By Bubacarr Drammeh, Esq., LLB, BL, LL.M.
The rejection of the nomination of Momodou Sabally — the United Democratic Party’s National Assembly candidate for Busumbala Constituency — by the Returning Officers of the Independent Electoral Commission (IEC) in Western Region of The Gambia has not only created a clash between his supporters and the police, but it has also given the self-appointed lawyers enrolled as Barristers and Solicitors of Supreme Courts of Social Media another disinformation brief to spread all over the Republics of WhatsApp, Facebook, and Twitter. In response to the numerous questions I received from citizens, I chose to write this brief piece to explain, in my view, the position of the law. Undoubtedly, Returning Officers of the IEC, under the law, clearly have the authority to reject the applications of candidates during submissions of their nomination paperwork for slots on the ballots.
The two main laws that govern National Assembly Elections in The Gambia are the 1997 Constitution, and the Elections Act, Cap. 3:01. Section 39(2) Cap. 3:01 of the Election Act provides that any “person who desires to be nominated as a candidate for any elective office shall, before the acceptance of his or her nomination papers, satisfy the qualifications stipulated for that office in the Constitution, this Act and any other law.” The qualifications for National Assembly are stipulated in Sections 89 and 90 of the 1997 Constitution. Section 89 (1) stipulates that:
A person shall be qualified for election to the National Assembly if he or she— (a) is a citizen of The Gambia; (b) has attained the age of twenty-one years; (c) has been ordinarily resident in the constituency for a period of at least one year prior to nomination day; (d) is able to speak the English Language with a degree of proficiency sufficient to enable him or her to take part in the proceedings of the National Assembly; and (e) has made such declaration of his or her assets to the Independent Electoral Commission as is required in accordance with Section 43.
Furthermore, Section 90 provides that:
No person shall be qualified for election as a member of The National Assembly if he or she—(a) holds the citizenship or nationality of a country other than The Gambia; (b) is adjudged under any law of The Gambia to be of unsound mind; (c) is under sentence of death imposed on him or her by any court, or is serving, or within five years of his or her nomination for election completed serving, a sentence of imprisonment for a term exceeding six months imposed on him or her by a court or substituted by competent authority for some other sentence imposed on him or her by a court, and has not received a free pardon; (d) has been found guilty of any abuse of office, corruption or any offence connected with public elections by a court; (e) has been found by the report of a commission or committee of inquiry (the proceedings of which have been held and published in accordance with the relevant law) to be incompetent to hold public office by reason of having acquired assets unlawfully or defrauded the State or misused or abused his or her office, or wilfully acted in a manner prejudicial to the interests of the State, and the findings have not been set aside on appeal or judicial review; (f) within the three years preceding nomination day, holds or acts in any office prescribed by an Act of the National Assembly the functions of which involve responsibility for, or in connection with the conduct of elections to the National Assembly or the compilation of any register of voters for the purpose of such an election; (g) unless granted leave of absence in accordance with Section 170, holds a public office or an office in the public service; (h) holds or acts in any office or appointment that may be prescribed by an Act of the National Assembly; (i) is a member of a disciplined force; (j) is an elected member of a local government authority; (k) is a District Chief or Alkalo; or (l) is adjudged or otherwise declared a bankrupt under any law of The Gambia and has not been discharged.
It is therefore incumbent on an aspiring candidate for a seat in the National Assembly to demonstrate that he/she has met the criteria in Section 89 and that none of the disqualifications enumerated in Section 90 applies to him/her. To this effect, the law requires that each aspiring candidate to attest on FORM 1 – title Nomination Paper for Election of Member of the National Assembly [Section 42(2)(b)] – that “I hereby declare that I am qualified to contest as a candidate in the National Assembly and that I am not disqualified to be elected as a Member of the National Assembly of The Republic of The Gambia for any of the reasons mentioned in the Constitution or other law relating thereto.”
Once an aspiring National Assembly candidate submits his/her nomination documents, a Returning Officer is empowered by the Elections Act to examine the nomination documents/forms and to either accept or reject them. Section 46 (1) Elections Act, Cap. 3:01 stipulates that a Returning Officer “shall accept the nomination paper” of an aspiring National Assembly candidate when he “satisfies himself or herself that all the constitutional and other legal requirements for nomination of a candidate have been complied with.” Similarly, Section. 47 (1) Elections Act, Cap. 3:01 states that if a Returning Officer “after examining the nomination paper and other documents” finds that “the particulars appearing in the nomination paper and other documents do not comply with legal requirements for the nomination of a candidate”, he or she “shall reject the nomination paper.”. A rejected nomination must comply with Form 3 with the following declaration: I Returning Officer Administrative Area for the National Assembly Election, hereby certify that . . . has not fulfilled all the requirements prescribed in the Constitution and Elections Act, Cap. 3:01, to contest in the National Assembly Elections.
Accordingly, a Returning Officer has the power or legal mandate to accept or reject the nomination of an aspiring National Assembly candidate. The power to accept or reject a nomination must be based on a reason stipulated in the constitution or a defect on the form not merely based on the desires or whims of the Returning Officer. This, in my view, is the current position of the law regarding a Returning Officer’s power to accept or reject the nomination of a National Assembly Candidate. Therefore, the assertion that “no Returning officer has the right, power, or legal mandate to reject the candidacy of a Parliamentary contestant outrightly. . .” and that the “Returning Officer has [abused] and outstripped his mandate by leaps and bounds” are incorrect. Furthermore, the conclusion that the “procedure adopted by the returning officer is so flawed that any decision that emanates thereof should be set aside like rotten meat.” is ludicrous.
According to news reports, the Returning Officer stated that he rejected Sabally’s nomination because he has been “adversely mentioned in a commission of Inquiry report” which offends Section 90(1)(e). The said section provides that:
No person shall be qualified for election as a member of The National Assembly if he or she has been found by the report of a commission or committee of inquiry (the proceedings of which have been held and published in accordance with the relevant law) to be incompetent to hold public office by reason of having acquired assets unlawfully or defrauded the State or misused or abused his or her office, or willfully acted in a manner prejudicial to the interests of the State, and the findings have not been set aside on appeal or judicial review.
For the Returning Officer’s rejection of Sabally’s nomination to fall within the perimeters of Section 90(1)(e) of the 1997 Constitution, he must ensure that (1) the commission’s report has explicitly mentioned that Sabally is “incompetent to hold public office by reason of having” (a) acquired assets unlawfully; or (b) defrauded the State; or(c) misused or abused his or her office; or (d) willfully acted in a manner prejudicial to the interests of the State; and (2) the findings have not been set aside on appeal or judicial review.
I will admit that I have not read all the volumes of the commission’s report. Skimming through it, the report on page 207 states that:
Ex-President Jammeh and Momodou Sabally are jointly liable for D4,845,278.00 cash withdrawal and D19,311,683 for payments deemed to be ineligible.
There were also sums withdrawn directly by the respective persons, Mr. Momodou Sabally withdrew USD100,000 from the ‘National Youth Development Fund account’ on the 13th February 2014 and USD 1 Million from the International Gateway account and monies should be refunded by him.
They should not serve in any public office again or be appointed as Directors for any State Owned Enterprises (SOEs) for ten years [sic].
After they deliberated on the Janneh Commission report, the president and his cabinet were generous to implement partially the recommendations on Momodou Sabally. The government’s White Paper titled— ‘The Gambia Government White Paper on the Report of the Commission of Inquiry into the Financial Activities of Public Bodies, Enterprises and Offices as Regards their Dealings with Former President Yahya A.J.J. Jammeh and Connected Matters on Page 70 states that the Government “accepts the Commission’s recommendation that Mr. Momodou Sabally should not serve in any public office again . . . Mr. Momodou Sabally is hereby banned from holding office for the remainder of his life.”
Sabally has not denied being adversely mentioned by a commission of inquiry as envisaged by Section 90(1)(e), rather, his contention seems to be that since he is challenging the findings of the commission in the form of an appeal before the Court of Appeal of The Gambia, he “is not found wanting yet.” Just appealing the decision, in my opinion, without a prayer for the execution to be halted pending appeal in the form of an injunction or stay of execution doesn’t suffice. Ordinarily when an appeal is pending, “the law resolves in the favor of an appellant.” In this instance, “the constitution carved an exception. An appeal is not enough by the language of Section 90(1)(e).” Nonetheless, a successful stay of execution pending appeal will be a bar for the application of Section 90(1)(e). If Sabally could produce the court order for a stay of execution, in my view, the IEC is required to reverse its decision and accept his nomination. He need not go to court.
Finally, I will briefly address the Supreme Court’s decision in the case of AG v Kharafi. Almost all the analyses I have read, thus far, are wrong. What happened in that case, in a nutshell, is that Kharafi, who was adversely mentioned in the findings and recommendations of a commission of inquiry, applied for a stay of execution in the Court of Appeal of The Gambia amongst other things. The court held that “a Commission of Inquiry does not and legally cannot render a judgment or a final order. In other words, a Commission of Inquiry cannot legally render a binding decision which may be executed or enforced as if it were a judgment or order.” Therefore, the “Rules giving a Superior Court the power to grant a stay of execution of a judgment or order does not apply to a finding or recommendation emanating from a Commission of Inquiry as such a finding or recommendation is not a judgment or order as envisaged by the law.”
The Attorney General was dissatisfied with the above holding of The Gambia Court of Appeal. It filed an appeal before the Supreme Court of The Gambia and asked the Court to set aside the ruling of the Court of Appeal “with regards to the effect of the Commission of Inquiry’s findings or recommendations”.
The Supreme, in granting the relief sought to hold that the Court of Appeal of The Gambia was wrong in reaching such a conclusion. The correct position of the law, according to the Supreme Court, is that even though the report of a commission of inquiry “is not a judgment. But when there is an appeal filed against the findings and recommendations contained in the Report, Section 204(2) of the Constitution requires that such must be treated as if it were a judgment of the High Court. That is not without consequences.” Hence, the findings and recommendations of a commission of inquiry are “equated with a judgment of the High Court” Accordingly, just as with other judgments of the High Court, a Report of a Commission of Inquiry “is capable of being subject to an order for stay of execution pending appeal.” This is the position of the law. So, the assertion that since “Sabally is appealing his case and that he is not found wanting yet,” therefore “the Returning Officer is wrong” is incorrect. The mere filing of an appeal, in my opinion, without a prayer for the execution of the findings and recommendations to be halted pending the appeal in the form of an injunction or stay of execution does not suffice.
About the Author: Bubacarr Drammeh, a Columnist at The Gambia Times, holds a LLM Degree from the University of Washington, in Seattle, in the States of Washington; and he was a State Counsel at the Attorney General’s Chambers in The Gambia.