"Acceptance-…
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.”
7.
CONCLUSION
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.”
