A Rebuttal To Mr. Halake’s Bad Argument!
Mr. Halake, the first thing to notice in your letter is that you never cited any legal authority or principle of law or interpretation to support your argument. I cited the authority of The Gambia Constitution, i.e., its language and you relied on your own interpretation and which is wrong. Mr. Halake, did your clients advance any valid legal argument to support what they were trying to do? If the law was on their side, do you think they would have thrown in the towel? If the law was on their side do you think we will be having this debate right now? You owe it to your readers to be sincere.
Mr. Halake, how could your clients have the law on their side when they ignored the dictates of 226(2)(a) and 226(2)(b)? Your argument fails for this simply reason and here it is: whether the age limit is one of the enumerated provisions under section 226(7) or not, a constitutional provision under the Constitution of The Gambia cannot be altered without satisfying 226(2)(a) and 226(2)(b) at minimum. That is it. Now when any of those enumerated provisions under 226(7) is in play then not only is 226(2)(a) and 226(2)(b) involved but the whole of 226(4) is in play. This could not be any clearer! Under 226(4) you have 226(4)(a), 226(4)(b); 226(4)(c); 226(4)(d). As I indicated in my last piece, 226(2)(a) and 226(2)(b) are the same as 226(4)(a) and 226(4)(b). Please compare them and see for yourself.
If the argument was that to change the age limit 226(4)(c) and 226(4)(d) would be triggered and you take a contrary position that would be a totally different argument. Let me put it to you this way: Just because the age limit provision is not under subsection 226(7) that does not mean that to change a constitutional provision not under subsection 226(7) your clients may bypass the requirements of 226(2)(a) and 226(2)(b).Sections 226(2)(a) and 226(2)(b) cannot be bypassed. Those two provisions are necessary for any alteration of a constitutional provision as far as the Gambia Constitution is concerned. But they are not sufficient when any of the provisions under 226(7) is in play.
So, Mr. Halake, to say that, section 226 was ignored because it does not cover age limit is preposterous. Are you saying that to alter those constitutional provisions not under 226(7), 226(2)(a) and 226(2)(b) should be bypassed? And you know that the constitutional provisions under 226(7) are very limited. If your argument is to be followed, then all the other constitutional provisions that are not under subsection 226(7) can be altered without the directives of subsections 226(2)(a) and 226(2)(b). This is what I took from your argument and said “then what constitutional provision is safe?” Of course, you took that out of context to score a cheap point. “Then what constitutional provision is safe” refers to all the other provisions that are not enumerated under 226(7), because those under 226(7) already have the extra protection of 226(4)(c) and 226(4)(d). I repeat, to change a constitutional provision as far as The Gambia Constitution is concerned, you cannot escape 226(2)(a) and 226(2)(b) at minimum.
Mr. Halake when the law is not followed, it is not respected. You very well know that to say you respect the law but do not follow the directives of the law is contradictory. My argument would be baseless if your clients did not try to change a constitutional provision without following the dictates of the law. Your clients ignored the dictates of 226(2)(a) and 226(2)(b) did they not? Is it true or not that your clients are in a better position to know what section 226 requires? Are they not both lawyers who have been in practice for a number of years in The Gambia? Have your clients, including the powers that be, not been preaching to Gambians that, “the rule of law will be the order of the day”? If the rule of law will be the order of the day and that is true, then it follows that the directives of the law must be followed. Do you believe that the Attorney General and Mr. Mai Fatty met casually and decided that the next day or there after they would present those two bills at the National Assembly without any further discussions about their intent? You cannot be that naïve. What we are saying is that to change a constitutional provision in The Gambia one must go through subsection 226(2)(a) and 226(2)(b) at minimum. We are defending the constitution and this is the duty of every able Gambian. Did you ever read section 6(2) and 6(3)?Besides the disturbing conduct of your so-called clients, what is also disturbing is that the Executive Committee of The Gambia Bar Association is mute on this matter. What your clients tried to do was illegal. Let me make this point clear, to say something was done illegally does not always mean that what was done was criminal in nature.
I brought subsection 226(7)(g) to demonstrate that while the term of office of the president is included under that provision, and which is not directly at issue, one of the disqualifications, age limit, to that office is at issue. Is it not that repugnant provision that we all think should be changed but done by the dictates of the constitution? So I was not trying to stretch anything contrary to what you said. I was not trying to include the age limit under 226(7)(g) at all. I do not need to do that in order to make the point that the age limit provision cannot be altered without the dictates of 226(2)(a) and 226(2)(b).
Mr. Halake, your definition of “rule of law,” is inadequate. You seem to limit your definition of “rule of law” to a judge’s interpretation of a statute or a constitutional provision. How about this one: “A rule of law is an authoritative legal standard of general application requiring action or forbearance used by courts and administrative tribunals as a norm in deciding the legal significance of particular facts presented in particular cases. In your definition, you also seem to give the impression that a judge may interpret a statute or constitutional provision subjectively. A judge may have his or her own interpretation but it better not be repugnant to a constitutional provision or a statute or a principle of law. At common law, a judge has more flexibility than when the written law is concerned. A competent judge is one who is always guided by precedents, experience, and reason. When a statute or constitutional provision is concerned, one always begins with the language of the text and if it is clear, that is the end of the matter. After the language comes the intent of the writers of the text. Now if you have followed these simple standards, you will not have missed the directives of section 226. One thing I want to mention before moving forward is that, in jurisprudence, the definition of “rule of law” takes on a more universal character because of philosophical considerations.
Mr. Halake, I am not a doyen of anything at all. I did not know what the word meant until I looked it up. I am not who think I am. You have an idea of me that is inaccurate. Let me please dispel that idea of me in your mind. I left The Gambia a few years before Jammeh illegally came to power. So Jammeh’s ghost has no effect on me at all. My sole motivation for getting involved is to see a free Gambia. I chose the pen name Gambian Outsider because I do not belong to any camp. I hide my identity because I am not looking for any credit or be recognized for anything. By the way, I attended the same high school as Mr. Mai Fatty. Mai was a year ahead of me.
You mentioned the newly appointed chief justice. I respect him as a person like I respect everyone else. As chief justice, he has to earn the respect of Gambians. So let us wait until he starts to preside over cases. What a person does speaks more about him or her than that person’s reputation. In his play “Othello,” Act 2 scene 3, the Bard said this about reputation through the mouth of Iago “reputation is an idle and most false imposition oft got without merit and lost without deserving.”
Mr. Halake, as a lawyer, you are making a first year law school blunder with your argument and that is, you are trying to force a square peg in a round hole. Your argument is not based on any authority or principle of law or interpretation and yet you keep pushing it. Thank God you are doing pro bono work for your clients or else they would have a malpractice cause of action against you for bad legal advice.