Pardon Me, Mr. President!

Part The Second!

Mr. Jobarteh’s Argument!

By Gambian Outsider!

Mr. Jobarteh cited Section 85 of the Gambia Constitution but failed to point out that the Justice Department is under the Executive Branch. A careful reading of Section 85 clearly states that the Director of Public Prosecution may prosecute subject to the approval of the Attorney General who is under the Executive Branch headed by none other than President Barrow. So the “separation of power” argument you have been hearing or reading is not at issue in this matter. It does not apply. When President Barrow pardons an accused, this has absolutely nothing to do with the Separation of Powers doctrine.

Section 82 and Section 85 of The Gambia Constitution

Mr. Jobarteh wrote,“ The President has no authority to discontinue any court case in anyway. He has no such power at all. The power to discontinue a criminal case lies with the Director of Public Prosecution (DPP) under Section 85 of the Constitution…”

Mr. Jobarteh’s assertion that “The President has no authority to discontinue any court casein anyway” is false.( emphasis is mine). The “no authority” part is false. The “any court case” is also false. First the President has authority to pardon an accused while trial is ongoing. Second, in saying “any court case” Mr. Jobarteh initially failed to distinguish between civil cases and criminal cases. Here is what I mean. Mr. Jobarteh denied the President the power to discontinue any court case,which is really saying the president cannot use his pardon power in an ongoing court case.  “[A]ny court case” means all cases whether criminal or civil. In truth, the President’s pardon power does not involve civil cases. Such sweeping assertions as the one mentioned above can be found in most of Mr. Jobarteh’s writings. This particular assertion by Mr. Jobarteh involves a logical fallacy but we need not get into that. I am not in the mood to digress.

Dr Janneh’s Take on the Pardon ControversyPlus Some Miscellaneous Things.

Dr. Janneh wrote: “ Clearly, in regard to the control of prosecution, section 85 of the 1997 Constitution explicitly confers specific powers on the Director of Public Prosecutions (DPP) and the Attorney General (AG), but not the President. Therefore, it seems that without consulting the DPP and AG, the announcement by President Barrow to discontinue the prosecution…”  Dr. Janneh failed to state or see that the power to prosecute is with the AG and not the DPP. The DPP cannot prosecute a criminal case without the approval of the AG.  The DPP answers to the AG who in turn answers to the President. If anyone thinks the president does not have the authority to direct the AG as to what to do, then that person is mistaken. Dr. Janneh is also wrong where he said that “Therefore, it seems that without consulting the DPP and AG, the announcement by President Barrow to discontinue the prosecution…” First, Dr. Janneh did not put forth any facts to evidence that the President did not consult with the AG and the DPP. Second, the President is not required to consult the “DPP and the AG” as Dr. Janneh put it. Subsection 82(2) state that “ There shall be a Committee on the exercise of the prerogative of mercy consisting of the Attorney General and three other persons appointed by the President subject to confirmation by the National Assembly.” As is clear from the actual language of subsection 82(2), the President is not required to consult with as Dr. Janneh put it “the DPP and the AG,” but a “committee” that includes the AG.

Dr. Janneh’s understanding of of section 85(1)(c) is fuzzy to say the least. First, Section 85 deals with who may go to court to actually prosecute a criminal case or discontinue a criminal case. The DPP does that subject to the approval of the AG. In truth, the AG does not actually go to a courtroom to prosecute a case. And in the chain of command, there is the Solicitor General (SG) between the AG and the DPP; meaning you have the AG then the SG and then the DPP. Second, Dr. Janneh said “ While some might argue that the spirit of section 85(c)(i) may provide some wiggle room to justify the President to discontinue such a proceeding and thus provide the basis for his sympathisers to back his proclamation to discontinue the prosecutions, it must be clear that section 85(c)(i) is incomplete and goes as follows:

Provided that the Director of Public Prosecution shall not:

  • take and continue any private prosecution without the

   consent of the private prosecutor and the court; or

  • discontinue any private prosecution without the

   consent of the private prosecutor.”

Dr. Janneh said that section 85(c)(i) is “incomplete” and I have no idea what he means by that. Dr. Janneh also talk about “the spirit of section 85” but before talking about the spirit of a law at least talk about the body (the actual language) of the law. And if Dr. Janneh does not understand the language of section 85 and he does not at all, then he certainly cannot talk about the spirit of section 85. Subsection 85 (1)(c), i.e., [85, one, c] deals with the DPP’s power “to discontinue [a criminal case], at any stage before judgment is delivered…”[subject to the approval of the AG, of course]. The “before judgment is delivered” part means once judgment is delivered, only the pardon power can relief the convicted person. Subsection 85(1)(c)(i),i.e., [85 one, c and roman numeral  one (i) and roman numeral two (ii)],on the other hand, deal with a different issue. Subsection 85 (1)(c)(i) and (ii) deal with where a prosecution is initiated not by the DPP but a “private” prosecution and how the DPP can neither continue nor discontinue a private prosecution without the consent of the private prosecutor. So what is “incomplete” about subsection 85(1)(c)(i) and (ii) as Dr. Janneh claimed? Dr. Janneh did not read Section 85 (5) (a)(b)(c). And neither did he read the all too important section 85 (4). Whew!!

Now compare section 82 where the president is required to consultwith the committee and section 85 where the Director of Public Prosecution, DPP, can only proceed with a case subject to the approval of the AGThe DPP’s power to prosecute is limited. He cannot prosecute without the approval of the AG. 

Let’s look at sections 85(1) and 85(4) respectively:

Section 85(1) says: “The Director of Public Prosecutions shall have power in any case in which he or she considers it desirable to do so, and subject to the approval of the Attorney General.”

Section 85(4) says: “In the exercise of his or her functions under this section, the Director of Public Prosecutions shall be subject to the direction or control of the Attorney General.”

Please compare sections 85(1) and 85(4) to section 82(2). The committee, under section 82(2), CANNOT stop or prevent the President from using the pardon power. The president’s prerogative on this matter is not subject to another person’s approval or the National Assembly’s or the Judiciary’s approval.

If the AG has power to approve or rejects the prosecution of a case BEFORE or DURING trial, the President has the power to pardon an accused BEFORE or DURING trial. I say absolutely nothing about what may have motivated the President Barrow to use his power to pardon in the Faraba Banta incident. My concern is NOT what may have motivated President Barrow to use his power to pardon. My concern is that President Barrow has the power to pardon anyone accused of a crime BEFORE, DURING and AFTER trial and the only exception being in impeachment proceedings.

The president’s use of the pardon power during the trial of a case is just slightly different from the AG withdrawing a case when trial of that case is ongoing. Going by their arguments, Mr. Jobarteh and/or Dr. Janneh, would have no problem if the AG does not approve of a case to be prosecuted because the AG has that power under Section 85. And I suspect they would have no problem, if a case is ongoing and the AG asks the DPP to withdraw the case, because the AG has the power to do so. Yet, the President, who is the overall head of the Executive Branch and the AG’s boss is being denied the power to discontinue an ongoing trial by pardoning the accused, yet the AG can do so. A junior officer cannot have more power than the senior officer. That is not how things work. The servant cannot be more powerful than the master. I mean, this is supposed to be clear as the noonday sun.

Here is a very important point that both Mr. Jobarteh and Dr. Janneh failed to see. Chapter 1, section 1 (2) which Mr Jobarteh has quoted often over the years states clearly that:

“The Sovereignty of The Gambia resides in the people of The Gambia from whom al organs of government derive their authority and in whose name and for whose welfare and prosperity the powers of government are to be exercised in accordance with this Constitution.”

What exactly does that mean? It means the powers that the State exercises through the government must be derived from the governed. Meaning, the governed gave such powers to those who govern them. That being the case, it follows that those who govern must be directly answerable to the governed, who gave them those powers in the first place. The AG and the DPP whom both Mr. Jobarteh and Dr. Janneh argued have the authority to discontinue a trial under section 85 but that the president does not have such authority are not directly answerable to the governed, but the president is. So the arguments advanced by Mr. Jobarteh and Dr. Janneh are both inconsistent with chapter 1, section 1 (2) of The Gambia Constitution. The AG and the DPP have powers because of their respective positions under the Executive branch headed by President Barrow to whom all executive powers are vested. Section 76of The Gambia Constitution says:

“The executive power of The Gambia is vested in the President and, subject to this Constitution, shall be exercised by him or her either directly or through the Vice-President, Secretaries of State or officers responsible to him or her.” [It does not get any clearer than this]!

The big picture missed by both Mr. Jobarteh and Dr. Janneh is that in a republican form of government, and Gambia is a republic, you want ultimate power in the hands of those who are directly answerable to the voters. The AG and the DPP are not directly answerable to the Gambian voters, so why would anyone want to argue to give them powers that can affect any Gambian when they are not directly answerable to the Gambian voter. The ultimate power to pardon before, during and after a criminal case ultimately rest with the president, and if Gambians do not like what he does, they can let him know about it when elections come. Because Gambian voters can affect the president directly, it follows that all executive decisions ultimately rest with the president. Hence the president can fire anyone in the executive branch who does things that may cause Gambian voters to take it on him. I mean this is supposed to be simply enough to anyone who has eyes to see. Mr. Jobarth and Dr. Janneh’s arguments are “full of sound and fury signifying nothing.” Macbeth Act 5, scene 5, 19-29.

Here are a few things that cannot happen. When the Judiciary (a court) sentences a convict to jail, neither the President nor the National Assembly can declare the Court’s decision nonbinding. The President may pardon the convict but he cannot declare the court’s action nonbinding. On the same line of thought, if the Court makes a decision, the National Assembly cannot pass a law to undo the Court’s decision, because on matters of law the Court has the last say. Hence, it is an offense to the Separation of Powers doctrine for the National Assembly to pass a law to undo a court decision. The National Assembly may pass a law to change a law that the court has already made a decision on but it CANNOT pass a law to undo a court decision.

There are some readers who believe that both Mr. Jobarteh and Dr. Janneh made legal arguments to advance their respective positions. Neither made any legal argument whatsoever. Neither correctly interpreted section 85. Section 82 is completely ignored in their respective articles. Mr. Jobarteh and Dr. Janneh employed no case law, legal history, or principles of constitutional interpretation to support their respective positions. To simply cite a constitutional provision alone, as both writers did, is not to make a legal argument. Both or anyone of them can say that he is not a lawyer, and that is fine. If a person is not a lawyer and engages oneself in a legal argument, the least expected of that person is to research the topic. Such a person owes that to his or her readers. All are welcome to argue against what I have written. Please make sure that your arguments are “more matter less art.”Hamlet Act 2, scene 2, 92-99.

I did not get into the reasons why and when a president may use the pardon power. For those interested, please read Federalist No. 74 by Alexander Hamilton. I limited my argument to the question whether President Barrow has the power to pardon persons accused of a crime while trial is ongoing. And also, I did not mentioned that trial is notongoing in the Faraba Banta incident but for the sake of argument I take the same position as Mr. Jobarteh and Dr. Janneh and assume that trial was ongoing when in fact it was not. Because trial was not ongoing, Mr. Jobarteh’s and Dr. Janneh’s argument should have been moot, but both writers failed or ignored to make that distinction.

Conclusion 

This article is not intended primarily as an attack at Mr. Jobarteh and/or Dr. Janneh. This article is primarily an indictment on the Barrow administration for its ineptitude. The Barrow administration is incompetent, we all know that, but what is disheartening to me is that even when it is on the right side of the law and legal history, it does not know it or cannot explain itself. President Barrow’s exercise of the pardon power is not wrong at all but look at what happened when some people objected to his action. They became very unsure of themselves and started releasing endless useless press releases.

Some have attacked Mr. Sankara’s person and education and not the press release, and that is unfortunate. In fact, without its opening paragraph Mr. Sankara’s press release was by far one of the best clarifications of what the government had to say about the matter. My brother Sankara’s little struggle is the transition from being an editor of a newspaper to a government spokesperson where he is often kept out of the loop! My brother Sankara’s job right now is to fix damages as in the case of damage control. If he were to be in the loop, some of the government’s blunders would have been avoided or minimized.

One online newspaper said this about the AG: “Attorney General Ba Tambedou Slacks again, Calls President’s Press Release ‘Poor Choice of Words.’” If anyone thinks the AG’s blunders are accidents then that person(s) have not been paying attention. All matters that deal with constitution law and contracts law, the AG has so far blown it.

Dr. Isatou Sarr made the most accurate analysis of the pardon issue when Mr. Jobarteh first wrote about it. Her analysis of the matter was slightly off but overall very good analysis, but unfortunately, she was somehow vilified for her mostly correct assessment. Keep it up sister Sarr! Some people try to find fault in sister Sarr’s analysis because of pure jealousy. We believe and we come to know that wisdom does not dwell in unclean hearts!

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