22nd December 2016
The remarks from the Outgoing President, broadcast over GRTS, which were made during talks with representatives of the Africa Bar Association, who were on a Fact Finding Mission, deserve a response from the office of the Incoming President.
It is important for the Gambian people, in particular, and the world, at large, to understand the political situation in the country. Currently, there is an Incoming and an Outgoing President. This is a Constitutional and political fact that should be a primary focus for all Fact Finding Missions, in particular, and the Public, at large. The visitors and the Gambian people must never draw any conclusion unless they hear from both administrations and then separate the grain from the chaff.
The Outgoing President‘s pronouncement tends to give the impression that he is not an Outgoing President. It gives the wrong notion that the Outgoing President will continue to have grip on power after the expiration of his five year term in January .It makes some people to believe that the Incoming President has no mandate to prepare for his inauguration because an Election Petition has been filed by the party of the loser.
The Incoming President wants to make it very clear that the Petition of the APRC candidate, who has lost the 1st December 2016 Elections, has no bearing on the Preparation being made for him to assume office in January.
Every loser in an Election contest has the right to go to court to find redress to any grievance.
However, such an action does not deprive the winner the right to take over a Government when one is constitutionally mandated to do so.
It should be clear to the public that while the loser has every right to make claims and indicate the Court actions it is taking to get a Court decision it is contrary to the spirit and letter of the Constitution to give the impression that the victory of the winner is suspended and his entitlement to prepare to be inaugurated put on hold by an Election petition.
It is prejudicial to argue the merit of an Election Petition in the media. This is why the Incoming President has requested for the Court case to be considered as the exercise of right by a private citizen to seek redress in the Courts and not a State matter affecting the mandatory transfer of Executive power as dictated by the Constitution.
The Incoming President is committed to the Principles of Electoral jurisprudence, the Independence and impartiality of the judiciary and the rights of aggrieved citizens to seek redress in Courts and would not wish to make any comments that would be prejudicial to the exercise of such rights.
In the same vein, he calls on all responsible authorities to reciprocate by not making any utterances which impinges on his rights to enjoy the status of a President Elect as guaranteed in all civilized countries and prepare for his Inauguration as constitutionally guaranteed.
The Incoming President wants it to be known without any shadow of a doubt that he has the Constitutional mandate to prepare to assume Office in January 2017.
The Facts are as follows:
Section 63 Subsection (1) of the Constitution states that the term of Office of an Elected President shall be for a term of five years beginning when a person takes oath of office.
Outgoing President Jammeh took Office on 19 January 2012. His Five year term expires in January 2017. Anybody could do the arithmetic for one’s self.
Section 46 of the Constitution instructs that there shall be an Election to the Office of President in the three Months before the expiration of the term of the incumbent.
This is why Elections were held on 1st December 2016 before the expiration of the January 2012 to January 2017 mandate of Outgoing President Jammeh.
Section 41 of the Constitution empowers the IEC to conduct Elections and to declare results under Section 81 of the Elections Act.
This has happened. President Elect Barrow is declared the winner.
Assumption of Office
According to Section 63 Subsection (2) of the Constitution,
“The person declared elected as President shall take the prescribed oaths and assume office on the day the term of office of the incumbent President expires”
This is the law of the land. It is President Elect Adama Barrow who is declared elected. It is mandatory for him to take the prescribed oath of Office and assume office on the day the term of office of President Jammeh expires in accordance with the letter and spirit of Section 63 Subsection 2 of the Constitution. This Swearing in ceremony is what is referred to as an Inauguration ceremony.
The Date of Inauguration of the President Elect
President Jammeh is to serve for five years starting from 19th January 2012 when he took Oath of Office.
According to Section 2 of the Interpretation Act a Year in Law means 12 months as reckoned under The British Calendar adopted in 1752 as the Gregorian calendar which took into account the orbit of the earth taking 365⅟4 days. Hence the concept of a leap year was introduced in every four years.
According to the law of the land the calendar year is the 12 months of the year starting in January with 31 days and ending in December with 31 days. Hence the calendar year has 365 days in a normal year and 366 days in a leap year.
In computation of time, according to the Interpretation Act, the counting of the days starts on the following day. Hence from the 19th to the twentieth is one day, from the 19th to the 21st is two days, etc. In a similar vein from 19th January to 19th February is one month, from 19th January to 19th March is two months, etc. Likewise from 19th January 2012 to 19th January 2013 is one year, to 19th January 2014 two years, to 19th January 2017 five years.
Thus the term of office of President Jammeh should expire starting one second after midnight and goes up to midnight of 19th January 2017 Hence President Elect Barrow could take Oath and assume Office any time up to midnight of 19th January 2017.
ECOWAS is acting according to the Constitution of The Gambia
When the four Heads of State of ECOWAS came for a Fact Finding Mission they gathered that President Elect Adama Barrow was declared winner by the Independent Electoral Commission as required by the law of the land. They were also given the constitutional facts that the elected President should assume office on the day of expiration of the term of office of the incumbent which is 19th January 2017. This is why they said that they will grace the occasion in their numbers. In making that declaration they are in no way implying that they intend to interfere with the internal affairs of the country, on the contrary, they are perfectly in concert with the letter and spirit of the Gambian Constitution. This is how matters stand.
Hence President Elect Barrow is an Incoming President who has the Constitutional right to assume office on the 19th January 2016.
The Pronouncements of the Outgoing President
The original position of the Outgoing President in accepting the results and opening a line of communication for a smooth transfer of Executive Power did go down well with every one and was the best way of protecting National Sovereignty and allowing Gambians to manage their own affairs with the support of the friends of the Country.
On the other hand, the unilateral and unconstitutional declaration of annulment of the results, expulsion of the IEC and announcement of another Election gave rise to National and International expression of outrage and a call for the Outgoing President to step down.
Realising that the seed of conflict was being sown by the untimely announcement the Incoming President who does not wish to preside over a torn and tattered country and a divided warring people exposed the unconstitutional declaration of the Outgoing President and reminded the people that he is the Incoming President who recognizes and respects the mandate of the Outgoing President and is also preparing for his Inauguration in January which should also be recognized and respected by the incumbent. Hence the stage was reset for The Incoming and Outgoing Presidents to show respect for the constitution and ensure that constitutional processes prevail in the supreme interest of the country.
The avalanche of condemnations may have influenced the APRC to resort to constitutional processes to find redress.
It was later announced that they would seek redress from the Courts as provided by Section 49 of the Constitution which states: “Any registered political party which has participated in the Presidential Election may apply to the Supreme Court to determine the validity of the election of a President by filing a Petition within ten days of the declaration of the result of the Election”
The Incoming President has no intention to interfere with the Constitutional process of seeking redress by Election Petition.
The Outgoing President should not interfere with the Constitutional process of Swearing in an Elected President when the term of the incumbent expires as well as his entitlements as President Elect before assuming office. Queries touching on the issue of prosecuting the Outgoing President have featured prominently in the public domain.
The Incoming President has made it clear in his interviews that he will never be a prosecutor or a judge and has no intention to preside over a country where there will be revenge for past injustices. He has promised to treat the Outgoing President as a Former President whom he would consult in his area of competence and would invite both he and Former President Jawara to his inauguration as the First and Second Presidents of the Republic .
He would like it to be known that justice in a transitional administration must be tempered with mercy to avoid a cycle of revenge in a country where governments may come and go.
The intention of the Coalition is to give Gambia a new start. Hence principal among its commitment is the preparation to uphold and protect the equality of all citizens before the law. The Coalition is duty bound not to presume the indictment or guilt of any individual before or after the Incoming President assumes office. All members of the Coalition leadership are asked to respect the principal of separation of powers.
Finally, all are committed to the principle of substantive and reconciliatory justice by setting up a truth and reconciliation Commission whenever indictments for past injustices arise in the Third Republic.
In the interest of Nation Unity and International integrity the Outgoing President is being requested to open up a line of communication for Gambians to take charge of our own affairs and ensure a peaceful transfer of power. If we fail to do so others will take charge of our own affairs to our shame as asovereign people.
ECOWAS is also called upon to send its mediators with immediacy so that talks will begin to ensure a Gambian consensus in solving our problems through the friendly facilitation of the Sub-region.
The Gambia is going through a phase of its history that has never been known. This country has never witnessed a peaceful transfer of Executive power through the ballot box. Hence all Gambians should leave matters with the President Elect and his team to demonstrate the maturity, magnanimity, loves of people and tolerance of diversity necessary to see the country through its most trying time. All should remain ever true to the Gambia so that all our people will live united in peace and prosperity for now and forever.