Gambian Lawyer calls for redo of Barrow “erroneous” inauguration

Dr Henry Carrol, a Gambian legal practitioner, has called for a redo of Barrow’s presidential inauguration which he argued was erroneously done.

Dr Carrol said only one out of the three mandatory prescribed oaths was administered thus making the process flawed.

dr-henry-carrol

Dr Henry Carrol 

Read the entire statement:

After The Gambia’s Independent Electoral Commission (I.E.C.), under the able and brave leadership of Gambian – born Alhajie Alieu Momarr Njai, The Chairman  Of The I.E.C., had successfully conducted the orderly and peaceful 1st December, 2016 Presidential Election, Alhajie Alieu Momarr Njai, Officially declared the amended and final results as follows:

Honourable Mr. Adama Barrow, The Flag Bearer Of The Coalition Of 7 Gambian Opposition Parties and 1 Independent Candidate:- 227, 708 votes.

His Excellency Sheikh Professor Alhaji DR. Yahya A.J.J. Jammeh (G.M.R.C., Babili Mansa), The Presidential Candidate for the ruling A.P.R.C. Party: – 208,487 votes.

Honourable Mr. Mama Kandeh, The Flag Bearer Of The Gambia Democratic Congress – G.D.C. Party:- 89,768 votes.

The Leaders of the aforesaid 7 Gambian Political Parties were:- Hon. Mr. Halifa Sallah of P.D.O.I.S., Hon. Mr. Ousainou Darboe of U.D.P., Hon. Mr. O.J. Jallow of P.P.P. (the Political Party of The Former and First President Of The  First Republic Of The Gambia, H.E. Sir Dawda Kairaba Jawara K.C.M.G., G.C.M.G.), Hon. Mr Hamat Bah of N.R.P., Hon. Mr.  Hendry Gomez of G.P.D.P., Hon. Mai Ahmed Fatty of GMC and the only Independent Candidate was Dr. Mrs. Isatou Touray.

His Excellency Sheikh Professor Alhaji DR. Yahya A.J.J. Jammeh, first conceded defeat and he phoned Honourable Mr. Adama Barrow, the then President Elect and the Honourable Presidential Candidate/Flag Bearer  of the victorious coalition of 7 Gambian Political Parties and 1 Independent Candidate, to congratulate him, this was shown on our National Television (G.R.T.S.).

About a week later, he changed his mind, he again appeared on G.R.T.S. and he told the Nation (and indeed the whole wide world at large, since G.R.T.S. is now on satellite), that he was no longer accepting the results, because of inter alia, the error in the counting of results in the Basse Administrative Area, in the Upper River Region (W.C.R.), he had annulled the results and he wanted a fresh Presidential Election  to be conducted, “…….by a new and God-fearing Chairman Of The I.E.C……..”, to quote him Ipssissima verba (Latin i.e. Verbatim).

H.E. Ex-President Jammeh, looking back with hind sight, had no power or authority whatsoever under Gambian Law, to annul or cancel the aforesaid results. Nemo Judex In Causa Sua  (Latin i.e. no person can be a Judge in his /her own cause).  He (among others including the Hon. Mr. Mama Kandeh, the leader of the G.D.P.), was at that material moment a contestant for the Gambian Presidency (the highest Office in the land).  By saying so publicly, he was usurping the powers of Learned Judges in The Gambia Supreme Court, under Section 49 of The Gambia’s 1997 Constitution which reads:-

“Any registered Political Party which has participated in the Presidential Election or an Independent Candidate who has participated in such an Election may apply to the Supreme Court to determine the validity of the Election of a President by filing a petition within ten days of the declaration of the result of the Election”.   Under The Elections Act, The I.E.C. Chairman also has the power or authority, to annul the results of any referendum, bye – election or any other election, which he /she has conducted in The Gambia, be it Presidential, National Assembly (Parliamentary) or Local Government.

After receiving Legal advice from a qualified Lawyer, H.E. EX President Yahya Jammeh, then decided to file a petition  in The Gambia Supreme Court (T.G.S.C.), for it to review the results of the aforesaid Election, perhaps annul them and then order for a fresh Presidential Election to be conducted, in Pursuance of Section 49 of the aforesaid Constitution.  Unfortunately, T.G.S.C. was not functional and the then Nigerian – Born Chief Justice Of The Gambia, Honourable DR. Emmanuel Fagbenle, (who later tendered his Official Resignation and then he hurriedly returned to Nigeria, his native country),  was then the only Supreme Court Judge in the Country.  Supreme Courts Judges, who were expected to arrive from Nigeria and Sierra Leone never arrived, and the next feasible date for the hearing/Judicial adjudication of the A.P.R.C. Petition, would be May 2017, according to an Official Letter which the aforesaid Honourable Lord Chief Justice received from the Nigerian Supreme Court. “Justice delayed is Justice denied”, as the famous Legal adage goes.

In the interim, Mr. Edward Anthony Gomez, a former Honourable Attorney General & Minister Of Justice, who was the A.P.R.C. Lawyer, filed an Injunction in Court, which sought to restrain the Honourable Chief Justice, his agents or proxies or any Judge, Magistrate etc in The Gambia, from Officially Inaugurating Honourable Mr. Adama Barrow, The President Elect Of The Gambia, as His Excellency The First President Of The 3rd Republic Of The Gambia And The Commander – In- Chief Of The Gambia Armed Forces.  The then Honourable Lord Chief Justice, rightly recused himself from adjudicating over the aforesaid application for an Injunction (as a single Judge in Chambers), because he was the subject matter of the aforesaid application.

This was the Honourable and Legally Ethical thing to do, (which was not music to the ears of His Excellency former President Yahya jammeh), because one of the sacrosanct and inviolable Legal Principles of the doctrine of Natural Justice, which is encapsulated in the famous Latin maxim is :- “Nemo Judex In Causa Sua” (Latin i.e. no person can be a Judge in his or her  own cause), would have been allegedly violated by him, had he decided to do otherwise.  Mr. Gomez subsequently fled from The Gambia’s Jurisdiction to take refuge in neighboring French speaking Senegal (a Francophone Country/ State), and he was interviewed on Senegalese Television, and the interview was viewed in crystal clear terms, by Gambians and non-Gambians. “He who fights and runs away, lives to fight another day” as the aged – old and time – honoured adage goes.

On Tuesday 25th October 2016, (like Burundi and South Africa), the then A.P.R.C. Government under the then leadership of His Excellency President Yahya Jammeh, announced the Official intention of the aforesaid Government to withdraw The Gambia’s Membership from The I.C.C.  Merely announcing a State’s intention to withdraw its Membership from The I.C.C. does not complete the severance process.  The complete severance process takes about one year, which I believe both Burundi and South Africa have already done successfully.

As a Solicitor General Emeritus Of The Gambia “(i.e. a Deputy Chief Legal Adviser Of The Gambia Government, from 8th January 2007 – 28th April 2009)”, I would like to humbly, Legally Advise His Excellency Mr. Adama Barrow and his new Coalition Gambia Government, to expeditiously take concrete Official steps, to urgently restore The Gambia’s full Membership of The I.C.C., because of the plethora of International benefits, which The Gambia will inevitably derive/ enjoy, from the aforesaid important Membership.  The Rome Statute established The I.C.C. in The Hague, The Netherlands, on 17th July 1998.  Gambian – born Honourable Dr. Mrs Fatou B. Bensouda (O.R.G.), our good and dear Gambian Sister and Legal colleague, is the current able Chief Prosecutor Of The I.C.C.

In 1997, The Author (DR. HENRY D.R. CARROL – M.R.G.), was awarded a joint U.N./United Nations Institute For Training And Research (U.N.I.T.A.R.) Fellowship, with which he undertook a Postgraduate Course in Public And Private International Law, at both The Peace Palace/International Court Of Justice (I.C.J.) and The Hague Academy Of International Law, in The Hague (The World’s Judicial Capital) in The Netherlands.  After successfully completing the aforesaid Postgraduate Course, The Author was Certificated and he was simultaneously made:- (1) A Fellow Of U.N.I.T.A.R. and (2) A Fellow Of The Hague Academy Of International Law.

Honourable Mr. Adama Barrow, the then President Elect, was Officially and Legally Inaugurated on Thursday 19th January 2017, as His Excellency The 1st President Of The 3rd Republic Of The Gambia and The Commander – In – Chief Of The Gambia Armed Forces.  The Inauguration Ceremony took place at The Gambia’s Embassy in Dakar, The Capital Of neighboring Senegal.  This was a very Legal Ceremony, because under Jus Gentium  (Latin i.e. Public International Law or The Law Of Nations), an Embassy, a High Commission, a Consulate etc, are extensions of territories of Countries/ States, which they represent diplomatically, in another Country/State.

Mr. Sheriff Marie Tambadou (a former President Of The Gambia Bar Association – G.B.A., who has recently been democratically re- elected or Officially recycled as The President Of The G.B.A., because of his sterling leadership qualities, and who has the same Alma Mater as The Author, as far as their University Legal Education is concerned— Buckland University College— Oxford), conducted the Inauguration Ceremony.  They are both Senior Gambian Oxford – Trained Lawyers.   The aforesaid Ceremony, as far as The Gambia is concerned, had been usually, conventionally or customarily conducted, by the Honourable Lord Chief Justice Of The Gambia.  Since both the aforesaid Constitution and The Oaths Act (1965), Cap 35:03, are silent as to who should conduct the Inauguration Ceremony for a President Elect?, one can therefore draw the logical Legal Inference therefore, that anybody who is legally qualified, can conduct such an important  National Ceremony.  Expressio Unius Est Exclusio Alterius (Latin i.e. what has been expressly mentioned by Law, excludes what has not been mentioned.

Section 3 of the aforesaid Act says:- “ A holder of an Office specified in Column 2 of The Second Schedule of this Act, whether or not a Public Officer under the Government Of The Gambia, shall before entering upon the duties of performing any function of the office take and subscribe the Oath or Oaths appropriate to the office set out in Colum 3 of the said Schedule and the Oath or Oaths shall be administered and subscribed by the person specified in the Column V1 of the said Schedule”.  Unfortunately, the Office of “The President Of The Republic Of The Gambia” , is clearly not stated in Colum 2 of The Second Schedule of this Act.

It only starts with the Office of “Vice President” downwards.  This is a monumental Legal Drafting Error, committed by the Legal Draftsman/Draftsperson who drafted the Oaths Act in 1965, the year in which Gambia attained Political Independence from The U.K., and the year, in which our beloved current President,  His Excellency Mr. Adama Barrow was born. “To err is human, and to forgive is divine”, as the famous adage goes.  It is International Best Practise all over the World (our Global Village), for Presidents Elect to mandatorily take the three aforesaid Oaths before assuming Office, and The Coloum 3 of The Second Schedule of the aforesaid Act, states that the 3 Oaths that are to be mandatorily taken by The Vice President before he/she assumes  Office are:- the  3 Oaths stated in The First Schedule of The Act namely:- (1) Oath Of Allegiance, (2) Oath Of Office and (3) Oath Of Secrecy.

If the Vice President is mandatorily required to take all 3 of the aforesaid Oaths before he/she assumes Office, I therefore do not see any plausible Legal reason, why The President Elect (a more superior Public Officer), should not take the same aforesaid 3 Oaths before assuming Presidential Office. “To whom much is given, much is expected”.  The Gambia should therefore not be an exception to the aforesaid International Best Practise, it should also not be an Island among “The Comity Of Nations”.   This brings surfacing to the landscape of my mind, the laconic inspirational poem entitled:- “For Whom The Bell Tolls” of the erudite and celebrated English Poet, Mr. John Donne, which reads :- “…… No man is an Island, entire of itself, each is a piece of the Continent, a part of the main.  If a clod be washed away by the sea, Europe is the less, as well as if a promontory were, as well as if a manor of thy friend’s or thine own were:- any man’s death diminishes me, because I am involved in mankind.

Therefore, never ask for whom the bell tolls, it tolls for thee….” .   Since the aforesaid Legal Error is very serious, the aforesaid Section (and other appropriate Sections of the said Act), should therefore be urgently amended, to bring it in line with Section 63 (1) of the aforesaid Constitution, which reads:- “… The term of Office of an Elected President shall, subject to subsection (3) and (6), be for a term of 5 years, and the person elected President shall before assuming Office take the prescribed Oaths”.    Although the aforesaid Constitution has not defined  “Prescribed Oaths”, nonetheless if one cross – references the aforesaid Section 63 (1) with the aforesaid  Section 4 (1) of The Oaths Act (1965), it then becomes abundantly clear, that the Constitutional laconic phrase “Prescribed Oaths” means:- (1) Oath Of Allegiance, (2) Oath Of Office and (3) Oath Of Secrecy.

The proposed amendment of the aforesaid Act, is to make it in tandem with Section 63 (1) of the aforesaid Constitution, (which makes it mandatory for a President Elect to take “….the Prescribed Oaths…….” before he/she assumes Presidential Office) and the aforesaid Act (which makes it possible for certain holders of Government Offices, from the Office of “The Vice President” downwards, to take either an Oath or the 3 aforesaid Oaths, before assuming Office).

In order to resolve such a serious Legal Conflict, the Legal answer is clearly encapsulated in Section 4 of the aforesaid Constitution, which reads:- “ This Constitution is the Supreme Law Of The Gambia and any other Law found to be inconsistent with any provision of this Constitution shall, to the extent of the inconsistency, be void”.  Whenever I am explaining the “Prescribed Oaths”  to my Undergraduate L.L.B. Students, at The Faculty Of Law at The University Of The Gambia (U.T.G.),  I always satirically tell them, that the “Prescribed Oaths”   are equivalent to a 3 course meal (i.e the first is the “starter”, the second  is “main dish” and the third is “ the dessert”).

Let me avail myself of this golden window  of opportunity, to warmly congratulate His Excellency Mr. Adama Barrow and his Coalition Team, for their well-deserved victory at the 1st December 2016 Presidential Election.  Veni Vidi Vici (Latin i.e. I came, I saw and I conquered). This is a Latin phrase popularly attributed to the Great Julius Caesar who according to Appian, used the phrase in a letter to Roman Senate around 47BC after he had achieved a quick victory in his short war against Pharnaces 1 Pontus at the Battle Of Zela. The phrase is used to allude to a swift, conclusive victory.  I wish them a happy, peaceful and successful term of Office.

I am a 100% supporter of His Excellency Mr. Adama Barrow and his new Coalition Gambia Government.  Be that as it may, I honestly feel that and believe, that there was a monumental Legal Error in the aforesaid Inauguration Ceremony of The President Elect, Honourable Mr. Adama Barrow, in The Gambia’s Embassy in Senegal, because My Learned Friend, Mr. Sheriff Marie Tambadou, only administered 1 out of the 3 aforesaid Oaths (i.e. the Oath Of Office) instead of administering all 3 of them mandatorily and simultaneously, which impliedly, is against the spirit and letter of the aforesaid Constitution.  In my humble Legal Opinion, there are 2 Legal remedies namely:- (1) Another Inauguration Ceremony should be conducted in The Gambia, during which the 2 Oaths which were not administered in Dakar should be administered, or  (2) Another Inauguration Ceremony should be conducted in The Gambia, during which all of the 3 “Prescribed Oaths should be administered.

In order to eschew/avoid any conflict of dates in respect of the 2 consecutive Inauguration Ceremonies, my humble additional Legal advice will be, the same date of the first Inauguration Ceremony in Dakar, must also be inserted in the Legal documents, in respect of the Second Inauguration/Swearing –In  Ceremony in The Gambia, because of the famous Legal maxim in English Law, which goes thus:- qui priore est tempore, portio est jure (i.e. he who is first in time, has priority in Law).  Even the Inauguration Ceremony of The Immediate Past American President, His Excellency Mr. Barrack Obama (the 44th American President) had some errors and a subsequent Inauguration Ceremony was conducted, in order to rectify the aforesaid first Ceremony.  OBAMA means: – “Originally Born In Africa, To Manage Americans”.

Proper inauguration ceremony will be done at Gambia’s Independent Stadium on February 18, the day the country assumed independence from England.  

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One thought on “Gambian Lawyer calls for redo of Barrow “erroneous” inauguration

  1. The erudite Dr. Carol, Esq. He writes with such panache, like the late Justice Scalia of the United States Supreme Court.
    He deserves a place at the Supreme Court; I would always love to read his legal opinions or briefs from the bench. He

    Like

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