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Monday, October 2, 2023

Letters:The Gambia – time for stocktaking

Letters:The Gambia - time for stocktaking


Amicus curiae:

It is indeed labyrinthine, but astonishingly surprising too, that, for an important case of this nature, did not receive the attention of amici curiae. Frequently, a person or a professional body who is not a party to a case, but has a strong interest in the matter, will petition the court for a permission to submit a brief in action with the intent of influencing court’s decision.

The first recorded appearance of an amicus curiae in the Supreme Court of America occurred in 1821. See Green Vs. Biddle, 21 U.S (8 Wheat) 1 (1823), which perhaps not coincidentally was the first year the Court accepted written briefs for filing. The first recorded Gambian amicus brief: See Mary Goddard Vs. Khadi Manjang & Khadi N’Dongo (1967) SUM Vol. 11; Iss. 2. In this case, the Court called on A.S.B Saho to help the Court on Islamic law of inheritance and marriage, and the Court eventually decided the case on the merits of the expert information provided by Amicus A.S.B Saho.

The recent participation of amicus in our jurisprudence, is the case of The State Vs. Yankuba Touray. The Supreme Court of The Gambia, among other avalanche of authorities, case laws and principles, adopted the line of argument of the following learned amici curiae: Gaye Sowe; N.M.C Cham; S. Taal; and A. Fatty of Counsel.

It is submitted that, the judiciary in the Gambia has a great role to play in curing the injustice created by the constitutional provisions under review – through the process of judicial activism in a bit to develop our nascent democracy. The late Chief Justice J. S Verma of India defined judicial activism as “the active process of implemention of the rule of law essential for the preservation of a functional democracy”. It is also described as the philosophy of judicial decision-making process, whereby judges allow their personal views about public policy among other factors, to guide their decisions (Blacks’ Law Dictionary).

In the United States of America, judicial activism dates back to the famous case of Marbury Vs. Madison 5US (1 Cranch) 137 (1803).

In Nigeria, it was displayed in Adegbenro Vs. Akintola (1963) All ER 305, Lakanmi Vs. A. G Western Nig (1970) NSCC 143.

It is opined that the only remedy to the current flaw in our electoral system is an amendment to Ss: 49 and 124 of the Constitution, other similar sections of the Election Act, and the Election Petition Rules dealing on election timeline. Such amendments should give the courts or the appellate courts the power to extend the period beyond the stipulated time either suo moto or by cogent reasons for such application.

We believe that, if this is had existed or envisaged, most petitioners would have been given another opportunity for a fair hearing.

Also, it is our sheer believe that, if Ss: 49 and 124, Election Act, and Rule 11 of the Election Petition Rules remain in our statute’s books, the basic rule of natural justice in so far as litigants are concerned, would not be given fair trial. Where cases are truncated without genuine trial in deference to the time limit rule, it will only lead to injustice from the very constitution which was promulgated to propagate justice in the land.

In our final summation, it is the humble submission of this writer that recourse to judicial activism remains the only means by which our judiciary will, and can cure the current absurd situation created by the election timeline rule. Put it differently, by weaponizing the judiciary, remains the only way to adequately and efficiently deal with election matters. However, this should not be seen, heard, or taken as an aberration or a departure from the norms.

We also submit that, the law is not cast in stone and the provisions of the law are neither carved in stone either. Without much Ado. This may sound a bit weird, but the current regime of our electoral laws are insufficiently adequate, and not necessarily sufficient.

The views and opinions expressed in this write up are those of the author and do not reflect or represent the views of anyone else. Statement like this is not meant to agitate anyone, if it does, then words failed me. To err is human, and to forgive is divine.

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