After months of serving as the vice president, the new controversy generated by President Barrow’s liberal exercise of prerogative of mercy now raised questions about the constitutionality of Mr. Ousainou Darboe’s appointment to the second highest office in the country. The vice president, who next in line to the presidency, may be disqualified to hold that office under Section 90 (1) (c), Section 62 (1) (e), Section (70) (2). Mr. Darboe’s disqualification from the Office of the Vice Presidency would rise from his inability to serve as a member of the National Assembly under Section 90 (1) (c), which states that no one convicted of crime can be elected to that institution except were such a person received a free pardon. Under the constitution of The Gambia, qualifications for election into the National Assembly is a precondition for election as president and appointment to be a vice president.
Mr. Darboe, who with eighteen other co-defenders from United Democratic Party (UDP), was in July 2016 convicted under the Public Order Act to three years in prison on six counts for holding ‘a procession without a permit’ and ‘riotously interfering with vehicles’ among seven counts. While he was serving in jail, the opposition political parties formed a coalition to contest the December 2016 presidential election against the former president Yahya Jammeh. The coalition led by Adama Barrow won the election that ended in a dispute after Mr. Jammeh conceded defeat but later withdrew his concession. Mr. Jammeh, facing a threat of an international military intervention in The Gambia by neighboring countries in the West African region, abdicated office and fled into exile in Equatorial Guinea on January 22nd, 2017.
Upon his return from self-imposed exile in Senegal to assume office in The Gambia, President Barrow granted Mr. Darboe and thirty-eight prisoners pardons. Other notable members among the pardoned prisoners currently serving in the new government are Amadou Sanneh who was appointed, in February 2017, as Minister of Finance and Economic Affairs but later redeployed, in June 2018, to be the Minister of Trade and Regional Integration; Momodou L.K. Sanneh nominated to the National Assembly and appointed, in April 2017, as the Deputy Speaker; Fatoumata Jawara elected, in April 2017, as a member of the National Assembly; the late Femi Peters appointed, in May 2017, as ambassador to Sierra Leone; and Kemeseng Jammeh appointed, in May 2017, as The Gambia’s ambassador to the Republic of Turkey. Whereas the pardons in themselves would have been constitutional and lawful to allow those pardoned by the president to serve in senior government positions, the manner they were granted may not have followed the constitutionally required stipulation to make the entire exercise of the presidential power legitimate conducts.
The Gazette publication announcing the grant of a pardon by President Adama Barrow to Mr. Darboe and another thirty-eight prisoners on January 30th, 2017 was published by The Gambia Times. The publication in ISSN 0796-0201 No. 2 states that “the President of The Republic of The Gambia, in exercise of the powers conferred on me by section 82(1)(a) of the Constitution of The Republic of The Gambia, do hereby grant pardon to the persons named in the scheduled hereto.” While The Times could not obtain the original text signed by President Barrow, the publication in the Gazette did not specify if the pardons granted to Mr. Darboe and the others were “free or subject to lawful conditions.” The legitimacy of the pardon granted by President Barrow to the vice president, and of course, other political prisoners under the Jammeh’s rule came under question after the embarrassment and subsequent withdrawal of another pardon by the president to Svein Agesandakar, a Norwegian national convicted for the rape of a three-year old minor.
The controversy over the decision of the president to pardon Mr. Agesandakar was compounded by a rare but public fallout with and rebuke of the president by the Attorney General and Minister of Justice, Abubakar Tambadou, who on pilgrimage to Mecca, in Saudi Arabia, issued a statement that he “was not aware of this matter” to advise the president and “neither did I make any such recommendations to the President” to pardon the Norwegian citizen. Under Section 82 of the Constitution, any pardon by the president should be granted only after consulting“a Committee on the exercise of the prerogative of mercy consisting of the Attorney General and three other persons appointed by the President subject to confirmation by the National Assembly.”
The Times confirmed with a sitting member of National Assembly that appointments into the prerogative of mercy committee were never presented to that body by the Barrow government for their confirmation. The member who served two terms in the National Assembly during the rule of President Jammeh stated that no appointments into the prerogative of mercy committee were presented before them for confirmation. He recalled appointments of the Ombudsman and other agencies sent to the National Assembly for confirmation but not appointments into the prerogative of mercy committee during the rule of Jammeh. While the statement by the president on the release of Mr. Agesandakar and the Gazette publication on the pardon granted to the vice president and colleagues clearly state that the power was exercised under Section 82, however, both statements did not indicate whether the committee existed or if he had consulted it. According to legal analysts, even though the president is required to consult with the Committee, under Section 82 (1) the language of that section seems to indicate that the president is not bound to follow the recommendations of the committee. This position is further buttressed by Section 231 (4) in the constitution which states a person or authority, including the president, mandated to seek advice “shall not be required to act in accordance with the advice.” But where he grants pardons to people convicted of crimes without consulting the Committee of which the Attorney General must be a member, then the legality of the president’s pardons come under question. And where the president consulted with an improperly or singlehandedly instituted prerogative of mercy committee by the executive without the confirmation of the legislative branch, according to Abubacarr Drammeh, a former state prosecutor at the Department of Justice in The Gambia and now an LL.M. student at the University of Washington in Seattle, his actions in constituting the committee on the prerogative of mercy “will be unconstitutional and therefore in a case of a lawsuit the court would likely declare the formation of such a committee null and void.”
It’s not clear if the President did not consult with his Attorney General on the prerogative of mercy granted to only Mr. Agesandakar or in the cases of all seven prisoners he pardoned on August 20th, 2018 in observance of the Muslim Holiday of Eid al Adha. Mr. Tambadou, in his statement released from Saudi Arabia, indicated that he had in the past participated in deliberations of prerogative of mercy committee that comprised of the Minister of Interior, the Inspector General of Police, and an unnamed Imam. Even though the Minister of Interior, and the Inspector General of Police hold government positions, they unlike the Attorney General do not have perpetual membership into that committee requiring their appointments to confirmation by the National Assembly. A confirmation by the legislative body would also be required for the unnamed Imam, except situationally he, confirmed by the legislature, was a holdover from the prerogative of mercy committee formed by the Jammeh government.
Our investigation, however, could not find any evidence of the previous government submitting to the National Assembly nominees for confirmation to the prerogative of mercy committee. Mr. Ousman Jallow, who served in the National Assembly as an elected member from the Upper Nuimi Constituency from 1997 to 2002, and now lives in the State of Maryland in the United States, said the assembly was never presented with presidential nominees for confirmation into the prerogative of mercy committee during his time of service in the legislature. In addition, since the portfolios of the Ministry of Interior, and Inspector General of Police are not designated members of the committee by the constitution, and President Barrow has appointed different people into these positions since taking office, with each appointee if he’d so desired to put in the prerogative of mercy committee should have been subjected to confirmation by the National Assembly. President Barrow has, since taking office in January 2017, appointed Mai Fatty as Minister of Interior who was subsequently replaced by two successors Habib Saihou Drammeh in December 2017, and Ebrima Mballow in January, 2018. Appointees to the position of Inspector General of Police during the tenor of President Barrow include Landing Kinteh in June 2017, who resigned over the fallout of the Faraba Banta shootings, and was replaced by Mamour Jobe in June 2018. Mr. Kinteh replaced Yankuba Sonko, who was holdover from the Jammeh government as the Inspector General of Police. It’s not clear who among the Ministers of Interior, and Inspector Generals of Police Attorney General Tambadou had participated with in the prerogative of mercy committee he alluded to in his statement.
Were the Vice President and colleagues granted pardons without the president consulting the committee that should have been headed by the Attorney General, if it had even existed, then the pardons were improperly granted. This would raise the legal question whether Mr. Darboe’s — a former convict who was granted a presidential pardon that did not follow the proper procedures stipulated in the constitution — appointments as Minister of Foreign Affairs and Gambians Abroad in February 2017, and subsequent ascension to the vice presidency in June 2018 are constitutional and legal. The continued presence of some of these figures in the executive arm of government, and in the National Assembly of both Ms. Jawara who was elected for Tallinding Constituency, and Momodou Sanneh who was nominated by the president would be particularly challenged by the invalidity of improper pardons. The Public Order Act, under which the vice president and colleagues were convicted, was ruled to be constitutional by the Supreme Court of The Gambia in December 2017. Similarly, Mr. Darboe’s appeal to The Gambia Court of Appeal to overturn his conviction on grounds that the president exercised his prerogative of mercy in his conviction was also rejected by the court. In responding to criticism by Mama Kandeh, the leader of the Gambia Democratic Congress (GDC) that his appointment as vice president was unconstitutional on the Kerr Fatou Show, the vice president, Mr. Darboe, challenged Gambians to take the matter to the Supreme Court of The Gambia for redress where he would be ready to respond to their lawsuits. While Mr. Kandeh did not indicate under which section of the constitution, he believes, Mr. Darboe would be disqualified for the Office of the Vice President, Mr. Darboe responded by stating that at the time of his conviction, he was not serving in any public office— a reference to Section 62 (3) (b).
By the time President Barrow granted pardon to his now serving vice president and other colleagues on January 30th, 2017, the committee on prerogative of mercy may not have been in existence or legally constituted for the president to have consulted. On that day, President Barrow’s Minister of Justice, Abubakar Tambadou, was not yet sworn into office to give advice in the committee nor was the former Minister of Justice under the ex-president Yahya Jammeh, Mama Fatima Singhateh, a holdover for the new government to have legitimized a properly constituted prerogative of mercy committee to offer the current president advice to grant pardons to the vice president and his colleagues.
The validity of any pardon rests on the president consulting a legally instituted committee on the prerogative of mercy. As such, “the prerequisite for pardon is for the establishment of a properly constituted panel, failure of which invalidates the pardon for the simple fact of failing to follow the due process,” said Banjugu Nyangado, a private attorney now residing in Seattle. Mr. Nyangado’s position is also supported by Famara Singhateh, also a private attorney currently in Belgium, who in an exclusive interview with The Times said “there is no pardon because there was no committee as required by the constitution. The conduct is like going to prison and freeing inmates at will. Is like facilitating the escape of the prisoners.”
Responding to inquiries on the legal limbo that the improper pardons may raise for the beneficiaries, Mansour Jobe, a State Counsel and now newly appointed as Deputy Director of Research and Investigation of the Truth, Reconciliation and Reparations Commission (TRRC), noted that “some of the beneficiaries of the pardons were tried and convicted under circumstances in which the impartiality of the judiciary was highly perceived both within and outside the country,” and where given that no evidence exists “showing the people granted pardon are actually danger to our society, the courts may not hold any position that will injure all those who have benefited from the alleged unconstitutional pardons from 1997 up to 2018.” The question still remains where the freedom granted by the improperly awarded pardons are not rescinded whether the beneficiaries should enjoy further privileges beyond the commutation of the prison sentences.
The legal question in a case invited by the vice president may not be whether President Barrow has powers vested in him under the constitution to exercise prerogative of mercy on his vice president, or whether Mr. Darboe was holding public office during his conviction in June 2016 to be disqualified for the office under Section 62 (3) (b), but it will be about whether the pardon was properly granted as stipulated in the law. Were the court to rule that President Barrow did not exercise his prerogative of mercy properly as the procedures required, he may be forced to redo all the pardons he’d granted since taking office. While this would be relatively easy to do properly, it will give critics who accused the Barrow government of incompetence new winds under their sails to cruise in the ocean of their criticisms of the administration. Such an embarrassment could hurt the political future of both the president and vice president in the next presidential election. It remains to be seen if Gambians concerned with good governance, particularly the privileged legal practitioners among them, would take the vice president on his challenge to resolve the controversies generated by the way both Presidents Barrow and Jammeh granted pardons in office.