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KAIRO NEWS – The Honourable Ya Kumba Jaiteh and the Imperative of Executive Adherence to Legality

KAIRO NEWS – The Honourable Ya Kumba Jaiteh and the Imperative of Executive Adherence to Legality

With mounting curiosity I comply with the talk on whether or not there’s authorisation beneath the 1997 Structure of the Republic of The Gambia (“the Structure”) for His Excellency, Adama Barrow, President of the Republic of The Gambia, to fireside the Honourable Ya Kumba Jaiteh (“Jaiteh”) as a nominated member of the Nationwide Meeting.

Is there certainly incontrovertible authorisation for the President to appoint Nationwide Meeting members, or is part 88(2) nullified, or on the very least significantly referred to as into query, by part 96 of the Structure, on the one hand, and by accepted rules of democratic constitutional concept and follow on the opposite? In accordance with part 96 (1), “there shall be a basic election of all members of the Nationwide Meeting which shall be held 4 months after the date of election of workplace of the President”.

What schizophrenic Structure!

Our Structure is a catastrophe for even the theoretical underpinnings of democratic pluralism, successfully emasculating, because it did, the Nationwide Meeting, and Judiciary, by decreasing these constitutional pillars of the state to mere appendages of the Government by way of the unjustifiable centralisation of all energy within the President. Be that as it might, the Structure stays legitimate and I strategy the Jaiteh controversy in that context.

The Jaiteh saga is a spectacular rerun of Ramzia Diab’s firing in 2004 by our eminent man of letters doubling as President of the Republic. Getting into the ring on the aspect of his employer, then Lawyer Common S T Hydara postulated the extremely questionable assertion that “the drafters of the Structure have been no fools”. Writing out of the jurisdiction, I superior the counter rivalry that the “drafters have been clearly no visionaries for saddling us with a doc which have to be revamped within the Gambia’s impending Third and ultimate Republic as its  basic thrust was inimical to each the doctrine of the rule of regulation, and the idea of the separation of powers”.

Witness the institution of the Constitutional Assessment Fee!

Some fifteen years later, and a peoples revolution as backdrop, our nation is confronted with an incomprehensible replay of the Ramzia affair beneath circumstances extra egregious and unjustified than that unique Government misadventure into forbidden terrain.

With out query, the Structure’s convoluted nature is a obvious manifestation of its perverse intent. In a laughable, if tragic approach, the hope was nurtured that this will represent a blessing in that beneath correctly mounted challenges towards routinely arbitrary Government conduct, the courts will discover it inconceivable to anchor smart and defensible selections favouring any President on this enormously compromised and labyrinthine doc.

That hope is clearly misplaced as spectacularly demonstrated by the Supreme Courtroom in its interlocutory choice within the Jaiteh saga!

Within the debate that ensued over Ramzia’s dismissal, the late authorized luminary, Pap Ousman Cheyassin Secka of revered reminiscence – in his defence of the President – refers back to the entrenchment of separation of powers within the Structure. Then as now, I’m wondering which doc that postulation refers to. The preamble shouldn’t be part of any Structure, and even the place it might ordinarily represent a real reflection of the letter and spirit of the primary doc, it has no edifying character as regards our regulation of legal guidelines.

As in 2004, my curiosity within the Jaiteh saga is public spirited and constitutionally targeted. However how little occasions have modified! In reaching their conclusion on the legality of Ramzia’s dismissal, then Lawyer Common, and Cheyassin, that late big of jurisprudence, contended that there’s a common “age-long aphorism that he who has the facility to rent additionally has the facility to fireside”.

Then as now, I emphatically reject that proposition as a precept of common software.

Underneath each constitutional principle and follow in a correct system of democratic governance, a president who nominated, and, or, appointed, a NAM, or Decide, ought to turn out to be functus officio on the idea of the doctrinal logic that a specific hiring traverses constitutional demarcations.

In different phrases, he should not have any authority by any means to fireside both NAMs, or judicial officers starting from Magistrates, to Justices of the Supreme Courtroom. In comparable vein, constitutionally envisaged unbiased businesses just like the Unbiased Electoral Fee should reside outdoors the purview of presidential affect. This isn’t to recommend that these classes of officers are exempt from respectable management mechanisms, however that they need to not be subjected to the whims of the Government as preeminent wielder of the police energy. As soon as appointments are made in these areas, there have to be no removing powers out there to the President as a person.

As demonstrated by the overwhelming public curiosity within the Jaiteh saga, the values at play represent the silent tributaries alongside which the streams and rivers of democratic life circulate to the good seas and oceans of private conscience and freedom. We should study to restrain our leaders inside the boundaries of legality and their reputable authority. The presidency is an imposing workplace with awe-inspiring powers, however that however, it’s a short-term tenancy, and a tenant should not have the capability to destroy the owner’s property. As landlords, our property, The Gambia, its nurture alongside the paths of tolerance and pluralism, should stay our supreme venture.

It’s common territory that the Constitutional textual content is silent on how a nominated NAM must be unseated. In that case we should step outdoors the doc to look at the structure of democratic governance and the underpinnings of republicanism with its entrenched values of restricted authorities anchored in separated energy and the rule of regulation.

On a straight software of the doctrine of separation of powers, the President can haven’t any authority to fireside a NAM. However baseless assertions by some commentators, the powers beneath sections 167, and 231(5) aren’t triggered as a NAM – nominated or in any other case – isn’t a public workplace, thereby making it pointless to check with the Interpretation part at 230 as Jaiteh is explicitly excluded from holding a public workplace by part 166 (four) (a) of the Structure.

It’s certainly instructive that Jaiteh’s dismissal, communicated by way of no much less a determine than the Secretary Common – that nice supervisor of the Public Service, sounding board of the President, and his preeminent confidant in regular occasions – relied on no authority aside from a baseless Government Directive for such a momentous missive. It was disconcerting for the SG to convey a Directive of such magnitude with out anchoring it in any authorized provision. The holders of the good workplaces in public service should study to say no when event calls for.

Even an off-the-cuff studying of Chapter XI, sections 166-171, present perception into the Structure’s understanding of public workplace, particularly at: 168, on Head of Civil Service; 170, on Restriction of Political Exercise; and 171, on Retiring Age. The perversity of the Structure to dress the Government with energy to micromanage each facet of nationwide life has needlessly triggered a constitutional crises within the Jaiteh affair. The doc is proving to be a minefield, particularly contemplating the plethora of superficial evaluation towards the clear command of part 166 (four) (a).

In comparable vein, the try by some commentators to classify Jaiteh’s purported dismissal because the useful equal of an electoral recall is clearly unworkable contemplating there have to be laws to activate the recall provision within the Structure. Even assuming that this provision is obtainable to the President – and it isn’t – the Structure means that it have to be a critical matter as one third of registered voters in a constituency should help the recall petition.

What did Jaiteh do? Completely nothing going by the letter from the Secretary Common! If certainly the Structure authorises the President to appoint one in each ten members of the Nationwide Meeting, the destiny of this class of member should not be left to probability as eventually a political relationship in a creating democracy like ours is sure to poisonously collapse.

Within the Structure, energy is theoretically separated between the Government, the Legislature, and what the doc itself calls the Judicature.  Globally, these are the normal demarcations in constitutional democracies. The abiding precept is that energy should not be concentrated in a single department of presidency, a philosophical place triggered by the conduct of the mighty monarchs of Europe within the lengthy stretch of historical past to the Enlightenment, also called the Age of Cause. “Enlightenment thinkers in Britain, in France and all through Europe questioned conventional authority and embraced the notion that humanity might be improved by means of rational change”.

 

Enlightenment thought was the inspiration and precursor of the good and massively transformative revolutions in America and France within the eighteenth century, an period when absolute energy was absolutely situated in European monarchies. The clamour for diffusing energy led to the institution of the legislature and the judiciary as unbiased arms of presidency. Then as now, it was all the time the Government that wanted restraining as a consequence of its centrality to public life and similar applies within the Gambia of recent occasions.

When a president is accorded authority and alternative to overreach he’ll achieve this and that may be a historic reality. An excellent instance was the connection between President Eisenhower and Earl Warren, his nominee to the US Supreme Courtroom. Each have been blue blooded Republicans however on the bench of its massively influential Supreme Courtroom, Warren stood for America and its enduring values of equality earlier than the regulation as enshrined within the pivotal and liberalising fourteenth modification to the united statesconstitution. Eisenhower referred to his appointment of Warren as “the most important rattling idiot factor I ever did”.

When in later years he was requested whether or not he made any errors, Eisenhower eagerly answered “Sure: two. And they’re each sitting on the Supreme Courtroom”. The opposite mistake was William Brennan Jr., one of many nice liberal jurists to take a seat on the Courtroom within the twentieth century. Like Warren, and Brennan, to Eisenhower, Jaiteh too owes President Barrow nothing. Her loyalties should at the beginning be to The Gambia and her dismissal as a NAM on the grounds of disloyalty was wrongful and regrettable.

The closest factor to our nominated NAMs is the UK Home of Lords. After nomination by the political management and appointment by the monarch, the appointing authority turned functus within the fortunes of a member of the Lords. Any removing have to be completed inside the guidelines of the Lords however not by an sad political chief or monarch.

About unhappiness and redress, Jaiteh went to the Supreme Courtroom for a declaration of the invalidity of the President’s try and take away her as a NAM. She additionally requested for a restraining order to forestall the wrongful swearing of her alternative. Though a choice on the substantive query stays pending, her software for a restraining order was refused on the grounds of “… the presumption of regularity of all official acts [and] the relevant rules of regulation referring to the grant of interim restraining orders”.

The Supreme Courtroom was fallacious in its conclusion.

The choice was a Judicial Directive in that provided no reasoning on what it meant by “… the presumption of regularity of all official acts [and] the relevant rules of regulation referring to the grant of interim restraining orders”. Jaiteh went into the Courtroom entire and got here out lowered. She got here again empty handed and shackled by the weapon she pleaded with the Courtroom to interpose between her and her traducers.

For the good thing about the studying public, there are settled rules across the grant or refusal of interlocutory injunctions/restraining orders. It’s in fact an accepted authorized place that the grant or refusal of an interlocutory injunction lies squarely inside the jurisdiction of the Courtroom (Madikarra Jabbi v Alhagie Lansana Sillah (2014-2015) GSCLR 246, at 253. An injunction is an equitable aid and consequently it’s granted on the discretion of the courtroom. It isn’t granted as a matter of grace. The discretion have to be exercised judiciously and judicially” (see Ayorinde v AG Oyo State (1996) 2 SCNJ 1998).

The Courtroom’s discretion however, a considered software of that discretionary energy based mostly on regulation and purpose anchored on the actual details earlier than the Courtroom is predicted (Madikarra Jabbi v Alhagie Lansana Sillah (2014-2015) GSCLR 246, at 253. “For a Courtroom to declare whether or not or to not grant an injunction … it has as of authorized necessity to enter the consideration of the competing authorized rights of the events to the safety of the injunctive aid. It’s a obligation positioned on an applicant in search of injunction … to determine by proof in affidavit(s) the authorized proper she seeks to guard by the order which of necessity makes it obligatory for the courtroom to enter the details to find out whether or not such entitlement has been established” (Aboseldehyde Laboratories Plc v. Union Service provider Financial institution Restricted & Anor. (2013) 54 (Pt. 1) NSCQR 112, at 144).

In response to the Gambia Courtroom of Attraction “a discretion is judicially and judiciously exercised whether it is finished with regard to what’s proper and equitable within the peculiar circumstances of the case, the related regulation, and is directed by conscionable reasoning of the Trial Decide to a simply end result” The State v Isaac Campbell (2002-2008) 2 GLR 354).

The Supreme Courtroom provided no purpose in any way for its conclusion!

In its extremely celebrated choice in American Cyanamid Co. Ltd v Ethicon Ltd (1975) 1 AER 504, the extensively thought-about primer on interlocutory injunctions, the UK Home of Lords, because it then was, said that in contemplating an software for an injunction,  regard ought to be needed to the next:

Authorized proper

Substantial concern to be tried

Stability of comfort

Irreparable injury or damage

Existence of other treatment

Conduct of the events

That Jaiteh has a authorized proper in retaining her standing as a NAM is clearly uncontested.

On that foundation alone, there’s compellingly a considerable difficulty to be tried.

As to the stability of comfort, Lord Diplock, in American Cyanamid Co. Ltd v Ethicon Ltd (1975) 1 AER 504, supra, at 507, states:

… when an software for an interlocutory injunction to restrain a defendant from doing acts alleged to be in violation of the plaintiff’s  authorized proper is made upon contested details, the choice whether or not or to not grant an interlocutory injunction needs to be taken at a time when ex hypothesi the existence of the suitable or the violation of it, or each, is unsure and can stay unsure till ultimate judgment is given within the motion. It was to mitigate the danger of injustice to the plaintiff in the course of the interval earlier than that uncertainty could possibly be resolved that the apply arose of granting him aid by means of interlocutory injunction; however because the center of the nineteenth century this has been made topic to his enterprise to pay damages to the defendant for any loss sustained by purpose of the injunction if it ought to be held on the trial that the plaintiff had not been entitled to restrain the defendant from doing what he was threatening to do. The item of the interlocutory injunction is to guard the plaintiff towards damage by violation of his proper for which he couldn’t be adequately compensated in damages recoverable within the motion if the uncertainty have been resolved in his favour on the trial; however the plaintiff’s want for such safety have to be weighed towards the corresponding want of the defendant to be protected towards damage ensuing from his having been prevented from exercising his personal authorized rights for which he couldn’t be adequately compensated beneath the plaintiff’s enterprise in damages if the uncertainty have been resolved within the defendant’s favour on the trial. The Courtroom should weigh one want towards one other and decide the place” the stability of “comfort” lies.

The Supreme Courtroom settled for a Judicial Directive by reaching a conclusion with out providing a scintilla of reasoning in help of that end result.

On the “…presumption of regularity of all official acts …” it has no relevance to this case.

On whether or not non-lawyers can competently touch upon this matter, I merely state that a Barrister-at-Regulation designation is just not a dispenser of tremendous knowledge or of any knowledge in any respect. Gambia’s public intellectuals should interact with the general public area and assist dissect the good problems with the day for the good thing about bigger society. I urge them to emulate the likes of Anthony Lewis, authorized columnist for the New York Occasions, “… an American public mental and journalist” who coated the USA Supreme Courtroom for his paper. “Early in Lewis’ profession as a authorized journalist, Supreme Courtroom Justice Felix Frankfurter advised an editor of The New York Occasions: “I can’t consider what this younger man achieved. There usually are not two justices of this courtroom who’ve such a grasp of those instances”. Eulogizing Lewis, the Dean of Columbia College’s Faculty of Journalism stated: “At a liberal second in American historical past, he was one of many defining liberal voices”.

I subsequently urge our Nieman Fellow, and our Nation Consultant of the Westminster Basis for Democracy, amongst others, to plough on and empower their individuals.

In his anger, the President wronged Jaiteh and the nation he leads. On certainly one of these moonlit nights, I urge him to take a lone stroll alongside the serene grounds amidst the gorgeous flowers and timber of the nationwide home he calls residence. I urge him to mirror on the rise and fall of the earlier tenants-in-chief of that home, to return to phrases together with his mortality, and the transiency of his workplace. Let him survey the majesty of the presidency and mirror on the aim for which he was despatched to No 1 Marina. The monuments we’ll keep in mind and rejoice him for will not be going to be the bodily buildings he left behind however the unseen symmetric great thing about governance underneath regulation.

The President was improper to purportedly hearth Jaiteh, and the Supreme Courtroom was flawed to restrain her while refusing her software to restrain her alternative and others from violating her accrued authorized rights beneath color of regulation.

Lamin J. Darbo

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