By Sarjo Barrow, Esq.

The most important institution that should nurture and protect our nascent democracy is National Assembly (“NA”). Yet, the institution failed to attract talent or is considered irrelevant. But suppose the country is to learn anything during the past six years. In that case, NA can set the country’s trajectory, ensure efficient oversight, and require excellent service delivery because they control the country’s purse.

As NA deliberates and considers the Anti-Corruption Bill for enactment, citizens exert pressure on their NAMs to pass the legislation, and watching the debate on the Assembly floor was no fun. You can observe lawmakers visibly frustrated as they go back and forth with the sections and clauses. Frankly speaking, they find it hard to comprehend the bill or what it intends to proscribe. And considering most of the lawmakers do not have a legal background or adequate experience in legislation, arguably, the bill was over their heads. Notable among their fear or frustration is that the legislation may significantly legislate against the genuine Gambian culture of giving, supporting, and tradition. Rather than criticizing the shortcomings of the NAMs, it is imperative that we also offer natural and humble solutions or recommendations that the NA can consider during their sitting—the reason for this piece.

Some of the questions raised during the debate with the Attorney General (“AG”) are:

• Whether the phrase “any other person,” in section 19(1)(a), refers to an act between private citizens or to conduct such as giving to griots or hardworking traffic officers.
• Limiting the maximum fine to a million could cause loss to the state if the corruption involved is threefold the maximum.
• Should NA set a minimum fine when acts of corruption come in varying degrees?
• And if it would be prudent to leave punishment open and trust the judiciary to do the right thing.

Instead of getting into the interpretation of 19(1)(a), I think the problem with the phrase is the result of the “copy and paste” syndrome. As such, I strongly caution NA not to remove the word but fix it. As written, the section states:

(1) A person who-

(a) asks for, receives, or obtains any property or benefit of any kind, directly or indirectly, for himself or herself or [for] any other person;

Inserting the word “for,” as done under paragraph (b) of the same section, would resolve the issue. As the heading suggests, the section punishes illegal official gratuities. Period. Adding the word “for” would mean that a would-be Defendant can still be prosecuted for receiving benefits on behalf of a third person.

Suggestions and Recommendations.

First, lawmakers should be trained in or familiarized with the country’s jurisprudence. This foundation would help them in drafting laws. For instance, if lawmakers know about the four rules of statutory interpretation, they will endeavour to ensure that legislative intent is clear even under the literal rule.

Second, although the bill addresses bribery in the private sector, the goal here should focus on public corruption. I think NA should revisit sections 19 and 20 before passing. The sections should address bribery of public officials and witnesses. For example, NA should divide section 19 into two subparts. Subpart 1 should address the giving and receiving bribes, while the other addresses illegal official “gratuity.”

As to the first part—giving or receiving bribes—the law should proscribe the conduct of the giver and receiver. For the giver, NA should require the AG to show that something of value was corruptly given, offered, or promised, directly or indirectly, to a public official. And for the recipient, NA should require the AG to show that something of value was corruptly demanded, sought, received, accepted, or agreed to be received or accepted by a public official. While NAMs raised legitimate concerns regarding the unintentional legislation of the Gambian culture, the intent required for the giver should be the intent “to influence any official act.” In contrast, the intent that should be necessary for the recipient is the intent to be “influenced in the performance of any official act.”

For the second part—illegal gifts to public officials—again, the conduct of the giver and recipient is being regulated. For the Giver, NA should require the AG to show that something of value was given, offered, or promised to a public official. As to the recipient, it requires a showing that something of value was demanded, sought, received, accepted, or agreed to be received or accepted by a public official. Here, the law should not require a specific intent to alleviate the lawmakers’ fear concerning culture. Instead, the unlawful gratuity must be “for or because of any official act performed or to be performed by such public official.”[1]

Third, adopting this recommendation, as standard in contemporary jurisprudence, would distinguish conduct such as giving an “attaya” to a hardworking public servant from corrupting a public official with an “attaya.” How? The critical distinction between the bribery (receiving & giving) and illegal gratuity sections is that bribery would require a specific intent “to influence” a particular official act (in the case of the giver) or “being influenced” in an official act (in the case of the recipient); however, an illegal gratuity would only require that the unlawful gift be given or received “for or because of” any official act. Moreover, unlike illegal compensation, which can be forward- or backwards-looking at a past or future official action, bribery would require a specific intent to give or receive something of value in exchange for a future official act—in other words, an explicit quid pro quo or direct nexus between the value given and a particular future action.

Moreover, as the current bill addresses it under section 19, the bill should clarify that the bribery and illegal gratuity offences would not require an unlawful gift to be paid or even that the object of the illicit gift is attainable. The section should prohibit conduct as soon as an offer (in the case of the giver) or an acceptance (in the case of the recipient) has occurred.

Furthermore, I have a different view regarding punishment. Although the penalty for bribery should be more severe than an unlawful gift to a public official, to reconcile the fear of lawmakers that do not want corporations or individuals that commit serious financial loss/gain to the state to have a fine capped at a million, I think the approach below would strike a good balance. Since we can all agree that corruption is cancer killing our development and progress as a nation, the punishment must fit the crime. To this effect, the bill should put a minimum statutory fine of D50,000 for individuals and D250,000 for corporate bodies for bribery. For unlawful gratuity to a public official, a minimum statutory penalty of D10,000 for individuals and D50,00 for the corporation. The law should require up to 15 years for a prison sentence for bribery and up to 2 years for illegal gratuity to a public official.

Finally, the law would require that upon conviction, the person should be fined under this Act [the minimum] or not more than three times the monetary equivalent of the thing of value, whichever is greater, or imprisoned for not more than fifteen years, or both, and gives the judges the discretion to disqualify the individual from holding any office of honour, trust, or profit under the Gambia. See Election Act for similar sections. Indeed, I am open to helping NAMs draft specific areas regarding the Anti-Corruption Bill.

 NOTE ABOUT THE AUTHOR: The Author’s practice focuses on constitutional law, national security law, and human and civil rights litigation.

[1]  See Title 18, Chapter 11 of the United States Code

By: Joomay Ndongo Faye

Manipulation of the people to further one’s political cause?

The history of the political development of human societies teaches us that tragedies have often occurred when two of the most prominent political leaders in a social entity put their personal interests above those of their people in their battle for preservation and/or conquest of power. These protagonists begin by identifying the sources of great fear, uncertainty and concern among their people and decide to use them as a rallying point for their camp. Each one poses as the one and only person capable of leading the people to the other shore where the causes that underlie these feelings will disappear thanks to the magician’s stick that only he is able to make good use of. If the institutions of this administrative space are strong enough, this tragedy can lead to their reinforcement, this was the case of the civil war of the United States from 1861 to 1865. Otherwise, it is possible to have an outcome like what is happening in Somalia today.

These two political leaders in Senegal today are President Macky Sall and the undisputed leader of the current Senegalese opposition Ousmane Sonko. These two people must look at themselves in the mirror and ask themselves the following question: would I like historians to attach my name to the decay of the Republic of Senegal?

A historical precedence?

President Macky Sall and those around him are driven by a strong intention to keep power. They use all the means at their disposal, and they are enormous, to prevent any credible candidacy of their opposition to the presidential election of Senegal. First, it was Karim Wade and Khalifa Sall and now it’s Ousmane Sonko. Regarding the first two people mentioned, it was on an accusation of embezzlement and personal use of state funds. I have no data to deny or confirm these accusations. What I do know, however, like any good Senegalese who follows national news religiously, is that there are several people who are not at all concerned by the Senegalese justice system under the Presidency of Macky Sall despite the damning reports on his Administration’s management of the property of the Senegalese State and despite signs of weaponization of the judiciary.

Demonisation of Sonko and PASTEF

In the case of Ousmane Sonko, he was first accused of being a Salafist. Some people who are basically unaware of what Salafism is or are motivated by bad intentions attach this nickname to him to make him seem like a radical Islamist who will put an end to the secularism of our republic and impose Sharia on the Senegalese people as soon as he will accede to the supreme magistracy of the country. For those who don’t know, Salafism was nothing more than a movement to return to the teachings of the Prophet Mohammad (PSL) and the first four Khalifs Abu Bakr (632-634), Omar (634- 644), Ôthman (644-656) and Ali (656-661). In a way, a call for a return to authenticity and a rejection of the divergent interpretations that divided Muslims.

Based on the results of the last legislative elections, it became clear to Macky Sall and his APR and BBY companions that this demonization of Ousmane Sonko and his party, PASTEF (African Patriots of Senegal for Work, Ethics and Fraternity), did not have the desired effect on the Senegalese people. The PASTEF electoral score, which has nothing to envy to those obtained by all the political oppositions that followed one another during the regimes of Senghor, Diouf and Wade, is remarkable. This excellent performance by Ousmane Sonko’s party has certainly sufficiently demonstrated that the latter can indeed defeat any candidate in 2024 put forth by the APR and BBY (Alliance Pour la République) and (Benno Bokk Yaakar).

Since the demonization did not produce the expected result, Macky Sall and his companions who are determined to stay in power had to ask themselves the following question: What can be done to break the momentum of PASTEF and especially Ousmane Sonko in their march which seems to be unshakable towards the conquest of power?

Politically-motivated trials or instrumentalization of the judiciary?

They first brought out the complaint of one of the leaders of Sall’s APR for defamation, accusing Sonko of a false claim that a state audit had revealed mismanagement of funds during the implementation of the Community Agricultural Development Program. Ousmane Sonko was then quickly sentenced to a six-month suspended prison sentence at the end of this trial. Some thought that was enough to put him out of harm’s way to the APR and BBY’s ambition to retain power. But the lack of clarity on the consequences of this verdict on the eligibility of Ousmane Sonko did not put Macky Sall and his companions at ease. Certainly, the law clearly says that this verdict prevents Ousmane Sonko from registering on the electoral lists of Senegal. But given that the latter is already registered and that the law says nothing about eligibility, wanting to ban Ousmane Sonko from running for office in 2024 on the basis of this verdict will not be justifiable and/or credible. Thus, the suspended prison sentence did not effectively preclude him from seeking the presidency according to the articles (L 29 and L 30) of the electoral code.

The pending legal case against Ousmane Sonko, his accusation of rape and death threat by Adji Sarr, then became the spare tire. To eliminate the danger that a possible candidacy of Ousmane Sonko represents for the preservation of power by Macky Sall and his companions, everything had to be done so that the verdict of this trial puts him aside. But the dismissal of the rape accusation at the trial by Sitor Ndour and the lack of merit of the evidence presented by Adji Sarr and her lawyers very quickly showed the Prosecutor that a guilty verdict against Ousmane Sonko will not be at all credible in the eyes of public opinion of the Senegalese and global community which are watching this trial like milk on the fire. Thus, knowing that he was going to lose, the prosecutor asked the judge that, if he could not be convicted for what he was accused of, he should be incriminated for the offence of “youth corruption”. Based on the testimonies during the trial, especially that of the young girl who was with Adji Sarr in the massage room and whom the latter had asked to leave to leave her alone with Ousmane Sonko, no self-respecting judge was going to take the offer of the Prosecutor.

Despite these inconsistencies in the presentation of the evidence to prove that Mr. Sonko deserves a conviction by the Senegalese justice, the Judge decided to follow the prosecutor for reasons that only God and himself know. One thing is certain, the lightness of the evidence presented to him and the seriousness of the situation that would be created by a guilty verdict capable of preventing Ousmane Sonko from being a candidate for the presidential election of Senegal in 2024, should have caused the judge to be cautious. Certainly, force must remain with the law. But this force will have to be based on judicial decisions that suffer from no shadow of an objective doubt.

A heavy-handed clampdown on civil disobedience

The other thing that I blame Macky Sall and his companions for is the excessive use of force in the form of selective imprisonments on dubious grounds and which a self-respecting judge would never have approved. The case of Bassirou Diomaye Faye is a typical example. In matters of justice, the procedure is as important as the evidence presented to convict a person. In the case of Diomaye Faye, the police at least violated the procedure. The time at which he was brought to the police station and the absence of an arrest warrant constitutes procedural defects that the judge before whom he was presented had no right to ignore. Outright relaxation should have been his decision the first time he was presented in front of the latter. Not only is Diomaye Faye rotting away in jail with no idea when his trial will be, but the charge on which he was arrested would lack weight before any self-respecting judge who has the smallest grain of desire to prove that what Diomaye Faye said before in his Facebook text was unfounded. To say that a minority of decision-makers within the Senegalese judiciary are corrupt is an undeniable truth. It is, moreover, an evil from which all the judiciaries of the world suffer, regardless of the state of progress of the political development of their countries. No magistrate who respects himself and accepts the rule of law as the lifeblood of the republic would dream of condemning Diomaye Faye on the grounds of insulting the judiciary for having expressed such an opinion which has been a world truth for centuries. PASTEF has, according to its leaders, more than 400 (four hundred) of its members in prison for reasons related to their political activities. Certainly, it is very likely that among the people included in this count of PASTEF members, there are individuals guilty of flagrante delicto of actions having caused material damage. It is, however, no exaggeration to say that the vast majority of these detainees are for what they said. Not seeing these people as political prisoners is certainly more than bizarre behaviour.

What about Ousmane Sonko and PASTEF?

Although my son, Bassirou Diomaye Faye is in the leadership of this party, I must say here that I am not a member of this party. In fact, although being an activist of the Senegalese left, I stopped being involved in a political party because I realized the real limits of their ability to get my country out of the neocolonial abyss.

PASTEF’s political program is certainly commendable, but it should be remembered that this is not new to Senegal. Many political parties were born in this country and had offered excellent programs to the Senegalese people. But for various reasons, they never reached the level of popularity of PASTEF. The two big reasons behind the rapid success of PASTEF are in my humble opinion:

•  The level reached by the lack of hope to find work among a largely skilled and educated Senegalese youth, what economists call mismanagement of the demographic dividend by the Senegalese state.
• The development of social media and the extraordinary ability of the members of the PASTEF communication unit to put them at the service of their cause, where the hype on social networks amplifies “the Sonko effect”.

Is PASTEF and its leadership plunging the country into chaos at all costs?

Our country, like the overwhelming majority of African countries, is sitting on a social time bomb: Mismanagement by their State, for structural reasons, of the Demographic Dividend or in other words the inability of the State/country to create optimal conditions for the absorption of the vast majority of well-educated and skilled young people who enter the labour market each year.

Opinion leaders, be they politicians, religious, or civil society in the country, will have to do everything to not be the cause of the production of the spark that can set off this bomb. Political leaders must absolutely refrain, in their efforts to conquer or retain power, from giving our youth, at the height of their frustration, any reason to express their anger against the government by resorting to violence. Rather than doing everything to prevent this bomb from exploding and setting the Senegalese society ablaze with all the harmful consequences that this can cause for the country and the Sahel region, Ousmane Sonko and his supporters seem to be taking advantage of the despair of Senegalese youth to accede to power as quickly as possible. The development of the culture of the “GATSA GATSA” attitude is a danger for Senegal. It is a tactic that can certainly be used to mobilize a youth disoriented by the perverse effects of the non-viability and vulnerability of the overwhelming majority of African states, but it is a way of digging the grave of the political current that uses it to gain power.

In a republic, only the state has the right to use violence. It goes without saying that many crooked politicians have abused the trust of their people and resorted to an ill-holy use of violence, but the only justifiable and sustainable reaction to such abuse that is meted out to the citizens of a democratic republic is the ballot, as long as that franchise option is made available – not a club, a machete, a Molotov cocktail or whatever.

The absence of a condemnation of the acts of vandalism and chaos that have arisen each time Ousmane Sonko has been treated in a way that his supporters perceive as an abuse of power is disturbing to me. Ousmane Sonko, who aspires to the supreme office of our country, should be the first to unreservedly condemn this expression of a total lack of civism. Any other attitude, silence or encouragement makes the leaders of PASTEF the chief gravediggers of any possibility of governing in peace when the Senegalese people entrust them with the heavy task of managing their state. What these thugs do not know is that it is themselves and their families who will pay through taxes and loans in the name of Senegal, the damage they are causing, especially the destruction of public properties and critical social assets directly benefitting the ordinary people, like the Sheikh Anta Diop University. A Pulaar proverb that was shared with me by a Pulaar teacher friend who lives here in upstate New York says that “So ñiiwa ene habaa e ñiwaako hudo booretee” (when two elephants fight it’s the grass that suffers regardless of the outcome of the battle, regardless of who is right or wrong”. It is the Senegalese baadolo who will pay the price for the violent confrontations between Macky Sall and Ousmane Sonko through the dozens of avoidable casualties but also through taxes, cuts in state social services and many other ways.

A warning and concluding recommendations

To conclude I would say this: It is long overdue for the Duo Macky Sall-Ousmane Sonko to come to their senses for the higher interest of the Senegalese nation but also for the Africans who use Senegal as an example to prove to their compatriots that the Democratic Republic is possible in Africa south of the Sahara. The sages of my Wolof cousins say that “alal du doy, doylu moy alal”. President Macky Sall and his companions must carefully weigh this Wolof saying and significantly reduce their intention to keep power to preserve their material interests. With regard to Ousmane Sonko and some of his “Yewi Askan Wi” coalition partners, it is important to take ownership of this lesson that world political history has taught us: you will lose power by the way in which you acquired it.

The tragedy always ends with the death of one of the two protagonists who are stuck in it. The socio-economic and material damage for Senegal will be incalculable if Macky Sall and Ousmane Sonko know the outcome of the vast majority of tragedies. It is time, Mr. President of the Republic, to remind you that by entrusting you alone with the right to exercise violence, the Senegalese people did not want you to use this right for your personal gain and/or those of your companions. Over to you Ousmane Sonko, I advise you to do everything to avoid jeopardizing the governability of Senegal by the elected people.

We are only at the beginning of this already very painful play for the families who have lost one of their own in the violent demonstrations linked to it. You two can avoid a more tragic end in Senegal by making the peace of the brave. President Sall, make it clear to your companions who fear losing the privileges that come with the maintenance of power by the APR/BBY that nothing is eternal, especially the advantages linked to accession to power in a democratic republic. Ousmane Sonko, tell the members of PASTEF and your coalition supporters that without a culture of respect for public goods and the rejection of any recourse to violence, whatever the injustices committed by those in power, no party or coalition that reaches the top of our country’s political pyramid will be able to benefit from the climate of social peace without which economic prosperity is impossible.

To my brothers and sisters who brandish the argument that Ousmane Sonko and the PASTEF will destroy our republic if they come to power, I would say this: you think in that manner because you either have a negative subjective attitude towards Ousmane Sonko and/or PASTEF or a limited knowledge of the history of democracy. First, you have no proof of the intentions that you attribute to Ousmane Sonko and his party. Second, even if Ousmane Sonko had these intentions, it is up to the Senegalese people to decide whether or not they trust him to occupy the highest office in their country. Any intention to snatch this decision from the Senegalese people, whatever the means used to do so, constitutes a danger to the peaceful political development of the Senegalese Republic and must therefore be vigorously condemned. Replacing the Senegalese people in the process of choosing the person to whom they will hand over the Presidency of the Republic in 2024 is neither less nor more than an administrative coup d’état and therefore a constitutional crime against our republic.

Diomaye Ndongo Faye

Consultant in Political Strategy Development

Princeton, New Jersey, United States