As Curious Provisions Come to Light Is Decree 89 Really Dead?



The Independent (Banjul)

ANALYSIS
August 20, 2001
Posted to the web August 20, 2001

Banjul, the Gambia

All persons who mean well for The Gambia have welcomed with great relief the
decision of the APRC government to repeal Decree 89, which had barred all
the previously existing political parties i.e. PPP, NCP and GPP. Decree 89
however exempted the PDOIS and the PDP from the ban. The Decree also, we
will recall, barred all former members of government between 1965 and 1994
from engaging in any political activities.

The lifting of the ban, announced on 22nd July 2001, was seen by friends of
The Gambia both here and abroad as a genuine move by the government to
create a level playing field and open up the democratic process to enable
Gambians freely determine who their political leaders will be.

Now that the euphoria of the lifting has died down - and chaos and confusion
has set in within the opposition (the intended or hoped for effect of the
lifting of Decree 89 perhaps?) we should seriously ask ourselves whether the
lifting of the ban imposed by Decree 89 makes any difference. Now that
Decree 89 is no longer there, can it be said that come October 18th 2001,
the Gambian populace will be able to exercise their right to select
political leaders of their choice free from manipulation and on the basis of
a level playing field?

We at The Independent do not believe that this will be the case. Decree 89
may be dead. But the APRC government has seen to it that it is resurrected
surreptitiously and to the ignorance of the general public in various forms.

Take elections to the Office of President. Section 62 of the Constitution
sets out the qualifications or disqualification to that highest office in
the land. Of immediate relevance is the fact that anyone found by a
Commission of Inquiry to be guilty of misconduct, negligence, corruption or
improper behaviour is disqualified. Disqualification for corruption is
justifiable but the other grounds are so vague and broad that they can be
made to apply to the most superficial conduct. There is no time limit also.
Once found liable, forever disqualified! This is not reasonable. For even a
criminal conviction and imprisonment does not under the Constitution
disqualify a person at all or permanently from contesting for the
Presidency!

But revenous a nos moutous! The point we wish to stress here is that this
constitutional provision bars most members of the former PPP government who
were adjudged guilty by the Akoto Bamfo Commission as set out in the
government white paper.

Another disqualification provided by Section 62 of the Constitution is that
anybody who has been compulsorily retired, terminated or dismissed from such
office is barred from the Office of President. On 29th March 1995 the AFPRC
military government passed Decree No. 30, which came into effect
retrospectively on 22nd July 1994! By Section 5 of that Decree all those
persons holding office as President, Vice President, Ministers,
Parliamentary Secretaries etc on 22nd July 1994 were dismissed forthwith. It
is only now that the importance of this Decree No. 30 and this curious but
hitherto innocent looking provision is becoming obvious.

The result is ex-President Jawara, Vice President Sabally and all Jawara's
ministers and parliamentary secretaries are by reading Decree 30 and the
Constitution together banned from contesting the Office of President. This
is irrespective of whether or not one had been found guilty of corruption,
misconduct etc. There is no time limit on this ban. It is forever! Mere
dismissed by the military regime has disqualified them all.

But this ban is also much wider. It is not only the ex-politicians who have
been dismissed from their offices. Scores of well-trained, hardworking and
experienced civil servants have also been arbitrarily dismissed. They too
are banned by virtue of Section 62 of the Constitution. So also will all
those who will be dismissed in the future by the government! Will the people
have a better deal when it comes to National Assembly elections? We think
not.

Section 90 of the Constitution disqualifies from membership of the National
Assembly any person who has been found by the report of a commission to be
incompetent to hold public office. This disqualification, unlike in the case
of the Office of President, is not permanent. But under Section 90 of the
Constitution any person who is disqualified from membership of the National
Assembly because of such a finding and banned from public office will
continue to be ineligible for the National Assembly for a minimum of five
years after the ban from public office has expired. So if a commission has
banned you from public office for five years, then it means for ten years
from the date of the ban you are disqualified from membership of the
National Assembly. If you have been banned from public office for ten years,
you cannot contest National Assembly election for fifteen years from the
date of your ban from office!

Come the National Assembly elections in February 2002, most of the members
of the PPP regime will thus be ineligible to contest. And since the minimum
period for a ban from public office was for five years, it is likely they
will still be ineligible to contest the National Assembly elections in the
year 2002!

Thus by a combination of the Constitution and other Decrees the door is
still firmly closed to reconciliation with and rehabilitation of the old
political guard and the opening up of the political playing field. Little
wonder that APRC National Mobiliser Yankuba Touray and Secretary of State
for Justice Joseph Joof have been gleefully alluding at public meetings to
the existence of other conditions for qualifications/disqualification apart
from Decree 89.

The repeal of Decree 89 makes little change in our body politic. The cards
are still heavily stacked in favour of Jammeh and the APRC. Come October
18th Jammeh may well win comfortably, with all the credible challenges still
having been eliminated from the race. Whether that augurs well for the
future in terms of national peace and reconciliation may be a different
kettle of fish altogether.


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