Exactly Suntou, anything to discredit a man that offered them pro-bono
advice. Musa has also joined the lynch mob.
On Tue, Nov 22, 2011 at 7:10 PM, Haruna Darbo <[log in to unmask]> wrote:
> My English teacher in High School Patrick Lavelle used to say:
>
> Darbo, the most dangerous native is the semi-literate. Coach, you are not
> well.
>
> Haruna.
>
> -----Original Message-----
> From: Pasamba Jow <[log in to unmask]>
> To: GAMBIA-L <[log in to unmask]>
> Sent: Tue, Nov 22, 2011 12:05 pm
> Subject: Re: [G_L] [>-<] Hamat Bah is legally barred from contesting the
> presidency as an independent candidate
>
>
> Musa,
> Thank you so very much for heeding to the call by LJ Darboe to reproduce
> this email. This is the height of intellectual dishonesty. Please read
> below what Mr. Darboe said in July 2011.
> Pasamba Jow-PDOIS
> *"For the purposes of your question, sections 47, 62, and 89 are
> non-controversial and raise no issues of significance. Any independent
> candidate for NADD-UDP/NRP would easily satisfy the requirements of those
> sections*
> * *
> *There is no question that Section 49 permits an independent to contest
> the presidency:" LJ DARBOE*
>
>
> "True peace is not merely the absence of tension; it is the presence of
> justice." Dr. Martin Luther King Jr.
>
>
> ------------------------------
> Date: Tue, 22 Nov 2011 15:48:57 +0000
> From: [log in to unmask]
> Subject: Re: [G_L] [>-<] Hamat Bah is legally barred from contesting the
> presidency as an independent candidate
> To: [log in to unmask]
>
> LJD:
> Like most of us in the struggle, committed and wishing to see a better
> Gambia in terms of governance and the rule of law, your role as far as the
> law/constitution, fairly or unfairly is always seen as the kind of
> potential our country has in building the institutions of the law which
> gives us hope to the kind of Gambia we can be. Granted this is not the role
> you sought, but you have established the reputation, as Alhaji Mustapha
> will quip: giving us the ALIKALAGI as far the the legal aspect to all
> issues are concern.
> STGDP started out very early trying to see how we can find a common ground
> as far as bringing all parties under a united front. Of course, our
> experience in 2006 was really to start early and try to think outside of
> the box and deal with some of the political realities. When the idea of
> having a potential flag bearer run under an Independent ticket was
> discussed, most of the members said this should really be looked into as a
> compromise. The PDOIS partisans who always hold the constitution in their
> left hand, and always weight it into their arguments, argued that it can be
> done as far as the constitution is concern. Some of us wanted an
> independent advice from someone who is not a partisan, knows the law and
> fully understands the need of a coalition to bring an end to our nightmare.
> When I suggested your name some argued then that you have morphed to being
> a partisan, the Joe Sambou’s and myself responded that when it comes to the
> law and the reading of the constitution you have been consistent and
> without a doubt your advice can be trusted. Below is the advice you sent,
> and I was not disappointed in the delivery and the cautions couched into
> the political situation we were confronted with:
>
> Date: Fri, 29 Jul 2011 15:21:09 +0000
> From: [log in to unmask]
> To: [log in to unmask]
> Subject: Fwd: Presidential candidate under an Independent ticket
>
> ------------------------------
> *From: *"Lamin Darbo" <[log in to unmask]>
> *To: *[log in to unmask]
> *Sent: *Wednesday, July 27, 2011 12:41:27 PM
> *Subject: *Re: Presidential candidate under an Independent ticket
>
> *From: *"Lamin Darbo" <[log in to unmask]>
> *To: *[log in to unmask]
> *Sent: *Wednesday, July 27, 2011 12:41:27 PM
> *Subject: *Re: Presidential candidate under an Independent ticket
> Musa
>
> Please refer to an earlier response on this same question, especially the
> portion I highlighted.
>
> I regret to say your intended proposal wont fly, and unless you can
> somehow convince the pertinent players, a party-led front is the only
> realistic option for November 24
>
>
>
> Lamin
>
>
>
> From: Lamin Darbo <[log in to unmask]>
> Subject: Re: constitutional question
> To: [log in to unmask]
> Date: Thursday, 17 August, 2006, 9:38
> Mr Jeng:
>
> Sorry didn't see your mail until last night.
>
> Thanks for taking time to consult on the issue of constitutional
> permission for an independent to contest the Gambian presidency
>
> The pertinent conditions for contesting the presidency are to be found in
> the following sections of The 1997 Constitution of the Republic of The
> Gambia
>
> Section 62: Qualifications for Election of President
> Section 89: Qualifications for Membership of National Assembly
> Section 60: Political Parties
> Section 47: Nomination of Candidates
> Section 49: Challenge to Election of President
> Section 230: Interpretation
>
> In so far as legal supremacy goes, any IEC rules at variance with the
> express mandate of the Constitution are invalid to the extent of the
> inconsistency
>
> For the purposes of your question, sections 47, 62, and 89 are
> non-controversial and raise no issues of significance. Any independent
> candidate for NADD-UDP/NRP would easily satisfy the requirements of those
> sections
>
> There is no question that Section 49 permits an independent to contest the
> presidency:
>
> *“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 an election”.*
>
> It is instructive to highlight that Section 49 directly conflicts with
> Section 60(1), an amendment inserted in 2001: *“No association, other
> than a political party registered under or pursuant to an Act of the
> National Assembly, shall sponsor candidates for public elections”**.*
>
> Under Interpretation at Section 230, *“public elections”* is defined as *“the
> election for a President, National Assembly and a local government
> authority”. *
>
> Clearly, the case of the Banjul Mayor offers a compelling precedent in
> support of your thinking, having contested and won as an independent in a
> public election, and this after the 2001 amendment. His legal troubles
> notwithstanding, I am not aware of any effort to vacate his election on the
> grounds he was not sponsored by a registered political party. It cannot be
> overemphasised that an independent presidential candidate implicates the
> incumbent President’s own survival, and I’m sure you can appreciate the
> stakes involved in that scenario.
>
> There is an excellent arguable constitutional point for an independent
> presidential candidate, but this close to September 22, I’m unsure as to
> the merit of engaging such an explosive legal issue. If a legal challenge
> is mounted by the President against the nomination of an independent
> through the invocation of Section 60(1), it is likely the Supreme Court as
> final arbiter of any such dispute will decide for him.
>
> Considering the *modus operandi* of the National Assembly, there won’t be
> any legislative history offering a window into the rationale underlying
> Section 60(1), the most troublesome constitutional section touching on your
> question. The section is a classic demonstration of the general tendency of
> The 1997 Constitution to subvert institutionalism and the rule of law in
> Gambian public life. In so far as it anticipates surprises and moves to
> preempt them for the benefit of the incumbent, the game plan was for all
> potential opponents to reveal themselves and be *accounted for* in
> advance of the actual contest.
>
> * *
> *CONCLUSION:*
>
> With the Banjul mayoral precedent, there is an excellent legal case for an
> independent presidential candidate but any such move will be challenged
> pursuant to 60(1). The Supreme Court is likely to side with the President
> under the “later in time principle”, notwithstanding that mode of
> interpretation constitutes an improper standard for amending an express
> provision in a vital document like a national constitution.
>
> * *
> *RECOMMENDATION:*
>
> Actively and radically explore NADD as a vehicle for an independent
> candidate. It offers as excellent a mechanism as pursuing our ambitions
> through the independent candidate route without having to deal with the
> legal challenges
>
>
>
>
>
>
> LJDarbo
>
>
>
>
> NB:
>
> I commend STGDP for its patriotism, and encourage you, as individuals, and
> as a group, to redouble your efforts in the search for a unified front in
> light of the astronomical stakes
>
>
> End
>
> Note: This was the lawyer giving us a legal advice, but also very much
> aware of the political realities in what we were trying to do. The appeal
> sent to the IEC, using the same information was driven by some other
> motivation; yes still the lawyer but more of an advocate.
>
> As for Mr. Gomez, I really do not know the Man but any Gambian who calls
> himself a Justice Minister and oversees the injustice that is happening in
> our country, and to willingly support it and defend it cannot be seen as an
> honest Man in my neighborhood. It is rather convenient to easily put some
> of these things on the door step of the Professor; all of us should start
> taking responsibilities for our participation in these trying times.
> As for me working for the Professor, if it ever gets to that, calling me
> dishonest would be an understatement.
>
> Thanks
> Musa Jeng
>
>
>
> ------------------------------
> *From: *"Lamin Darbo" <[log in to unmask]>
> *To: *[log in to unmask]
> *Sent: *Monday, November 21, 2011 7:53:29 PM
> *Subject: *Re: [G_L] [>-<] Hamat Bah is legally barred from contesting
> the presidency as an independent candidate
>
> Musa
>
> Notwithstanding our occasional differences in perspective on aspects of
> the way forward for opposition Gambian, I always regard you as a reliable
> partner in this difficult and complex struggle. Your strong views about my
> integrity are therefore quite regrettable. I nevertheless accept those are
> your views, and God willing, you shall not be receiving any emissariesfrom
> LJDarbo asking for your reconsideration.
>
> For the benefit of transparency, I urge that you publish the advise I
> gave you on the issue of an independent presidential candidate. As you
> never came back for amplification, and, or, clarification of any sort, I
> took it that you recognised the nuances built into my view. If I intend
> to disown my assessment, I would have insisted on a verbal conversation,
> and that way it is your word against mine. For the record, I stand by my
> advise assured in the belief it is not inconsistent with my current
> position on independent candidates in public elections, including the
> presidency.
>
> On your reference to Gomez, I know him to be an honest and humble Gambian.
> If, like him, Musa Jeng accepts an executive arm position from Professor
> Jammeh, we may not be able to tell you were the same person we dealt
> with as part of the vital and illustrious STGDP. In my view, the trick is
> to stay away from policy level executive positions in the Professor's
> government. Mr Edward Gomez did not do that and his reputation continues
> to take quite a battering as a result. Although I question his judgement in
> accepting a Cabinet position from the Professor, I wouldn't even passingly
> refer to him as a dishonest person.
>
>
>
> LJDarbo
>
> *From:* Musa Jeng <[log in to unmask]>
> *To:* [log in to unmask]
> *Sent:* Thursday, 10 November 2011, 20:40
> *Subject:* Re: [G_L] [>-<] Hamat Bah is legally barred from contesting
> the presidency as an independent candidate
>
> Abdou:
>
> I do not have a problem with his analysis, and frankly I am sure it is
> based on the law. But when we contacted him, and I even when back to him
> for the second time months later, a clear indication of my respect to his
> legal grounding. He indicated that independent candidacy is supported in
> some part of the constitution, but knowing the kind of Gambia we live in
> and Jammeh's control of the judiciary, it will be risky to give Jammehthe opportunity to tie our hands legally. He concluded by saying that it is
> less riskier to go with the party-led and stay away from the potential land
> mines for pursuing the independent route, Now, after seeing his letter to
> the IEC, the question is, was his advice based on the law or someone who
> had a dog in the fight.
>
> Thank you
> Musa Jeng
>
> *From: *"abdoukarim sanneh" <[log in to unmask]>
> *To: *[log in to unmask]
> *Sent: *Thursday, November 10, 2011 3:12:58 PM
> *Subject: *Re: [G_L] [>-<] Hamat Bah is legally barred from contesting
> the presidency as an independent candidate
>
> Musa Jeng
> Lamin's analysis is the letter of the constitution. You have not see
> Halifa's maneuvering and the campaign for the public to endorse the 1996
> constitution and their show case display of dishonesty when PPPwas disqualified.
> Lamin's write up was about the correct principles of law as stipulated in
> the constitution. It is the judgement of law that form the basis for a
> democratic society.
> Date: Thu, 10 Nov 2011 19:16:23 +0000
> From: [log in to unmask]
> Subject: Re: [G_L] [>-<] Hamat Bah is legally barred from contesting the
> presidency as an independent candidate
> To: [log in to unmask]
>
> It is sad that LJD has become a political hag, and is willing to explore
> legal justification to buttress his political leaning. LJD was someone
> that STGDP contacted to get his legal advice as far as exploring the
> possibility of an independent candidacy as a compromise for a united front,
> and his honest and objective legal advice was very important and relevant
> to some of the things we were looking at. The latest move from LJDlaunching an appeal to the
> IEC to prevent the running of the united front has really changed my view
> of him, and his dishonesty is as clear as day. It is very apparent that we
> have a lot of Justice Gomez among us, and it is just a question of whether
> they have the opportunity to use legal maneuvering to justify the wrongs
> Musa Jeng
>
> *From: *"Pasamba Jow" <[log in to unmask]>
> *To: *[log in to unmask]
> *Sent: *Wednesday, November 9, 2011 6:23:37 PM
> *Subject: *Re: [G_L] [>-<] Hamat Bah is legally barred from contesting
> the presidency as an independent candidate
>
>
> L.J.Dardoe, please refer to section 49 of the 1997 Gambian constitution.
> Thanks
>
> "Challenge to 49.
> *Any registered political party which has participated in the*
> *election of a President 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 filling a *
> *petition within ten days of the declaration of the result of the *
> *election."*
>
> "True peace is not merely the absence of tension; it is the presence of
> justice." Dr. Martin Luther King Jr.
>
>
> Date: Wed, 9 Nov 2011 22:49:03 +0000
> From: [log in to unmask]
> Subject: [>-<] Hamat Bah is legally barred from contesting the presidency
> as an independent candidate
> To: [log in to unmask]
> CC: [log in to unmask]
>
> * *
> * *
> * *
> *London*
> * *
> *The United Kingdom*
> * *
> * *
> *09 November 2011*
> * *
> *The Chairman*
> *Independent Electoral Commission*
> *Election House*
> *PO Box 793*
> *Banjul*
> *The Gambia*
> * *
> * *
> *Dear Sir*
> * *
> * *
> *Hamat Bah is legally barred from contesting the presidency as an
> independent candidate
>
> *
> * *
> *“No association, other than a political party registered under or
> pursuant to an *
> * Act of the National Assembly, shall sponsor candidates for public
> elections”*
>
> *s. 60(1) of the 1997 Constitution of The Gambia***
>
> With less than a day from candidate nomination for the 24 November
> presidential contest, there are strong indications the so-called “united
> front” of NRP, PDOIS, and GPDP will attempt to field Hamat N K Bah,
> erstwhile leader of the NRP, as presidential candidate outside any
> specific party colours. As the body entrusted with the legal responsibility
> for managing the public election process in The Gambia, the Independent
> Electoral Commission (IEC) must remain alive to its obligation in
> ensuring requisite fidelity to the letter of the law.
> Ala section 49 of the 1997 Constitution of the Republic of The Gambia (the
> Constitution), *“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 an election”.*
> Although I am yet to come across anyone placing express reliance on
> section 49 of the Constitution for the proposition that an independent
> candidate is legally able to contest the presidency, there are those, like
> *Foroyaa’s* publisher, who take the view that section 104 of the Election
> Act supports a non-party sponsored candidate for presidential elections.
> Unquestionably, this perspective is erroneous in so far as it placed
> exclusive reliance on the Election Act, a 2001 legislation backdated to a
> January 1996 commencement date. This particular Act started life as (Decree
> No. 78 of 1996, amended by Decree No.91 of 1996, Decree No. 93 of 1996, and
> Act No. 7 of 2001). As inferior legislation, it has no capacity to
> control an express constitutional provision like section 60(1) of the
> Constitution.
> Pertinently, section 104 (1) states that “The conduct of elections to an
> elective office in accordance with the Constitution and this Act shall be
> based on party politics” In so far as this particular section conforms to
> the Constitutional edict on the point of party-sponsored candidates as the
> cornerstone of our public election system, there is no question about its
> validity. However, section 104 (2), in contravention of a specific
> Constitution stipulation on public elections, states that “*Notwithstanding
> subsection (1), a person who is qualified to be registered as a voter under
> the Constitution and this Act may contest as an independent candidate in
> any election*”. This utterly pretentious posture of section 104 (2) of
> the Election Act collides with an explicit Constitutional provision on
> public elections, and must be regarded as of no consequence whatsoever, and
> therefore void under the supremacy clause of the Constitution
> Although section 49 implies a candidate may contest the presidency as an
> independent, it is an extremely weak provision when juxtaposed against the
> express statement of section 60(1) which categorically states that *“No
> association, other than a political party registered under or pursuant to
> an Act of the National Assembly, shall sponsor candidates for public
> elections”**. *Under *Interpretation* at section 230 of the Constitution,
> *“public elections”* is defined as *“*the election for a President,
> National Assembly and a local government authority*”. *
> It is noteworthy that section 60(1) was an amendment inserted in 2001, and
> must therefore be seen as intended to be a definitive declaration of who
> can sponsor a presidential candidate in public elections. The statement
> that only a registered political party can sponsor “candidates for public
> elections” is too categoric a pronouncement to admit of any uncertainty.
> To avoid invalidation, inferior statutory law on public elections, in this
> case the presidency, must comply with the Constitutional edict on who can
> contest presidential elections, or be voided to the extent of any
> inconsistency. In the accepted doctrinal words of Federalist No. 78, “*a**constitution is, in fact, and must be regarded by the judges, as a
> fundamental law. It therefore belongs to them to ascertain its meaning, as
> well as the meaning of any particular act proceeding from the legislative
> body. If there should happen to be an irreconcilable variance between the
> two, that which has the superior obligation and validity ought, of course,
> to be preferred; or, in other words, the Constitution ought to be preferred
> to the statute, the intention of the people to the intention of their
> agents*”.
>
> Should legal and political doctrine not be good enough for the IEC *vis-à-
> vis* an independent candidate contesting a presidential election, I
> revert to the supreme authority of our Constitution. At section 4, and with
> absolute clarity, the Constitution states that it is “*the supreme law of
> The Gambia and any other law found to be inconsistent with any provision of
> this Constitution shall, to the extent of the inconsistency, be void*”. Clearly,
> section 104 (2) of the Election Act is wholly void and of no consequence in
> so far as it frontally collides with the express declaration of section
> 60(1) of the Constitution on who can sponsor a candidate in presidential
> elections. It is imperative that the IEC perform its mandated duty and
> bar Hamat N K Bah from contesting on 24 November as an independent.
> Notwithstanding section 49 of the Constitution, supported as it ostensibly
> is by sections 104 (2) of the Election Act, *Cap 1:01, Volume I, Laws of
> The Gambia 2009,* there is no question regarding the purpose of section
> 60(1), a 2001 amendment to the text of our supreme law. Undoubtedly,
> section 60(1) explicitly bans an independent presidential candidate, and
> inferior law in the Election Act cannot control a Constitutional provision
> on the same point. In so far as legal supremacy goes, inferior
> legislation, including electoral laws in the Election Act, and, or, IECrules, at variance with the express mandate of the Constitution, are
> invalid to the extent of any inconsistency.
> Accepting that independent candidates contested and won in public
> elections, this is nevertheless not an argument that passes Constitutional
> scrutiny. The fact that law failed to be enforced by competent authority
> does not mean a particular conduct is legally permissible. Although I am
> personally inclined against the illiberal tendency of 60(1), the fact
> remains it is a *bona fide* constituent element of the supreme law of the
> land, and must be enforced.
> Hamat N K Bah must not be permitted to contest the November presidential
> elections as an independent candidate. To avoid unlawful conduct, the IECmust reject his nomination in line with the clear mandate of section 60(1)
> of the Constitution.
>
> Lamin J Darbo
>
> Cc:
> *Daily News Gambia*
> *Freedom Newspaper*
> *Gainako Newspaper Online*
> *Gambia Echo*
> *Gambia L*
> *Gambia Post*
> *Hello Gambia*
> *Jollof News*
> *Maafanta.com*
> *Senegambia Newspaper*
>
>
>
>
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