Part II
Alagi Yorro Jallow
Fatoumatta: James Madison once stated, “The concentration of powers is the essence of tyranny.” The amalgamation of legislative, executive, and judicial powers, whether held by one, a few, or many, and no matter the method of acquisition, can justly be considered the very definition of tyranny. In The Gambia, the critical issue requiring attention during constitutional reforms is the presidency, which occupies the pinnacle of the Executive branch. This challenge has persisted from the First Republic through the Second Republic and continues to plague the emerging Third Republic, still governed by the 1997 constitution. The debates on necessary reforms in The Gambia have clearly indicated that the escalating corruption and impunity, in spite of the Constitution, are a consequence of the excessive presidential powers enshrined in this supreme law.
A presidential system of government poses significant risks of political instability and the potential for regime collapse. This often results from the erosion of constitutional norms, such as judicial independence, under the pretense of maintaining the rule of law and ensuring criminal accountability. Advocates for a rich, pluralistic democracy, as outlined in the new Constitution, where elected governments are subject to checks and balances, must champion judicial independence. Without it, we stand to lose this vital safeguard of liberal democracy. In Gambia, the decline of the rule of law is frequently linked to dramatic events like President Yahya Jammeh’s power grab in 1994. Yet, similar outcomes can also be achieved through more subtle means, such as the constitutional consolidation and concentration of presidential powers.
The Gambians bravely resisted misgovernance and political oppression, securing a victory for democratic forces. However, the progress of multiparty politics was overshadowed by a critical defect: the imposition of an all-powerful presidency that undermined these democratic gains. Unfortunately, the architects of this strong presidential system soon felt regret as the authoritarian president began imprisoning political opponents and banning newspapers and books, actions controlled by a select few. Domestic opponents were occasionally assassinated or disappeared mysteriously.
Fatoumatta: In their desperation, some dissenters opted for exile rather than face danger. The Gambians soon realized that the flaws of the previous regime had smoothly carried over into Adama Barrow’s administration: widespread corruption, unbridled impunity as the Executive flagrantly ignored constitutional reform measures, and the undermining of the electoral process, which was the only democratic way to change governments, to tactics designed to maintain the all-powerful presidency.
The problem with an omnipotent presidency is that it can prevent constituencies from accessing resources through the Executive’s power. The structure of the Executive allows it to operate without accountability to the National Assembly. A Cabinet Minister may even defy the National Assembly, and a chief executive who is not required to enforce the National Assembly’s decisions, even when they become law, is a cause for concern. This was evident during Yahya Jammeh’s reign when he wielded imperial powers. The definition of law was entirely dependent on a partisan President. Between 1997 and 2016, there were at least 54 amendments to the Yahya Jammeh 1997 Constitution, many of which eroded constitutionalism and the separation of powers. Significant changes included the establishment of a republican status with an executive President, the removal of “specially-entrenched” provisions, an increase in the President’s control over civil service appointments and dismissals, relaxed restrictions on emergency powers, an extension of the president’s clemency prerogative to electoral offences, the creation of a de facto one-party state, and the elimination of the Independent Electoral Commission, Auditor General, and judges’ tenure security. The stripping away of crucial constitutional components and the ensuing legal/political order led to widespread dissatisfaction, triggering demands for constitutional reform in The Gambia.
Fatoumatta: The President is endowed with extensive executive powers, which arguably grant the office an expansive and potentially unlimited range of authority. These powers include approving foreign travel for the Vice-President and cabinet members, exercising the Republic’s executive power, creating public service positions, determining public service terms, and naming the Attorney General. They also involve choosing nominated members of the National Assembly, appointing members to the electoral commission, calling for the prorogation or dissolution of the National Assembly, selecting the Chief Justice, appointing appellate judges, and naming members to the Public Service Commission. Furthermore, the President has the authority to appoint the Auditor General, permanent secretaries, the Cabinet Secretary, the Director of Personnel, ambassadors, and High Commissioners, as well as the power to allocate Trust Land for government use. The arguments against a presidency with excessive power are well-established and significant.
Consequently, only a select few instances can be mentioned for the purpose of this discussion. Firstly, an overly powerful presidency can weaken the judiciary and, as seen in The Gambia, the legislature as well. Moreover, it erodes the fundamental principle of the separation of powers. It may also provide the political elite with the means to employ extra-legal methods to evade and suppress political opposition. As a result, it undermines the rule of law, fostering a society built on fear rather than constitutional values.
Poor leadership often persists because some citizens tolerate misgovernance. The autocratic APRC regime in The Gambia, for instance, had its share of support and praise from certain groups. Signs are emerging that a governance style similar to the APRC’s is making a comeback in the country, marked by police brutality, rampant corruption, excessive foreign travel for daily allowances, defective legislation, and growing sycophancy among the educated elite. Advocates of misrule and ethnic politics wrongly assume they will be spared in the event of the country’s downfall. However, history shows that the victims of the APRC’s tyranny and mismanagement were drawn from all Gambian ethnic groups, including those from the ruling tribes at the time. Providing examples could further illustrate this point.
The advantage of a parliamentary system of government is its capacity to prevent the concentration of executive power, which can obstruct democratic and economic development. Authority would be vested in a broader and more democratic entity, the National Assembly. Decentralization of power comes not from the quantity of individuals in the presidency but from the dispersion and formalization of power among the three branches: the presidency, the National Assembly, and the judiciary.
Fatoumatta: In a diverse nation like the Gambia, achieving consensus is crucial for effective governance. The presidential system’s “winner-takes-all” approach can result in the dominance of one individual’s viewpoint over the collective needs of various groups. Ongoing discussions aim to strengthen democracy by reforming the electoral process. Suggested reforms include imposing limits on political party spending, synchronizing election schedules, and announcing results by clusters of booths rather than individual constituencies.
Comprehensive debates are vital, and there is a need to motivate elected officials to enact constitutional amendments. The citizens’ role is as vital to the nation’s operation as that of the government. Therefore, a thorough revision of the electoral procedures is necessary.
Politicians who vow to “restructure” the Gambia without clarity on their intentions or acknowledgment of the efforts needed to modify the country’s framework are simply using a vague, emotionally charged term to capitalize on the dissatisfaction of those upset with the evident weaknesses of the current system to gain power.
