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Hon. Halifa Sallah’s heart is in a good place

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Hon. Halifa Sallah

I have stated it in the past and I still maintain the claim that ideologically speaking, there are two political parties in The Gambia and they are the United Democratic Party (UDP) of Lawyer Ousainou Darboe and the People’s Democratic Organization for Independence and Socialism (PDOIS) of Hon. Halifa Sallah.

Speaking from the other side of the political divide, I can attest to the fact that Hon. Halifa Sallah has earned the respect of even his opponents despite the differences in political ideology. Seeing how passionately he talks about the Gambian situation tells you all you need to know about his patriotism. His colleagues in politics know this even though ideologically they may differ and they speak well of him when the occasion arises. No one in their right mind will question his love for The Gambia and that is not the issue, never has been for those of us that consider ourselves objective.

Politics can get tense sometimes and every player is vulnerable to such tensions and may get carried away in their criticisms of one another. We remember his rare outburst on the house floor against the speaker, which he retracted. It is understandable that if such passion and principled opposition as he hold, meets with what is deemed inaction or failure, it can be frustrating even for the most patient among us. But we must look past that some times.

We should not shy away from recognizing the good in others while still differing with them on policy, especially people who have given much for country. For too long we have put too much focus on personalities as opposed to ideas, yes personalities compliment policies and ideas. However, Hon. Halifa Sallah the person must be separated from Hon. Halifa Sallah the politician; a very capable politician if I may add, and I will not shy away from acknowledging that but still I differ with him on ideology hence my opposition to his policies. I get that he means well for the country, never doubted that for a moment and having to add that disclaimer in and of itself is telling as far as our politics is concerned, which is unfortunate, but I digress.

Despite his good sense and patriotism, when it comes to approach on how to address some of our most pressing needs, we witness flaws in strategy. Not saying these are deliberate but they are flaws nonetheless.

In his passionate speech in the adjournment debate on the President’s State of the Nation Address which earned him a few more new admirers, Hon. Sallah stated the following with regards to the position on the President’s mandate. “…So it is the President who can honor his mandate as per the coalition or honor his mandate as per the constitution. But as soon as he became president, he could no longer be controlled by the coalition. He is now under the mandate of a constitution…”

This is the truth and it has been the point of contention since the swearing in of the new president; a Coalition President versus an Executive President. The former being a President willing to be beholden to his coalition partners on direction and policy and the latter beholden only to the constitution and the executive powers accorded to him thereof.

The glaring flaw in this being that too much, in fact everything rode on the President’s discretion and willingness to be an honorable person to do what was expected and be morally obliged to abide by the terms of his agreement. I will not call it naiveté, but that was too trusting of all the parties concerned. Power corrupts and all who seek it should know that.

The plans encoded in the Memorandum of Understanding included such things as consultations with and approval by the coalition stakeholders on any executive appointments and or sackings. As quoted above, was the realization from the onset of the fact that the President assumed executive powers upon being sworn in one reason why PDOIS was visibly absent from the cabinet? In the same argument, he stated;

“…we should have continued to build a nation, not political parties. So if any of us sit here today in the name of political parties and you claim that you are in support of that coalition agenda, I will say you are not! [That] coalition was torn to shreds, and now you have an executive president who will appoint you and remove you as former coalition partners. Where is your coalition power? Do you have power to remove him? Do you have power to determine whether he sits for 3 years or 5 years? You have no power, you the coalition members. You don’t have a coalition. That is the truth…”

Indeed, it has become a coalition only in name. My only issue with that is the fact that the President did not assume executive powers because the coalition was “torn to shreds” but because he was in fact an executive president from day one as per the constitution and the coalition partners never really had any powers over him beyond that which he was willing to accord them. If he was to stay the course and abide by the coalition arrangement, he could have done so by not exercising any of his executive privileges but rather deferring such to the coalition. But there was no legal mechanism contained in the agreement that could have curbed his executive powers, in fact the inclusion of such a clause in the agreement would have been illegal; this points to another flaw.

Yes, the intent was very noble and well-meaning but it lacked the necessary instruments to safeguard the good intentions. Imagine all of them resigning from their parties and assuming their roles as Independent National Assembly members with no party affiliation working with a president with executive powers that he can rightfully claim and exercise at a whim?

A somewhat similar scenario happened when NADD was formed; sitting NAMs lost their seats forcing by-elections in their respective constituencies. Had we had Independent National Assembly Members, and the president reneged on his promises as he in fact did, those NAMs would have had to wait until the next election cycle to go back to their respective parties or do so midway through their term and risk a constitutional crisis.

When Lawyer Ousainou Darboe, who was absent from the 2016 coalition talks stated that “morality is not law”, his statement was not welcome among his opponents. This followed queries that were made after he publicly stated disagreement to the terms of the coalition arrangement citing that it was legally unenforceable. To many, this fractured the coalition even though they agreed that the terms of the coalition agreement do not conform to the constitution of The Gambia. Their argument was that the president abiding by the terms of the agreement was the moral thing to do, to which he responded that morality is not law.

It may not sound politically correct, but it is factual. May be a fact we did not need to hear at the time it was said. Sometimes we (his supporters) wish he will don a politician’s hat and lose the lawyer hat on some issues, but as a constitutional lawyer, he still sticks to his trade and that is commendable. He disagreed with the NADD strategy citing similar arguments.

When the issue of a three year versus five year transition was first raised at a press conference, he said the following;

“I do not think that anyone in his right mind, anyone who knows how the constitution of this country works, will advocate that Mr. Barrow steps down at the end of the three years. I have made it known, since they have gone public, I have made it known at the meetings that that statement is a none starter and I will be the one who will challenge that in the courts; the unconstitutionality of such an arrangement. Few private citizens, you get together you say [sic] let us agree to violate the constitution, and you accept that?  And yet, you want to put in place a government that will respect the constitution, but then you will have to start violating the constitution before it can be replaced. It is an irony; it is unorthodox, it is illogical.”

One can argue, and rightly so that the situation demanded a coming together of political players to oust tyranny and no matter how fragile it was, that unifying spirit needed to be nurtured and sustained, but we can equally argue that he has a point.

In his defense, Hon. Halifa Sallah does in fact know the constitution, its dictates and how it works but he banked on a constitutional provision in Section 65.

“…When that [sic] five years was being discussed, we knew that that’s what the constitution says. You don’t need to negotiate that. That is the language of the constitution. We only said three says as a tactic not to deprive anybody of power but as a tactic, and the tactic succeeded…under the Gambian constitution, section 65 provides for resignation by any person who is president. And we were banking on that provision and amendments of the constitution to carry out what was our agreement…”

Again, this is a reasonable expectation but it puts too much trust in the President-elect who turned out to not be as honorable as hoped and now the mandate defaulted to the constitutional provision.

This is by no means an attempt to vilify one or vindicate another. The Sidia Jatta, Halifa Sallah and Lawer Darboe generation of politicians deserve our utmost respect and recognition for their sacrifices considering the system they operated under. Satire and political differences aside, they should be celebrated.

But if we have one lesson to learn here, it is that every contractual agreement should, and MUST be backed by legal provisions, where failure to execute the terms agreed upon can be enforced by law. The Coalition 2016 MoU fell short of this despite its noble intent.

People who seek power must be restrained by legal instruments; morality does not prick at their conscience for a majority of them.

For example; a waiver could have been drafted in which the selected flag bearer would sign a sworn affidavit that he/she has agreed to waive his/her constitutional rights to contest the upcoming elections in honor of the agreement that brought him/her to power. Furthermore, all stakeholders in that agreement could sign sworn affidavits, that should they seek, or acknowledge endorsement from the president in their bid to form the next government, it should serve as grounds for disqualification by the Independent Electoral Commission (IEC).

This would have been enforceable and the IEC could be challenged in court to reject the transitional president’s nomination bid on those grounds and the nomination application of any candidate who receives support from the transitional president.

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