by Alagi Yorro Jallow
MAMUDU: A Presidential System of Government Is A Perversity!!!
“Concentration of powers is tyranny”. The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny”- James Madison.
Mamudu: The elephant in the room Gambians debate on constitutional reforms is the presidency, the pinnacle in the Executive system of the government. This has been an issue since the First Republic. In the debates on the reforms we need in the Gambia, it is very clear that the corruption and impunity that have been on the rise notwithstanding the Constitution are all due to the enormous presidential powers that are still protected and nurtured by the supreme law.
Mamudu: A Presidential system of government is a perversity with substantial risks of political instability and even regime collapse. This can be through a process of eroding constitutional norms such as judicial independence in the name of rule of law (criminal accountability) itself. It is time for everyone who shares a richer conception of pluralist democracy envisioned in the new Constitution, in which the legitimate power of elected governments is subject to checks and balances, to stand up for judicial independence. Otherwise we may one day wake up to realize that this crucial bulwark of liberal democracy has been lost.
Mamudu: When Gambians imagine the death of the rule of law, we usually envision some dramatic scenario, such as the edict of President Yahya Jammeh, a dictator who has usurped power by force in 1994. Yet the same end can also be pursued through more mundane actions, like accumulation and concentration of powers to the President confer by the Constitution.
Gambians heroically resisted this misrule and political oppression. It was a victory by the democratic social forces. But the gains of multiparty politics had one drawback: They were grafted on top of an all-powerful presidency which undermined these gains for democratic struggle!
Mamudu: It did not take long before some of the architects of the strong presidency system started to regret. The strong president started to imprison political opponents. Newspapers and books were banned at the whims of a few at the top. Opponents from within were occasionally assassinated or disappeared mysteriously. Clinging to dear life some dissents voted with their feet into exile.
Very soon Gambians realized that the evils of the old system were easily imported into the coalition regime: Corruption ; impunity (the Executive easily ignored the resolutions on constitutional reform) and soon the only democratic way to change governments through elections fell victim to the machinations for the survival of the all-powerful presidency.
Mamudu: The problem, however, is that constituencies have been denied access to these resources due to the powers wielded by the Executive. The structure of the Executive is such that it will continue to behave with impunity because it is not really answerable to the National Assembly. What of a Cabinet that cannot be questioned on the floor of the House and a chief executive who is under no obligation to implement decisions of the National Assembly, even when they have been passed into law? What becomes law is entirely dependent on a partisan President?
By 1997-2016 there had been at least 54 amendments to the 1997 Constitution most of which served to erode constitutionalism. They made illusory the doctrine of separation of powers. Of these, the most notable were the establishment of a republican status with an executive President; abrogation of the “specially-entrenched” provisions; enhancement of the President’s powers on the hiring and firing of civil servants; relaxation of the restrictions on the exercise of emergency powers; extension of the president’s prerogative of reprieve to electoral offences; establishment of a de jure one-party state; removal of the security of tenure for the offices of the Independent Electoral Commission and Auditor General and, lastly, removal of the security of tenure for judges.
Many people were dissatisfied with the removal of valuable aspects of the constitution and the consequent legal/political order. Several factors have thus been propounded as having provided impetus to the clamor for constitutional reform in the Gambia.
Mamudu: Of the executive powers of the President confer upon the institution of the Presidency wide and, arguably, illimitable powers. These include approval of foreign visits by Vice-President and cabinet ministers, exercise of the executive authority of the Republic, constitution of offices in the public service, determination of tenure of office in the service of the Republic, and appointment of the Attorney General. They also include the appointment of nominated members of the National Assembly, appointment of the members of the electoral commission, proroguing and dissolution of the National Assembly, appointment of the Chief Justice, appointment of judges of appeal, appointment of the members of the Public Service Commission. Further, the President’s powers include the appointment of the Auditor General, appointment of permanent secretaries, appointment of the Secretary to the cabinet; appointment of the Director of Personnel; appointment of ambassadors, and High Commissioners; setting apart Trust Land for purposes of government. The arguments against an inordinately powerful presidency are legion.
Consequently, only a few may be cited for purposes of this discourse. First, an exceedingly powerful Presidency weakens the judiciary and, in the Gambian experience, the legislature. Further, it undermines the immutable doctrine of separation of powers. It may give the political class a leeway to adopt extra-legal mechanisms for avoiding and suppressing political dissent. Consequently, it negates the rule of law, creating a society founded on fear rather than the values embodied in the Constitution.
Mamudu: Random thought: bad leadership only thrives because the citizens, or at least some of them, acquiesce in the misrule. Even the autocratic APRC regime had its supporters and praise singers. And there are too many tell-tale signs that APRC -type of rule is slowly re-emerging in the Gambia. They include police brutality, rampant corruption, overseas foreign travel chasing for periderm payments, bad laws in the statute books, heightened sycophancy among apparently well-educated people etc.
Mamudu: The supporters of misrule and ethnic politics erroneously think that they will be spared when the Gambia goes to the dogs, but they are gravelly mistaken. If you look at the list of past victims of APRC dictatorship and misrule, they reflect all Gambian tribes, including persons from the tribes that were ‘in power’ at the material time. A few names may illustrate the point.
Mamudu: The attraction of the parliamentary system of government is that it will do away with this concentration of executive power which is detrimental to our democratic and economic development. The power will now be vested in a much more diverse and democratic institution called National Assembly. Power gets deconcentrated not by the number of individuals who populate the presidency but by how power is shared and institutionalized among three institutions: the presidency, National Assembly and the judiciary.