The recently concluded Presidential electoral denouement was unsatisfying and ambiguous.
Corpus juris Secundum of the Gambian law:
The major sources of the Gambian law are: the Constitution; Decrees; Rules and Regulations; English law; Customary law; and Shari’a (law) – by virtue of S: 7 of the 1997 Constitution.
The Gambia Legal System, like most West Africa countries, is tripartite system consisting of the English Common Law and principles of equity and Statue law; Customary law which is applied by Tribunals; and Shari’a administered by Cadi Court system.
I hope I won’t be considered presumptuous if I offer some advice.
Election Time Rule – A recipe for Electoral Malpractice in Africa:
One of the factors that has aided rigging elections in Africa the world over, is the fact of the difficulty in proving electoral malpractices at the courts. The onus of proof lies on the petitioner with limited timeline. Due to such constraint, the courts in practice allot time to parties at trials. The implication is that, only few cases that made to the courts are won by petitioners in election matters while, a great number of cases are lost on technicalities – the Gambia a case in point. The effect of this scenario is that elections are made a do or die affairs. Almost every candidate to an election has formed the mentality of scheming one form of rigging device or the other just to win election, knowing that, once a candidate is declared a winner, it is difficult to upturn the victory at the courts.
Hence a petitioner who is genuinely robbed off an electoral victory, is faced with multiple challenges, ranging from the burden of strict proof and a limited time frame to discharge the burden. To this end, we submit that in the case of the Gambia, Ss: 49 and 124 (1), (a) are in conflict with S: 24 (1), (a) and (b) of the 1997 Constitution, thus, the provision to secure protection of the law is offended. Though, we are very much appreciative of the rule of lex generalis versus lex specialibus, however, our initial position on this still remains.
In the case of Nigeria, S: 285 (6), (7) and (8) of the Constitution, the Supreme Court of Nigeria had followed this ratio decidendi in Kadiya Vs. Lar (1983) N.S.C.C 563, where it relied on S: 33 (1) of the 1979 Constitution, which is in pari materia with Ss: 129 (3) and 140 (2) of the Election Act, (which stipulated seven days time limit) as unconstitutional and void ab initio as they conflict with S: 33 (1) of the constitution.
The desirability of the election petition rule in the present democratic dispensation of the Gambia needs to be revisited. Section 49 of the 1997 Constitution – Challenge to election of President – reads: Any registered political party which has participated in the Presidential election or an independent candidate who has participated in such an election may apply to the Supreme Court to determine the validity of the election of a President by filing a petition within ten days of the declaration of the result of election”.
Corollary to this, is the usual suspect and the infamous Rule 11 of the Election Petition Rules – Time for giving notice – states: “Notice of the presentation of a petition and of the nature of the proposed security SHALL be served by the petitioner on the respondent within five days after the presentation, exclusively of the day of presentation”. The emphasis ‘SHALL’ in capital is mine. Section 49 the Gambian Constitution, is in pari materia with S: 285 (5) of the Nigerian Constitution, and also finds its spirit and intent in Article 64 (1) of the Ghanian Constitution respectively.
Section 285 (5) of the Nigerian Constitution stipulates that every election petition shall be filed within 21 days after the date of the declaration of the election. By subsection (6) of S: 285, the tribunal is bound to deliver its judgment in writing within 180 days from the date of the filing of the petition, while subsection (7) of the same section states, that an appeal arising therefrom shall be concluded within 60 days of the delivery of the judgment of the tribunal or court of appeal. Whilst in the case of Ghana, Article 64 (1) reads: “The validity of the election of the President may be challenged only by a citizen of Ghana who may present a petition for the purpose to the Supreme Court within twenty-one days after the declaration of the result of election in respect of which the petition is presented”. In the case of the Gambia, the timeline for delivery of judgment in electoral matters i.e office of President, and National Assembly is strictly time bound to thirty days only – by virtue of S: 124 (1), (a) and (b) of the 1997 Constitution. Therefore, we submit that, for ease of referencing, section 124 should have been consolidated under section 49 of the constitution. Interestingly enough, or should I say unfortunately enough, the law tied the hands of the CJ in exercising discretion with regard to timeline for delivery of judgment in election matters. By virtue of subsection (2) of 124 and it states: “It shall be the duty of the Chief Justice to ensure that compliance with the provisions of subsection (1)”. However, subsection (3) of the same section, is being vindictive of subsection (2), by stating that, “… the validity of any decision shall not be called in question on the grounds that it was not delivered in accordance with the provisions of subsection (1)”. Notwithstanding, it is trite in law that, “The exercise of discretionary power shall not be arbitrary, capricious, or biased either by resentment, prejudice or personal dislike and shall be in accordance with due process of law”. We therefore humbly submit that, hence judgments around the world in election matters, become a clear cut case of rituals of the law.
In Nigeria, Time Limitation in Election Matters and the Question of Justice – Anthony Ogwugwua Agadah makes a case of the time allowed for election petition. He argued that, S: 36 (1) of the 1999 (Amended) Constitution of Nigeria, provides for the right to fair hearing and stipulates that judges shall hear and determine matters before them “within a reasonable time”. A component of this legal norm as established in the famous English case of R Vs. Sussex Justices, exparte McCarthy (1924) 1KB, 254 – is the principle that, judges owe an obligation to ensure that not only must justice be done, but must be seen done in all cases. The case of Senator Adeleke Vs. Gov Oyetola, (2019) is a typical example of the negative effect of the current legal regime on timeline for election cases in Nigeria”. He further lamented that, this same provision is reproduced ipsissima verba by S: 134 (2) of the Election Act. We therefore submit that, in terms of progress, Nigeria and Ghana constitutional provisions are by far a little bit fairer than the Gambian law, with regard to timeline for instituting electoral petition process at the courts.
The only problem with Article 64 (1) of Ghana, is the wordings, and it reads: “… election of the President may be challenged only by a citizen of Ghana …”. My only problem with this is that, it is open to different interpretations and therefore a double entendre. It can mean any Ghanian citizen can contest election result at the courts regardless. In contrast, the Gambian law in this area is more progressive as to who can contest presidential election result. Section 49 of the Gambian law is very much clear as to who are the stakeholders. Par contra, the Ghanian law may lead to some kind of a slippery slope fallacy syndrome, that may have the domino effect of opening another legal Pandora’s box of multiple and endless litigations.
Kawsu Jadama, Esq…