Monday, June 12, 2017

Is Jammeh's exit Agreement legally binding?

Sidi Sanneh 
Hon. Halifa Sallah, leader of the PDOIS political party, has brought back to life the question of the status of Jammeh’s exit Agreement by pointedly challenging the Barrow administration with the warning that government will be going against its own word if it doesn’t honor a purported deal whose status remains a mystery.

The ambiguity of the status on an Agreement that will be at the center of discussion moving forward in the Barrow administration’s attempt at ultimately expropriating Jammeh’s wealth and holdings.  This part Agreement is so central to the work of both the Ministry of Justice and the judiciary looming in the horizon that it is extremely important that the administration respond urgently to the need to put the matter to rest and expeditiously.

We all agree on one thing: that a document does exist purporting to be a binding agreement between the Barrow administration and the former dictator laying out the conditions under which Jammeh will exit the scene of the State House for Malabo in Equatorial Guinea.  In spite of the fact that the document is still posted on the websites of the African Union and United Nations giving the document some official recognition – perhaps for its historic significance rather than its legal relevance and legitimacy - President-elect Barrow’s Special Adviser – Mai Ahmad Fatty – (now Interior Minister) did characterized it as a “hoax” in a Facebook entry last January and reconfirmed to me in my 5 AM phone call while both of us where in Dakar.  An undefinitive search of the ECOWAS website did not show a display of the document

Mr. Fatty further referred me to Senegal’s Foreign Minister’s press briefing of the same day reaffirming the same i.e. that the document in question has no legal teeth and therefore unenforceable.  He did not stop at that.  Still in his capacity as Special Adviser to the president-elect, he issued another Facebook statement all but declare the Agreement null and void.  “There was NO DEAL signed” (his emphasis) he declared.

The draft was prepared by Mauritania and Guinea-Conakry, according to Mr.  Fatty’s statement which was immediately rejected by the president-elect.  We also learned from the statement that ECOWAS’s Marcel Desuza and a Qatari envoy who consulted Barrow in Dakar on the matter were unsuccessful in changing Barrow’s mind.

We advised Mai Fatty, while in Dakar, back in January to definitively put to rest the issue by assuring Gambians and the international community that the status of the document has no standing.   

Was the position of the president-elect’s position on the status of the document communicated to members of the National Assembly?  The question of informing his cabinet is a moot point since he had not taken the oath of office at the time and was still holed up in Dakar because Jammeh was refusing to depart without tying few loose ends, including, perhaps a free pass in the form of the agreement that is now in contention. Why is there such a disconnect between Adama Barrow and Halifa Sallah on such an important and crucial matter of international law.

Our humble advice to the Barrow administration is to brief his entire cabinet with the help of a Cabinet Paper that provides background and context that led to the draft Agreement and allow cabinet to take a formal position on the document; then allow the National Assembly to give its blessing to the non-binding character of a document that is still being featured in official websites of the United Nations and African Union.

By allowing the document to continue to be prominently displayed in official websites of international organizations and development partners, it feeds into the narrative that the document is legitimate and legally binding, a claim that Mr. Fatty has so strenuously tried to dispel since last January.  Leaving these claims unanswered will hinder future attempts by the Barrow administration to start navigating through the legal entanglements left behind by Yaya Jammeh.