The Supreme Court on Tuesday heard a civil suit in which five Gambians, Bakary Bunja Dabo, Cherno M Njie, Pa Samba Sadaga Jow, Jeggan Gerald Grey-Johnson and Sidi Mohammed Sanneh have sued the Attorney General and the Independent Electoral Commission (IEC).
The case submitted by the plaintiffs
In seeking redress from the Supreme Court, the five plaintifs submitted that they are desirous of actively participating in the governance of The Gambia, either in their own rights, or in associations with other Gambians. They also demand to be eligible to the executive organs of the parties they wish to form or join.
All the plaintiffs have asserted their Gambian citizenship in their complaint to the Supreme Court, despite some of them living abroad. They submitted that The Constitution of the Republic of the Gambia guarantees political rights and the right to freedom of association as well as protection from discrimination.
The five plaintiffs therefore seek that the Supreme Court declares null, void and of no effect changes made in the Elections Act of the Laws of the Gambia in 2015. They contend that the legislative authority “extensively” made “excess” and “discriminatory” changes in the Elections Act, through the parliament, upon request of the former regime of Yahya Jammeh. The five plaintiffs are therefore seeking declaration of the following:
A declaration that section 17 of the elections (amendment) Act, 2015 is made in excess of legislative authority and is therefore null, void and of no effect.
The plaintiffs are also seeking a declaration that the amendment to section 105 (10 inserting paragraphs (1) (f) and (g) and subsection (2) and (j). Also amending subsection (2) (f) of the elections act and other elections act 2015 are unconstitutional and therefore null and void.
The plaintiffs wants the striking out of section 105 (1) (e), (f) and (g) and subsection (2) (f) (i) and (j) of the elections Act as amended by section 17 of the election’s amendment act 2015.
An order directing the Independent Electoral Commission (IEC) to register Gambians living outside the Gambia to enable them to vote on the election’s amendment act, 2015.
The five plaintiffs are further arguing their case formulated and argued the following issues:
Whether the electoral laws contained in section 17 of the elections amend act 2015 which amended section 105 (1) and (2) of the election act Cap 3:01 Vol. l, discriminate against the plaintiffs? And whether section 17 of the elections amendment act 2015 was made in excess of legislative authority?
The arguments of the Attorney General and the IEC
There are two defendants to this case, the 1st being the Attorney General and 2nd defendant is the independent electoral commission (IEC).
Upon consideration of the plaintiff’s statement of the case, the 1st defendant (AG) believes that the issues raised by the Plaintiffs (BB Dabo & Others) can be conveniently subsumed into three issues and has therefore raised the following issues for determination:
Whether the National Assembly acted in excess of the Legislative Authority is mending section 105 of the elections act Cap 3:01 vol. 1 by section 17 of the section amendment act.
Whether the various amendments to section 105 (1) & (2) of the elections act Cap 3:01 vol 1 are consistent with the constitution of The Gambia.
Finally, the 1st defendant is also requesting to know whether section 17 of the election amendment act, 2015, discriminates against the plaintiffs in this suit.
Before delving into the above issue for determination, the 2nd defendant (IEC) concedes that it is under legal obligation to register Gambians living outside The Gambia for the purpose of public elections and referendum.
It is not a policy of the 2nd defendant to restrict that franchise at all. However, the exercise of the above obligation is totally dependent on the financial resources of the 2nd defendant.
The 2nd defendant intends to embark on voter registration abroad once its financial situation has improved and doing so would be in fulfillment of a legal obligation.
The IEC contest the rest suit filed by the plaintiffs as follows:
In dealing with the first issue, section 17 of the election amendment act 2015, provides: “section 105 of the principal act amended in.
Subsection (1) by deleting the word “And” in paragraph © substituting for the full stop in paragraphs (d) and inserting immediately the following paragraphs (e) all the political party executives are resident in The Gambia. (f) The political party has a secretariat in each administrative region of The Gambia and (g) the constitution of the political party requires it to hold a biennial Congress.
Subsection (2) (f) by Substituting for the words ‘five hundred members, the word ‘ten thousand members’ with at least one thousand members from each administrative area.
Deleting the word “And” in paragraph (g) substituting the full stop in paragraph (h).
IEC further submitted that section 17 of the election amendment act 2015 does not discriminate against the plaintiffs as alleged by them. “It is not enough for one to say he or she is discriminated against without proof.”
The 2nd defendant (IEC) respectfully submitted that the law provided in section 17 of the election amendment act 2015 did not say that because an individual belongs to a particular group or political party. “The provisions apply to you or will not apply to you. It is a law which is applicable to all and sundry.”
The 2nd Defendant (IEC) urged the court to hold and find that the provisions of the section 17 of the elections amendment act 2015 are not unconstitutional or discriminatory. And the court should dismiss the plaintiff’s suit as it lacks merit.
Counsels on all sides argued on their respective issues raised.
The court then adjourned the case for judgment and notices will be issued to that effect.