Bro LJD,
 
The IEC would have only made a problem (witch hunt) out of this stipulation if it was a threat to Jammeh's victory, but the divided opposition is in favor of Jammeh, and the IEC is a pillar stationed by Jammeh. It is certain at this point based on information a friend confided with me that it is a three way race as later negotiations to converge the two coalition forces failed at the last minute today. The main reason why IEC made an issue out of NADD then (to be registered a political party or not) was because NADD was a threat to Jammeh's victory. While some of the stipulations may be a little bit confusing, all that Jammeh is looking for is a simple majority, even by one vote. It does not take political science to get to the conclusion of what outcome is expected. Possibly after the elections, if the oppositions couldn't get the bloody monster out, then hopefully by default the Arab tsunami (citizens uprising) will inspire Gambians, despite the fact that there is great selfishness and gullibility. We believe in individual success and interest more than we would champion collective success. That is sad. To me, the snacks have been broken in all angles already. It is leadership crisis combined with poor strategies, selfishness, egocentricity, and political greed. The opposition has betrayed the trust and confidence of the Gambian people. There is a saying in hal pular that goes like, "if you hardly can cry, start pulling your facial muscles before getting to the funeral of a love one." You are guaranteed that you will be able to shed a tear by the time you get there. The election is in two weeks. Those that are fighting can direct their missiles to Jammeh, and that is much desired at this hour. One, you have a divided opposition. Two, the opposition supporters are not only divided but also at each other's throat for the little and the big politics. It is certainly a waste of time to cry over spilt milk. 
 
Anyway, the pens are lifted and the ink dried up on pages. 
 
Thanks,
Yero
 






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, IEC rules, 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 IEC must 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
 



 
                                          

¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤
To unsubscribe/subscribe or view archives of postings, go to the Gambia-L Web interface
at: http://listserv.icors.org/archives/gambia-l.html

To Search in the Gambia-L archives, go to: http://listserv.icors.org/SCRIPTS/WA-ICORS.EXE?S1=gambia-l
To contact the List Management, please send an e-mail to:
[log in to unmask]
¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤