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Sunday, November 29, 2020

Almami Taal’s confirmation to The Standard, UDP lawyers have filed for a mandamus order against IEC was unconstitutional

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I cordially invite reference to an eye-catching front-page coloured article titled:“UDP FILES PETITION AGAINST IEC”, which contained the two photographs of both Mr Alieu Momarr Njai, the honourable, God-fearing and able IEC Chairman and Mr Almami Taal, my learned junior, who also officially doubles as the UDP Spokesman. The aforesaid article was recently published in the Thursday 16th July 2020 publication, of The Standard Newspaper, and it was succinctly co-authored by Omar Bah and Momodou Darboe.

The first paragraph of the said article on page 2 of the aforesaid publication read: “The United Democratic Party has filed a writ of mandamus in court, seeking the court to compel the Independent Electoral Commission to do what it is legal. The UDP Spokesperson Almami Taal confirmed to The Standard yesterday that the party’s lawyers have filed the writ, because the party is apparently frustrated with the IEC for not observing the rule of law in the case of Chairman Sonko”.

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My learned junior at the Gambia Bar, Mr Almami Taal went on to say:“We filed for a writ of mandamus, to be issued to compel the IEC to do their job according to the law. We want this writ of mandamus issued as soon as possible because time is of the essence here. The writ is to show Gambians that they must hold their institutions and officials to account.”

The penultimate paragraph read: “Sonko, once a key figure in the UDP, fell out with the party after they accused him of shifting his allegiance to the newly-formed NPP and its leader President Barrow.” It is of paramount legal importance to note here that Mr Sonko was merely accused of shifting his political allegiance, from the UDP to the NPP (His Excellency President Adama Barrow’s new and one of the youngest political parties), but we are not told, whether or not Mr Sonko (the political accused), pleaded either “guilty” or “not guilty”, to the alleged aforesaid political charge or offence? It is indeed a cardinal and incontrovertible principle of English Law: “That every person is presumed to be innocent, until the prosecution has proved his or her guilt, beyond all reasonable doubt, or until the person/the suspect/the accused, has pleaded guilty to the charge.” It was quite possible, that Mr Sonko never bothered to plead to the aforesaid political charge/ offence. Instead he preferred to exercise his “right of silence” in English Law, which in American Jurisprudence is called:“The Fifth Amendment.” Silence does not necessarily mean guilt or consent.

“Speech is silver, and silence is golden”, as the famous adage goes. His Excellency President Adama Barrow’s party for now is among the newest and youngest political parties in The Gambia’s political arena. But the Holy Bible authoritatively says: “The first shall be the last, and the last shall be the first”. My learned junior at the Gambia Bar, Mr Sheikh Tijan Hydara, (a former Attorney General & Minister of Justice), is now the founder and owner of the latest and youngest Gambian political party (ie Gambia Alliance For National Unity- GANU). On 12thJune 2020, The Standard Newspaper reported that GANU was officially registered by the IEC as the 15th registered political party in The Gambia.

His Excellency President Adama Barrow’s political party (ie NPP), is therefore GANU’s political senior, in The Gambia’s political arena. “Qui prioreest tempore, portioest jure” (Latin: ie he who is first in time, has priority in law). This highly charged or controversial Chairman Sheriffo Sonko’s issue, proves beyond all reasonable doubt, that His Excellency President Adama Barrow’s nascent political party (ie NPP) has really “stirred the hornet’s nest”, or is now “a force to be reckoned with” in Gambian politics, so soon.

It is of paramount constitutional importance for me to appropriately quote, in this regard, what used to be Section 91(1) (d) of The Gambia’s 1997 Constitution, which is titled: “Tenure of Seats of Members of The National Assembly”, and which used to read: “A member of the National Assembly shall vacate his or her seat in the National Assembly (d) if he or she ceases to be a member of the political party, of which he or she was a member, at the time of his or her election.” This controversial, important and highly undemocratic Constitutional provision, has ever since been rightly and wisely repealed in 2017, by the Honourable Members of the National Assembly and it was most likely, that this was done unanimously. If that was actually the case, then there existed between the Honourable MPs “concensus ad idem” (Latin: a meeting or convergence of minds).

The last paragraph of the aforesaid article read: “This prompted the party to agitate for the removal of Sonko, as per the Local Government Act, but the IEC is yet to grant that wish.” I do not think that the IEC will ever grant that wish.

My reasoned legal analysis
Firstly, Mr Sheriffo Sonko’s political decision to allegedly switch political allegiance or cross carpet from the UDP to the NPP should not warrant him at all, to lose his elected official position, because by so doing, he was rightly and constitutionally exercising his “right of association”, which is expressly protected or guaranteed by “an Entrenched Clause”, namely: Section 25 (1)(e) of the aforesaid constitution, which reads: “Every person shall have the right to: (e) freedom of association, which shall include, freedom to form and join associations and unions, including political parties and trade unions.”

Secondly, if the Local Government Act empowers the UDP to request the IEC to recall Mr Sheriffo Sonko from active service, as the incumbent Chairman of The Brikama Area Council, and then conduct a by-election in the Ward in which Mr Sonko was duly elected, then this is a clear conflict between the said Act, and the aforesaid Constitution, and the latter shall obviously prevail, because Section 4 of the aforesaid Constitution, which is titled:“Supremacy of the Constitution”, authoritatively reads:“This Constitution is the supreme law of The Gambia, and any other law found to be inconsistent with any provision of this Constitution shall, to the extent of the inconsistency, be void.”

Conclusion
To conclude, I am now therefore vociferously putting it to Mr Almami Taal that the hilarious and very unrealistic act of UDP lawyers, filing for an order of mandamus at the High Court, against the IEC Chairman, was indeed an exercise of monumental legal futility, and a blatant abuse of the court process, because the High Court in its superlative legal wisdom, shall never ever command neither the IEC nor its able Honourable Chairman, to do anything, that is either illegal or unconstitutional, or both. “He who comes to equity, must come with clean hands,” as the age-old and time honoured equity adage goes. As a senior Canadian-trained theologian, let me terminate this stimulating and highly educative intellectual discourse, by quoting a very appropriate Biblical quotation, from the famous book of the Prophet Amos, in which God Almighty said or commanded:“…But let justice roll down like waters, and righteousness, like an ever-rolling stream.” “Ubijus ibiremedium” (Latin: when there is a legal wrong, there must be, a legal remedy). I rest my case.

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