Archive for the ‘Opinion’ Category

WHY PRESIDENT JAMMEH WATCHES GAMBIANS DIE AT SEA

April 24, 2015
Reads :324
Pata PJ- "Yaya Jammeh DOES NOT CARE if half of the country’s youth raced out of that country to never come back"

Pata PJ- “Yaya Jammeh DOES NOT CARE if half of the country’s youth raced out of that country to never come back”

Alarming Statisitics

Alarming Statistics

By Pata PJ

Every day, scores of lives perish in the deserts and the Mediterranean Sea. Hardly does a day go by that you do not read about Gambians dying trying to make it to Europe through the ‘Back Way’. It is devastating. However, none of what has been happening all these years but astronomically worsened in the past couple of years, happens in a vacuum. We’d all have to do something to decelerate it.

I have seen a lot of Gambians take to social media making “Say No To Back Way” videos, to sensitize and dissuade our brothers and sisters from venturing into these very dangerous and uncertain journeys that already claimed more than enough lives. These efforts are great, laudable and are spiraling. However, most came short of identifying and addressing the root causes of the unfortunate tragedy.

The ever growing statistics of the number of people dying at sea, those ‘lucky’ enough to have crossed to become illegal immigrants in Europe, are shockingly alarming. The Gambia, the smallest country in mainland Africa (population less than 2 million) with relative peace, dwarfs nations like Mali and Syrian that have been in turmoil and civil unrest for few years now. Gambia’s 1400 (134 minors) to Nigeria’s 800, arrived in Italy by Sea in the first quarter of 2015. Just last week alone, there were two boat accidents that had at least 750 and 300 lives unaccounted for, respectively. It’s a sad reality that our boys and girls are somewhere in that bottomless ocean and will never be buried.

While we’d all love to have our brothers and sisters stay at home to avoid a literally suicidal journey, we must also be realistic in recognizing that these kids are being forced by their circumstances to make a better living for themselves and their families. As foolish as we think it is for them to see some of us who have ‘escaped’ the struggle from abject poverty as ‘success stories’, it is an innate desire for a man to want to be a provider, especially when they are looked up to as the ‘Yakarr’ of the family. We cannot tell them to not go because is risky when there are no alternatives to the predicament. This is not to make an excuse for our able-bodied youth but is understandable.

Unemployment is the premier causative factor of the economic migration that continues to claim lives and in most cases, levy a hefty financial burden on the already struggling families who would give an arm and leg for a potentially enhanced livelihood, which most times is only promissory and in some cases elusive. The pasture isn’t always a guaranteed greener on the other side. Most of the people who set out on these journeys are poor, provincial kids who either graduated without jobs or dropped out of school and are unemployable. These people hail from families who have always paid their taxes but almost never get to benefit from their government; individually or as a community. So majority of them become Economic migrants, and a few Political refugees escaping shackles and political persecution from an oppressive regime.

So the buck stops at President Jammeh and his Government! In plain terms, Yaya Jammeh DOES NOT CARE if half of the country’s youth raced out of that country to never come back. As a matter of fact, that is lessening his burden of having to deal with an unemployed, ‘unproductive’ lot. Jammeh would have cared if this was anything that posed any sort of threat to his reign. We have seen how he does not hesitate to launch all these violently aggressive “Operations” in order to legitimize his use of force to cower and oppress Gambians further, to deter any potential resistance to his Authoritarianism.

In his characteristic fashion of abdicating responsibility as the country’s CEO, Yaya continues to deflect attention from significant priorities where he is found wanting, to play victim. In his UN address in 2014, Jammeh asked that “The U.N. must conduct a full and impartial investigation into this manmade sinking, capsizing of these boats carrying young Africans to Europe,” accusing European Nations of “racist and inhuman behavior of deliberately causing boats carrying black Africans to sink.”

Lest we forget, a year prior Jammeh in his 2013 Tobaski address to the Nation, shamelessly went off on a tangent to blame his ‘Mandingo Brothers and Sisters’, whom he said comprised the 98% of the youth taking the going to Europe, seeking asylum just to tarnish the image of the country since 1994. He thought that is not only an unpatriotic act but Unislamic and is punishable by Treason. Although this came on the heels of UDP asylum saga, when he’d used his erstwhile unwise Presidential Affairs Minister Momodou Sabally to accuse the US & UK, and insult a whole ethnic group for being tribalist, I believe Jammeh sees no urgency in mitigating the migration because it works in his favor since the troublesome, unpatriotic bunch are leaving the country to patriots. So he’d not lose a night’s sleep over their death.

This unnatural, schizophrenic by-product of mistaken birth, is a delusional hypocrite, divisive lunatic and a self-aggrandizing, deranged ‘thot’ of a president who never takes credit for his failures as the country’s Chief Executive. After claiming to have had evidence that these people claimed persecution for homosexuality and not on ethnic grounds, how dare he flipped that to make it about a particular tribe?

But here is a government that does not have the political will nor the ability to sustain or enhance any sector of the economy that creates jobs to employ 50 Gambian a year since 2001. A government with a leadership that believes he’s doing the country a favor by reigning over her people, giving them cash handouts, food rations and throwing ridiculously expensive festivals to party their pains away at a time the country is on her deathbed. Today, the largest sectors that employ graduating students or dropouts are the Armed/Security Services and Education (teaching). And even for these areas we have seen active soldiers, police officers and teachers abandoning their posts to take chance with the risky high seas.

We may never be able to stop the Back Way venture for ambitious, unemployed youth would always pursue opportunity somewhere whatever the risk. But had we had a capable, effective and responsible government they would have:

  • Put mechanisms in place to mitigate it by not only going on TV to boast about opening schools but not able to get graduates absorbed in the workforce.
  •   Be able to open skill centers to train the youth and have careers.
  • Liberalize the economy, support and encourage small scale businesses by giving tax breaks and/or subsidize them to be able to flourish and create employment.
  •  Let the president cease competing with the State and private businessmen as the conflict of interest and competitive advantage is killing the already struggling Gambians.
  •  Let’s mechanize our Agriculture with adequate focus by revitalizing Jahali Pacharr and other places it instead of Yaya grabbing all arable lands and have the whole country work on his farms.
  • Bring back our one-time Tourist Mecca that he’d killed off with his weekly distasteful international headlines that instills fear and erode confidence for tourists.

Evidently, these are not things that President Jammeh and his administration are capable of doing. That leaves us with one remedy for the hand that we’re dealt: CHANGE OF REGIME! Yaya Jammeh and the APRC administration are a bad omen for our nation and they’d have to GO for us to make any significant headway!

Lets continue to sensitize and dissuade our brothers the best we could. The Gambian Artist Bro K has a very messageful song on the ‘Back Way‘.

Good Morning And Peace To The Planet!

Macky takes the bull by the horn

April 23, 2015
Reads :709
 Author : Fatou Jaw Manneh

Author : Fatou Jaw Manneh

By Fatou Jaw Manneh

Or is it Macky tackles the elephant in the room? Go Macky, Go Macky, Go Macky. Bravo. Macky Sall in Cassamance. Aiwa! Came as a surprise to many SeneGambians. It is past time. What a relief!!! This is the best move and a very bold one. Congratulations Macky. Cassamance cannot be ignored. A rich land for cultivation and a very popular tourist hub and destination for Senegal. Why shun them? It is about time Dakar catches up with the Cassamance region, open up genuine discussions and (yes!) the railway indeed is welcome news for Cassamance. A $500 million investment has brightened up their faces. Hopefully the Cassamance region recovers its 50, 000 a-year-tourist market and hope it spills over to neighboring The Gambia. A bridge at Farafenni will ease the flow of goods and transportation between the two sister nations. Congrats.

Senegal, the country of Teranga (hospitality), should market its natural character of friendliness. Trade, investment and tax breaks for tourism will cheer up the region in no time considering the hard work and “Jom” and “Faida” of the Senegalese. I’m sure experts and natural customer service citizens will explore and welcome all the incentives necessary for development. Cassamance should not feel rejected, forgotten, and disrespected. Yes, skirt around The Gambia and let the train hoot all night to Cassamance, and then start up the southern part to Guinea Bissau, too.

People in Cassamance are hardworking. Jola, Wolof, Bainunka, Mandinka, Sarahule, Manjago, Ballanta, etc. all of them. The best way to lessen insurgent activities, terrorism and malice from the region is to open it to investment, trade, education, health and tourism. I am an exiled Gambian journalist currently living in Senegal. Macky, you just happen to have a bad neighbor in Yahya Jammeh. Please know that you have to ride with modern times in terms of development and do not discriminate in your infrastructure and developmental goals. There are wonderful people living in Cassamance. Yahya Jammeh has messed up many villages in Cassamance during the region’s ongoing troubles with Dakar, fanning the flames of tribalism and extreme hypocrisy, just so he can have a big Jola migration from across the border and to help him in his bogus elections. Some voluntarily migrated to The Gambia but he had many villagers displaced just so they can run for cover in The Gambia. All the while playing Good Samaritan. Trade, investment and modernization in Cassamance will help their people who cherish peace and freedom, and abandon Jammeh’s trickery and handouts of bags of rice and oil. The Jolas are decent people and will not continuously buy into his hypocrisy. THEY KNOW HE IS NO GOOD. They have to have an incentive to abandon him and you have taken that step. Bravo and May God help you along the way. No fear, just send your Brazilian-trained soldiers to help along the way into Cassamance. That place is beaming, hopeful and grateful for this project.

St. Louis (Nderr) is decaying now. A very historic city. The fishing industry in that city can turn it into a modern seaport and also cater to all West African markets with fresh fish. And wow! They have excellent Quranic/religious schools too. Thies is beautiful; don’t abandon it either. Yes, yes. I know Edriss Seck made it his city, but that is no excuse. This is what visionary, genuine leaders do for their country. Help continue the good policies your predecessors started, and initiate better ones for the future leaders and generations.

During the first two weeks I arrived in Senegal, and between the three homes I am affiliated with, I saw over 15 Gambians who came to seek medical attention in Senegal. From ulcer, cancer, arthritis, diabetes, high blood pressure and all. I talked to one of them, an old woman. She complained of stomach problems; she said she visited the main hospital in Banjul and was given some capsules. And she said she had been taking too many and for too long and now she is scared. She stopped taking them, because it did not help, and decided to come to Senegal. She told me she was misdiagnosed in The Gambia. I can see the relief on her/their faces, as their hosts shuttled them from one clinic to the other. Many who seek medical help here complain that it is tough for Gambian health practitioners to find out what is wrong with you when you are sick. I can see the beaming face of this woman now. She is pretty and clean and the face is glowing. She now knows she is in better hands for her medical needs. That spirit alone will help in her recovery. Senegal is a hub for all of West Africa when it comes to health and education. Build on that strong institution and keep up the professional and good name of Senegal, in manners (hospitality), education and health.

Former President Senghor brought in education, gave Senegal a highly educated citizenry. Your graduates are highly smart. Abdou Diouf brought in a serious professional administration. Abdoulaye Wade brought in top notch infrastructure development. Serious, super roads, bridges and all. What will be your legacy?? Cassamance is a good brave start. An obnoxious neighbor should not deter you from giving Senegambia all that it needs. Help Gambia trounce dictatorship once and for all. How many awards have you received already on good governance and embracing the rule of law and democratic principles? Yahya Jammeh is known for killing his people. That is a legacy he will leave with us and no decent human being should associate with him. You know why Gambians run to Senegalese hospitals as expensive as they can be? It is because they are afforded the chance of good health and of a peace of mind. And the Gambian president said he is a herbal doctor! He has alienated and harassed all our good doctors. He even had to force one into retirement; he had a good clinic and a good name. Jammeh denied Gambians access to that health facility just so he can annex and seize the good location of that clinic, which he did by fraudulent means.

And for the Gambian exiles in Senegal? We say thank you. At least you are listening. Gambian refugees in Senegal are trapped. You know we cannot speak French. We have a brutal dictator in The Gambia, who just loves to kill his citizens, jail them, torture them, or scare them away. I have seen Gambians sitting idle in Dakar. They are no activists, politicians or journalists. Just staying away from The Gambia gives them that peace of mind. Gambians are so scared just for the heck of running away from The Gambia as it is associated with Jammeh and they think they can get into trouble anytime. Some don’t even know what they are running away from. That is the depressing situation in The Gambia. Yaya Jammeh is a paranoid and brutal monster and wants everyone to wallow in his misery and unhappy state of mind. Thanks for offering Gambians asylum in the land of Teranga. Gambians are no criminals. I know, I know, I know. When you were working for Wade, I am sure you saw plenty of crooks both in the Senegalese and Gambian governments, civilian and military. Yes corrupt to the core. Yahya Jammeh was then good business for these corrupt officers who promised Wade to take Jammeh out and secured millions in corrupt money along the way. That Gambia is no more. We mean business now Macky. We are tired.

I will not delve into Senegal’s domestic politics, but give Wade his son Karim. Yes he stole lots of money but you cannot recover it even with the help or America and France. In banking we are trained day in and out how to identify stolen money, but it is tough sometimes how some humans can “clean” money. You just can’t see or trace it when it is right under your nose. This Karim issue is consuming your time, and creating some deserving or undeserving public sympathy. Wade did his time very well. Don’t spend your time on him. Your Cassamance trip is important because it shows action and determination on your part; you have been mired in some dormancy in your presidency of late. Lest you forget, the Senegalese electorate don’t play and they are becoming impatient. Macky: Just Go Go Go Go Go. !!! Wasalam, Mbalen Jamm, Dallal Akk Jamm!

This article is originally written for leral.net Author can be reached at fatoujm@gmail.com

Ya Binta’s Death Could Have Been Avoided

April 22, 2015
Reads :534
Author: Sainey Sisay

Author: Sainey Sisay

By Sainey Sisay

The recent reported killing by the Gambian Security Forces of an innocent Gambian citizen called  Ya Binta Jarju, had left me wondering whether our security forces are really aware of their duties and responsibilities to our civilian population. There is no doubt in my mind that the role of every national security force is to provide security to its citizens and properties. 

However, if a national security force turns against the very people, they took the oath to protect, then one wonders whether that force can be called or described as a national security force. In essence the Gambian security forces are professionally handicapped.

Our national security forces are becoming very indiscipline, unprofessional and above all arrogant especially when armed. The fear they instilled in the Gambia has resulted to an environment of paranoia and mistrust between the security forces and the ordinary citizens.

The death of Ya Binta Jarju could have been avoided if the security forces in question had exercised patience and professionalism.  Firstly, the security personnel could have taken the registration number of the car or the description of it. This information would have been enough for the authorities to know and identify the driver of the car, who failed to stop at the military checkpoint. Secondly, they could have stopped  the car by shooting at its tyres, which would force the driver to stop. What happened on that fateful day begs the question of; are those entrusted with out security  trained enough to  make rational judgements especially when armed? I bet not.

They are  expected to exercise GREAT RESTRAINT when armed. This is because of the lethal consequences of their weapons.  However, it is irrational and arrogant, if they think that because they are soldiers and armed, none has right to disobey them. This should not be the case, since even God is disobeyed by others. Therefore, they should detach themselves from the self illusion that being soldiers entitles them to shoot anyone who disobeys them.

They should remember their first duty is to protect the civilian population. They can only go against that duty  if their lives are threatened. In this case Ya Binta Jarju and the Taxi Driver didn’t pose any threat that warrant the callous murder of the former, an innocent young lady with great potentials.

Finally there needs to be a thorough investigation into the circumstances surrounding the young lady’s brutal murder without such an investigation public confidence in the integrity of our government will continue to ebb away. We need a proper scrutiny and accountability of our security forces to restore public confidence.

Africa and the ‘back way’ migration phenomenon

April 20, 2015
Reads :722
Author: D.A Jawo

Author: D.A Jawo

By D. A. Jawo

It is really heart-rending to hear news of deaths virtually on a daily basis of young Africans on the high seas while trying to reach Europe across the Mediterranean Sea. While many analysts have tried to give reasons for such tragedies falling on Africa’s most valuable future assets; the young people, with many of them heaping the blame on Europe for not welcoming African immigrants, but that is just half the story.

While the European attitude towards immigration from Africa is an important factor in the equation, but the poor governance environment and the wanton mismanagement of Africa’s human and material resources by our own leaders is definitely more to blame for the phenomenon. What do we expect Europe to do to help ameliorate the situation? Most people think that if Europe were to relax their immigration policies and make travel to the continent much easier for Africans, many of those who take the ‘back way’ will be able to obtain visas and travel through the beaten track.

However, if that were to happen, then there is a tendency that virtually everyone would want to go to Europe and of course Europe would not be in a position to accommodate everyone. Therefore, Europe has no other choice but to tighten their immigration policies in order to protect the living standards of their populations. While we have seen the European Union holding an emergency meeting to discuss the issue, but one would wonder why the African Union is keeping so mute as if it does not concern them, even though the vast majority of those who lose their lives on a daily basis are Africans. Why is the African Union not ready to tackle the phenomenon or is it because our leaders are not prepared to confront their own ineptitude and their disregard for the welfare of their people?

Like I said earlier, the blame for this tragedy lies squarely on the shoulders of our leadership in Africa whose bad governance and economic policies have made life unbearable for ordinary Africans. The small clique of those in high positions often have the tendency of being intoxicated with power and greed that they hardly have enough regard for the welfare of the people who put them into power. As a result therefore, their main pre-occupation is always to remain at the top and they would not hesitate to use all available means to stay there at the expense of the people.

Let us take for example the unusually large number of Gambian youths in proportion to its population who continue to perish at sea while trying to reach Europe. This is no doubt because of the regime’s bad social and economic policies and no doubt its poor governance environment, young Gambians are hardly left with any space to realise their potentials and as such, they resort to risking their lives to travel to Europe through the ‘back way’. A good case in point is the recent almost one week stand-off between the police and the opposition United Democratic Party (UDP) simply over the issue of a permit to hold a meeting. If the leadership cannot obey the very constitution that they had sworn to protect, and the police and security forces allow themselves to be used by the politicians to intimidate and harass the very people they are supposed to protect, then it is hard to see how justice will prevail in the country. That alone is enough reason to make the young people lose confidence in the ability of the system to protect their rights to enjoy the most basic freedoms in their own country.

Therefore, there is no other way to tackle the problem of illegal migration than to improve the governance environment in Africa and make everyone an equal stakeholder in the development of our countries rather than allowing a small cabal of people to unfairly load it over the rest of the population.

CORDEG WEIGHS IN TO THE GAMBIA STANDOFF

April 19, 2015
Reads :594
Cordeg Secretary General: AIB accused Jammeh of banditry

Cordeg Secretary General: AIB accused Jammeh of banditry

The Committee for the Restoration of Democracy in the Gambia (Cordeg) has also issued a press release condemning Gambia government’s barricading of the UDP’s convoy at Fass Njaga Choi. The Cordeg press release described the actions of the Gambia government as sheer banditry and disregard for the rights of others. The Cordeg press release states:

“Cordeg is aware of the on-going standoff between UDP and Security forces in the North Bank Division of Gambia.

The UDP is a legitimate registered political party with a large support base among Gambians and a constituent member of CORDEG.

For 3 days running, Gambian security forces have blocked the UDP convoy on a countrywide tour to which they are legally and constitutionally entitled.

The Gambia constitution does not require a bona fide registered political party to obtain police permission before touring to hold rallies, unless where a public address system is to be used. The UDP was subjected to a politically- driven police delay tactics to refuse authorisation for use of a public address system.UDP ignored this and proceeded on their nationwide tour to hold rallies and were blocked on the roadside by Gambian security forces, undoubtedly under orders from the Gambian dictator yahya Jammeh,despite any denials.

We unequivocally condemn this act of blatant disregard for the Law, and equally condemn the Gambia government for this act of sheer banditry and disregard for the rights of others.

We hold Jammeh personally responsible for any unsavoury outcome in this on-going saga, and encourage all other political parties and civil society organisations in Gambia and in the diaspora to rally in support of the defiance, and courage showed by the UDP leadership in the party’s quest to proceed with their legitimate right of assembly.

Gambians the world over are following this unwarranted act of thuggery and lawlessness, perpetrated by none other than Yahya Jammeh and his security forces. We encourage every Gambian to lend support to the UDP and other political parties to confront tyranny and end dictatorship.

We will continue to monitor the standoff while lending support to the UDP and other Political parties to go about their legitimate business anywhere in Gambia, and exercise their right of assembly.”

Aib Jobe………. Secretary General CORDEG

WHEN DID ISSUING OF POLICE OR LEGAL PERMITS TO POLITICAL PARTIES TO CONDUCT THEIR ACTIVITIES BECOME A CRIME IN THE GAMBIA – SIDIA BAYO QUESTIONED YAHYA JAMMEH

April 18, 2015
Reads :654
Sidia Bayo accused Jammeh of madness and he is not alone!!!

Sidia Bayo accused Jammeh of madness and he is not alone!!!

The NTCG calls on all Gambian opposition political parties and groups to join forces to stand in solidarity with the UDP but also join the UDP, being the largest opposition party, come 2016 Presidential election to bring an end to the tyranny of Yahya Jamus Junkung Wulubukay Jammeh. They wish to extend their calls to Honourable Ousainou Darboe and Kemeseng Jammeh of UDP, Honourable Omar Jallow of PPP, Honourable Mai Fatty – GMC; Honourable Halifa Sallah – PDOIS and opposition supporters to campaign for a coalition against Jammeh come 2016!

The NTCG is with you in solidarity. And congratulates you all for openly standing up to the Dictator at Fass Njaga Choi. You have all made us proud.

The NTCG has always preached that Dictator Yahya Jammeh is a dumb trouble maker and a person of a bad mind for our dear country. The opposition has long been abused, insulted, humiliated and even beaten in some instances to further his hawkish agenda. But this time must be different and he cannot be allowed to pull off the opposition’s sense of security. Dictator Yahya Jammeh is a Killer and an evil person who deserves no respect. So you are speaking in the very language he understands.

Gambians!

We cannot afford to leave the UDP out in the cold and allow Dictator Yahya Jammeh to do anything he likes on them. When did the issuing of police or legal permits to political parties to conduct their activities become a crime in The Gambia? I am completely dismayed how this can be a big issue in the Gambia today. This is a complete bizarre and that’s definitely enough for this dictatorship to end now. It further shows that Dictator Yahya Jammeh is stricken with delusional paranoia disorder.

Honourable Lawyer Ousainou Darboe is a lawyer, who without any doubt has the greater understanding of the laws of the Gambia than Yahya Jammeh and his ignorant security officers. Therefore this is a nasty spat in our face and the moment has come for us to face-up to Yahya Jammeh.

Fellow Gambians in the Struggle

No matter how different we look, unity is the key. Invariably, let us join together and help the UDP prevent the Dictator from prevailing in this stand-off at Fass Njaga Choi in the North Bank Region. What we can tell our UDP men and women is that they should neither ‘retreat nor surrender’. This is because Dictator Yahya Jammeh is definitely fond of putting his foot squarely in the mouth of the opposition. For this reason, we should begin to tell him that we can no longer take any of his nonsense. We all have a choice to make about our country. Thus, let us avail the UDP with every support by hook or crook to continue to push on their present battle for our freedom. The nonsense in this permit issue itself is so depressing and proves miles that Dictator Yahya Jammeh must go.

Bravo to UDP for deciding to stand their grounds and right now you are the face of the opposition and until all in the opposition reclaim their acts and put them properly together and do something to grind the Dictator and his government of thugs to a halt in order to take back The Gambia, this will continue for worst.

UDP! The defiance must go on and we are doing everything to send in reinforcement as it is often said” if you wish for it, you can work for it”.

THE VALIDITY OF GAMBIA’S DEATH PENALTY REGIME: A QUESTION THE SUPREME COURT ANSWERED INCORRECTLY

April 16, 2015
Reads :551
Author: Lamin J. Darboe

Author: Lamin J. Darboe

By Lamin J Darbo

With the recent announcement of Courts Martial verdicts on the 30 December 2014 State House attacks, the question of the death penalty is back on the agenda as a topic of major public interest. Both sides of the underlying political spectrum informing the December events are curious as to whether The Gambia has a valid death penalty law.  

On the death penalty itself, there is philosophical divergence on its appropriateness as a form of punishment in a public environment professing fidelity to the sanctity of life. This is a legitimate dispute over a public question of great moment, and understandably, the philosophical gulf is not completely bridgeable. For some, there is never any justification for state-sanctioned killing, be it judicial, or extra-judicial. Others are firm adherents to the centuries-old precept of ‘a life for a life’, but only in that specific circumstance. What may not be in doubt is the absolute need for watertight procedural safeguards to ensure that for a transaction so terminal, there are no legal regrets after the fact. The stain of unlawful killing by the state is not cleanable!

In a nutshell therefore, and as far as the death penalty is concerned, the fundamental question to be answered is whether the current state of Gambian law permits state-sanctioned killing. There is no question a gap inheres in the law, and it is therefore the duty of the overall public space to engage with the issue and settle the question publicly and transparently.

It may be argued that the law is clear and there is no need for either visiting or revisiting the issue. And what evidence might be advanced for this contention? In the case of Colonel Lamin Bo Badjie & 6 Others and the State (SC Crim. Appeal No: 1-7/2011), the Supreme Court of The Gambia, in a decision delivered 12 November 2014, spoke on the issue and gave an affirmative answer to the question of whether the country has a valid death penalty law. Although the full Bench of seven Justices of the Supreme Court (JSC) sitting in “review” of the matter pursuant to Rule 54(a) of the Supreme Court Rules decided 4-3 against the appropriateness of imposing the death penalty in a matter involving neither “violence”, nor “the administration of any toxic substance, resulting in the death of another person”, it unanimously upheld the legal validity of The Gambia’s death penalty regime.

On the facts as established in that case, the substitution of life imprisonment for the original death sentence was unquestionably the right decision. It is nonetheless a matter of great concern that the original verdict had to run the whole appellate gamut, and an “exceptional” revisit of related issues including the sentence in a full Bench “review” to reverse the glaringly incorrect death sentences imposed by the trial court, a view echoed by Hon. E. K. Ayebe, JSC (Ayebe, JSC) thus: “It does not appear from the record that in confirming the sentence of death, we took into consideration the fact that we could consider the sentence of imprisonment for life too, that no actual violence has occurred …” (p. 33 of Judgment).

Of additional concern is the fact that Hon. Justice Raymond C. Sock, JSC (Sock, JSC), the author of the opinion the full Bench was moved to “review”, changed his vote on the sentence without accepting the reasoning concomitant to any rational change of vote. Instead of embracing the clear command of section 18 of the Constitution (section 18) and unequivocally accept that the death sentences were incorrect, Sock JSC argued: “Although the Applicants failed to urge the Court of Appeal to exercise its discretion under section 6(4) of the Court of Appeal of The Gambia Act and vary the sentence of the trial court, they did raise it before this Court, as I said earlier. The question, however, is whether the ordinary bench of this Court ought to have exercised its discretion under section 126(3) of the Constitution to vary the sentence passed by the trial judge.  I believe this Court should have done so “in the greater interest of justice to avoid a gross miscarriage of justice”, given the particular circumstances of this case and in the absence of any reason by the trial judge for the exercise of his discretion in sentencing the Applicants to death” (p. 46 of Judgment).

This is an incredible copout by Sock, JSC, in light of the fact that “discretion” was not an issue before the “review” Court. On the facts, the Constitutional pronouncement was conclusive! The “trial judge” had no competence, and therefore no “discretion”, on whether or not to impose the death sentence. Similarly, the ordinary Bench led by Sock, JSC, had no competence to maintain the death sentence of the Applicants. If only for the clear and incomprehensible disregard of 18(3), it acted per incuriam!

Unquestionably, there is sentencing discretion available to the courts when dealing with Section 35(1) Criminal Code offences, with the exception of section 35(1)(f) which imposes a mandatory death sentence. However, when the Constitution, and inferior statutory law speaks to an issue, the former reigns supreme. It wins conclusively! As convincingly articulated by Hon. Justice G.B. Semega-Janneh, JSC (Janneh JSC): “… It is only in respect of offences under section 35(1)(f) that the death penalty is mandatory. But in view of the interpretation of section 18 and the provisions of paragraph 16 of the Second Schedule of the Constitution in relation to the facts, the sentence for which the appellants are liable under section 35 is a sentence of life imprisonment”.

Although the reversal of sentence answered that particular issue correctly, the Supreme Court’s ginger dance around the edges of the larger question did not inspire. On the penultimate issue of whether the Gambia has a valid death penalty law, the Supreme Court answered incorrectly, thereby depriving the overall decision of potential landmark status.

At stake is not so much the sentence per se, but whether the courts have competence to impose the death sentence in light of the architecture created by section 18. Since 2007, no level of court in The Gambia has the competence to impose, or maintain, a death sentence.

Of the opinions by the full Bench of seven, Janneh, JSC, gave the most compelling exposition of the Constitutional principles at stake, concentrating more on the larger purpose of section 18 than the questionable grammatical issues seized on by Sock, JSC – the so-called  “problem” of “the misplaced or dangling modifier” – whatever that means (see pp. 48-50 of Judgment). For Sock, JSC, I merely interpose the Supreme Court of India thus: “The attempt of the Court should be to expand the reach and ambit of the Fundamental Rights rather than to attenuate their meaning and content by a process of judicial construction” (Maneka Gandhi v Union of India, AIR 1978 SC 597).

According to Janneh, JSC, “Section 18 is an entrenched clause and protects a fundamental right and freedom. It has now been repeatedly stated and restated in constitutional cases across common law and other national jurisdictions, that a constitution, particularly the part that protects fundamental rights and freedoms, is given a generous and purposive interpretation” (p. 18 of Judgment, citing Attorney General of The Gambia v Momodou Jobe [1984] AC 670, a Privy Council decision).

But even Janneh, JSC, stopped short of categorically stating that pending a mandatory “review” by the National Assembly, and a possible referendum by the electorate, imposed by the Constitution, the death penalty is placed in abeyance and can neither be imposed nor executed and that those sentenced to death after 16 January 2007 cannot be lawfully killed. Even whilst recognizing the complications embedded in section 18, Janneh, JSC, contends:

... However the death sentence is saved by section 18(1) reproduced above. Section

18(3) contemplates the abolition or otherwise of the death sentence. The effect of this

sub-section has been properly and adequately dealt with by my brother the Hon.

Justice R. C. Sock in the lead judgment under review. I have this to add. It is for the

National Assembly and not the courts to act on the sub-section. It is open to civil

society and society at large to urge upon the National Assembly to belatedly act on

the sub-section, that is to say, “review the desirability or otherwise of the total

abolition of the death penalty in The Gambia”. However, let it be noted that in reviewing

the desirability or otherwise of the death penalty, the National Assembly might well

conclude that a total abolition of the death penalty is not desirable and thereby the

death sentence as circumscribed by the Constitution shall remain in place” (pp. 24-25).

More on the above, but suffice for now that section 18 is entrenched, and as such the National Assembly has no unilateral capacity to decide on the death penalty. Poignantly, Janneh, JSC’s worry about the National Assembly’s direction of travel on a “review” of 18(3) is not a matter for the Supreme Court to ponder. As stated, at section 127(1)(a), the Supreme Court has jurisdiction “for the interpretation or enforcement of any provision of this Constitution …”.

It is therefore a matter of great disquiet some JSC’s are quite dismissive in their opinions on an issue so momentous, and voted to maintain the death sentences without advancing any cogent reasons for so doing. They appear to have lost sight of the enormity of the question they were petitioned to pronounce upon, an inexcusable lapse considering the level of court, and the fact that the machinery of justice continues to impose and maintain death sentences.

For example, the Hon. Chief Justice Ali Nawaz Chowhan offered no original thoughts on the thorny issue of the death penalty, relying instead, and wholesale, for that matter, on the earlier panel of five judgments of Sock, JSC, and then Chief Justice Hon. Emmanuel Akomaye Agim (pp. 81-84, and 89-90 of Judgment), effectively confirming the legality of the death penalty, and more crucially, accepting the implicit suggestion running through the opinions that the jurisdiction of the Supreme Court was ousted, and cannot therefore fashion a way out of the evident legal paralysis 18(3) speaks to. Concurring, Hon. Walters S.N. Onnoghen, JSC (Onnoghen, JSC) states: “While the majority of the full Bench are of the view that the court can and should so review, I hold a contrary view mainly because having held that the application for review failed, the failure is total and includes the sentence as affirmed by the ordinary Bench of the court” (p. 105 of Judgment).

In clear conflict with the considered view of Sock, JSC, that the “the ordinary bench of this Court ought to have exercised its discretion under section 126(3) of the Constitution to vary the sentence passed by the trial judge” (p. 46 of Judgment), Onnoghen, JSC asserts: “the matter of sentence was not made an issue before this court on the appeal, the judgment of which is now on review, so this court has no business engaging on a voyage of discovery in respect of the sentence imposed on the applicants” (p. 105 of Judgment).

Not to be outdone, Hon. Justice E.O. Fagbenle, Ag JSC, states: “The applicant has only reopened and reargued all the issues earlier argued and determined by the full panel of 5. It has not canvassed any new grounds showing exceptional circumstances that has led to a total miscarriage of justice. It is on this score that I agree with the ruling of the Hon. Chief Justice that the application be dismissed” (p. 107 Judgment).

Contrast this with the view of the Supreme Court of India that as “the protector and guarantor of the fundamental rights … it cannot, consistently with the responsibility so laid upon it, refuse to entertain applications seeking protection against infringement of such rights” (Romesh Thappar v State of Madras, AIR 1950 SC 124). With utmost respect to Fagbenle, Ag JSC, the “exceptionality” of a wrongly imposed death sentence, is, at the very least, a legitimately contestable issue.

Notwithstanding the position of the Supreme Court therefore, the question of whether there is a legally implementable death penalty law in The Gambia must be seen as an issue of the highest import. I answer that question in the negative, arguing instead, and unequivocally, that there is currently no legally enforceable death penalty law in The Gambia.

As the reader ploughs through, it would be helpful to afford particular attention to section 18, and more especially, to the explicit wording of subsection 18(3). Of all the entrenched clauses, 18(3) alone incorporate a “sunset” provision mandating very specific action within ten years of 16 January 1997. A corollary enquiry must address the issue of the legal permissibility, and, or, fairness, of unilateral benefit to one side of a transaction akin to a contractual relationship between the state and the citizen. In other words, can the state maintain the death penalty, and continue to profit from it even where its permission lapsed, and it either refuses or neglects to renew that permission? In that kind of climate, can the highest court in the land, with the legal authority to pronounce what is law, legitimately absolve itself of responsibility to do so on a public question of such seminal importance?

Pertinently, section 18 states:

(1) No person shall be deprived of his or her life intentionally except in the execution of a sentence of death imposed by a court of competent jurisdiction in respect of a criminal offence for which the penalty is death under the laws of The Gambia as they have effect in accordance with subsection (2) and of which he or she has been lawfully convicted

(2) As from the coming into force of the Constitution, no court in The Gambia shall be competent to impose a sentence of death for any offence unless the sentence is prescribed by law and the offence involves violence, or the administration of any toxic substance, resulting in the death of another person.

(3) The National Assembly shall within ten years from the date of the coming into force of this Constitution review the desirability or otherwise of the total abolition of the death penalty in The Gambia.

As an entrenched provision, section 18 is amendable only via the restrictive procedure delineated at Section 226 of the Constitution, which states:

(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-

(a) 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

(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-

(a) the Bill is published and introduced in the manner required by paragraph (a) of subsection (2),

(b) 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,

(c) the Bill has been referred by the Speaker to the Independent Electoral Commission and the Commission has within six months of such reference, held a referendum on the Bill and

(d) at least fifty percent of the persons entitled to vote in the referendum have taken part in the referendum and the Bill is supported in the referendum by at least seventy five percent of those who voted

(7) Subsection (4) applies to-

(a) this section (b-d)

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

As earlier mentioned, 18(3), alone of the entrenched clauses has a “sunset” provision mandating a particular action within ten years of the Constitution coming into force. Notwithstanding subsection (4)(b) of section 226 that “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”, it is arguable that at least for 18(3), the mandatory “review” slated for the National Assembly is one of mere administrative routine. Unlike other entrenched clauses with no “sunset” provisions, it appears that 18(3) does not contemplate a defeat of the “review” Bill at the National Assembly stage of the multi-faceted procedure delineated for deciding the “desirability or otherwise of the total abolition of the death penalty in The Gambia”.

But even where the strict constructionist would ignore the internal contradictions that beset the Constitution and allow for the defeat of the Bill at the National Assembly stage of the mandatory “review”, there can be no doubt the “review” must take place within ten years. Where the state refuses to abide by the explicit Constitutional command of a “review”, the highest court in the land must declare a judicial moratorium on the death penalty. On different facts, but with identical underlying principles to the command of a “review” in 18(3) on the status of Gambia’s death penalty law, a differently constituted Supreme Court, in a declaratory judgment, ordered the Independent Electoral Commission “to hold Chieftaincy elections as required by the Constitution” (The Constitutional Law of The Gambia: 1965-2010, by Ousman A S Jammeh, at p. 256).

In that celebrated case of Fasaikou Jabbi v Kebba Fanta Koma, the AG, & Others[Civil Application Number 4/2000] (Sup. Court), the plaintiff, “of Lameng Koto village, Sami District … sought to ensure compliance with the Constitution as supreme law… Jabbi took out an originating summons in the High Court against the Defendants namely, Kebba Fanta Koma, then acting Chief of Sami District, Central River Region, the Minister for Local Government and the Attorney General, praying” thus:

  • “a declaration that the continued holding and performance of the functions and duties of the office of District Chief of Sami District by the first defendant is in contravention of section 58 of the 1997 Constitution and therefore null and void;
  • a declaration that the act of the second defendant to retain the first defendant as Chief for the District of Sami without holding an election to fill the vacancy created by the removal/retirement of Musa Coma is unconstitutional, null and void; and
  • an order or directive restraining the first defendant from parading or holding himself out as Chief of Sami District until he is properly elected as such in accordance with the provisions of the Constitution and the Elections Decree, 1996” (Ibid).

In the emphatic and cogent analytical words of Ousman A S Jammeh, this “was another unprecedented case of constitutional significance arising from an omission, rather than an act of commission on the part of the executive, and by implication, the legislature”. The decision of course found disfavour “with the executive branch” (Ibid, at p. 113), and was predictably followed by a Constitutional Amendment in 2001 making chieftaincy an appointive position, but at least the intervention of the Court spurred movement by the drivers of public policy, in this case the Executive, and the Legislature.

Given its own precedent, albeit by a differently constituted Supreme Court, it is wholly unpersuasive for Janneh, JSC, to interpose an argument akin to what is known in US federal jurisprudence as the “political question”, a doctrine fully enunciated in the landmark case of Baker v Carr 369 US 186 (1962). In deciding that there is no implementable death penalty law, the Supreme Court would not be traversing Constitutional demarcations by intruding into legislative territory. Indeed it is the function of the courts to uphold “the Constitution and to this end, have been conferred the power to interpret it. It is they who have to ensure that the balance of power envisaged by the Constitution is maintained and that the legislature and executive do not, in the discharge of their functions, transgress constitutional limitations” (L. Chandra Kumar v Union of India AIR 1997 SC 1125 at 1149-50).

In the inspiring words of the Indian Supreme Court, “Articles 32, 141 and 142 are couched in such wide and elastic terms as to enable this Court to formulate legal doctrines to meet the ends of justice … To deny this power to the Supreme Court on the basis of some outmoded theory that the court only finds the law but does not make it is to make ineffective the powerful instrument of justice placed in the hands of the highest judiciary of this country” (I. C. Golak Nath v State of Punjab AIR 1967 SC 1643, at 1668-9).

Considering the many currently on death row, the validity or otherwise of the death penalty is a legal question that comes within the competence of the Supreme Court to settle once and for all. In the Indian case of Minerva Mills Ltd v Union of  India, AIR 1980 SC 1789, the Chief Justice, for the majority, ruled: “It is the function of the Judges, nay their duty, to pronounce the validity of laws. If Courts are totally deprived of that power, the fundamental rights conferred on the people will become a mere adornment because rights without remedies are as writ in water. A controlled constitution will then become uncontrolled”.

I accept that it cannot enforce an order directing the National Assembly to “review the desirability or otherwise of the total abolition of the death penalty in The Gambia”, but there is no question that given the wholly legal nature of the matter, the Supreme Court has the Constitutional mandate, and the public responsibility no less, to place a judicial moratorium on the imposition, maintenance, or execution of the death penalty. In the words of Ayebi, JSC, “the framer of the Constitution would want the retention of the death penalty on the statute books in the Gambia considered or given a second look after the operation of the Constitution for a period. That in my view is the spirit of the Constitution” (p. 32 of Judgment), and in this regard, in its interpretive role, “the judicial approach should be dynamic rather than static, pragmatic and not pedantic and elastic rather than rigid” (Pathumma v State of Kerala AIR 1978 SC 771, at 774).

From the onset, there is absolute clarity on the fact that section 18, as part of Chapter IV of the Constitution, is an entrenched provision. The fundamental point to note is therefore that in light of the constitutional architecture on entrenchment, the National Assembly has no unilateral capacity to “review the desirability or otherwise of the total abolition of the death penalty in The Gambia”. In simple terms, 18(3) of the Constitution mandates the National Assembly to initiate a referendum process on “the desirability or otherwise of the total abolition of the death penalty in The Gambia”. The National Assembly can only validly act in collaboration with the electorate. In theory at least, it can also refuse to act by defeating any Bill on amending section 18 of the Constitution, thereby foreclosing any need to consult the people on whether to maintain the death penalty or not.

On any reading of 18(3), it is clear that the National Assembly is under Constitutional compulsion to initiate the “review” process. And provided the most critical hurdle of section 226(4)(b), i.e., “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”, a referendum vote on the simple question of whether or not The Gambia should maintain the death penalty must take place by 16 January 2007 at the very latest.

Albeit partially, I concede there is an argument The Gambia had a valid death penalty law from 10 August 1995 when the AFPRC reinstated it, up to, and including 16 January 2007. That validity, sanctioned by a higher law and encapsulated in 18(1), and 18(2) of the Constitution, lapsed on 16 January 2007. On 17 January 2007, an automatic moratorium on conviction, sentence, and implementation of the death penalty kicked in by virtue of 18(3) of the Constitution. That moratorium is what the Supreme Court must now unequivocally pronounce!

In other words, 18 (1) and (2) ceased to have effect and were placed in abeyance by the express overriding qualifier of 18(3) in so far as the constitutional command of a “review”, and a possible referendum, on the death penalty did not take place. All death sentences not implemented as of 16 January 2007 were constitutionally stayed. And all death sentences imposed since 17 January 2007 were legally invalid. The supremacy clause at Section 4 of the Constitution overrides the Death Penalty Restoration Act 1995 (see Cap 11:02, Laws of The Gambia, 2009). And notwithstanding anything in section 35 of the Criminal Code, no court in The Gambia is competent to impose, maintain, or implement a sentence of death.

Considering the constitutional timelines around a mandatory “review” of the death penalty law in The Gambia, assuming no hurdle at the National Assembly, even 16 January 2007 as an absolute deadline must be construed as somewhat of a charitable interpretation of the law. The outer deadline of ten years assumes the “review” and potential referendum process was in motion in accordance with the stipulated timelines in section 226 (2)(a) of the Constitution regarding publication of 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. This alone is a clear 100 days before the mandatory “review” deadline of 16 January 2007!

On commencement of the Bill’s journey through the National Assembly, it may take a good two to three months through the third reading and voting on the matter. After this constitutionally mandated journey in the National Assembly, and again depending on the decision of that legislative body, the Speaker must refer the Bill to the Independent Electoral Commission which must, within six months of such reference, organise a referendum on the Bill. As the wording on timelines permit some discretion on when certain things happen, e.g., “within six months”, it is reasonable to assume that from the first reading of the death penalty retention or abolition Bill in the National Assembly through the holding of a referendum by the IEC, a solid six to nine months could, at the very least, lapsed.

What this means is that a “review”, and possible referendum process, must have commenced in January 2006 to avoid legal uncertainty over the death penalty. Although the commencement of a “review” and referendum process in January 2006 would not have invalidated 18(1) and (2), it would have suspended the implementation of the death penalty pending the verdicts of the National Assembly and the electorate. Since the mandatory “review” and potential referendum process was not even attempted, a strict application of 18(3) suggests the death penalty was in abeyance as early as January 2006.

If only because the Constitutional mandate was inexplicably ignored by the drivers of public legislative power, in this case the National Assembly, and the Executive, the Supreme Court cannot absolve itself of responsibility to act on the matter. It may well be for the “National Assembly” to act on “sub-section” 18, but there is no question citizens and residents of The Gambia continue to endure the strictures of a law no longer validly implementable.

It may be “open to civil society and society at large to urge upon the National Assembly to belatedly act on the sub-section, that is to say, “review the desirability or otherwise of the total abolition of the death penalty in The Gambia”, but there is no question the Supreme Court has the Constitutional mandate to apply the brakes and impose a judicial moratorium on the imposition and implementation of death sentences. This is not remotely akin to trampling on the domains of either the Executive, or Legislative arms of government, but of protecting the polity itself by removing “certain basic and fundamental values out of the reach of transient political majorities” (Fifty Years of the Supreme Court of India: Its Grasp and Reach, Oxford University Press, 2000). Legality is the software of a democratic political system. Without it, the mainframe is but a mere carcass!

When the question returns to its docket, as it certainly will, the Supreme Court must not again squander the opportunity, and duty, to hold the drivers of public power to account by declaring a judicial moratorium on the death penalty pending National Assembly compliance with a “review”, and potential referendum, as commanded by 18(3) on this thorny, if highly significant issue of public concern.

 

Lamin J Darbo