Adama Barrow victory at Supreme Court is opportunistic

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The UDP election petition that could eventually result in a re-run of the December 4th Presidential election has on Tuesday 28th December 2021 simply dead-ended. The decision of the Supreme Court certainly left many exuberating with abundant victory, and many agonizing with exhaustive lost. Those jubilating had their wishes on legal procedural defaults by the petitioner. It was not a victory or a lost on the merits of the petitioner’s complaints of electoral malpractices against the 1st and 2nd Respondents. The decision of the Supreme court does not acquit the Respondents from the allegations of electoral malpractices in the Petitioner’s petition? NO! it does not. But politicians care less about that, especially where “Yes Men” are advising the man at the helm of affairs on legal matters. The Supreme Court decision is a Judicial victory, and a political failure especially for the 1st Respondent as elected President and Head of state and Government. To justify the overwhelming election victory by the 1st Respondent, and to remove the distrusts and restore the confidence of Gambians on the elected president and his government on the allegations of electoral malpractices, the petition ought to have been decided on the merits.

Let me say at this point to those people who would think and say, ah! the lawyer is challenging the decision of the apex court, far from it. However, it should be understood and accepted that the Supreme Court is not infallible in its decisions. I sympathies with their Lordships as mortals who are not infallible. The 1997 constitution of The Gambia says the Supreme Court is the final court, but it did not say that the Justices of the Supreme court are infallible or not capable of erring. The supreme Court is only infallible because its decisions are unappealable, the Supreme Court is the final court, but the Supreme Court can review its decisions in deserving cases.

It is a fundamental right guarantee by the 1997 constitution of The Gambia to expressed one’s opinion on any matter of a public interest especially where it affects one’s civil and or political rights such as the determination of an election petition by the apex court of the land. But that is not the only reason to express a constructive opinion in respect of the decisions of the highest court of the land. Another reason was given by Hon. Justice SMA Belgore, CJN (Rtd) in his autobiography title: The Judicial Path where the jurist says thus: “for the purposes of the constitution and law generally, the decision of the Supreme Court is the law now. Like all laws, any individual has liberty to express his opinion and it is up to the public to judge whether it is reasonable or otherwise.”

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The law is what the courts says it is. But that is a myth. It is simply not accurate to say that the decisions of the Courts replace the Constitution and the law, and at the same time, Judges and Justices are not above the law. The rational point is that, just like a referee or umpire can make a bad call, so a judge or a majority of Justices can arrive at a wrong decision – i.e., get the law wrong. That’s not news to the Judges or Justices – ask them about a decision where they were in dissent, and they will likely agree with you that their colleagues get the law wrong. What about the many times the Courts overruled its prior decisions? Meaning either the first decision was wrong, or the second one is wrong. No matter which, the Court has demonstrated that it makes mistakes. For example, take the Supreme court of the United States decision in the case of Plessy vs. Fergusson (1896), the Supreme Court decided that: “separate but equal facilities is right and proper for black people and white people.” The same court in the case of Brown vs. Board of Education (1954) overruled its previous decision and held that: “separate but equal facilities, is no longer valid and good decision.” This is a classic example of Judicial infallibility.

There is a growing strives within the Judicial hierarchies nationally and internationally, whether failure to comply with rules of procedure such as section 11 of the Election Petition Rules, overrides object and purpose of the constitution or an enactment? The short answer usually given in Judicial parlance is that, “it all depends” on the peculiar nature and circumstances of each case.

The Supreme of The Gambia has demonstrated its approach to interpretation of statutes in many cases, particularly in the recent case of Ya-Kumba Jaiteh vs. Clerk of National Assembly & 3 Others SC. CS N0. 001/2019 (unreported) at pages 25 and 26, where the Supreme court reaffirmed its approach to interpretation of statutes thus: “In the interpretation or construction of the provisions of statute, including the constitution as in the instant case, the primary task of the court is to ascertain and give effect to the plain and ordinary meaning of the language of the enactment unless to do so would result in an absurdity. Every enactment has a purpose, the court must seek to ascertain and to promote the object and purpose of the enact.”

In respect of the case at hand, I agree, that although the Supreme court has made a far-reaching decision in striking out the Petitioner’s petition, the failure to comply with the requirements of the rules of the election petition is sometimes fatal, and such failure to comply could divest the court of its authority to act judiciously on the matter. Certainly, the court should not be blame where the law compels it to mandatorily act, as Judges and Justice are not above the law and cannot re-write the law in its decisions. The only situation which may warrant the court to act otherwise is where the strict compliance with language and letters of the law would result in absurdity, only then the Judges or Justices would use their discretion to follow the object and purpose of the enactment in making their decision.

There is also the utilitarian or the teleological principle of interpretation, which support the idea that in interpretation of the law by the courts, the primary consideration of the courts should be to ascertain the objects and purpose of the law. There are judicial pronouncements both nationally and international where the courts have relied on the teleological approach in making decisions involving the application of seemingly opposing principles of law. Let me start from England where our legal and judicial systems are rooted. The historical position of the courts in England was lied down by Lord Bowen in the case of Cropper vs. Smith (1884) Ch. D. 700 at 710 where in summary the learned jurist re-affirmed that: “the principal duty of a court is to decide the rights of the parties and not to punish them for mistakes they make in conduct of their cases by deciding otherwise than in accordance with their rights”. In Nigeria, Oputa JSC (of blessed memory) in an earlier view emphasized the guideline which was deprecated and laid down by the supreme court of Nigeria in the case of Nishizawa vs. Jethwani (1984) 12 S.C. (Reprint) 175 at 215 thus: “The courts have on several occasions insisted that rules of procedure should be obeyed. But all the same, rules should be helpful hand maids and not tyrannical and uncompromising masters. The general view, with which I am in complete agreement, is that it is undesirable to give effect to rules which enable one party to score a technical victory at the expense of hearing on the merits”. 

I have said this before, that the Supreme Court of The Gambia as the final court of the land has done an inestimable good to the people of The Gambia through its wise decisions in all the cases it decided. The Justices of the supreme court have always drawn their inspirations and their strength for their decisions from the very laws, facts and peculiar circumstances of each case brought before it. I am not claiming that the Supreme court was wrong in its decision in striking out the Petitioner’s petition. My opinion is that the Supreme ought to have taken a more liberal approach, the teleological approach which in my view the supreme court employed in the Ya-Kumba Jaiteh decision (supra), that is to: “… ascertain and to promote the object and purpose of the enactments…” and in light principle enunciated by Oputa JSC (supra) thus: “…rules of court should be helpful hand maids in the administration of Justice and not tyrannical and uncompromising masters” … having in mind according to the court ruling at page 6 the Petitioner has already deposited the security for costs with the court: “On 21st December, 2021, the Petitioner filed a notice of compliance with the said Order of the Chief Justice for the provision of security for costs in the sum of D300, 000.00.”

The purpose and object of the election Act and the election petition rules is to facilitate judicious resolutions of election disputes by the courts between contending and interested parties. The utilitarian or teleological approach of interpretation of statute which was adopted by Oputa JSC (supra), and which I personally subscribe to than the strict literal approach, says that a technical failure, such as “failure to enter adequate security for costs within the prescribed time, and failure to give notice of presentation of a petition, or failure to comply with the rules of election petition or of the courts generally, unless such failure occasioned or is capable of occasioning a miscarriage of Justice, or the rights of the parties to the suit are affected by such failure to comply, such that continuing the hearing of the matter will denied the affect party or parties of their rights to fair trial and fair hearing, the technical failure to comply with the rules should not be allowed to override the greater objective and purpose of the enactments, which is to resolve complaints and allegations of electoral malpractices on the strength of the evidences to be adduced by the respective parties to the suit.