Article written by Sana Sarr
It’s very encouraging that Gambians are having a debate about what’s constitutional.
SUMMARY OF THE ISSUE
The constitution states that someone younger than 30 or older than 65 cannot be president. Allegedly, Madam Tambajang is 68 years old and that makes her ineligible to be considered for vice president.
I would like to address, in the simplest form I know, some of the arguments I’ve read supporters trying to make over the past day. I make the disclaimer that I am no lawyer or constitutional scholar so my arguments are based purely on common sense, from my perspective as a layman.
THE ARGUMENTS
“This law applies only to the president, not the vice president” – Because the vice president is the first successor if the president resigns, is impeached or somehow incapacitated from doing his job, the VP must meet the same standards required for the presidency. This is evident in the constitution as the document redirects you to the section that lists the qualifying factors for the president in the case of the vice president.
“We are going to amend the constitution anyway because there are so many bad laws in it.” – By all means we should amend the current version of the 1997 constitution. I’m not even against drafting an entirely new one and putting it up for adoption in a national referendum. However, there are legal ways to effect constitutional amendments. Until we go through that process, we have no choice but to follow the laws as they currently are. With that said, I must warn against changing laws just accommodate individual or group desires/needs. Let us work with the national assembly to change bad laws. Let us have a new constitution to change bad laws. However, let us not make amendments just to accommodate Madam Tambajang, Adama Barrow or Alpha Barry.
“This is Jammeh’s constitution and should not be followed” – No, this is NOT Jammeh’s constitution. This is the constitution of the Republic of The Gambia. It was voted on in a referendum. While some of the bad amendments came afterwards, they were accepted and legalized by the people we voted for to represent us in the National Assembly. That makes it OUR constitution, not a Jammeh constitution. I hope this teaches us that we need to take the election of our national assembly members seriously. The president is there to execute the laws. The national assembly are the ones to MAKE the laws. They’re the ones who can stop any presidential excesses so we should properly vet who we elect to serve us.
“We never followed the constitution so why start now?” – We voted Jammeh out largely because he never respected us or the laws of the land. We elected this new administration to correct that. We should therefore expect and demand that this and all subsequent governments respect and follow the constitution. Failure to do that means we are going back to the Jammeh days that we all hate so much. Besides, the elections that brought us Barrow were based on that constitution so we can’t really say it was never followed.
“We’re in a State of Emergency (SOE) so the constitution is invalid” – To begin with, that’s a misunderstanding. Being in an SOE does not make the constitution invalid. It just gives the government a bit more room to get out of that emergency situation. If the constitution were invalid, Barrow’s inauguration would have to be invalid. Additionally, even if the SOE temporarily invalidated the constitution, to use that argument to justify an unconstitutional appointment would suggest that one is forgetting the temporary nature of an SOE. One or more of the following conditions would have to be met for that argument to make fly:
i. You intend to maintain the SOE for the entire duration of Madam Tambajang’s appointment as VP.
ii. The good lady would only serve as VP only until the SOE is lifted.
iii. You will have constitutional amendments to change that law before the SOE is lifted.
iv. You will channel your Benjamin Button and somehow make her younger than 65 before the SOE is lifted.
“Criticizing Madam Tambajang’s appointment is chauvinism or sexism” – No, it’s not. By all indication, this law was aimed more at Lawyer Ousainou Darbo, a male. There is nothing chauvinist or sexist about pointing out when something is unconstitutional. Most of those speaking out against it would have done no less had Darbo or any other male above 65 been appointed.
“She deserves it because she did so much work fighting the Jammeh dictatorship and bringing the coalition together” – There’s no doubting her tireless efforts and there’s no diminishing the importance of her contribution. However, we need to remember that The Gambia is not some booty that we need to start dishing out as rewards to people. I am confident the motivation for her contribution was not based solely on what reward she can get afterwards. My guess is that she was motivated by her love for her country and the desire to see it prosper. The most satisfying reward would therefore be to see the nation succeed. That success can only be achieved if it is founded on freedom and justice for all, rooted in solid institutions. The central pillar of this is respect for the constitution.
“Madam Tambajang is highly qualified and it would benefit the country to have her as VP” – I have not seen many people who would argue her competence. The issue, however, is not how competent she is. It’s simply about following, or going against, the constitution. Qualified as she may be, no benefits she brings can be greater than establishing the rule of law. We must learn to build and rely on strong laws and institutions instead of relying on individuals.
“The age thing does not matter so what’s the big deal?” – Many, including those criticizing the pick, would agree that the 30-65 age restriction is neither logical nor fair. Many would like to see it changed and will advocate strongly for it to be changed. However, the big deal is that any violation on the constitution should NOT be trivialized. It’s the most important document for any nation and we must abide by it on every issue, no matter how minor it may seem.
“We have not seen her birth certificate so we have no evidence she is above 68” – True, I have not seen her birth certificate. I hope that she is not above 65 because lord knows that this administration, and our nation, do need this type of controversy. It would save us all a lot of trouble if we can simply prove she is below 65. That’s my hope. With that said, I must also acknowledge that Madam Tambajang is no stranger. With her years of service in government and international organizations, her birthday cannot be a mystery. I would hold onto that optimism cautiously because it’s not too promising.
“Let us give her a different title different from VP” – We can absolutely do that. However, you would still need a vice president who will be ready to step in if the president were to be incapacitated. Secondly, what would be the point? Why would we be so stuck on assigning this one individual this one position that we’re willing to bend/break/amend laws just suit that purpose? I refuse to believe that there are no other Gambians capable of performing that role. I also refuse to believe that Madam Tambajang cannot serve our country in any other role but the VP.
RECOMMENDATION
This is not even a big deal yet because she has not been sworn in. The administration needs to cut their losses by admitting it was an oversight, appoint someone else as VP and assign Madam Tambajang a different role. With her qualifications and experience, the good lady can serve her nation in so many different capacities. She has earned a lot of respect over her decades of service to the nation and in international organizations. She does not need this controversy attached to her name because it’s nothing but a stain. If they remain stubborn and push this through, it will forever remain an asterisk next to her name in the books of Gambian history. I hope she takes the high road and tells the Barrow administration that while she is honored by the nomination, she humbly declines it because she would not want to do anything that violates the supreme law of the land. That elevates her heroic status in the eyes of many, and it also takes the burden off the Barrow administration and allows them to move forward in building the nation rather than be held back by this issue.
Gambians are tired of a government that does not respect the law. We elected a new government to get us away from that. It would be tragic if our new government begins their tenure by flouting the supreme law of the land with their very first appointment. We can do better. We MUST do better!
