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Saturday, May 21, 2022

The IEC cannot interpret the constitution!

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By M Robertson Roberts

“The subject of
Momodou Sabally’s
rejection is not as
straightforward
as it may appear
by merely citing
Section 90(1)(e)
of the 1997
Constitution of
The Gambia.
I believe the
matter should be
brought before
the courts and
again allow for
our jurisprudence
to grow and be
enriched.”

The fact of the matter is that the law is not static nor is it monotonous. Hence it is subjected to various interpretations. It is for this reason that where there is ample dissenting voice in a particular judgement, it is put to a vote and the majority decides.

Many jurists and scholars have opened debates as to whether it is a matter of law or a matter of majority. The truth is that for now, such matters are both of law and of majority because no matter the brilliance of the dissenting judgement and or opinion, if the majority does not decide on it, it stays where it is as a dissenting opinion and not the substantive judgment.

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I am however unmoved in my position that the Independent Electoral Commission returning officer had no legal authority to interpret Section 90(1) (e) of the 1997 Constitution and reject the nomination of Momodou Sabally.

Lawyer Lamin J Darbo as always, wrote a brilliant article “The Momodou Sabally National Assembly Nomination Saga: Sad but Lawful”. However, I do not believe that any legal mind is questioning the authenticity and or legality of Section 90(1)(e) of the 1997 Constitution of The Gambia.

What is being questioned and what has caused an electrifying debate is whether or not, provided under law, the IEC has the legal authority to make constitutional interpretations which I belief solely resides with the courts and this is where Gambian lawyers are divided and hence the public debate.

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“As to whether the IEC has the competence to interpret Section 90 (1) (e) of the Constitution at its level, I merely state it is performing a legally permitted intermediate gatekeeping function which can only be conclusively ratified by a competent court where its perspective is contested. However, the Janneh Commission Report and its accompanying White Paper are public documents available to the IEC and it can act upon them where deemed necessary,“ Lamin J Darbo stated.

From the above quotation, it seems that Lawyer Lamin Darbo agrees absolutely that the IEC does not have any power or authority to interpret Section 90(1)(e) of the Constitution. However, Lawyer Darbo proceeded to give his own personal opinion and make excuse for the IEC by stating: ”I merely state it is performing a legally permitted intermediate gatekeeping function which can only be conclusively ratified by a competent court where its perspective is contested.”

Now, the question to be determined is whether the law permits the IEC to serve as a gatekeeper to make constitutional interpretations? The answer is no. There is no such thing as gatekeepers in constitutional interpretation. It is left solely at the feet of the courts to decide.

Now assuming without conceding that a subsidiary law grants such powers to the IEC to make constitutional interpretations, then that subsidiary law is in conflict with the constitutional powers of the courts who are vested with sole authority to make interpretations and therefore this creates an inconsistency and where there is a subsidiary law that is inconsistent with the constitution then the constitution takes precedence.

Furthermore, the eminent jurist stated that the IEC acted as a third party gatekeeper and that its actions can only be “ratified” by the courts. One word stands out and it is “ratified”. It seems to me that the author has gone further to assume what legal interpretation the judges will make and is therefore saying that whatever decision of the IEC with regard to constitutional interpretation will be endorsed by the courts when such matter is brought before it. Again, I disagree because there is nowhere in law that suggests and or provides that any matter brought before a court would merely attract the endorsement of the judges. If this is the case, then in all honesty, going to court then becomes a futile exercise in this instance.

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