Thursday, July 18, 2019

Open Letter To The Legal Fraternity/Sorority And The Nation

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As I leave the shores of the Gambia for the ACP –EU Parliamentary Assembly I am unsure what type of Gambia I will return to in a week from now. I hope by then Gambians would have decided on the Gambia we want. The Gambia we want is still being calibrated on the crucible of time. Those who are to decide are still staring at each other with bloodshot bulging eyes and gnashing teeth and daggers drawn aiming for the slaughter of the very institutions and values we all claim to hold dear.

Halifa Leaving the shores of the Gambia for the ACP –EU Parliamentary Assembly

People are being asked on which side they belong. However, in a loss–loss battle where winning means losing, is a battle that should not have been started in the first place.

Just yesterday a principal of a school who has taught children of  all ethnolinguistic and religious groups from all regions of the country, looked at me with glassy eyes and narrated with a voice strained by agony how a fence around his orchard was pulled down exposing his fruit trees to the wilderness of uncertainty after making investment for decades in a garden whose ownership is now contested on the basis of ancestral inheritance but is yet to receive any notice  that his fence is to be pulled down on the basis of a court order. If a new Gambia is in the making the legal fraternity could come to his aid to defend his right to property gratis.

Very recently, another group went on West Coast radio to lament that the state is set to demolish their community and that they had invited me to come to their village but I did not turn up. I asked myself the question, why I am being mentioned, out of a Million citizens, by people who never wrote a letter to me or visited me to request me to come to their village. All I could remember is a journalist informing me, on a given Friday evening of the desire of people of to talk to me about their predicament and I readily offered to receive them on Sunday if that was agreeable to them thinking that they would arrange to come to my office to brief me on the problems confronting them. Instead of coming someone preferred to crucify my integrity before the altar of West Coast Radio station. It did not  take long for the state to respond to their concerns indicating that they have granted land to a claimant so that he would forgo claim of land that is now a Christian grave yard and further assured them  that the court cases would be fairly  handled after over a year of counseling by Foroyaa for the state to rejuvenate the lands commission to handle land disputes and further settle Community land issues  by  undertaking to offer  compensation to claimants on behalf of threatened communities .

It is my humble view that the legal fraternity and sorority are best suited to make headlines in taking the cases of such aggrieved persons up to the level of the ECOWAS Court. This is the type of solidarity the new Gambia is calling for to ensure that no tears are shed again.

In the same vein, recently, the Councilor of Sanjal ward conveyed to me that the people in the ward are asking whether the retirement of their Chief is backed by law. My answer is of course in the negative.

It is the members of the legal fraternity/sorority who should take such matters before the courts so that oaths of office would have meaning.

To administer a state on the basis of law without fear of favour affection or ill will is the only way to consolidate good governance, due process and the rule of law.

Section 58 of the Constitution provides for presidential appointment of a District Seyfo in consultation with the Minister responsible for local government.

Section 134 Subsection (1) of the Local Government Act adds that one qualifies to be appointed  Seyfo if he or she  (a) Is a citizen of The Gambia of not less than 30 years of age; and(b) is resident in the District to which he or she is to be appointed; and(c) is knowledgeable in the customs, traditions, culture and customary laws of his or her District.

There is no statutory retirement age for the office of Seyfo. Hence any letter sending a District Seyfo to retirement is speaking the language of executive order and not law. Such a trend requires redress.

My final concern is the heading in the standard “Lawyers in Support of President Take NAMS to Supreme Court”.

The President is not an ordinary person and the National Assembly is not an ordinary institution. The Country is also in a state of transition. The legal fraternity and sorority have a role in promoting Constitutional and legal reform. They have a role in ensuring that the new Gambia adheres to the tenets of democratic principles, good governance, due process and the rule of law. They have the role to Scrutinize the functions of the arms of the state which are supposed to be clearly defined as claimed in the preamble of the Constitution. They should test whether independence is “amply secured with adequate checks and balances to ensure that they all work harmoniously together toward our common good.”

I do not know whether the members of the legal fraternity and sorority subscribe to the headline in the standard. The Executive and the National Assembly need to be accompanied in this time of transition so that they would be fit for purpose, otherwise national integrity and sustainable development would be the casualty.

The President is adequately covered and may not need legal protection from anyone.

Section 69 grants him Immunity from civil and criminal proceedings. It states:

“(1)  Except as provided in subsection (2), no civil or criminal proceedings shall be instituted or continued against any person while holding or performing the functions of the office of President in respect of anything done or omitted to be done by him or her whether in an official or a private capacity.”

However, if his or her actions under the law needs interpretation by the courts to determine its constitutionality or unconstitutionality subsection (2) applies as follows:

“(2) Nothing in subsection (1) applies to an action for a declaration under section 5 (enforcement of the Constitution), and any proceedings under that section against the President or a person performing the functions of that office shall be brought against him or her by his or her official title or style, and he or she shall appear, and be represented by, the Attorney-General.”

In short, Section 72 Subsection (2) states that “The Attorney General shall be the principal legal adviser to the Government and shall have the right of audience in all courts in The Gambia.”

I therefore do not understand where the Standard headline is leading the legal fraternity and sorority to. May be they will help me to better understand their vision and mission and how it will further the common good.

It is important for those outside the National Assembly to know that the members of the executive and the National Assembly have equal freedom of speech and to engage in debate in the National Assembly. Section 113 of the Constitution states:

“There shall be freedom of speech and debate in the National Assembly and that freedom shall not be impeached or questioned in any court or place outside the National Assembly.”

Section 77 Subsection (4) has empowered the executive to defend itself before the National Assembly. One does not need a rubber stamp National Assembly to defend the executive. It reads:

“The Vice-President and Ministers shall be collectively responsible to the National Assembly for any advice given to the President in Cabinet, and the Vice-President and each Minister shall be accountable to the President and the National Assembly for the administration of the departments and other business of Government committed to his or her charge.”

What will serve the common good is for legislators to adhere to the provision of section 112 of the Constitution and avoid any fragmentation of the Assembly into partisan camps. It reads:

“The responsibilities of the members of the National Assembly shall include the following –

{b)  all members shall regard themselves as servants of the people of The Gambia, desist from any conduct by which they seek improperly to enrich themselves or alienate themselves from the people, and shall discharge their duties and functions in the interest of the nation as a whole and in doing so shall be influenced by the dictates of conscience and the national interest.”

The matter which has pushed the National Assembly into the Court system is the issue of Presidential nominations and revocation of nomination. This simple matter is made complex by legal polemics. How should this matter be viewed without interference with the independence and impartiality of the courts?

Four sections of the Constitution are the principal sections to be considered in this whole debate: They are sections 89, 90, 91 and 231.

Continued on part 2…. read http://foroyaa.gm/open-letter-to-the-legal-fraternity-sorority-and-the-nation-2/

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