Apr 24, 2015, 9:53 AM
the electoral processes reflect the will of the people. It is then an
overriding principle of Electoral Justice that everyone abides by the outcome;
that the outcome be given effect by the institutions of government; and that
the legitimacy of the results be acknowledged by the international community.”
Per Adinyira Mrs JSC Ghana Supreme Court in Nana Addo Dankwa Akufo Addo &
Ors v John Dramani Mahama & Ors.
On the 1st December 2016 the people of the Republic of The Gambia went to the polls to elect a President as provided for under Section 46 of the 1997 Constitution. On the 2nd December the Independent Electoral Commission announced the results of the elections and out of the three Presidential Candidates Adama Barrow was declared the duly elected winner. The Outgoing President and head of the APRC Party, called the President Elect Adama Barrow, on national television to congratulate him on his victory. He offered to work with the President Elect and his team within the 60 days prior to his inauguration to foster a smooth transition. However on the 9th of December 2016, the Outgoing President announced on state television that he is rejecting the election results and went on to declare the elections a nullity. He further stated that the people of the Republic of The Gambia would go back to the polls for fresh elections, as he believed that the election conducted on the 1st December 2016 was not free and fair, despite his previous acceptance of the results.
The above scenario poses a real threat to the democratic process in the Gambia, and raises a lot of legal and constitutional issues of concern, which are of both national and international interest to all citizens of The Gambia and the international community as whole. For those who ask the question, why should the international community be interested in a matter of national interest to The Gambia? Our answer is that, any threat to peace and security in any part of the world, poses a real threat and undermines the peace and security of the world at large. Thus, the need for sub-regional, regional and global mechanism to curb any such threats wherever they occur in The World. In this global and interdependent world that we all live today, it is only those with limited knowledge of world affairs that would ask such a naive question!
It is indeed alarming and worrying that a professional lawyer from a sister jurisdiction like Senegal does not appreciate that Senegal and Gambia are bound together by a common history, interest, and geography. So much so that when any one country sneezes the other catches a cold.
As young aspiring lawyers, who have just successfully completed our Bar Vocational Training at the Gambia Law School, awaiting our Call to Bar Ceremony, we deem it necessary to lend our modest knowledge and expertise, acquired during the course of our legal training, to address certain legal issues that have arisen since the December 1st Presidential election. The issues raised and addressed are not meant to pre-empt any pending legal process, but to educate the general public in the face of misinformation and grave intellectual dishonesty being perpetrated by a so-called expert in both civil and common law, as alleged. (We are yet to see any proof of such expertise, especially judging from the irresponsible utterances being made by this so-called expert. We wish to submit that even a first year student of Constitutional law should know that submission made by this person, who for all intent and purposes, is an apology to humanity, are false, erroneous and calculated to mislead the public!
1. CAN A PRESIDENT NULLIFY ELECTORAL RESULTS BY A MERE DECLARATION
1.1 Section 46 of the 1997 Constitution provides that “there shall be an election for the office of the President in the three month before the expiration of the term of the incumbent President. The dates for the nomination of candidates and for holding the election shall be determined by the Independent Electoral Commission.”
1.2 Section 49 further states that “Any registered political party which has participated in the Presidential election or an independent candidate who has participated in such an election may apply to the Supreme Court to determine the validity of the election of a President by filling a petition within ten days of the declaration of the result of the election.”
As such, given that the Constitution is the supreme law of the land, (See Section 4 of the Constitution), it is absolutely clear that the Outgoing President’s statement made on the 9th December 2016 declaring the December 1st Election null and void has no legal basis and is tantamount to an abrogation of the Constitution, thus amounting to treason under Section 6 of the Constitution. Section 49 of the Constitution should be interpreted to mean that, if any Presidential Candidate is aggrieved by the results declared by the IEC, the only option available is to challenge the results by filing a petition at the Supreme Court. Thus it is only the Supreme Court that can
•declare an election results valid or otherwise
•Order fresh elections or a rerun
The above clearly illustrate that no other body, person, or authority can declare a duly held election a nullity or order a fresh election. This can only be done by a Judgment of the Supreme Court, presided over by the Chief Justice and four other justices of the Supreme Court. As in the case of Col. Dr. Besigye Kiiza v Museveni Yoweri Kaguta & Anor (Election Petition No.1 of 2001) where the Supreme Court held that the election conducted in Uganda in 2001 was not free and fair and consequently the results were nullified. Also in Kwijuka v Electoral Commission & Anor (Election Petition No. 007 of 2011) where the Supreme Court held that even though there were failures to comply with the provisions and principles of the Election Act it did not affect the results of the Presidential Elections in a substantial manner; as such the petition was dismissed. See also Nana Addo Dankwa Akufo Addo & Ors v John Dramani Mahama & Ors (Incidentally, the First Respondent is the Former President of Ghana, who recently handed over power, peacefully and with admirable candor, after losing democratically held elections in Ghana).
THE ANSWER TO THIS FIRST QUESTION IS THEREFORE AN EMPHATIC NO!
2. WHAT IS THE ROLE OF THE IEC UNDER THE CONSTITUTION
2.1 The functions of the IEC are spelt in Section 43 of the Constitution as follows:
(1) “Subject to the provisions of this Constitution the Independent Electoral Commission shall be responsible for-
“(a) the conduct and supervision of the registration of voters for all public elections and the conduct and supervision of all public elections and referenda;
(b) the conduct of the election of a speaker and a Deputy Speaker,
(c) the registration of political parties;
(d) ensuring that the dates, times and places of public elections and referenda are determined in accordance with law and that they are publicised and elections held accordingly;
(e) ensuring that candidate in elections make a full declaration of their assets at the time of nomination. “
Subsection (2) further provides that, The Commission shall announce the results of all elections and referenda for which it is responsible.
It is pertinent to note that subsection (3) clearly provides that “In the exercise of its functions under this Constitution or any other law, the Commission shall not be subject to the direction or control of any other person or authority.”
Thus the IEC has a fundamental constitutional obligation to remain independent in performing its functions under the Constitution. When undertaking its mandate, the IEC is not subjected to the direction and the control of any person or authority. This is to ensure that there is neutrality and impartiality in the process.
3. DOES THE FILING OF A PETITION BEFORE THE SUPREME COURT AFFECT THE VALIDITY OF ELECTORAL RESULTS DECLARED BY THE IEC
3.1 In law there is a general presumption of the regularity and legality of the acts of public officers until the contrary is proven, (Omnia Praesumuntur rite esseacta). Furthermore, the Evidence Act, 1994 provides in Section 156 (1) that “When any judicial or official act is shown to have been done in a substantially regular manner it is presumed that formal requisites for each validity were complied with.” Section 156 (2) further provides that “When it is shown that a person acted in a public capacity it is presumed that he or she has been duly appointed and was entitled so to act. “Therefore, the official results declared by the IEC remain valid, legal and subsist, unless the Supreme Court declares it otherwise. This same position was taken in the case of Nana Addo Dankwa Akufo Addo & Ors v John Dramani Mahama & Ors in interpreting Article 63(9) which is the same as Section 156 (1) and (2) of the Gambian Evidence Act. It was rightfully held that the legal effect of the said provision is that “unless contrary is proved the President is presumed to have been validly elected.” As such the party who filed a complaint has the burden to rebut the presumption. And whether the presumption has been properly rebutted is a matter for determination by the Supreme Court as duly and fully constituted. In other words, the presentation of the petition before the Supreme Court does not have any effect on the validity of the election result. If the filing of a petition invalidates the election result, then what is the need for a trial?
4. DOES THE FILING OF AN ELECTION PETITION BEFORE THE SUPREME COURT HAVE ANY IMPACT WHATSOEVER ON THE INAUGURATION OF THE PRESIDENT ELECT?
4.1 Section 63(1) of the Constitution provides that the term of office of the President is 5 years. Section 63 (2) of the Constitution clearly provides that a duly elected President shall take the prescribed oath and assume the day the term of the incumbent President expires. A petition filled by any aggrieved party does not and should not abrogate these provisions of the Constitution. Section 4 of the 1997 Constitution clearly provides that the Constitution is the Supreme law of the land.
4.2 Failure to inaugurate the duly elected President in accordance with Section 63(2), would extend the term of the President in clear and manifest violation of Section 63(1). On the basis of the full power and Constitutional authority of the IEC, and the fundamental presumption of legality, the President Elect should assume office irrespective of any pending petition before the Supreme Court. In other words the filing of a petition before the Supreme Court does not in any way affect the inauguration of the President Elect. It is pertinent to note that the powers and jurisdiction of the Supreme Court under the Constitution do not include;
•the power to declare any person duly elected, it is only the IEC that has such a power under the 1997 Constitution.
•the power to restrain by any means the inauguration of the President Elect, contrary to the express provisions of the Constitution.
4.3 Can An Order Be Given By Any Authority To Stay The Inauguration- The granting of an order or injunction or directives from any person or authority to halt or suspend or postpone the inauguration will have the effect of violating the provision of section 63(2) of the Constitution. The court must avoid acts or omissions, which will affect or paralyze a clear provision of the Constitution. In the case of JH Mensah V Attorney general (1996- 97) SC GLR 320 provides clear guidelines on how a constitutional matter should be dealt with as follows; “the principle of constitutional interpretation is that the constitution be construe as a whole so that its various parts work together in such a way that none of them is rendered otiose.”
4.4 Furthermore there is ample precedence to establish that the filing of an Election Petition does not affect the Inauguration of a President Elect. We can take inspiration from previous election petitions filed in The Gambia, which in no way affected the inauguration of the President elect at the time. In the election petition case of Nana Addo Dankwa Akufo and others V JH Dramanimahama and others, the filing of the petition did not prevent the President Elect from assuming office. The Petition was fully determined and disposed of six month after the inauguration of the President Elect.
4.5 It is also pertinent to note that an Election Petition is not similar to other initiating processes. Such a Petition does not only affect the rights of two individuals, but is indeed a matter of Constitutional importance affecting the democratic governance of a nation. Courts would therefore shy away from issuing interlocutory Orders that would tantamount to subversion or abrogation of the Constitution, without hearing the substance and full merit of a case. See Peters v Attorney-General (2002) 3 LRC 32 C.A., Trinidad and Tobago at 101 Sharma J.A Said:
“An election petition is not a matter in which the only persons interested are candidates who strive against each other in elections. The public are substantially interested in it and that it is an essential part of the democratic process. It is not a lis between two persons, but a proceeding in which the constituency itself is the principal party interested. The characteristics of an election petition are fundamentally different from civil proceedings. Hence for example there was the need for special rules concerning, for example, the notice and publication, which is outside the courts ordinary jurisdiction and procedures. An election petition is quite unlike any of the initiating proceedings in the High Court. It is not a writ, or originating summons, nor is it in any way close to say a petition in bankruptcy or a petition for divorce, which respectively have their own rules of procedure. In a sense an election petition can be described as sui generis.”
5. CAN THE NATIONAL ASSEMBLY OR ANY OTHER BODY OR AUTHOURITY EXTEND THE TERM OF A PRESIDENT
5.1 The term of the President is provided for in Section 63(1) 0f the Constitution. This Section falls under the entrenched provisions of the Constitution, which can only be altered following the very strict procedures and guidelines set out under the Constitution. (Section 226 (4) and (7) of the Constitution) For the avoidance of any doubt, the power to extend the term of the President resides in the Sovereign will of the Gambian people, through a referendum conducted by the Constitutionally mandated body i.e. the same IEC. THEREFORE THE NATIONAL ASSEMBLY CAN ONLY DO SO SUBJECT TO THE SOVEREIGN WILL OF THE GAMBIAN PEOPLE, THROUGH A REFERENDUM, DULY CONDUCTED BY THE IEC!
6. WHAT IS THE EFFECT OF CORRECTION OF ERRORS THAT DO NOT AFFECT THE REAL OUTCOME OF AN ELECTION
6.1 Election officials are human beings and as the saying goes, “ To err is human and to forgive is divine” Therefore any irregularities or errors that do affect the outcome of the results will not vitiate or nullify the Election, especially such errors can be easily rectified pending final declaration of the results by the IEC. In the Canadian case of Opitz v. Wrzensnewskyj 2012 SCC, the court said as follows:
“The practical realities of election administration are such that imperfections in the conduct of elections are inevitable ... A federal election is only possible with the work of thousands of Canadians who are hired across the country for a period of a few days or, in many cases, a single 14-hour day. These workers perform many detailed tasks under difficult conditions. They are required to apply multiple rules in a setting that is unfamiliar. Because elections are not everyday occurrences, it is difficult to see how workers could get practical on-the-job experience... The current system of electoral administration in Canada is not designed to achieve perfection, but to come as close to the ideal of enfranchising all entitled voters as possible. Since the system and the Act are not designed for certainty alone, courts cannot demand perfect certainty. Rather, courts must be concerned with the integrity of the electoral system. This overarching concern informs our interpretation of the phrase “irregularities ...that affected the result.”
6.2 Halsbury’s Laws of England 4thEdition, Volume 15(4) atparagraph 670, states that
“No election is to be declared invalid by reason of any act or omission by the returning officer or any other person in breach of his official duty in connection with the election or otherwise of the appropriate elections rules if it appears to the tribunal having cognizance of the question that the election was conducted substantially in accordance with the law as to the elections, and that the act or omission did not affect the result. The function of the court in exercising this jurisdiction is not assisted by consideration of the standard of proof but, having regard to the consequences of declaring an election void, there must be a preponderance of evidence supporting any conclusion that the rule was affected.”
The IEC is the body mandated by the Constitution to conduct Election and declare results of all elections conducted under the Constitution including election to the Office of the President. The Independence of the IEC must be respected in accordance with Section 43 of the Constitution. Any process to review its decisions must follow the strict provisions of the Constitution and nothing more. As highlighted earlier, Per Adinyira Mrs JSC“the electoral processes reflect the will of the people. It is then an overriding principle of Electoral Justice that everyone abides by the outcome; that the outcome be given effect by the institutions of government; and that the legitimacy of the results be acknowledged by the international community.”