The whole recent discussion as to whether it is constitutional for President Barrow to remove a nominated national assembly member (Ms Ya Kumba Jaiteh) has been missing the more important question. The key question is why is The Gambia still operating under a constitution that was designed with the sole purpose of perpetuating Jammeh’s autocratic rule? Delving into the details of the constitutionality of the government’s actions at this point in time is missing the trees for the forest.

It would not surprise me that it was constitutional for the president to dismiss a nominated national assembly member (NAM), given the origins of the current constitution. Would Jammeh have allowed a situation where he would appoint a NAM but couldn’t remove him or her? Does it sound like the modus operandi of an autocrat to voluntarily impose a check upon himself? If such provisions somehow managed to find themselves in the constitution, the APRC-controlled national assembly and the President Jammeh would have promptly removed them.

It might come as a shock to many people to realize that even the Chief Justice can be summarily removed by the president. This is because our current constitution allows it. In a real democracy with separate branches of government, and the existence of checks and balances, this shouldn’t be the case. But in our current constitution that was crafted for the sole benefit of Yahya Jammeh, these defects were not bugs but rather features.

We all know that during the consultations for the constitution, there was widespread support for a term limit. But that requirement was removed because it didn’t suit Jammeh. There was also supposed to be a minimum age for the president. That was similarly removed because it would have disqualified Jammeh.

These are just few of the many features in our constitution that are not consistent with what we would desire given our hope for a real democracy today. I’m sure a close reading of our constitution would find many others. Would it be a worthwhile use of our time to debate the constitutionality of any actions by today’s government as long as we have a constitution crafted by a dictator?

But here we are. It has been over two years since Barrow’s government came to power. No urgency has been put into revising the constitution or amending some offensive elements of it. May be this situation suits President Barrow very well. After all, he is now benefiting politically by removing a NAM who has been a little inconvenient for him politically.

The discussion of whether certain actions by the government are constitutional or not is the wrong area of focus. President Barrow and his advisors know perfectly well all the problem areas of the constitution.

The fact that he is not only failing to move to change it but is now actually taking advantage of those problematic provisions demonstrates that the delay is deliberate. If the problem areas where affecting him politically, he would have ensured that they had long been removed. In fact, a government that truly cares about democracy would ensure that they do not take advantage of provisions in our constitutions that were put there to perpetuate an autocratic rule.

It is instructive to look closely at the arguments presented by Barrow’s lawyers who have headed to court to defend the purported constitutionality of his actions. Barrow’s lawyers claimed that Ms Jaiteh had “conducted herself in an unreasonable manner not expected from her role as a nominated member of the National Assembly by the President.” As an example, they claimed that she voted against the government’s 2019 supplementary bill.

This clearly demonstrates that President Barrow is not only quite uncomfortable with such problematic parts of the constitution but quite willing to use them. Once someone becomes a member of the national assembly, they are no longer agents of the President. The constitution gives the right to the National Assembly to discuss and validate the national budget.

For the President to consider a NAM’s exercise of that right and responsibility a ground for dismissal shows that he has no regards for democracy or any respect for the concept of separation of powers. His support for democracy is conditional on its benefits to him personally and politically.

Other key issues we should be discussing right now is why President Barrow and his government dragging their feet with regards to the constitution? In addition, we should also be discussing key provisions we need to see in our new constitution. To give the president the power to nominate NAMs makes a mockery of the concept of separation of powers.

How is the legislature supposed to check the president’s power if he has the power to tip the scales in that branch of government? The president shouldn’t have the power to nominate a single NAM, especially given the small size of our National Assembly. We have had such provisions under President Jawara.

It was tolerable under the first republic because President Jawara was not a dictator. After all, the president may have the power to nominate supreme court justices but he obviously should not have the power to remove them. If the president had such powers, how would the judiciary then be a separate branch of the government?

Our experience should have taught us by now that democracy and institutions work not due to benevolence of leaders but putting binding constraints on their powers. Debating the constitutionality of the specific provisions under the current constitution is of course pointless since we know it is irredeemably defective.

By Dr. Ousman Gajigo

The author is an economist and consultant. He has held positions with the African Development Bank, the UN, the World Bank and Columbia University.