Jammeh V Barrow – Rule of Law

SHARE   |   Tuesday, 24 January 2017   |   By Joao Carlos Salbany
Jammeh V Barrow – Rule of Law

I am going to play Devil’s advocate here. I certainly don’t have the answers to these issues but for me the rule of law must prevail. I stand to be corrected and gladly so, and I invite (reasoned) debate.

However much we may disapprove of Jammeh let us consider: With a starting premise that there is nothing more important than the Rule of Law and respect for a Constitution and its values in a Democracy.

The peaceful transfer of power (We have heard much on this from Obama of late) following elections works when election petitions are heard timeously e.g. in the US and Botswana. But what happens when such petitions cannot be heard timeously? Can one say that there must be a transfer of power when the due process of the law has not been concluded?

In Jammeh's instance, the processes of challenging elections have not been exhausted. Normally election petitions have very strict time limits (short ones too, just like ours in Botswana) to prevent the problem arising from a successful challenge after another has already been sworn in. Jammeh, according to reports, challenged the petition on time at least we have not heard anything to the contrary.

The IEC in Gambia says they made mistakes; the difference in votes is under 16 thousand nationally, not a lot by any standards. Jammeh has a right to challenge those results even if he became aware of the errors from the IEC itself so long as he did so within the time limits. However, he can’t continue his challenge because the Court cannot sit over its own cause and Judges need to be brought in (let’s put aside that he has removed judges). The agreed Judge is only available later in the year. So the purpose of timely election petitions is undermined.

In order to avoid a situation where he may have been the winner and Barrow is already in office he goes to Parliament, which he, admittedly controls and Parliament declares a state of emergency according to the existing constitution.

So his term of office does not come to an end but is extended by an Act of Parliament under a state of emergency. Let’s reverse the scenario that everyone keeps saying that there will be two presidents. Let look at it this way, assume Jammeh gave up the office and Barrow takes office. Subsequently the election petition is heard (let’s do away with the time issues and assume they do not count to avoid legal technicalities) and it’s discovered that Jammeh actually won? What would happen then? Would ECOWAS step in to put him back as President?

ECOWAS is stepping in because there is no threat. Gambia has a military of about 1000. Its primary industry is sex tourism which won’t affect anyone if it collapses. It is not a Uganda, Nigeria or Zimbabwe where there would be a massive military response. It can’t fight back nor would destabilising it cause economic chaos in the region. ECOWAS is riding on the perception of democracy based on election results that have been declared but not finally determined. But democracy is more than just election results; it’s about respecting the rule of law.

Jammeh is unconscionable. Don’t get me wrong but if we are going to argue on democratic principles, then the process of the law must be followed even if we disagree with it or it’s not to our liking. Without the rule of law all our nations are merely dictatorships. (Someone tell me I am wrong in a proper response).

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Joao Carlos Salbany

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