By Sarjo Barrow, Esq.
Introduction
UDP petition is suitable for The Gambia. Although hindsight is not 20/20, after a thoughtful analysis and comparing the trends in the sub-region, The Gambia has an opportunity to consolidate her democratic gains, strengthen the rule of law, and cement our trust in her judiciary.
UDP’s election petition will undoubtedly be the seminal case for our election jurisprudence. Without interrogating the predicate motives behind the suit, every fair-minded Gambian should take solace that UDP brought this suit to our apex court. Why? It is imperative to have in place a credible and transparent system to address allegations of electoral malpractice. While IEC often has general responsibility for settling disputes before the election itself, the traditional approach in common law countries is for post-election challenges to be brought to the appropriate court through an election petition. The Gambia is not an exception.
On December 14, 2021, United Democratic Party (UDP) filed a petition challenging the December 4, 2021, presidential election result. At first blush, the public ridiculed the lawsuit because the allegations made — either from a cultural context or our shared history as people — are considered frivolous or those that the UDP itself engaged in during the campaign period.
UDP, GDC and an Independent Candidate for the presidential election issued a joint statement rejecting the result before The Gambia Independent Electoral Commission (IEC) declared President Barrow the winner of the December 4 election. I posited that it was dangerous to cloud the legitimacy over the president-elect’s mandate absent credible evidence. My reason was simple. Disputes regarding “free and fair”[1] election can inevitably raise considerable tensions when losing candidates’ alleged vote-rigging, corruption, bribery, and other electoral malpractices by their opponents.
Allegations of such corrupt practices involving the election of a directly elected president who is head of state and head of government can be particularly concerning because they raise the highest political, social, and economic importance and sensitivity issues. Significantly, in an ethnically divided country, the ensuing uncertainty and discontent can have far-reaching repercussions. Kenya in 2007/8, the disputed presidential election resulted in over 1,000 deaths and over half a million displaced.[2]
Generally, a petitioner may prevail in an election petition for various reasons. The court could determine that count was off, Election Commission applied inconsistent standards, or plain fraud. Yet, these cases are the exception. The general view is that courts should not invalidate election results for non-compliance with electoral laws unless it is shown that the problem was of such magnitude to negate the validity of which candidate prevailed. And this is inherently difficult to do given how hard it is to provide evidence that disputed ballots were cast in favor of a particular candidate. As the Pennsylvania Supreme Court puts it, “voters should not suffer for the misdeed of a few bad actors.” Therefore, it must be substantial for fraud or irregularities to render an invalid election.
Election Petition: Court to Set a Precedent
Indeed, UDP’s suit will help shape our jurisprudence in the following way: (1) who has the burden of proof in the election petition; and (2) what standard of proof is required in election petition? Importantly, whether a different standard of proof should apply in cases alleging fraud? Finally, even if a petitioner can show non-compliance with electoral laws, should the court overturn the result and require a fresh election even if the alleged non-compliance is insignificant to affect the outcome of the race. Perhaps, all these unanswered questions make this case the most crucial cause in 2021. It is a test for our constitutional democracy involving the separation of powers.
Standard of Proof
Indeed, election petitions are civil proceedings. And under Gambian jurisprudence, with limited variation, the standard of proof in civil cases is the preponderance of the evidence (the balance of probabilities as is often called in The Gambia). The Supreme Court will have to decide the standard of proof required in an election petition. Among the three (3) prevailing approaches for the court to adopt are (1) preponderance of the evidence[3], (2) clear & convincing evidence[4], and (3) beyond a reasonable doubt.[5]
For the criminal standard of beyond all reasonable doubt, two jurisprudences supported its use depending on the petition’s alleged use. In 1971, the India Supreme Court employed this highest standard in Shri Kirpal Singh v Shri V V Giri.[6] The court held that:
“Although there are inherent differences between the trial of an election petition and that of a criminal charge in the matter of investigation, the vital point of identity for the two trials is that the court must be able to come to the conclusion beyond any reasonable doubt as to the commission of the corrupt practice.”
Although the Kenya Supreme Court rejected this standard in Odinga’s election petition, the respondent argued that Kenya should require this standard because presidential elections are a quasi-criminal matter which requires the court to impose the criminal standard of proof. But the Nigeria Supreme Court has consistently held since 1984, 2005, and 2009 that allegations of illegal activities in election petition must be proved using the criminal standard of proof. Notably, in Nwobodo v Onoh,[7] the Nigerian Supreme Court held that a petitioner must prove when criminal activity is alleged beyond a reasonable doubt.[8] Surprisingly, this view was supported by Justice Anin Yeboah in the Mahama case, which asserted that “[i]t is only when [a] crime is pleaded or raised in evidence that the allegation sought to be proved must be proved beyond reasonable doubt.”
In good old England, this position is reflected in its past decision. In Erlam,[9] a petition involving the local election, the petitioners alleged that the respondent or his agents had indulged in corrupt and illegal practices contrary to the Representation of the People Act 1983. The Commissioner acknowledged that an election court is a civil court, not a criminal court. However, following the Court of Appeal decision in R v Rowe ex p. Mainwaring,[10] the Commissioner noted that “[t]here was no controversy at the hearing about the standard of proof the court must apply to charges of corrupt and illegal practices. It is settled law that the court must apply the criminal standard of proof, namely proof beyond reasonable doubt.”
Also, Supreme Court will consider the preponderance of the evidence (balance of probabilities) standard in addressing the UDP’s suit. Under this approach, courts use the traditional civil standard in an election petition. Case in point—Jugnauth v Ringadoo and Others[11] decision. There, the Judicial Committee of the Privy Council affirmed the ruling of the Supreme Court of Mauritius, nullifying the election of the appellant, a Member of Parliament and Minister of the Government. The court held that:
“There is no question of the court applying any kind of intermediate standard” and accordingly: “It follows that the issue for the election court was whether the petitioner had established, on the balance of probabilities, that the election was affected by bribery in the manner specified in the petition.”
Ghana, whose 1992 Constitution was the framework for the current 1997 Constitution, has also adopted this view.[12] In the Mahama case, the majority of the judges adopted the approach of Justice Atuguba, who was content to apply section 12 of the Evidence Act 1975, which provided that the standard of proof is by a “preponderance of probabilities.”[13] Thus, he stressed that “[t]he standard of proof in especially election petitions, a species of a civil case, is on the balance of probabilities or preponderance of probabilities.”
Last but not least is the use of the intermediate standard (clear and convincing evidence) that the court will consider. It’s important to note, under common law and contemporary jurisprudence, an allegation of fraud, permanency hearing (parental rights termination), deportation or removal proceedings, etc., all require this standard of proof in civil proceedings.
And strikingly, two earlier commonwealth decisions in Africa had supported this approach. In Lewanika and Others v Chiluba[14] , the petitioners alleged bribery, fraud, and other electoral irregularities in a presidential election in Zambia and sought its nullification. In delivering the judgment for the court, the Chief Justice held that “… we wish to assert that it cannot be seriously disputed that parliamentary election petitions have generally long required to be proved to a standard higher that on a mere balance of probability.” Even though the court cited no authority for this proposition, it formed the basis of the holding in the said judgment.
“… where the petition has been brought under constitutional provisions and would impact upon the governance of the nation and the deployment of the constitutional power and authority, no less a standard of proof is required. It follows also the issues raised are required to be established to a fairly high degree of convincing clarity”.[15]
Likewise, in Uganda, their Supreme Court adopted this intermediate standard of proof. In Besigye v Museveni[16] the petitioners had alleged that the respondents were responsible for a series of offenses and other illegal electoral practices. Chief Justice Odoki relied heavily on Lord Denning’s decision in Bater v. Bater[17] to hold that in election petitions, the “standard of proof is very high because the subject matter of the petition is of critical importance to the welfare of the people of Uganda and their democratic governance.”
Recently, Kenya Supreme Court’s enunciated this rule in Odinga. Kenya reviewed the jurisprudence in Africa and elsewhere but decided to adopt the intermediate standard. In doing so, the court held “the threshold of proof should, in principle, be above the balance of probability, though not as high as beyond reasonable doubt: save that this would not affect the normal standards where criminal charges linked to an election, are in question.” And as the Mahama court has observed in Ghana, Justice Adinyira stressed the need for high standards of proof in cases imputing election malpractice and concluded, without further consideration, that the “threshold of proof should, in principle, be above the balance of probability.”
What’s at stake—run-through
The task for The Gambia Supreme Court is enormous. Notwithstanding, except for allegations of fraud and corrupt practices, I believe the court should employ the traditional standard of the preponderance of the evidence. Simply put, more than 50%. The court should place this initial burden on the petitioner to show. But for cases alleging fraud and corrupt practices, the court should require the intermediate standard of proof (clear & convincing evidence). Again, the petitioner should have the burden.
Thus, it raises the ultimate question! Under what circumstance should the Supreme Court overturn an election result? To answer this question, I believe the court should exercise deference to the jurisprudence in Ghana, Nigeria, and even the U. S. A. To overturn the election result, not only should the petitioner prove non-compliance with the Constitution or electoral laws, but the non-compliance should be significant enough to change the outcome of the election.
When the 1997 Constitution vests the right to vote for President in its people, voting as prescribed is fundamental. One source of its fundamental nature lies in the equal weight accorded to each vote and equal dignity owed to each voter.[18] And the U. S. Supreme Court stated this aptly in Bush v Gore:
None are more conscious of the vital limits on judicial authority than are the Members of this Court, and none stand more in admiration of the Constitution’s design to leave the selection of the President to the people, through their legislatures, and to the political sphere. When contending parties invoke the process of the courts, however, it becomes our unsought responsibility to resolve the federal and constitutional issues the judicial system has been forced to confront.[19]
To conclude, although the dictatorship has stalled the growth of our jurisprudence, it is refreshing, post-2016, to see Gambian’s march to court in settling disputes—an incredible gain in judicial independence. How does the UDP petition fare under each standard of proof? Well, that is a topic for another day.
[1] A right enshrined in numerous international and regional instruments including the International Covenant on Civil and Political Rights (Article 25) and the African Charter on Democracy, Elections and Governance (Chapter 7). See also Part I of the Charter of the Commonwealth.
[2] For a disturbing account of the post-election violence see generally the Final Report of the Truth and Reconciliation Commission of Kenya, Nairobi 2013. 16 [2013] eKLR: available at http://www.kenyalaw.org/CaseSearch/view-previewl.php?link=3777936669285 3178723650 (accessed 1 August 2015).
[3] Under the preponderance standard, the burden of proof is met when the party with the burden convinces the fact finder that there is a greater than 50% chance that the claim is true.
[4] Meaning the evidence is highly and substantially more likely to be true than untrue. Simply put, the factfinder must be convinced that the contention is highly probable. See Colorado v. New Mexico, 467 U.S. 310 (1984)
[5] Used in criminal case, it requires guilt beyond all reasonable doubt. Simply put, the factfinder must be convinced that there is no other reasonable explanation that can come from the evidence presented at trial. In other words, the jury must be virtually certain of the defendant’s guilt.
[6] 1971(2) SCR 197; 1970(2) SCC 567.
[7] [1984] 1 SC 1; (1983) 14 NSCC 470.
[8] See also Buhari v Obasanjo (2005) 13 NWLR (Pt. 941) 1 and Agagu v Mimiko [2009] All FWLR (Pt. 462) 1122.
[9] Erlam and Others v Rahman and Others [2015] EWHC 1215 (QB).
[10] [1992] 1 WLR 1059.
[11] [2008] UKPC 50.
[12] Although the Court did emphasize that for fraud & corrupt practices, intermediate standard should be used.
[13] Section 12(2) reads: “‘Preponderance of probabilities” means that degree of certainty of belief in the mind of the tribunal of fact or the Court by which it is convinced that the existence of a fact is more probable than its non-existence’
[14] [1999] 1 LRC 138.
[15] No page number provided in the electronic law report.
[16] [21001] UGSC 1. Available at http://www.ulii.org/
[17] [1951] P 35.
[18] See Gambia 1996 Election Act, as amended; Bush v. Gore, 531 U.S. 98 (2000)
[19] Bush v. Gore, 531 U.S. at 98.