By Bubacarr Drammeh
Ousainou Darboe recently said in an interview “The Constitution of The Gambia has given the President the authority to appoint a Vice President but never stated when such appointment shall be made. I Ousainou Darboe has not seen anywhere in the Constitution that the President shall appoint his Vice-President within a specific period. If anyone sees such a provision please show it to me.“
The aforementioned statement made me lose respect for Darboe the politician. I said so because I still maintained my respect for Darboe the lawyer. He is my learned senior at the Bar. I can remember vividly the advice he gave me as a young lawyer–I do not know whether he still remembers it– and I will forever be grateful for his words of encouragement.
I have no doubt in my mind that Darboe the lawyer will never make such a statement in court before a Judge. He knows the legal implications of the words reasonable time, inference, public interest, judiciously, holistically, may, shall, and, or etc. These words amongst other words always come to mind when dealing with provision of the constitution especially where a person is ordered or authorized to do a certain act. Even Darboe the politician is expected to know the legal implications of these words, and any other politician for that matter, much more Darboe the lawyer. The only logical conclusion one can deduce from such a misleading statement uttered during the interview is that he did it dishonestly (like most politicians do).
I must acknowledged that there is no section in the constitution that specifically reads ‘the President shall appoint the Vice President immediately coming into office or within a week, a month or a year’. If this is the type of statement Darboe is looking for I am sorry he or any person he challenged to show him such statement will embark on a futile journey.
The Marxist criticism of capitalist is something no democratic government wants to be associated with. The theory states that the elites and privileged use the law to the detriment of the citizenry. The Marxist theory indicates that the governor uses the law to subdue the governed. Ousainou Darboe himself stated that wherever he can and whatever he does, he will ensure that he negates the actualization of the realities of a legal system established to benefit the powerful, rich and privileged, and in the process disproves Marx’s criticism of prevailing legal systems. He said he has become a staunch disciple of Jeremy Benthan when he once said “I subscribed and still subscribe to the view that the law must be used to promote the greatest happiness of the greatest number.” Darboe’s statement on the appointment of a Vice-President contradicted what Jeremy Benthan said, thus an abandonment of a principle Darboe claimed to live by. He is in a position to advice Barrow and has the power to influence Barrow’s decision (I said so because Barrow himself said Ousainou Darboe is his political Godfather) but has failed to do so, rather he epitomizes as the poster child for the corrupt legal system Marxist Theorists admonished against. He ditched the Benthan theory he claimed devote his entire life (see the document entitled “allocutus ousainou darboe was not allowed to make upon conviction on 20July 2016”).
Almost the entire nation on a daily basis have been asking the question, why is President Barrow yet to appoint a Vice-President after he failed in his attempt to illegally appoint Madam Tambajang? Is Madam Tambajang the only qualified person or woman in the entire nation capable of handling the office of the vice-president?
The way the constitution is framed by the drafters is to give the President that margin of appreciation to choose his chief assistance. The President must act judiciously, in the interest of the public and within a reasonable time. In fact if one looks at the constitution holistically one will realize that there are provisions that indicate the time within which a Vice-President must be appointed. The said provisions are
Section 65(2)
Whenever the office of President becomes vacant … the Vice-President, or if there is no Vice-President in office at the time, the Speaker shall assume the office of President for the residue of the term of the former President.
The intent of the above section is not estopped any uncertainty and power struggle once the President is no more or is incapacitated. Nobody knows what the future holds. The President is vulnerable to several things including death, disease of the mind, diseases, illnesses such as stroke, cancer; accidents such as plane crashtc. All these aforementioned risks are possibilities. Thus for the interest of our nation and to minimize conflicts leading to instabilities, the President must appoint his Vice-President as soon as he/she took the prescribed oath.
Section 70(1)
There shall be a Vice-President of The Gambia who shall be the principal assistant of the President in the discharge of his or her executive functions and shall exercise such other functions as may be conferred on him or her by this Constitution or assigned to him or her by the President.
This section is very clear as it defines the role of the Vice President. The Vice-President must be the only principal assistance of the President. That is his/her primary function followed by any other function stated in the constitution or assigned by the President. The workload in the office of the President is tremendous and President Barrow himself attests to that. That is why he attempted to use the Minister of Women affairs as an overseer of the office of the Vice-President. Irrespective of the importance of the office of the vice president, the President has failed in performing one of his primary functions as head of state. He has set a bad precedent, as other head of agencies may take a similar approach in performing functionat the law assigns them.
Section 73(1)
There shall be a Cabinet which shall consist of the President, the Vice-President and the Secretaries of State.
This section demonstratehe importance of appointing a Vice-President as soon as the President is sworn in. The section is clear, as there cannot be a fully constituted Cabinet without a President, Vice-President and at least a secretary of state. The constitution uses shall/and not may/or to show that it is mandatory not discretionary.
Section 78(1)
There shall be a National Security Council which shall consist of-
- the President; (b) the Vice-President; (c) the Secretaries of State responsible for defence and internal affairs; (d) the Chief of Defence Staff and two other members of the Armed Forces appointed by the President; (e) the Inspector General of Police; (f) the Director-General of the National intelligence Agency; and (g) the intelligence adviser to the President.
One of the most vital roles of a President is to ensure the security of its citizens and any person within its jurisdiction. This includes both internal and external security. That is why section 78 of the constitution provided for the creation of a National Security Council. This council is responsible for advising the President on all matters relating to the security of The Gambia and the integration of domestic and foreign policies relating to its security; and under the direction of the President, shall take appropriate measures to safeguard the internal and external security of The Gambia and to provide for the co-operation of the departments and agencies of the Government in that regard. See section 78(2). Again the words used in this section are shall/and not may/or. Therefore, there cannot be a proper composition of the National Security Council without a President, a Vice-President and all those mentioned in section 78(1). The President recently spoke about his asking Senegal to increase the number of their soldiers currently deployed in the Gambia. The question is who advised him to do so since there is no legally constituted National Security Council?
It is very clear from the above provisions of the Constitution of The Gambia that President Barrow should have appointed his Vice-President by now. He is the chief custodian of our laws and must set good examples for every other civil servant. He should demonstrate in his actions that he has the best interest of the nation at heart. He must show that he owes loyalty to Gambians and our laws not any particular person or political party.
Finally Darboe’s comment is like when one receives a religious injunction to greet one’s parents we all know that we must greet our parents as a sign of respect) and he is like well I know I should greet them but it is never stated when I must do so. So I can do it anytime I feel like. Trust me you will be like dude are you ok? You ought to greet your parents first thing in the morning or the first time you lay your eyes on them. Exactly that is what Barrow should do. He should not wait for the constitution to tell him when exactly he should appoint his vice president, when all indications in other provisions of the constitution shows that he must do so in order to have a legally established Cabinet and National Security Council. The spirit of the law must be observed to avoid betrayal of values society seeks to redress. The interest of the public must always be considered when one is empowered to do an act.
