By Pa Louis Sambou

General public discuss has for sometime regularly featured the subject of the UDP Secretary General, Lawyer Ousainou Darboe’s eligibility to run for the Presidency under the existing Constitution. The public interest in this particular subject has since been exacerbated following the voting down of the now historical draft Constitution whose section 94(1)(d) was designed to put this very issue to rest. However, as it turned out, the draft Constitution was ironically put to rest instead — rendered ‘dead’ as “reform pessimists” (according to Justice Jallow) would say or, in a ‘coma’ as reform fantasists steadfastly believe.

Never-mind which of the above metaphoric characterisations is a more fashionable description of the status of the much discredited framework, what’s clear is, as per section 22(1) of the Constitutional Review Commission (CRC) Act, the CRC stands dissolved as of 22 October 2020 and by default bringing to an end the legal effectiveness of key aspects of the Act. The “late draft Constitution”, coined by Lawyer Lamin J Darboe is, from now on a more fitting description of the relic.

Now, just before you finish processing that thought, no, I’m not using this as a convenient opportunity to lay into the ‘late’ draft but, informed commentary on the subject matter would be incomplete if the designed remedy of the above-mentioned ‘late’ draft Constitution provision is omitted. Hence this designed remedy would in light of events highly unlikely become law before December 2021, it’s perhaps prudent to hinge my commentary on the eligibility (or not) of Lawyer Darboe on the existing law being the existing 1997 Constitution.

It has been and continues to be stated in many quarters that Lawyer Darboe’s conviction in 2016 and his dismissal in 2018 as Vice President render him constitutionally barred from vying for the Presidency. I’m tempted to at this point draw a very simplistic conclusion but, that’ll perhaps not do justice to such a fundamentally important political question, therefore I won’t. The relevant Constitutional provision is section 62(3) and it states:

“A person who, while holding public office in The Gambia has been-

(a) compulsorily retired, terminated or dismissed from such office, or
(b) has been found guilty of any criminal offence by any court or tribunal established by law; or
(c) has been found liable for misconduct, negligence, corruption or improper behaviour by any commission or committee of inquiry established by law shall not be qualified for election as President.”

Not that the importance of the above provision could be overemphasised but, suffice it to say, the appropriate answer to the question: ‘is Darboe barred from running for the Presidency?’ squarely rests on the interpretation of the above provision and by extension, sections 156 and 230 of the Constitution.

Before proceeding any further, it must be stated that, for one to be barred under section 62(3), they must have been a holder of “public office” at the time the adverse event occurred. For anyone who keenly follows the lively commentary around this very subject, one notices how the definition of what is meant by “public office” in this context is often conveniently interpreted to suit the bias of the punditry. We all have our biases, don’t we? Sadly, as entrenched and interesting these may be, they do not override the respective legal definition at section 230 which states that “public office”:

“includes an office the emoluments attached to which are paid directly from the Consolidated Fund or directly out of monies provided by an Act of the National Assembly, and the office of a member of a local government authority or the staff of a public Enterprise”

Helpful definition? Perhaps not. But, let’s unpack the logic by tracing which “emoluments” (salaries, fees or profits earned from employment) are paid from the “Consolidated Fund”. This takes us to section 156 of the Constitution which at subsection (2) expressly identifies the office of the “Vice President” as one whose holder’s “emolument” are paid from the “Consolidated Fund”. Therefore, under the Constitution, the office of the Vice President is indeed a “public office” and certainly so for the purposes of section 62(3).

To digress slightly away from the focal subject, references at section 156 to “monies provided by an Act of the National Assembly and… office of a member of a local government authority or… staff of a public Enterprise” by extension, widen the definition and scope of those to whom section 62(3) apply to include pretty much anyone whose gainful employment is remunerated by public funds of whatever description.

Having established what a “public office” constitutes for the purposes of section 62(3), it is obvious that the leader of an opposition party not employed by the State in any capacity is not a holder of “public office”. So, factually speaking, any finding of guilt by any “court or tribunal” or adverse finding by any “Commission or committee of inquiry” in respect of any events which predate the appointment of Lawyer Darboe as Minister of Foreign Affairs are not relevant for the purposes of section 62(3). His conviction in 2016 etc. fall within the aforementioned category and do not render him barred.

In light of the above, section 62(3)(b) &(c) do not apply in the case of lawyer Darboe. However, his dismissal as Vice President is indeed applicable and of relevance for the purposes of the same section 62(3) which at subsection (a) bars from contesting the Presidency anyone who whilst holding public office was:

“compulsorily retired, terminated or dismissed from such office”

Does this bar Lawyer Darboe? On the face of it, one can be forgiven for ascribing a solid ‘yes’ to such question. It’ll be foolish to bet the house on it though. From my own point of view, it is a ‘sticky wicked’ but, nevertheless one from which an interesting judicial precedent could emerge if ever the opinion of the Supreme Court Justices is invited. That’s however not to state that one needs to be a signed up member of the latter to have an opinion. Of course not.

Whilst it is not my intention nor desire to engage the harder edges (partisan political aspects) of the subject, any attempts on my part to indulge euphemism or attempt to conceal my conclusion on the subject would render this entire literature completely pointless. I solemnly promise to do no such thing.

In my view, section 62(3)(a) is not as clear cut as it appears and, I say this for good reason: being (1)“compulsorily retired” and, being (2)“terminated or dismissed” whilst both actions are those which could be taken against any employee, they aren’t applicable to all categories of “public office”. More to the point, the constitutional definition of “compulsory retirement” at section 230 attributes such to only “public office in the public service” at sections 171 and 166 respectively. Needless to say, the office of the Vice President whilst a “public office”, it isn’t a “public office in the public service”.

Now why is the above distinction important and, why did I lay emphasis on “compulsorily retired” alone? This is because it is the first terminology and, in the ‘strange’ art of legal interpretation, in circumstances whereby a legal ambiguity prevails with respect to the interpretation of a particular legal text (as is the case here), the legal interpretation of the first relevant terminology once established is used to guide the context in which the subsequent terminologies will be interpreted and by extension the wholesome interpretation of the respective legal provision. Therefore, as “compulsorily retired” is by virtue of sections 230, 171 and 166 legally attributed to only “public office in the public service”, under the doctrine of ‘Noscitur a Sociis‘ (which has it that, ‘a word is known by the company it keeps’), the terminologies which follow being “terminated or dismissed” ought to be interpreted so that they are uniformly attributed to only “public office in the public service” as is the case with the first terminology in whose ‘company’ they are.

Just in case up to this point one remains unclear as to what my reasoned position on the issue is, in light of the above interpretation, it is my view that section 62(3)(a) of the Constitution is intended for only holders of public office in the public service. Lawyer Darboe as Vice President was not a holder of “public office in the public service” in which case no part of section 62(3)(a) applies to him, his dismissal is wholly irrelevant and his dismissal does not render him barred. This is certainly my understanding and reasoned conclusion but, I am humble enough and quite comfortable to countenance the possibility that I may be wrong. By the same measure, I will be equally thrilled with a contrary interpretation and argument and I strongly encourage such.

Even if one believes, as some do, that lawyer Darboe is a controversial political figure deserving of being barred, it does not logically follow that the Constitution shares that view nor does it mean, however many upsides there may be, that there aren’t any downsides to such and for which it must be possible to state regardless of one’s personal subjective opinion on lawyer Darboe and his UDP. Given the contentious and combative nature of elections, opponents of lawyer Darboe may obviously be countenancing the use of the Constitution to attempt to annihilate him before the start of the race, something which would be foolish in my view especially given the limited prospects of success. In any case though, whilst an undesirable, divisive and disruptive tactic, it’s completely understandable — it’s the ways of democratic politics. The Independent Electoral Commission would, in my view be better advised to be proactive and factor such a possibility into its election planning so as to minimise or mitigate against any associated disruptions as the case may be. This is a hazard for which the Commission has or, ought to have reasonable foresight and, for which it must adequately plan for. Not doing so will be a huge mistake.