The “Less Wakhul“ of the High Court judgment: Here is why CA has not yet been officially cleared to contest the December 4 presidential election

Dec 1, 2021, 12:08 PM | Article By: Assan Sallah

Gambians especially on social media have been celebrating the recent high court judgments in favour of the Citizens‘ Alliance (CA) party and the Gambia Moral Congress (GMC) against the decision of the country’s electoral body - the Independent Electoral Commission (IEC). 

However, the dust has still not yet settled in the said cases as the two candidates of the concerned parties have not yet been officially cleared by the chairman of the IEC Alhaji Alieu Momar Njai, who has the power and authority to declare their qualification to contest the 4th December 2021 presidential election, following the completion of the entire nomination process as required by law in the IEC Act 2009. 

While Dr. Ceesay had his party’s nomination rejected by the IEC for the second time, Mai Ahmad Fatty of the GMC is waiting for the release of the court judgment in his case, following its ruling last week. His fate is yet to be decided by the IEC.

The applicants are part of the 15 candidates whose nominations were rejected by the IEC on Saturday, 6th November 2021, following the completion of the nominations of presidential aspirants. 

According to the IEC Chairman, Dr. Ismaila Ceesay, leader of the Citizens‘ Alliance party has not complied with Section 42 (2) (a) in Banjul Administrative Area. He was said to have submitted the support of nomination by less than two hundred registered voters, as opposed to the legal requirement that a candidate for election to the office of President shall be nominated in the prescribed Form 1 Part A of the Fourth Schedule by not less than five thousand voters whose names appear in the register of voters, with at least two hundred voters from each Administrative Area.

Dr. Ismaila Ceesay’s nomination was therefore rejected in accordance with section 47 (1) of the Elections Act.

Dr. Ceesay challenged this decision before the High Court.

Delivering her judgment last week, Justice Saho-Ceesay of the High Court said, the court has no power or authority to postpone the impending elections in these proceedings.

She then granted the following reliefs in her final analysis;

“(1)  It is declared that the Respondent failed to comply with the provisions and spirit of the Elections Act Cap 3:01 Laws of The Gambia in the procedure it adopted in the rejection of the nomination of the first Applicant as the Presidential Candidate of the 2nd Applicant in the 2021 Presidential Election of the Republic of The Gambia scheduled for the 4th day of December 2021.

(2)  It is also hereby declared that the rejection of the 1st Applicant’s nomination as the Presidential Candidate of the 2nd Applicant in the circumstance is null and void and of no effect for being in violation of the provisions and spirit of the Elections Act Cap 3:01 Laws of The Gambia and therefore tantamount to a denial of the 1st Applicant’s Constitutional right to contest the 2021 Presidential Election as guaranteed under Section 26 of the 1997 Constitution of the Gambia.

(3) It is ordered that the Applicants are entitled to submit an additional list of names and signatures of Registered voters for the Banjul Administrative Area, having regard to the fact that the 1st Applicant only had notice of the rejection of his nomination contrary to the spirit of Section 47(3) of the Elections Act 3:01; which invariably amounts to a denial of his right to deliver a fresh nomination paper and/or cure any defect in his nomination form which is in consonance with all known rules of fairness, equity and natural justice as envisaged in Section 47(3) of the Elections Act Cap 3:01. 

(4) It is hereby directed that the Applicant be permitted to submit the additional list of names and signatures of Registered voters for the Banjul Administrative Area (exhibit “IC7“) to the Returning Officer who shall first be at liberty to satisfy himself or herself that all constitutional and other legal requirements have been met in accordance with Section 46 of the Act. 

It is only thereafter and upon service of Form 2 of Part A of the Fourth Schedule to the 1st Applicant or his representative that the 1st Applicant shall be entitled to continue to participate in the election process leading up to the Presidential Election scheduled for the 4th day of December 2021 in the enjoyment of his Constitutional right under Section 26 of the 1997 Constitution. 

(5) I award legal fees of D200,000.00 in favor of the Applicants. 

(6) I make no order as to costs. 

This is my judgment. I remind the parties of their right to appeal,“ Justice Amina Saho-Ceesay concluded. 

 However, investigations launched by this reporter revealed that the CA party did not submit the exhibit IC7 as ordered by the court, instead, a fresh nomination paper of a list of registered voters was submitted and the IEC rejected it again for the second time.

Reacting to the outcome of the case, Lawyer Malick H.B Jallow, Co-Counsel for the respondent said “The decision of the high court did not validate the nomination of the aspiring candidate for Citizens‘ Alliance but merely ordered the IEC to give him an opportunity to submit the additional list of names and signatures submitted to the court, which the IEC chair is only bound to endorse if it satisfies all legal requirements governing the nomination of candidates for the presidency. The appeal lodged with the Court of Appeal is essentially centered on our position that the High Court lacks jurisdiction to entertain and adjudicate on the matter in light of provisions contained in both the Elections Act and the Constitution. As a result, we want the Court of Appeal to set aside the decision rendered by the High Court.“ 

Meanwhile, on Sunday evening, this reporter contacted Lawyer Christopher Mene, counsel for CA and he said he has not yet received any document from CA indicating that they have been rejected, but was quick to say he is expecting information from the party on Monday. 

He said: “If the IEC rejects CA’s nomination for the second time, they should issue a form called ‘Form 3‘ and I have not yet received or seen anything like that. Hopefully, I will get information from the party tomorrow Monday.“

Efforts to reach Dr. Ismaila Ceesay for his reaction to the case proved futile.

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