Subject: NADD AND NATIONAL ASSEMBLY MEMBERSHIP

 NADD MEMBERSHIP NO EFFECT ON TENURE AS  MEMBERS OF NATIONAL ASSEMBLY

 In so far as a constitutional provision touches on it, the question
as to the National Assembly status of  serving members from PDOIS, NRP,
and UDP – all constituent parties of  NADD – constitute a legitimate
issue for public discourse.

 According to a Daily Observer story (29 April 2005), there is a
school of thought comprising a 'prominent lawyer', a 'political
commentator', and 'Fatoumatta Jahumpa-Ceesay' whose opinion it is that the affected
National Assembly members should resign 'by virtue of their membership
of NADD'. They cite section 91 (1) (d), of the 1997 Constitution of the
Republic of The Gambia as their authority for this contention. Is their
conclusion sustained by the provisions of 91 (1) (d)?

 At 91 (1) (d), the Constitution provides, inter alia, that a member
of the National Assembly shall vacate his or her seat in the National
Assembly "if he or she ceases to be a member of the political party of
which he or she was a member at the time of his or her election". It is
noteworthy that this particular subsection attracts a proviso to the
effect that "nothing in this paragraph shall apply on a merger of
political parties at the national level where such merger is authorized by the
constitution of the parties concerned".

 There is nothing to remotely suggest that the affected National
Assembly members have ceased to be members of the parties on whose platforms
they were elected. The NADD memorandum of understanding explicitly
recognizes the existence of its constituent parties, as well as the ability
of each party to freely withdraw from the group if it so wishes.

 On the scenario generated by the registration of NADD, 91 (1) (d) is
not triggered because the proviso controls any legitimate
interpretation of the status of the National Assembly members of some constituent
parties of NADD. Even where I concede that "ceases" may sustain meanings
such as "expulsion", and "defection" in particular circumstances, it is
preposterous to refer to PDOIS's membership of NADD as a "defection".

 The Interpretation Section of the Constitution is silent on the
definition of "merger". In light of the explicit statements on the nature of
the alliance in NADD's memorandum of understanding, and the plain
meaning we must attribute to "merger" in the constitutional context, the
proviso in 91 (1) (d) negates the conclusion of the Daily Observer's
distinguished trio of analysts.

 In constitutional jurisprudence, the interpretative canon utilized
must generally be expansive in dimension. The particular section at issue
does not sit well with the doctrine of the rule of law. It also
perverts any notion of governmental accountability to the people of The
Gambia. In so far as it intrudes on the legislative domain, it violates the
separation of powers. The sub-section is an integral element of the
executive's micromanagement agenda across the entire spectrum of our public
life.

On what defensible reasoning should the government intentionally
arrogate to itself - and to other parties by incidental extension - the
power to nullify the decision of an electorate by expelling an elected
member from the National Assembly through the subversive route of
terminating party membership? I do not question the authority of a party to
expel its member, but if that member is an elected representative,
democratic parliamentary practice dictate that a current term be served unless
proven criminality overrides.

 What section 91 (1) (d) clearly demonstrates is the executive's
controlling agenda over all spheres of Gambian public life. The government
was well aware of the efficacy of 91 (1) (d) to its overall design of
controlling the legislative branch by permanently keeping the threat of
expulsion over its National Assembly members. If there is any certainty
as to what the section precludes in its general anticipatory outlook,
it is its inapplicability to the scenario presented by NADD.  In the
appropriate circumstances, the government would want to avail itself of a
merger opportunity. The section at issue deliberately leaves that
possibility open, and that is why the anonymous consultants are betting on a
crippled horse.

 The Daily Observer's distinguished consultants in the form of a
learned lawyer, and political commentator, need not maintain their anonymity
on such a momentous national question. Or are they hedging their bets
just in case?  As to FJC, she can probably advance this national debate
and the cause of democracy by digging into National  Assembly records
to help us better understand the legislative history surrounding 91 (1)
(d).

Or may be their crusade in the cause of legality and
constitutionalism may acquire a more meritorious dimension by gently reminding the
President of a live issue of  constitutional perversion. They should remind
His Excellency that the unprincipled and sycophantic American squatting
in the cabinet must be released in obeisance to section 71 (2) of the
Constitution which precludes a dual national from serving as a Secretary
of State. Amadou Scattred Janneh is incapable of fulfilling his oath of
office to uphold and defend the Constitution in his explicit awareness
of his legal incapacity to hold the office of a Secretary of State. It
is my contention that in its present form, the Constitution is
incapable of promoting the rule of law in The Gambia. But for now we must
adhere to its commands, if grudgingly, and in that regard I call for the
immediate expulsion of Amadou Scattred Janneh from his squat.

As to Hamat Bah, Kemeseng Jammeh, Sidia Jatta, and Halifa Sallah,
they should take comfort in the Constitution's guarantee of their rights
to serve out their current terms as National Assembly members
notwithstanding the outlandish conclusion of the Daily Observer's consultants.
Why precipitate a baseless constitutional crisis when you should be
shouting from the rooftops for adherence to legality by calling for the
immediate dismissal of an illegal Secretary of State.

As they do not, and will not have the final word on the issue, the
Speaker of the National Assembly, and the Chairman of the Independent
Electoral Commission, are better advised to stay well clear of an
ill-informed conclusion not sustainable in law.

Lamin J Darbo



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