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City of Banjul
Wednesday, September 30, 2020

Should prospective Gambian voters in the Diaspora vote in the Referendum and in the next Presidential Election?�

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I cordially invite reference to a front-page and eye-catching article titled: “1EC SPEAKS ON DIASPORA VOTING,” with a coloured photograph of the honest, honourable, brave and God-fearing IEC Chairman, Alhajie Momarr Njai, affixed to it. The said article was published in the Wednesday 5th August 2020 publication of the widely-read The Standard Newspaper, and it was succinctly authored by Omar Bah, Paragraph I of the said article on page 2 of the said publication read: “The Chief Election Officer of the Independent Electoral Commission, Samboujang Njie, has made it emphatically clear, that Gambians in the Diaspora will only vote in the Presidential Election, as stipulated in the IEC Electoral Calendar.

He said this is exactly what has been prescribed in the new Constitution, expected to come into force next year,” Let me add, that the so-called Fmal Draft Constitution, may come into force next year “N’lutatis Mutandis” (Latin: i.e with the necessary changes or amendments) and “Pro Bono Publico” (Latin: for the public good).

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My reasoned legal analysis

The laconic phrase:’ …that Gambians in the Diaspora, will only vote in the Presidential Election… ” , IS legally and constitutionally wrong, because it should have been: ..that prospective Gambian voters in the Diaspora will only vote in the Presidential Election.. , ” , because not every Gambian in the Diaspora, is eligible to be a registered Gambian voter, in absentia. Section 26 of The Gambia’s 1997 Constitution, is titled: “Political Rights”, and Section 26 (a) reads: “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.

” Section 26 (b) of the aforesaid Constitution reads: “Every Citizen of The Gambia, of full age and capacity, shall have the right, without unreasonable restrictions (b) to vote and stand for election, at genuine periodic elections for public office, which elections shall be, by universal and equal suffrage, and be held by secret ballot.” Section 26 (b) of the aforesaid Constitution, inter alia says: ‘ ..by universal and equal suffrage.. If going by the present IEC Electoral Calendar, only Gambians on Gambian territory, will be eligible to vote in the referendum, but Gambians in the Diaspora will not be eligible to vote, then this is not equal suffrage.” One of the equity maxims goes thus: “Equality is equity”.

Equity, is indeed part and parcel of Gambian Laws, as evidenced by Section 7 (d), of our present 1997 Constitution, and Section I of the so-called Final Draft Constitution. Going down memory lane, “Universal Adult Suffrage” , was officially Introduced or implemented in Colonial Gambia in May 1962.This was the landmark year, whenHis Excellency Sir Edward Henry Windley, K.C.M.G., K,U.V.O., was the able British Governor, in Colonial Gambia, and his diplomatic tenure, lasted from 19th June 1958 to 29th March 1962.

What used to be called “Windley School” in “Half Die”, in Banjul South today, was officially named, after British Governor Windley.

My beloved late paternal aunty, Honourable Mrs. Louis Njie (Nee Mahoney), an Oxford University-trained educationist, a one-time Honourable Minister of Education, Youth, Sports & Culture, was once a Headmistress of Windley School. In 1984, when the late Honourable Mrs. Louis Njie, was the able Minister of Education in the Government of the late His Excellency President Sir Dawda Kairaba Jawara K.C.M.G., G.M.R.G., Mr. Abdoulie Sa11ah, an ex-Secretary General and Head of the Civil Service, at The Office of the President, State House, was her able Permanent Secretary.

Hitherto, only inhabitants of “The Colony” (the equivalent of todays “Greater Banjul Area”, were eligible to vote, but inhabitants of “The Protectorate” (the equivalent of today’s rural The Gambia), were not eligible to vote. According to Google: “Universal Adult Suffrage”, is a form of voting, in which all adults, within a political system, are allowed to vote, regardless of income, property, religion, race, or any other qualification.

” The laconic phrase here:- ” . a form of voting, in which all adults within a political system, are allowed to vote…..”, clearly means that, all Gambian adults in the Diaspora, are clearly within The Gambia’s political system, and should therefore be allowed to vote, in all elections and referenda, that are Officially and Constitutionally conducted in The Gambia, by the I.E.C., provided of course, thev have satisfied the two important Constitutional requirements, to be a registered Gambian voter: (l) They should be adults, and (2) They should be of sound mind.

As a senior Canadian- trained Theologian, let me say, The Holy Bible authoritatively says: , .that many are called, but few are chosen. ‘ Mr. SamboujangNjai, wenton to say: ” …this is exactly, what has been prescribed in the new Constitution, expected to come into fo—year.

” I am vociferously putting it to Mr. Samboujang Njai, that even though this is what has been prescribed, in the so-called Final Draft Constitution, that Legal instrument, is not engraved in stone, like:- “The Ten Commandments” which God Almighty gave to Prophet Moses (called Prophet Musa, in The Shana), on Mount Sinai, a Mountam in the Sinai Peninsula of Egypt, Google defines “A Peninsula” as: “a piece of land, that is almost entirely surrounded by water, but is connected to the mainland, on one side.

” As a Senior University of The Gambia Environmental Law Lecturer, from 2007 to date, I can authoritatively confirm, that “A Peninsula”, is the direct opposite of “An Island”.

In other words, that Draft Constitutional Provision, can be successfully challenged, in the appropriate Gambian Court, by prospective eligible Gambian voters in the Diaspora, on the Constitutional ground of violating:- “their right to protection from discrimination”, that is expressly guaranteed, by “an Entrenched Clause” namely:- Section 33 of the aforesaid Constitution, Section 33 (4) reads.- “In this Section, the expression, “discrimination” means, affording different treatments to different persons, attributable wholly or mainly, to their respective descriptions, to their race, colour, gender, language, religion, national or social origin, property, birth or other status, whereby persons of one such descriptions, are subjected to disabilities or restrictions, to which persons of another such description, are not made subject, or are accorded privileges or advantages, which are not accorded, to persons of another such description.

” Paragraph 2 of the said article read: “V’/hen the IEC Electoral Calendar was issued two weeks ago, indicating that the Diaspora, will only be registered after the referendum for the new Constitution, many Gambians especially those in the Diaspora voiced concern over their exclusion from the historical referendum. ”

It is axiomatic or it goes without saymg, that prospective Gambian voters in the Diaspora, indeed have every right, to bitterly protest against their unjustifiable exclusion, from the aforesaid historical referendum, because distance should not make any Gambian In the Diaspora, a lesser Gambian, or a Second-Class Gambian Citizen, after all, it is a well- known fact, that all the peoples of our “great, wide, beautiful, wonderful World”, are now, for all intents and purposes, “living in a global village.”

The famous poetic phrase is from the figment of the fertile poetic imagination, of the late William Brighty Rands, an erudite wnter and poet of “The Victorian Era”. According to Google, in the history of the United Kingdom, “The Victonan Era”, was the period of Queen Victoria’s reign, from 20 h June 1837 until her death, on 22nd January 1901. The Era followed the Georgian Period, and preceded the E Paint X Period, …

Paragraph 3 of the said article read: “On how the Diaspora is going to vote, the I.E.C. Chairman himself, Alieu Momarr Njai, told The Standard, that The Electoral Commission will be meeting Gambians, in their various Countries, during the Presidential Election.

It could be recalled also, that the Constitution Review Commission Chairman, Cherno Jallow, in an earlier media statement, said The C.R.C.’s recommendation is that, the Diaspora voting, should be limited to the Presidential Elections, because they are costly.”

It is very interesting to note, that it is only now, that The C.R.C. Chairman, Justice Cherno Jallow and other C.R.C. Members, are thinking about the welfare, of Gambian Tax Payers. Why was it that, when The Gambia Government, budgeted about 50 Million Dalasis, for the Study Tour of C.R.C. Members, at that time, they never thought about, the welfare of Gambian Tax Payers. ? “Do unto others, as you would like them, to do unto you,” The Golden Rule.

“What is sauce for the Goose is also sauce for the Gander” (i.e there should be no discrimination). If The Gambia Government can successfully find the colossal money, to sponsor the International Study Tour for C. R. C. Members, then there should be no problem whatsoever, in finding the colossal amount of money (from our development partners and friends of The Gambia), to ensure that, prospective Gambian Voters in the Diaspora, also enjoy their inalienable “right to vote”, In the forthcoming referendum, which will officially adopt a new National Constitution, for The Republic of The Gambia, and herald the dawning of “The Gambia’s 3rd Republic”, under the dynamic and visionary leadership, of His Excellency Adama Barrow.

His Excellency President Adama Barrow’s Government, is indeed a great respecter, of all the Human Rights, of all Gambian Citizens. Irrespective of whether, they are on The Gambia’s territory or in the Quic Quid Plantatur Solo Solo Cedit” (Latin: i.e. what is attached to the land, is also part of the land. ” The last paragraph of the said article read: “A Gambian in the Diaspora, who prefers to be anonymous, told this medi raine X

you deprive someone of their right to vote, it’s more than an insult. It is very unfair, that we are not allowed to vote, but let’s continue fighting for a better Gambia. That Government deprived us of our rights.

We are Citizens, so I don’t understand why they denied us, the opportunity to be responsible Citizens.’ 1 vehemently disagree, with what this anonymous, unenlightened and myopic Gambian in the Diaspora has said, because it was not The Gambia Government that has deprived them, of their “right to vote. ” Instead, It was The Chairman, Justice Cherno Jallow and other C.R.C. Members, who have deprived them, of their “right to vote” in the aforesaid referendum, since they were the very ones, who drafted the so-called Final Draft Constitution, which The I.E.C. is innocently going by.

“Those to whom much is given, much is expected” , from the book of Luke, Chapter 12, Verse 48, The Holy Bible. His Excellency President Adama Barrow’s Government, never drafted, the so- called Final Draft Constitution. Mr Almami Taal’s disagreement with IEC on Diaspora voting I cordially invite reference, to a front-page article titled: “UDP’S TAAL DISAGREES WITH IEC ON DIASPORA VOTING”, published on page 2 of the Thursday 6th August,2020 publication, of The Standard Newspaper, and again laconically authored by Omar Bah.

Paragraph 2 of the aforesaid article read:-“The Independent Electoral Commission, recently issued its Electoral Calendar, spanning from 2021 to 2023, including referendum on the Draft Constitution. Curiously, The Gambian Diaspora can only vote, In The Presidential Election of December 2021, and not in the referendum, holding in June. This has sparked controversy and condemnation.

” In paragraph 4 of the said article, Mr. Almami Taal, my learned junior at the Gambia Bar, and the UDP’s Spokesman said: “Let us be clear about these designations. The Law is very specific, when it confers rights like political participation. It doesn’t necessarily say, these types of Gambians, can vote in this election, and those other types of Gambians, can only vote in this election… ” Here my learned junior, is both legally and constitutionally wrong by alluding referendum as: “this other election,”because when the IEC is officially conducting a referendum, nobody is being elected by registered Gambian Voters, for an elective post.

He should have specifically said, for the avoidance of doubt:- ‘ in a referendum. ” Apart from that obvious error, I concur “in toto ab inicio” (Latin:i.e altogether from the beginning), with My Learned Junior, Mr. Almami Taal. Mr. Taal went on and rightly said: The issue is that, the Electoral Office, should be able to enfranchise all Gambians, wherever they are to be able to vote… ” MrTaal went on to say: “I think themedia, should not allow the IEC and politicians, to get away with this kind of statement, because it is a reflection, of the position of the law.”

Here Mr. Taal is alluding to, the position of the II EC on Diaspora voting, that this will be very costly. But it is important to note, that this wrong IEC position has been adopted, from the wrong C.R.C. recommendation on the matter. Therefore, much of the blame for not allowing prospective Gambian voters In the Diaspora, to vote in the referendum, lies squarely on the shoulders, of both The C.R.C. Chairman, Justice Cherno Jallow, and the C.R.C. members, some of whom, are very Senior Gambian Lawyers.

“He who comes to equity, must come with clean hands”, as the famous equity maxim goes. The way forward now, for this high- profile political and human rights controversy, is for prospective Gambian voters In the Diaspora, to quickly hire a Senior Lawyer, who will rush to The High Court, and obtain from an Honourable and Learned High Court Judge, an Order of Mandamus, on their behalf, which will command both the C. R.C. Chairman, Justice Cherno Jallow and the C.R.C. members, to quickly incorporate in the Final Draft Constitution, a very important provision, which will automatically, enable prospective Gambian voters in the Diaspora, to vote in the referendum.

Once this is done, the IEC will automatically amend its Election Calendar “N’lutatis Mutandis” (Latin: i.e with the necessary changes or amendments). Let me terminate, this interesting and academically stimulating intellectual discourse, by quoting what Plato, one of the three classic Greek Philosophers (the oth—were:- Socrates and Aristotle), authoritatively wrote, in his masterpiece Political Science or Government book titled: “The Republic” : “The price wise men pay, for not taking part in government, is to be governed, by foolish men. ” I rest my case

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