as stated above. Such denial of right of access to court is one of the worst forms of injustice. Even if what the expert said is true, can it apply to all countries in the region/continent or is it targeted at smaller countries like The Gambia? Assuming the then President Goodluck Jonathan had held unto power after his defeat in the 2015 election in Nigeria, could Senegal and its ECOWAS co-travelers have removed him by force? Where was the African Union when Abdul-Fattah El - Sisi in Egypt overthrew the first democratically elected president and even caused him to be tried and sentenced to death? Under the same El-Sisi, thousands of Egyptians who were on a sit-out protest against his military coup were killed and the African Union looked the other way. What are the African leaders doing presently in D. R. Congo? The man there wanted to amend the country’s constitution to remain in power which was rejected by the people. There was no election in D.R. Congo. The AU and the experts did not call for deployment of troops to remove him. He was rather given a grace time to continue with his illegality. Here in Nigeria ECOWAS and AU were there when General Babangida annulled election in Nigeria in 1993 and later General Abacha did what he did. Even in recent years, there was serious bloodshed in the Central African Republic. The AU did not deploy troops there. Selective justice is one of the worst forms of injustice. Ibrahim M. Attahir Gombe 27/2/2017
POLITICAL IMPASSE IN THE GAMBIA: THE FACTS, THE LIES AND THE BAD PRECEDENT (3) By Ibrahim M. Attahir, Esq. African leaders under the regional and continental bodies must not be engaging in selective justice. They should look beyond the euphoria of ousting a “dictator” or bringing democracy, freedom and other bogus claims. They must not be carried away by opinion of armchair experts and human right or democratic activists. I believe some of the experts had not read the Constitution of The Gambia or many instruments of ECOWAS that contain detailed provisions on procedure for conflict resolution before making noise. Sadly, the African Union and the ECOWAS have set a bad precedent of preventing those who contest election and have grievances from ventilating their grievances. That may send a signal to incumbent presidents to use every opportunity to rig elections. Late Gaddafi was sacrificed in the name of democracy. Now the Libyans know better. They neither have democracy nor freedom and they lost their stability. Even some of the countries that abandoned Gaddafi are now paying dearly. ECOWAS and the powers that be were too eager for a regime change in The Gambia. So they tolerated so many contraventions of the constitutional provisions and relevant laws and practices. The Kangaroo manner in which President Barrow was earlier sworn in by President of the Gambian Bar Association is a good example. All the experts and the activists did not see anything wrong with that. The Nigerian commentators that were making a big storm out of tea cup all kept quiet. The media people also remained silent on the issue. There seemed to be a conspiracy against former President Jammeh. I saw only one Gambian legal expert from the University of The Gambia that faulted the manner in which the swearing in was conducted and analyzed the legal implications. May be it later dawned on President Barrow and his co-travelers or they were advised about the legal implication of his inauguration. So they decided to “properly” swear in Barrow on 18th February, 2017. That was one month after the Kangaroo inauguration in Senegal. Now the question may arise as to when did his tenure begin to run. How about the appointments he made including that of the Chief Justice and the official actions and functions he performed while operating under the defective inauguration? The reckoning is not now!
Article 1 (h) of the ECOWAS Treaty on Democracy and Good Governance, 2001 provides for the doctrine of separation of powers in all member countries of the community. Disregarding the judicial process going on before the Supreme Court of The Gambia is a glaring usurpation and/or truncation of the separation powers as provided in the above Treaty and the Gambian Constitution and constitutions of all civilized and democratic nations. In law, once there is a pending judicial process all parties must maintain the status quo. Doing anything contrary is a negation of the doctrine of LIS PENDENS by foisting a state of helplessness and hopelessness on the Court. The Nigerian Supreme Court in the case of AMAECHI Vs. INDEPENDENT NATIONAL ELECTORAL COMMISSION (2008) 5 NWLR (pt. 1080) p. 227 @ 445 – 446 ratio 48 stated that: “The doctrine of lis pendens finds expression in the assertion that it prevents any transfer of any right or the taking of any steps capable of foisting helplessness and/or hopelessness on the parties or the court during the pendency in court of an action and even after. By that doctrine, the law does not allow to litigant parties or give to them during the currency of the litigation involving the rights in it so as to prejudice any of the litigating parties. The doctrine negates and disallows any transfer of rights or interest in any subject matter that is being litigated upon during the pendency of litigation in respect of the said subject-matter. The well-known maxim is “Pendent lite nihil innovetur” meaning: During litigation nothing new should be introduced. Going by the facts of this case that doctrine applies. The declaration of the respondent as the Governor of Rivers State founded upon an illegal and/or unlawful election is null and void.” The Supreme Court specifically faulted the INEC for going ahead to conduct election in Rivers State in 2007 when Mr. Rotimi Amaechi was still in court challenging the nomination of Celestine Omehia as the candidate of the People’s Democratic Party (PDP). What ECOWAS did in The Gambia in 2016 is worse than what INEC did in Rivers State of Nigeria in 2007.
The ECOWAS Treaty, 1993, other Protocols, Texts and all Instruments as well as other international conventions that give enabling powers to regional, continental and international bodies are not contemplated to substitute the judicial authorities of member states. Even where the judicial authorities fail to discharge their duties, it is the regional/international judicial institutions that take over the role. That is the essence of the ECOWAS Community Court of Justice. It is sad that the ECOWAS leaders for reasons best known to them decided to handle the political impasse in The Gambia in a wild manner. The various petitions were pending (and they are still pending) when threats to use military force to invade The Gambia and remove former President Jammeh from office started. If somebody sitting outside the court room will be the one to decide whether or not a case before the court should be heard or not, then judiciary is finished! That is exactly what the ECOWAS leaders did in The Gambia. This apparent disregard of judicial process is a very bad precedent that will have its far reaching implications sooner or later. Former President Jammeh was denied his right to present his petition. They falsely call him a dictator, a sit-tight leader, etc. Are dictators known to seek remedy in a court of law? Can a dictator annul election and when advised that he acted contrary to the constitution reverses the annulment and goes to court? He may have his shortcomings as human being. However, the odds against him are not because of his shortcomings. The countries parading themselves as champions of democracy have some of the worst dictators in history as their best friends. The factors that worked against former President Jammeh are simply the small size of his country, the fact that he stayed for 22 years (and as human beings Gambians rightly or wrongly felt that they needed change). It is obvious that a person like former President Jammeh would not be ready to surrender oil of The Gambia to multi-nationals. I pity President Barrow the new darling of the powers that be. I pity him because he appears to be a simple person and he is inexperienced in politics and governance. The powers that brought him will ignore whatever blunders he may make and, sadly, even his first official function (his purported inauguration in Senegal) is one of such blunders. It is when the honeymoon is over that the same people that brought him will start bringing out such issues against him. I am surprised that he was hailed last week that he released “political prisoners”. However, if report in the media is anything to go by, he has started having his own political prisoners. I hope he will be careful with power. I also pity the good people of The Gambia. I pray to God to protect their peace and stability from politicians and their masters. I hope their good country will not end up as a “region” under Senegal! |