Fatty/Tambedou RIGHT On Age Amendment Bill!

This is the Case for the Prosecution presented by Halifa Sallah in FOROYAA and Lamin J Darbo in KAIRONEWS:-

The only available mechanism to amend the Constitution lies in the procedure delineated at Section 226, which states, at 226(1):- “subject to the provisions of this section, an Act of the National Assembly may alter this Constitution”.

According to section 226(2), “Subject to subsection (4), a Bill for an Act of the National Assembly under this section shall not be passed by the National Assembly or presented to the President for assent unless:- before the first reading of the Bill in the National Assembly, the Bill is published in at least two issues of the Gazette, the latest publication being not less than three months after the first, and the Bill is introduced into the National Assembly not earlier than ten days after the latest publication, and the Bill is supported on the second and third readings by the votes of not less than three-quarters of all the members of the National Assembly

Halifa and Lamin conclude thus: “Considering the constitutional timelines stipulated above, a pertinent Bill in at least two issues of the Gazette, the latest publication being not less than three months after the first, and the Bill is introduced into the National Assembly not earlier than ten days after the latest publication, it will take at least a hundred days before the way can be cleared for appointing a currently unqualified vice-president.”

SERIOUS OMISSION IN “EDUCATING THE PEOPLE”!

Halifa Sallah in FOROYAA says “Subject to subsection (4)” Halifa gives NO EXPLANATION OF “subsection (4)”!!!!!

Lamin J Darbo in KAIRONEWS says: “Subject to subsection (4) ….” Lamin J Darbo gives NO EXPLANATION OF “subsection (4)”!!!!!

CASE FOR THE DEFENCE

Dida Halake, presenting the Case for the Defence screams “WHAT DOES subsection (4) says?????!!!!!”

This is subsection (4):

“A Bill for an act of the National Assembly altering ANY OF THE PROVISIONS REFERRED TO in subsection (7) shall not be passed by the National Assembly or presented to the President for assent unless …” (the 3 months Gazette Procedure).

BUT, what are the “provisions” in subsection (7) TO WHICH THE 3-months Gazette Procedure applies?

(7) Subsection (4) applies to –

(a) this section;

(b) section 1 and 79 (2) (which relate to the sovereignty of The Gambia);

(c) sections 4, 5 (1) and 6 (2) (which relate to the Constitution, as the supreme law of The Gambia;

(d) sections 8 and 13 (4) (which relate to citizenship);

(e) Chapter IV (which provides for the protection of fundamental rights and freedoms);

(f) Sections 39 (1), 42 (1), 47 (3) (which relate to elections and the Independent Electoral Commission) ;

(g) Section 63 (1) and the first sentence of section 71 (2) (which relate to the term of the President and the qualifications for Secretaries of State);

(h) Sections 85 (4) and 160 (7) (which relate to the Director of Public prosecutions and the independent of the Auditor general);

(i) Sections 87 and 100 (which relate to the National Assembly and the legislative power);

(j) Sections 120(1)(a), (2) and (3), 121 (1), 123, 126 to 128, 130, 132, 133, 135 (1) and (2), 136 and 138(1), (4), (5) and (6) (which relate to the judicature (;

(k) Sections 149 (1) and 151 (1) which relate to taxation and the withdrawal of money from public funds);

(l) Section 193(1) (which relate to local government);

Concludes Dida Halake: “Members of the Jury, THE AGE AMENDMENT IS NOT IN THE “PROVISION” IN SUBSECTION (7) – and therefore DOES NOT require the 3-months Gazetting!

 Dormu Rewwum Gambia (aka Luntango Suun Gann Gi)

I have just had this debate on facebook with a Gambian Lawyer and I thought I should share it with the readers:-

Lawyer: Read subsection 2 before you read subsection 4!

Dida: I have!!! subsection 2 is also SUBJECT to Section 4 !!!

Lawyer: Basically what subsection 2 is saying is simple. It tells you the amendment procedures of a general clause whilst subsection 4 is in relation to that of an entrenched clause. What they both have in common is the fact that whatever amendment to the constitution must comply with the subsection 2 requirement before a presidential assent. Subsection 4 tells you if the amendment is in relation to an entrenched clause then it must be referred to the IEC for a referendum. It refers you to subsection 7 which contained all the entrenched provisions of the constitution. The 100 days gazette is a sine quo non when it comes to constitutional amendment.

Dida: Right, I think that is where the disagreement is! If amendment concerns an entrenched clause, as LISTED in subsection 4, the gazetting applies. If not an entrenched clause, the gazetting does NOT apply – otherwise what is the reason for making Subsection 2 subject to subsection 4? If “The 100 days gazette is a sine quo non when it comes to constitutional amendment”, then the PROVISIONS in Subsection 7 would not be necessary.

My argument is that the law should simply have stated that ALL amendments to the Constitution require a 90-day gazetting. But it doesn’t say that. My argument is that NON-ENTRENCHED clauses, like the age amendment, can be amended WITHOUT the 90-day gazetting. The law also allows for “urgent” amendments which do NOT require the 90-day gazetting.

I think the 90-day gazetting issue on the age amendment matter is a storm in a tea-cup.

Dida Halake,

Notting Hill,

London, UK.

MORE POINTS RAISED AT JOLLOFNEWS

  1. I have just had this debate on facebook with a Gambian Lawyer and I thought I should share it with the readers:-

    Lawyer: Read subsection 2 before you read subsection 4!

    Dida: I have!!! subsection 2 is also SUBJECT to Section 4 !!!

    Lawyer: Basically what subsection 2 is saying is simple. It tells you the amendment procedures of a general clause whilst subsection 4 is in relation to that of an entrenched clause. What they both have in common is the fact that whatever amendment to the constitution must comply with the subsection 2 requirement before a presidential assent. Subsection 4 tells you if the amendment is in relation to an entrenched clause then it must be referred to the IEC for a referendum. It refers you to subsection 7 which contained all the entrenched provisions of the constitution. The 100 days gazette is a sine quo non when it comes to constitutional amendment.

    Dida: Right, I think that is where the disagreement is! If amendment concerns an entrenched clause, as LISTED in subsection 4, the gazetting applies. If not an entrenched clause, the gazetting does NOT apply – otherwise what is the reason for making Subsection 2 subject to subsection 4? If “The 100 days gazette is a sine quo non when it comes to constitutional amendment”, then the PROVISIONS in Subsection 7 would not be necessary.

    My argument is that the law should simply have stated that ALL amendments to the Constitution require a 90-day gazetting. But it doesn’t say that. My argument is that NON-ENTRENCHED clauses, like the age amendment, can be amended WITHOUT the 90-day gazetting. The law also allows for “urgent” amendments which do NOT require the 90-day gazetting.

    I think the 90-day gazetting issue on the age amendment matter is a storm in a tea-cup.

  2. Right, my Lawyer friend has hit back as follows:

    Is there anything wrong in amending the constitution? The answer is a simple no. The constitution under section 226 sanctioned it’s amendment. It states that it can be amended or altered through an Act of Parliament. What is clear is the fact that the constitution subjects it’s amendment procedures specifically to section 226. It’s states, “subject to the provisions of this section (ie section 226) an Act of National Assembly may alter this Constitution.”

    The legal sense that can be deduced from the provisions of this section is that any bill that is sought to amend any part of the constitution shall be in accordance with what section 226 provides. The procedures that should be observed before the presentation of the bill in the National Assembly are equally set out by section 226.

    One may be tempted to ask what those procedures are. Section 226 (2)(a) is very clear. This provision is to the effect that any bill the purpose of which is to amend the constitution “shall” be published twice in the Gazette before its first reading in Parliament. The latest of such publication being not less than three months after the first one. Thereafter, the bill shall not be introduced in Parliament earlier than 10 days after it’s latest publication in the gazette.

    Our government erroneously relied on section 101 of the Constitution which is in relation to the introduction of bills and motions in Parliament. This section requires the publication of bills in the gazette 14 days before their introduction into the National Assembly. However, in a case of urgency and of public interest this provision can be sidelined and a bill gazetted today and presented in the National Assembly the same day. See section 101 (3) of the Constitution.

    Now the question which calls for an answer is whether our government can rely on section 101 (3) to hastely amend the constitution in the face of the clear provisions of section 226? The answer to this legal question is a big no for an answer. It should be appreciated that section 101 of the constitution is a general provision and section 226 is a specific provision. According to the rules of statutory interpretation, when a general and specific provisions of the law are in issue, the specific provision takes precedent.

    Section 101 as seen above is in relation to introduction of bills and motions but section 226 is specifically in relation to amending the constitution. Therefore, one cannot rely on section 101 in the presence of the clear provisions of section 226 to amend the constitution. In short, the yesterday constitutional amendments are unconstitutional for now compliance with the provisions of section 226 above.

    The urgency argument can be granted in relation to amendment of the electoral laws since that is an ordinary law but not with the constitution.

    The Constitution must be followed as we swore to defend and uphold it’s dictates. Thanks

    DIDA ANSWERS:

    Age amendment can be done under Section 101, as allowed by subsection 4 and subsection 7 because it is NOT “an entrenched clause”!! 226 subsection 2 is subject to subsection 4 and subsection 7 – so 90 days gazetting as required by subsection 2 is not necessary because subsection 7 says age amendment is not an entrenched clause!!

    I HAVE TOLD MY LAWYER FRIEND THAT I AM APPEALING TO CHIEF JUSTICE HASSAN JALLOW AGAINST HIS DECISION!

  3. Dida thanks for opening up this debate. It has prompted me to read these constitutional provisions that has become very contentious recently. I am not a lawyer just like Halifa, therefore it goes without saying that I am capable of reading and understanding the constitution to a certain degree. My understanding is that Chapter 12 of the constitution section 226 subsection 2 is subject to subsection 4 and subsection 4 refers one to subsection 7 in order to know the provisions affected by subsection 4. However section 62 of the constitution which deals with the qualifications of the president which is the same as the vice president as stated in section 70 subsection 2, is not included in subsection 7. What I was able to deduce from that is as subsection 7 does not include section 62 then subsection 4 is not applicable when amending section 62. And if subsection 4 is not applicable then subsection 2 cannot be applicable as subsection 2 is subject to subsection 4. My conclusion therefore is as the provisions under section 226 cannot be applied in amending section 62 then there must be a different provision for it’s amendment. As the only other provision available for amendment other than section 226 is section 101, then it must be section 101 which should be used to amend section 62. If this is the case then the recent amendment is legal and constitutional. I do find it odd that such an important provision of the constitution like section 62 which prescribes the qualifications one must meet to become president and vice president is not an entrenched clause. Yet it makes section 71 subsection 2 which prescribes the qualifications of sectaries of state an entrench clause. Personally I think this is a major oversight by those who wrote the constitution. If so, the government must remedy this as soon as possible to avoid such embarrassing situations in the future. Can legal minds on this forum please enlighten me. This is the link for the Gambian constitution http://hrlibrary.umn.edu/research/gambia-constitution.pdf

    Buba Sanyang

    MARCH 6, 2017 AT 12:14 AM

    Dida, as a layman I think it was an error to make subsection 2 of section 226 subject to subsection 4 because that makes only entrench clauses amendable under section 226. I think subsection 2 should be a stand alone subsection and it should be subsection 4 that should be subject to subsection 2. This I belief would have made subsection 2 fulfil it’s intended purpose. If I am correct in my thinking then the government must rectify this soonest because if not, they wouldn’t be able to make the changes they planned. What I would like to suggest is for the National assembly to use it’s powers under section 102 (d) and include a referendum proposal in the Bill as the issue is a national concern. This referendum can be conducted at the same time as the National Assembly elections next month provided it meets the criteria stipulated by the constitution and IEC for the conduction of a referendum. I would again like legal experts on this forum to shed more light on this issue for us laypeople. Thanks

    Dormu Rewwum Gambia (aka Luntango Suun Gann Gi)

    MARCH 6, 2017 AT 7:04 AM

    Buba, clearly the “Draftsmen” of the 1997 Constitution (approved by Halifa Sallah!) screwed up. But, what we are witnessing is a huge STORM IN A TEA CUP! The Govt is NOT disregarding the Constitution – as some allege. The Govt is, on the contrary trying to follow a Constitutional stipulation that is very unclear. But, in my view, Section 226 does not allow the Govt to change Section 62 (Age) … and so the Govt should simply go ahead and use section 101. What is the big deal? They are not trying to set up a dictatorship, extend their power or erode anyone’s rights! If section 101 allows them to change section 62, then trying to do it under section 226 is a waste of time. The Government has better things to do like fixing the economy and and feeding the people. The appointment of the Vice-President (which Halifa Sallah wanted for himself) should NOT take up so much of everyone’s time. Like Mai said yesterday, let Halifa go back to his bureau and speak for PDOIS – since he has proved that he, Halifa, is NOT a Team Player.

    Congratulations folks on showing the capacity to be astute analysts of the Gambian constitution and it’s unending intricacies! So, nothing was done wrong in enacting the amendment to the constitution? Right? Phew!!
    My hat goes out to you all as legalese simply sends my head spinning. Why can’t schools and scholars of Law come of age, join the modern world and do away with the language of Pontius Pilate and Scipio so folks like my humble self can muster the patience to join the harangue of legal scholars!
    Am I putting myself on the firing line here, Buba and Dida?
    About my pals Halifa, Sidia and those of the PDOIS persuasion, I have always maintained that they must be seen to have unquestionably shed the Socialist cloak if they are to draw the required public support that will put them over the top of the hill. Frankly, PDOIS has been at this harangue, for too long and folks are starting to get really weary of their dispensation!
    PDOIS has been, for years, attempting to spoon feed Gambians on the prescriptive and collective mindset of the “Chosen PDOIS Three” whose journey is starting to look overly burdensome and boring with an unsaleable doctrine. Folks, the horse has been dead for a long time! Stop flogging it!! Make the messaging simple and in Gambian parlance, palatable!
    I recall that Halifa went by the nickname, RD in high school where he was my senior. He looked like a philosopher then with the hairdo and he still looks like one to me without the hairdo. It would be appropriate now to call the RD out to mean, Rear Distraction (RD) for the fellow is adept at raising a hullabaloo in a blink or in Dida’s words, making a storm in a teacup.
    At this point in Gambian political brinkmanship, I’d be quite wary of tagging along on the PDOIS journey albeit that the undertaking serves a valuable role in moderating the political ground game. Again, fleece me for what I’m worth PDOIS. A thick skin is to be found.

    Andrew, Gambia is experiencing the proverbial fight between two elephants in the persons of Halifa Sallah and Mai Fatty. Two alpha males each with an ego as big as the Gambia fighting for dominance. Both men are poor strategists. The press should boycott their tedious personality clash press conferences. That will make them wind their necks in and calm down. Enough of their playground idiocy. Personally I think Halifa was a little bit hasty in calling a press conference and declaring the amendment of section 62(age) unconstitutional. He could have given the government some time to digest the information on his findings about a possible procedural error in the amendment and also allow the state to seek legal advice. Calling a press conference and using an emotive word like unconstitutional even though he is not a constitutional expert could be self defeating. However it is also not in Mai Fatty’s place to tell the nation that Halifa is no longer the coalition’s spokesman. Even if that was something which was agreed by the other coalition partners, one would think that Mai will be smart enough to let someone else make that announcement considering his uneasy relationship with Halifa. Him announcing it is like he is trying to rub Halifa’s nose in it. Which quite frankly is immature. I think the government should just go ahead with the amendment unless they get legal advice against proceeding, every Gambian has the right to challenge it’s legality in court. That will be a good test case for our democracy and the strength and independence of our Judiciary.

    FACT BAX: Right Honourable is a form of address used within the House of Commons, for members of the Privy Council. Since when has Lamin J Darbo (no “e”) been a member of the House of Commons or a Privy Councillor. Address the argument, not the person.

    PS: I notice here on JollofNews and on KairoNews that PDOIS propagandists have suddenly become “short-sentence” writers. Thank God for that!! But I do truly sympathise because Halifa’s EGO has got you all cornered.

    Buba, Halifa is older (and supposedly wiser) than Mai and should not have started the fight.
    1. Halifa was determined to offer Jammeh a chance to remain in The Gambia and wreck the transition. Everyone else wanted Jammeh to leave. That is on record.
    2. Halifa publicly dissed and contradicted Mai Fatty about the $10 million theft. It has been proved by the Ministry of Finance that Mai was right.
    3. There is no record that Halifa advised Barrow about the age amendment BEFORE it was tabled. Halifa waited until he got his “20 NAM candidates” fees reduced by an amendment, ACCEPTED that amendment, and THEN attacked the age amendment – stating on Freedomnewspaper that Barrow will NOT sign it!!
    Looked at from this perspective Buba, you must see how much Halifa provoked the younger man whom Halifa should be nurturing and advising – in private.

    What have you got against Halifa ? Come on now in-law, its transparency and openness time in new Gambia. Let’s have it.
    Is Lawyer Darboe not the best draftsman in Gambia ? Is it possible he has a hand in this “confused, unclear” constitution that Halifa approved ? Hmmmmmm! Just wondering whose to blame more: the approver or draftsman.
    Mai is a trouble maker. OJ has put him in his place. Halifa is still the rightful coalition spokesperson.

    Fact Bax: Darboe was NEVER involved in “drafting” Jammeh’s Constitution. Halifa and even Dr Baba Galleh Jallow were!