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Legal opinion on the qualification of Sheikh Tijan Hydara as a presidential candidate

Legal opinion on the qualification of Sheikh Tijan Hydara as a presidential candidate

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By Anonymous

Elections Act Cap: 3:01, Vol 1, Laws of The Gambia (hereafter referred to as the Act), is an Act to establish and regulate the election of candidates for the Office of President; for the conduct of elections; and for connected matters.

Section 39 (2) of the Act enjoins the Independent Electoral Commission to only accept nominations of those candidates who have complied with all the formalities stipulated in the Act. In other words, it requires that a person who desires to be nominated as a candidate for Presidential elections must deliver to the IEC/Returning Officer appointed to receive nominations, Form 1 of Part A in the Fourth Schedule of the Act that is signed and dated by the person who desires to be nominated as as Presidential candidate indicating that he/she satisfied all the qualification/requirements stipulated in the Constitution, the Elections Act and any other law. The said Form 1 must be delivered together with attachments comprising (1) Forms containing the names and details of at least 5,000 voters whose names appear in the register of voters, with at least two hundred voters being drawn from each Administrative Area as stipulated in Section 42(2)(a) of the Elections Act; (2) a sworn declaration of his or her assets; (3) a certificate, certifying that he or she has paid all taxes due from him or her as stipulated in Section 42(7) of the Act; and (4) deposit or cause to be deposited with the Returning Officer, the sum of Ten Thousand Dalasis a provided for under Section 43(1)(a) of the Act.

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Then, when a candidate for Presidential elections delivers his/her nomination papers to the IEC/Returning Officer as outlined above, section 49 of the Elections Act provided that:

(1) A registered voter may object to a nomination paper on all or any of the following grounds, but on no other ground, that –

a)         The description of the candidate is insufficient to identify the candidate;

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b)         The nomination paper does not comply with or was not delivered in accordance with the provisions of this Act;

c)         It is apparent from the contents of the nomination paper that the candidate is not capable of being elected to the office to which his or her nomination paper relates.

In line with Section 49 of the Act, in my view, for a registered voter to object to a nomination paper the voter can rely only on the provisions of Sections 39, 42 and 43 of the Act dealing with the qualification and disqualification of a candidate for an elective office. These sections are produced here below in full.

According to Section 42(2)(a) of the Act, “A candidate for election to the office of President shall be nominated in the prescribed Form 1 of Part A of the Fourth Schedule by not less than 5,000 voters whose names appear in the register of voters, with at least two hundred voters being drawn from each Administrative Area”. Sections 42(7) prescribes that, “A candidate for election shall deliver to the commission, with his or her nomination paper, a sworn declaration of his or her assets and a certificate, certifying that he or she has paid all taxes due from him or her.” Under Section 43(1)(a) of the Act, “A candidate shall, at the time he or she delivers his or her nominations paper to the Returning Officer for elections to the office of President, deposit or cause to be deposited with the Returning Officer, the sum of Ten Thousand Dalasis.” Section 39 (2) of the Act states that, “A person who desires to be nominated as a candidate for any elective office shall, before the acceptance of his or her nomination papers, satisfy the qualifications stipulated for that office in the Constitution, this Act and any other law.”

In light of the foregoing provisions, to determine whether Sheikh Tijan Hydara Esquire is qualified as presidential candidate in December 2021 presidential election, there is a need to read Section 39 (2) of the Elections Act together with its interlinked Section 62 of the Constitution, 1997 and, Section 26 of Chapter 4 of the Constitution, 1997 dealing with Protection of Fundamental Rights and Freedoms to give effect to the true legislative intent for the conduct of Presidential elections in The Gambia.

Section 62(1) of the Constitution dealing with qualification of a candidate for the office of President provides that:

 (1) A person shall be qualified for election as president if –

a)         he or she is a citizen of The Gambia by birth or descent;

b)         he or she attained the minimum age of thirty years but not more than sixty-five years;

c)         he or she has been ordinarily resident in The Gambia for the five years immediately preceding the election;

d)         he or she has completed senior secondary school education; and

e)         he or she is qualified to be elected as a member of the National Assembly.

Section 62(2) and 62 (3) deals with disqualification of a candidate for election as President. It provides that, “A person who holds the citizenship or nationality of a country other than The Gambia, shall not be qualified for election as President.” Section 62(3) provides that, “A person who, while holding public office in The Gambia has been – 1… (a) compulsorily retired, terminated or dismissed from such office, or (b) has been found guilty of any criminal offence by any court or tribunal established by law; or (c) has been found liable for misconduct, negligence, corruption or improper behaviour by any commission or committee of inquiry established by law shall not be qualified for election as President.

Notwithstanding provisions 62 of the 1997 Constitution above, what must be noted is that Chapter 4, section 26 of the Constitution, 1997 is an integral part of section 39 (2) of the Elections Act. Section 26 provides that, Every citizen of The Gambia of full age and capacity shall have the right, without unreasonable restrictions – (a) to take part in the conduct of public affairs, directly or through freely chosen representatives; (b) to vote and stand for elections at genuine periodic elections for public office, which election shall be by universal and equal suffrage and be held by secret ballot; (c) to have access, on general terms of equality, to public service in The Gambia.

Going by Section 26 of the Constitution, 1997, any objection by a voter that a candidate does not meet the requirements to be nominated for Presidential elections under, say for instance, section 62(3)(a) and(c) of the Constitution would be wrong, misguided, flawed, or illogical. This is because, section 26 of the Constitution obliges the IEC to nominate a Presidential candidate and allow the totality of the registered voters to exercise their autonomy of equal suffrage by secret ballot in deciding whether he/she is qualified to be president. To this end, only death or insanity is the only reasonable restriction for nominations of a candidate for Presidential Elections. So any objection along the line section 62(3) (a) and (c) to the nomination papers any candidate must fail.

Indeed, an entrenched provision such as Section 26 of the Constitution should prevail over an un-entrenched provision such as paragraph (3)(a) and(c) of Section 62 of the Constitution. More so, relying on the Supreme Court of The Gambia case of State vs Yankuba Touray Case No SC CR/001/2020 delivered on the 19th March 2021, the Supreme Court of The Gambia clearly held that: “Chapter IV of the Constitution provides for the protection of fundamental rights and freedoms including civil rights, political rights as well as economic, social and cultural rights (Sections 18 to 33 of the Constitution). Section 17 (1) of the Constitution obliges all organs of the Executive and its agencies, the Legislature as well as all natural and legal persons to respect and uphold the rights guaranteed by the Constitution. Every person in The Gambia is entitled without distinction to the enjoyment of these rights… The importance attached to this Chapter of the Constitution is reflected in its entrenchment.”

So to speak, a word for the wise is enough. The Chairman of IEC should interpret Section 39 (2) taking into account section 26 of the Constitution, 1997 in a way that promotes the effective exercise of the fundamental Human Right and freedom to stand at Presidential elections and hence give precedence to section 26 of the Constitution over Section 62 of the Constitution or Section 39 (2) of the Elections Act and not otherwise. The chairman of the IEC must not violate Section 26 of the Constitution of The Gambia to reject Sheikh Tijan Hydara’s nomination papers basing such decision only on section 62(3)(a) and(c) of the Constitution.

Conclusion

In conclusion, it is my opinion that Sheikh Tijan Hydara is qualified as presidential candidate in December 2021 presidential election. The IEC should ensure that it approves the nomination of all candidates for Presidential elections who deliver to an IEC/Returning Officer Form 1 of Part A of the Fourth Schedule of the Elections Act that is completed, signed and dated by the candidate and, accompanied with (1) Forms containing the names and details of at least 5,000 whose names appear in the register of voters, with at least 200 voters being drawn from each Administrative Area; (2) a sworn declaration of his or her assets; (3) a certificate, certifying that he or she has paid all taxes due from him or her; and (4) deposit with the Returning Officer, the sum of Ten Thousand Dalasis so as to give effect to Section 26 of the Constitution.

Next step

The following must be in order before the Nominations date:

(1) Complete, signed and dated Form 1 of Part A of the Fourth Schedule of the Elections Act. Attach thereto,

a)         Forms containing the names and details of at 5,000 voters whose names appear in the register of voters, with at least 200 voters being drawn from each Administrative Area;

b)         sworn declaration of your assets;

c)         certificate, certifying that you have paid all taxes due from you;

d)         the sum of Ten Thousand Dalasis.

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