By Lamin Cham
The opposition Alliance for Patriotic Re-orientation and Construction, APRC, has written to the Independent Electoral Commission urging the body to swiftly rescind its decision to reject the candidacy of Pa Amadou Suso because the legal basis relied on by the retuning officer was fundamentally wrong.
The APRC further argued that the very process or filing of the GDC petition also fell short of the requirements laid by the election act.
According to the APRC, the law disqualifying a candidate categorically states that such a person must have been sent to jail or served an imprisonment of some sort and not just a conviction or fine as indicated in the GDC petition. Secondly according to the APRC, the very petition letter must be first addressed to the returning officer of the area concerned—in this case the retuning officer of the Basse Area Council—and not the IEC headquarters as it has happened in this case.
The APRC went further to explain everything detailed in the letter addressed to the IEC published in full below:
The Alliance for Patriotic Re-Orientation and Construction (APRC) acting in terms of the provision of section (49) subsection (5) Cap 3:01 of the Election Act, Volume1 Laws of The Gambia writes to the commission to appeal against a decision communicated to our Pa Amadou Susso, APRC Candidate for the May 12th 2018 Local Government Election by Pa Makan Khan Returning Officer for the Basse Administrative Area for the said election that; he received a petition from the Gambia Democratic Congress and Boido A.Baldeh of Basse Mansajang acting in terms of section 49 of the Election Act and section 17 subsection 3 of the Local Government Act respectively.
Consequently, Pa Makan Khan, Returning Officer for the Basse Administrative Area for the election of Mayors/Chairpersons of May 12th 2018 rejected the Nomination of Pa Amadou Susso of Basse for the said election in a rejection form (Form 3) dated 25th April, 2018 citing a case of 23rd April, 2013 in which Pa Amadou Susso was fined and never convicted to an imprisonment term.
The Returning Officer in his rejection form cited and relied on ‘Sections 17(3)b and 17(6) of the Local Government Act of the Republic of The Gambia’
Section 17 (3)b of the Local Government Act Reads: 3(a)’A person is not qualified to be elected or nominated as a member of a council if he or she-
17 (3)b: ‘has been sentenced to death or imprisonment for an offence involving fraud, dishonesty or violence or has been convicted of an offence relating to or connected with elections under any enactment in force in The Gambia’.
The GDC petition indicated that Pa Amadou Susso was ‘fined in June 2012’. The Local Government Act, in section17 (3)b of which Pa Makan Khan relied to issue rejection form to the APRC Candidate lacks legal bases as Susso’s petitioners indicated clearly that he was fined not imprisoned and indeed he was never sentenced to a jail/imprisonment term.
Section 17(3)b is very clear and without any ambiguity indicated that a ‘Candidate can only be rejected if he/she has been sentenced to imprisonment’ (custodial sentence)and the second part of section 17(3) b clearly indicated: ‘convicted of an offence relating to elections matters’ (if he/she was sentenced to either a fined or imprisonment for elections related matters) then he/she will not be qualified. Section 17(3) b of the Local Government Act only disqualified candidates on two grounds- (1)Imprisonment(jail term) on fraud, dishonesty or violence , this means that the trial magistrate/judge must send the convict to jail without any option and (2)if the accused is charged on election related offences and convicted either fined and or imprisonment(any of them-fined or imprisonment) he/she will not be qualified as a candidate if section 17(6) is not fulfilled.
In the circumstances, according to the provision of section 17(3)b of the Local Government Act Mr. Pa Amadou Susso of the APRC cannot be disqualified as he was never imprisoned but fined, therefore, the bases advanced by Pa Makan Khan of the IEC lacks legal merits and judgment as such, we ask that his decision be rescinded.
Furthermore, in terms of section 49(1)2 of the Election Act which reads: (1) ‘A registered voter may object to a nomination paper on all or any of the following grounds, but on no other ground, that-
(a) The description of the candidate is insufficient to identify the candidate
(b) The nomination paper does not comply with or was not delivered in accordance with the provisions of this Act; and
49 (2) ‘An objection to a nomination paper shall not be allowed unless it is made to the Returning Officer between the hours of eleven o’clock forenoon and four ‘o clock in the afternoon on the day of nomination provided that, if an objection is filed, a nomination paper maybe corrected until five ‘o clock in the afternoon of the day of the nomination’.
It is clear that, ‘ Objections MUST be made to a Returning Officer of the said area , however, the objection letter from Boido Baldeh of GDC in Basse Mansajang was never addressed to the returning officer as he made it to ‘to Independent Electoral Commission’. The commission comprised of COMMISSION (5) MEMBERS headed by Chairman and neither the Chairman nor any other commission member is the returning officer for the Basse Administrative Area. It is clear that Boido Baldeh’s letter is not addressed to ‘Pa Makan Khan returning officer’ nor ‘The returning office for Basse Area’ the letter is herewith attached. Therefore, Boido Baldeh objection letter does not meet the legal requirement of section 49(2) of the Election Act and as such void.
Furthermore, Pa Amadou Ssusso was nominated on the 23rd April, 2018 whilst Boido Baldeh objection letter was made two days after Susso’s nomination as it is dated 25th April, 2018 violating the requirement for objection which should be the day of the candidate nomination.
On the part of the GDC, their letter dated 25th April, 2018 objecting the nomination of Pa Amadou Susso does not meet the requirements of section 49(2) of the Election Act as it was made two days after the nomination of Susso and it is never addressed or made to the ‘Returning Officer for the Basse Administrative Area.
The GDC addressed their letter to ‘Independent Electoral Commission, Election House’ as herewith attached. Based on the reasons advanced, the APRC writes in terms of section 17(5) to the commission to appeal the rejection of our Basse candidate by the Returning Officer for Basse administrative area for May 12th 2018 Local Government Election as his decision is not in accordance with Law.
Seedy SK Njie