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Saturday, December 4, 2021

Are we sleepwalking into another post-election impasse?

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By Pa Louis Sambou

In an election year (2021) in The Gambia, Electoral Commission’s first official move is to announce the shredding of voter registration timetable dramatically coinciding with the President’s first official appointment of the year: to unlawfully parachute a party militant, Mr Remi Joiner to the vacant post of Vice Chairman of the Electoral Commission. Never-mind the weakness of the perpetuated allegations surrounding the capacity and constitutional legitimacy of the Commission’s Chairman, these two seriously ill-advised acts of self-harm by the two aforementioned entities in question, whether occurring independently of their own accord or as part of a coordinated conspiracy, they’re nevertheless daring enough to legitimately put all stakeholders of the electoral process on edge. I’m personally not convinced by the claims of a conspiracy but, the concerns expressed in reaction to the above are absolutely valid and legitimate. Therefore, if this is the trend of events to follow, then it’s absolutely legitimate (and not paranoia) to ask oneself the question: Whether we are sleepwalking into another post-election impasse?

The word ‘sleepwalking’ is one used advisedly because, I do not suppose that a post election impasse is the objective nor in the interest of the above-mentioned duo likewise other stakeholders. However, such may nonetheless be the undesired consequence of any mishandling of matters of relevance to the elections.

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The unprecedented experience of the 2016/17 impasse was so brutal and devastating, it is completely understandable that some would frown at such a question being asked never-mind its possibility being factored into the equation in the first place. It’s no surprise that I disagree with this dissenting view but, that’s not to say it isn’t one I’m ordinarily sympathetic with. Of course asking the question doesn’t necessarily mean that one desires such an outcome, besides, unless the question is asked and possible causes of such vice interrogated, the chances of preventing or even mitigating against it (an impasse) would be completely diminished.

On the maiden Executive blunder of 2021 (appointment of National People’s Party militant as Electoral Commission Vice Chairman), some would argue that the unlawful appointment of Mr Joiner was promptly rescind, so what’s the big deal now? It is indeed true that it isn’t a material issue any longer — this is conceded by even the President’s fiercest critics I noted. However, it is also true that at a time when the Electoral Commission is shrouded with credibility questions, such naked breach flicked a switch and ratcheted up an already heightened atmosphere of mistrust which without seeking to overdramatise things is arguably on par with that which prevailed in the lead up to the 2016 Presidential elections. Whether the coincidence with the Electoral Commission’s questionable cancellation of its voter registration schedule is the result of a conspiracy or, the result of lockstep incompetence which no planning could match remains the subject of speculation which I’m sure will continue to enrich and spice-up political punditry. In any case though what’s not a subject of speculation are the existing potential risks which could ultimately ferment a post election impasse vis-à-vis:

o          The sowing of doubt around constitutional legitimacy of Electoral Commission Chairman.

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o          The Electoral Commission’s needless insistence on paper ballot voting.

o          The existing vacancy at the Electoral Commission.

o          Possible 11th hour attempt to block Lawyer Ousainu Darboe from vying for the Presidency (which legally has very limited prospects if any at all – see 29 October 2020 Article for details).

In the case of the constitutionality of the Commission Chairman’s position, he (Alieu Momarr Njai) had his appointment renewed in 2018 so that he serves a 3rd term but, it is alleged that such reappointment by the President is unconstitutional. But, is it really? The allegation was first made via an op-ed in the Chronicle newspaper and consistently re-echoed in other quarters by mainly opposition politicians and activists. The claim that the Commission Chair is serving a non-consecutive 3rd term as Commissioner is an established fact which is not in dispute. The facts are that: Alieu Momar Njai was first appointed Commissioner in 2006, he resigned in 2007; he was reappointed in 2011 for a fresh 7-year term which expired in 2018, a reappointment which was renewed in the same year, facts from which it is established that he served for only a term when first appointed in 2006 and is currently serving the 2nd term of his second appointment which isn’t the same as serving a 3rd consecutive term. Now, this may seem a bone distinction to make but, it isn’t after all — as far as the Constitutionality of his renewed appointment in 2018 goes, the above distinction is the determining factor.

The relevant authority being section 42 of the Constitution at subsection (4) states:

“Subject to the provisions of this section, the members of the Commission shall be appointed for a period of seven years and may be re-appointed for one further term…”

Clearly, as far as this provision goes, one can serve for no more than two consecutive terms at any one time but, nothing within the provision restricts further reappointment as long as such reappointment doesn’t breach this two consecutive term limit rule. Furthermore, as expressly stated in the above section 42(4), its substance is “subject to…” other “provisions within…” the same section 42 of which section 42(5) is one and, as nothing within the disqualifications at section 42(5) disqualifies such further reappointment, it’s reasonable to take the view that it is the intention of the drafters for the two terms limit to be an occasional limit rather than a lifetime limit so that one can serve as IEC Commissioner for unlimited terms as long as they do not serve more than 2 consecutive terms at any one time. As Alieu Momarr Njai is on his 2nd term of his second appointment (and not serving a 3rd consecutive term) it doesn’t occur to me that such constitutes a breach of any part of section 42 of the Constitution.

Without seeking to entirely dismiss the claims of illegitimacy, the substance of the law suggest that such claims stem out of an inaccurate conclusion from an accurate observation.

To be absolutely clear, the above isn’t to suggest that the allegations questioning the constitutional legitimacy of the Chairman’s position are motivated by bad faith or not worthy of being made. My contention is, that the basis of the allegation is an extremely weak one and, unless they’re willing to put the question before the Supreme Court to have it appropriately addressed, re-echoing it over and over does no one any good other than perpetuate an undesirable herd mentality which has a potential to undermine confidence in the system and maximise the chances of unwarranted friction or post election impasse. I do not suppose this is the outcome they seek and hence why I genuinely trust that moving forward, they’ll do the dutifully responsible.

Another stark naked risk is, the Electoral Commission’s needless insistence on wholesale switch from marbles to paper ballot at the drop of a hat; this is very concerning. In 2016, under a system the Electoral Commission fully understood (marbles) and with much less candidates (only 3 compared to possibly 15 this time around) and a much smaller number of registered voters and voter turnout, one small cosmetic change (on the spot counting) led to an unforced error on the part of the Electoral Commission to which the 2016/17 impasse was attributed. Even though the flaw was detected and rectified, we are not aware of any investigation having been conducted to establish the weak-link for the purposes of preventing a recurrence which of course means that there’s still a realistic possibility for a recurrence of a similar error come December 2021. To compound the aforementioned vulnerability with the imposition of a wholesale change to paper ballots with all its risks (low literacy rate of electorate, no trial, no public consultation etc.) is at best, unnerving. Some would argue that I’m being too risk averse but, it’s nevertheless warranted caution given what’s at stake. 

From information which is publicly available, the strongest argument in support of such unmitigated wholesale switch is one which is hinged on “logistical challenges” of having to transport 15 marble drums (one for each party candidate) to hundreds of polling stations up and down the country. With all due respect, poor excuse of administrative inconvenience doesn’t justify sacrificing the integrity of and public confidence in the system likewise risking the emergence of an avoidable post election impasse. 

A sensible alternative is to limit the use of ballot papers in the Presidential elections as well as the National Assembly elections to the Diaspora and a few select pre-agreed polling stations in The Gambia as a trial. This or a similarly reasonable arrangement could be agreed at the Inter Party Committee which has proven a very useful dialogue forum. I hope the Electoral Commission seriously reconsiders the needless insistence on its ability to discharge its functions being dependent on forcing through an un-assessed, untested paper ballot system which has neither the consent nor confidence of the public. The Electoral Commission has a duty to, in the interest of the collective good ensure that they tread this sensitive issue extremely carefully.

On the subject of the vacancy following Mr Malleh Sallah’s resignation in July 2020, well, where do I even start?  This manpower gap in the Electoral Commission surprisingly subsisted for quite sometime; given what’s ahead (busy elections calendar) and signs of a struggling Commission, one would have thought that appointment of a successor would be treated as an urgent matter and be acted upon in a swift but smooth fashion. This hasn’t happened and it needs to happen. Generally speaking, occupying any public office is understandably never an easy place to always conduct oneself with as much grace as one would like. However, on this occasion this indiscretion (or scandal) on the part of the President is entirely self-inflicted and the earlier he fully constitutes the Electoral Commission with a suitably qualified candidate, the better for all.

It must be said that the ineligibility and unsuitability of Mr Joiner (a member of the President’s political party) for appointment into the Electoral Commission was a blatantly obvious fact, it’s almost impossible to miss hence why one would find it extremely difficult to accept (in the absence of hard evidence) that such appointment emerged from advice from the Judicial Service Commission of which the Attorney General is a part and the Public Service Commission. In any case, a suitable appointment must swiftly follow to put this issue to rest. Not too much of an ask at all.

In the face of a highly charged pre-election climate, it is imperatively important that all concerned especially the President, the Electoral Commission and political party leaders do all within their power, influence and wisdom to avoid needless friction which may lead to undesirable consequences whether before, during or immediately after the elections. The Inter Party Committee is a useful tool with which to pursue consensus on contentious issues and I hope it’s utilised to its maximum potential. It’s a very Gambian disposition to let things play out in the misguided hope that they’ll be resolved by luck and fate but, whilst these may provide a means which no anticipatory planning could match, they’re hardly credible substitutes to rely on especially given the high stakes. I hope we do not rely on these — otherwise, the ingredients of a post election impasse would have been baked into such unforgivable omission (if not dereliction of duty).

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