Every person elected President of the Gambia swears, upon a Holy Book and before assuming office, to uphold and defend the Constitution, invoking the help of God in fulfilling that solemn duty. Pres. Adama Barrow took this oath in both 2017 and 2021. That oath is not ceremonial. It is a binding constitutional commitment requiring the President to uphold the Constitution and respect the rule of law at all times.
Recently, Pres. Barrow granted a presidential pardon to 105 prisoners, which State House said was in honour of Yawmul Ashura. Beyond that announcement, however, no list of the beneficiaries or the reasons for selecting those particular 105 convicts has been made public. Since then, several citizens, including myself, have called on the President to release the names and the justifications for the pardons in the interest of transparency and the public interest. Those calls have gone unanswered.
Upon reviewing the Constitution and in light of this lack of transparency, it now appears that the President’s exercise of the prerogative of mercy is unconstitutional.
The power to grant pardons is provided for under Section 82 of the 1997 Constitution. While subsection (1) empowers the President to grant pardons, it also requires that he first consult the Prerogative of Mercy Committee. Subsection (2) goes further by establishing the composition of that Committee. It states that the Committee shall comprise the Attorney General and three other persons appointed by the President, subject to confirmation by the National Assembly.
This raises fundamental constitutional questions. Has the President constituted the Prerogative of Mercy Committee? Who are its members? Were the names of the three presidential nominees submitted to the National Assembly for confirmation as required by Section 82(2)? If so, when did this occur?
These are not political questions. They are constitutional questions whose answers determine whether the President acted lawfully or not.
The Gambia is not a kingdom where a monarch possesses absolute authority to pardon anyone at will. The Constitution deliberately places legal safeguards on the exercise of this power because ours is a constitutional republic governed by law, not by the whims and caprices of any individual. Those safeguards exist to prevent the abuse of presidential authority.
I have searched government records and the records of the National Assembly but have found no evidence that the Prerogative of Mercy Committee has been constituted, that its members have been appointed and confirmed, or that their names have ever been published. This naturally raises the question of whether the President lawfully exercised the prerogative of mercy in pardoning these 105 prisoners.
I therefore urge citizens, political parties, the media, and civil society to demand that President Barrow clarify whether he acted in accordance with Section 82 of the Constitution. Above all, the National Assembly must be more proactive and effective in playing its oversight role to ensure that executive overreach is tackled vigorously.
I also call on the Minister of Justice, Dawda A. Jallow, to advise and guide the President in accordance with the Constitution and ensure that every presidential decision complies with the law. If he is unable or unwilling to ensure constitutional compliance, then he should resign rather than aid and abet unconstitutional conduct.
Once again, I challenge State House and the Ministry of Justice to inform Gambians whether the Prerogative of Mercy Committee exists and whether it was established in accordance with Section 82 of the Constitution. I further challenge them to publish the names of the members of the Committee, the names of the 105 prisoners who were pardoned, and the reasons and recommendations upon which those pardons were granted.
Until these constitutional requirements are demonstrated to have been fulfilled, there are reasonable grounds to conclude that the exercise of the prerogative of mercy was unconstitutional. If that is indeed the case, it would amount to a violation of the Constitution by the President which constitute grounds for impeachment.
For The Gambia, Our Homeland.
