A high court judge on Friday dismissed a suit brought by Bakary Bunja Dabo and others which sought the court to direct the IEC to register Gambians living abroad.
Bakary Bunja Dabo, Cherno M Njie, Pa Samba Sadaga Jow, Jeggan Gerald Grey-Johnson and Sidi Mohammed Sanneh brought a civil action against the Attorney General and the Independent Electoral Commission to enforce the Supreme Court judgement that went in their favour. The Supreme Court had declared that every Gambian, including those living outside the jurisdiction, are entitled to register for and vote in elections to the offices of the president, members of the National Assembly, for local government offices and traditional rulers as well as referendum. BB Dabo and others claimed IEC has not taken steps to register Gambians in the diaspora for the forthcoming national elections which in their view is a gross disregard to the judgment of the apex court. The lawyer for BB Dabo and others, Abdoulie Fatty submitted that the high court has control over public bodies including the IEC. He argued that the Constitution places an obligation on the high court to abide by court decisions. He said the Supreme Court decision still stands and it should be enforced as he relied on section 39 of the Constitution. He said IEC has an obligation not to disenfranchise any eligible Gambian, including those living abroad, from voting. However, Lawyer Kimbeng T. Tah for the Attorney General argued the high court cannot make any orders on the same matter different from the ones the Supreme Court already made since it is a subordinate court. Counsel Tah said what BB Dabo and Co were seeking for was an order from the high court directing for an amendment of the Constitution to introduce new constituencies, a power the high court lacks.
Justice Amina Saho-Ceesay in her ruling said her court has the jurisdiction to make orders of mandamus as she relied on sections 7 and 130 of the Constitutions as well as the Laws of England Application Act. She also held that IEC is a public body and it is subjected to judicial control, adding the electoral body is subjected to the supervisory jurisdiction of the high court. “The high court has judicial control over public bodies,” she said. On whether to grant the application, she asked the question what is in the judgment that is to be enforced. In answering the question, she said the Supreme Court only made a declaration that every Gambian, including those living outside the jurisdiction has the right to be registered and vote in public elections pursuant to section 39 of the Constitution. However, she rescinded from making an order of mandamus directing the IEC to register Gambians living outside the jurisdiction.
“This honourable court cannot grant an order different from the Supreme Court,” she said. She agreed with Lawyer K. Tah that the apex court only made a declaration and there were no consequential orders capable of being enforced.
“The judgment only made declarations. Declaratory judgments are not capable of being enforced. It is a judicial statement,” she said. She said the Supreme Court judgment was not an executory judgment capable of being enforced. “Declaration is in itself unenforceable,” she held.
Culled from Foroyaa website