Foroyaa Newspaper Burning Issues

Issue No. 54/2005, 11-13 July, 2005



Editorial

A CONSTITUTIONAL BLUNDER

Part 1

A press release (See Page 2) issued by State House has announced that the president “in accordance with section 42(6) (a) of the constitution of the Republic of The Gambia, 1997 has also removed from office of the Independent Electoral Commission, Mr. Gabriel J. Roberts, Chairman and Messrs James Abraham and Momodou O. Njie, members with immediate effect.”

Section 42(6)(a) of the constitution states:

“The President may remove a member of the Commission from office –

(a)        for inability to perform the functioning of his or her office whether arising from infirmity of mind or body or from any other cause.”

The subsection containing this paragraph has the following proviso: “but, before removing a member, the president shall appoint a tribunal of three judges of a superior court to enquire into the matter and report on the facts. A member of the commission shall be entitled to appear and be legally represented before the tribunal.” This has not been done. The action of the President therefore has contravened the constitution. This action has been repeated. In December, 2000 he removed the then IEC Chairman, Bishop Tilewa Johnson and a commission member Alhaji Saja Fatty from office without setting up a panel of judges to enquire into the matter.

Bishop Johnson did not take court action but the UDP, NRP and Kemeseng Jammeh took the matter to the Supreme Court for the court to declare the decision void. It is rather unfortunate that the Supreme Court did not proceed to examine the substance of the case.

This would have resolved the matter once and for all. At the time, the court struck out the suit on technical grounds. The court held that whereas the plaintiffs contested the authenticity of the constitution as it is but failed to produce the approved constitution. The court then struck out the case. Let us hope that Mr. Gabriel Roberts will challenge his unconstitutional dismissal.

What is significant in that judgement is that Supreme Court agreed with counsels of the plaintiffs on the need to strengthen the terms of office of the members of the IEC. The members of the IEC must feel secure in their appointment and should not fear that the president may sack them if they do not act in a manner that pleases him. In this way, the president will indirectly influence the work of the IEC who will find it difficult to remain in partial and independent as required by section 43(3) of the constitution: “In the exercise of its functions under this constitution or any other law the commission shall not be subject to the direction and control of any other person or authority.”

If the President indeed has facts to back his allegations he should put them forward to a panel of judges to enquire into the matter and avoid a smear campaign.



SYNOPSIS OF NAMS’ CASE

A great controversy arose when the clerk of the National Assembly wrote to the IEC to inform it that four members of the National Assembly, namely, Halifa Sallah, Sidia Jatta, Hamat Bah and Kemeseng Jammeh had vacated their seats. The letter was copied to these four members of the National Assembly; Halifa Sallah wrote to the clerk immediately pointing out that he had no authority to declare his seat or those of his colleagues vacant. He therefore called on the clerk to retract what he had done.

A few days later the four filed a suit against the clerk, the IEC and the Attorney General in the Supreme Court asking for the following:

(a) a declaration that no person other than the Supreme Court is competent to determine the question of whether or not a seat is vacant.

(b) a declaration that the letter of the clerk is null and void

(c) an order setting aside the declaration of the clerk that the seats are vacant.

(d) an order directing the clerk or any other authority not to interfere with the performance of their constitutional duty.

The court granted the first relief and dismissed the rest. The reasons are given below.

The counsel for the clerk and the Attorney General in their statement of defence asked the court to declare among others that

(1)        the seats of the four opposition NAMs have become vacant

(2)        the letter of the clerk is valid and effectual

(3)        an order directing the IEC to carry on its constitutional responsibilities in conducting by-elections in the four respective constituencies.

After this statement of defence was filed, Mr. Darboe filed a preliminary objection noting that as defendants the clerk and the Attorney General cannot ask for relief without filing a separate suit. This was overruled by the court and the reliefs sought by the defendants were now to be considered by the court. In short, whereas at first the court only had to consider whether or not the act of the clerk was constitutional it now also had to consider whether or not to declare the four seats vacant.

In deciding on these matters the court noted the following facts among others: Halifa Sallah and Sidia Jatta were members of PDOIS, Kemeseng Jammeh was a member of UDP and Hamat Bah was a member of NRP.

In deciding on these matters the court considered three issues:

(1)        who has power to declare a seat vacant?

(2)        was NADD registered as a political party or an alliance?

(3)        what are the legal consequences?

On the issue of who has power to declare a seat vacant the court held that only the Supreme Court in the exercise of its original jurisdiction has power to do so. This it can do when a dispute arises and does not bar the clerk from deciding that a seat is vacant. The court maintained that the letter of the clerk did not tantamount to a declaration; that what the clerk did was therefore proper.

On the question of whether or not NADD is a party or not the view of NADD is that NADD is an alliance of political parties, which cannot exist without the existence of the five member parties, its constituents. It is the parties that are members of NADD not individuals.

The Supreme Court takes a different view. It says NADD filled forms for the application of a political party, paid a fee of D5000 as registration fee and participated in elections as a political party. The court concluded that NADD was no doubt a political party. In the eyes of the court NADD was formed, registered and exists as a political party. This is so irrespective of what is stated in the constitution and memorandum of understanding of NADD. In NADD’s view its memorandum of understanding is its bedrock from which all its policies, programmes and other documents arise. It cannot contemplate operating without its memorandum of understanding.

The court also held that by belonging to NADD and their “original” political parties the four opposition NAMs belong to two political parties. It is NADD’s view that owing allegiance to one’s party tantamount to owing allegiance to NADD since the five parties have merged their objectives; that representing NRP,PDOIS or UDP in the National Assembly is equivalent to representing the interest of NADD there. The view of the court, on the contrary, is that one can either owe allegiance to one’s party or to NADD but not to both. In the eyes of the court being part of NADD and representing one’s party e.g. UDP, at the National Assembly affects representation because of the issue of allegiance/conflicting position.

The court concluded that one can belong to only one party not two.  Thus the four NAMs have ceased to be members of their “original” political parties (PDOIS, UDP, NRP) and now belong to NADD alone.

The court went on to say that since the four have ceased to be members of their “original” parties they have vacated their seats. It therefore granted the clerk and Attorney General the following reliefs:

(1)        a declaration that the seats of the four NAMs have become vacant

(2)        a declaration that the clerk’s letter informing the IEC of a vacancy is valid and effectual.

(3)        an order directing the IEC to carryout its constitutional responsibility by conducting by-elections.



PETRO CANADA’S FINDINGS

A Challenge to Jammeh

By Surakata Danso

In January 1992, Alconsult International Ltd, on behalf of the agency, concluded an exploration in the off shores of Senegal and the Gambia including the Cassamance Region. Their findings indicated 9 deposit points of prospects on Gambia’s off shores, 4 in Senegal and 1 in the Senegalese region of Cassamance. Prior to this, records have shown that in 1960, B.P. discovered and drilled two important wells in Serrekunda as SK1 and in Brikama as BK1 as clearly shown on their diagrams.

Now the one million dollar questions that Jammeh needs to answer are what is the name of the company that conducted his study? Secondly, why is he making the whole affair a secret? He needs to be transparent on this oil issue otherwise he might be accused of lacking transparency with consequent suspicion as in the public domain, we have seen the various reports of the following companies from 1956 – 1992, e.g. BP, Shell, Chevnon, Elf and Petro Canada.



CASAMANCE ARMED FIGHTERS APPREHENDED



By Yaya Dampha & Surakata Danso

The ten suspected armed robbers who were arrested last week by our security apparatus, the Police and Immigration Officers at the Kalagi check point with arms and ammunitions and detained at the Police headquarters, have been transferred to the National Intelligence Agency, in Banjul.

Since a press release was issued by the Inspector General of Police (IGP), Foroyaa mounted investigations into the whole issue. Foroyaa has discovered that the said armed robbers are rebels from the Senegalese province of Cassamance and that the ten men, including two white men whose nationalities are not clear to us, were the training officers for the rebels in the bush, the arrestees include the training wing commander who has alleged to have received serious beatings from the Senegalese soldiers, who attacked their camp and captured many of the remaining rebels.

The training commander was on Monday seen by our reporter under the escort of paramilitary medics, going to the royal Victoria Teaching Hospital (RVTH) in Banjul for an x-ray.

It is not clear whether the Gambia government has the intension of handing over these ten men to the Senegalese authorities. It could be recalled that after the Farafenni attack, some of the attackers ran to Senegal and Mr. Omar John Dampha and another attacker were apprehended in (Dakar) Senegal and subsequently flown to the Gambia, where they are now serving a life sentence.

Attempts to speak to the police and army PRO proved futile. Foroyaa will inform our readers on all developments.



SENEGALESE GENDARME CHIEF VISITS THE GAMBIA

Security forces have informed this reporter that the Chief of the Senegalese gendarmerie visited the Gambia on the 5th July 2005, in connection to the alleged arrest of rebels by the Kalagi Police, in June this year. The sources further indicated that the Gendarme Chief told the Gambian security authorities that the position of the Senegalese authorities on the detainees is that the members of the group are not cooperating in connection to the MFDC but instead they are bandits; that the Gendarme Chief disclosed that some time at the end of last year, the MFDC and the Senegalese authorities signed a ceasefire agreement which made the movement a legal political party. He further stressed that until such a time that the MFDC would officially associate themselves with the alleged rebels, their position is that they are bandits. The sources finally told our reporter that the visiting Gendarme Chief had requested for the group to be escorted to the area of Touba Murid, a Cassamance border
 village where the alleged rebel group are said to have killed a senior member of their group and buried him at an undisclosed location. However, the source had declined to make any comment on whether or not the Senegalese authorities did make any formal request for the official handling over of the arrestees. On the issue of the types of weapons found on board the gele-gele vehicle in which they were arrested, the informant indicated that there were RPGS, machineguns, rifles and pistols.



RAINFALL SITUATION IN THE COUNTRY



By Tombong Jadama

Since the start of the rainy season in May, many farmers have now sown their seeds. Those farmers who have not were not sure of the rains at the beginning. However, since the beginning of the rains, some parts of the country did not receive enough rainfall. Some weeks back, there were heavy rains that left a trail of destruction in some parts of the country such as W.D, L.R.D and U.R.D.

According to Peter Gibba, a Hydromet Officer, this period has seen an improvement in the rainfall situation both in frequency and intensification, compared to previous years; that significant rainfall amounts were recorded during the latter parts of the period, notably on the 27th of June 2005. Mr. Gibba went on to say that the storm of the 27th June traversed the entire country, resulting in recorded rainfall amounts, varying between 19.7mm to 86.5mm. However, Mr. Gibba said that the number of rainy days varied between 2 and 4 which lead to the end of the period, totalling between 33.0mm and 134.9mm. Mr. Gibba however said that consecutive rainless days coupled from the previous periods ranged between 14 and 20m days; that the most affected areas are the middle and eastern parts of the country where farmers have already sown millet and groundnuts. He said that the seasonal totals (May 1st to June 30th), varied between 34.5mm at Kerewan and 245.2mm at Bansang; that the distribution
 in space shows that the eastern part of the country accorded more rainfall followed by the central and then the western part.

Mr. Peter Gibba indicated that as at June 30th 2005, the season’s country average stood at 109.4mm, which is almost equal to that of last year’s 109.1mm and 85% above-term mean, at 59.0mm.



PRESS RELEASE FROM STATE HOUSE

HIS EXCELLENCY THE PRESIDENT OF THE REPUBLIC OF  THE GAMBIA DR. ALH YAHY A JAMMEH, ACTING UNDER THE PROVISIONS OF SECTION 71(4) (B) OF THE CONSTITUTION OF THE REP1JBLIC OF THE GAMBIA, HAS DECIDED TO RELIEVE DR. AMADOU SCATTRED JANNEH OF HIS CABINENT APPOINTEMNT WITH EFFECT FROM TODAY 8TH JULY 2005. IN EXERCISE OF THE POWERS CONFERRED UPON HIM UNDER SECTIONS 71(1) AND 71(3) OF THE CONSTITUTION OF THE REPUBLIC OF THE GAMBIA, HIS EXCELLENCY THE PRESIDENT HAS ALSO APPOINTED MRS NENEH MACDOUDOLL-GAYE SECRETARY OF STATE FOR TRADE, INDUSTRY AND EMPLOYMENT TO OVERSEE THE DEPARTMENT OF STATE FOR COMMUNICATIONS, INFORMATION AND TECHNOLOGY UNTIL FURTHER NOTICE. THIS CHANGE IS MOTIVATED BY NATIONAL SECURITY REASONS AS THERE ARE INDICATIONS THAT INFORMATION IS REGULARLY BEING PASSED ON TO A FOREIGN EMBASSY IN THE GAMBIA. SINCE INVESTIGATIONS ARE ONGOING, NO FURTHER DETAILS WOULD BE REVEALED UNTIL SUCH INVESTIGATIONS ARE CONCLUDED. WE HAVE THEREFORE FOUND IT PRUDENT TO RELIEVE DR. AMADOU SCATTRED
 JANNEH OF HIS POST, THE RELEASE SAID. IN ANOTHER DEVELOPMENT, THE PRESIDENT OF THE REPUBLIC OF THE GAMBIA IN ACCORDANCE WITH SECTION 42(6)(A) OF THE CONSTITUTION OF THE REPUBLIC OF THE GAMBIA, 1997, HAS ALSO REMOVED FROM OFFICE OF THE INDEPENDENT ELECTORAL COMMISSION, MR GABRIEL J. ROBERTS, CHAIRMAN AND MESSRS JAMES ABRAHAM AND MOMODOU O. NJIE, MEMBERS WITH IMMEDIATE EFFECT. THE INDEPENDENT ELECTORAL COMMISSION IS THE ONLY INSTITUTION THAT WAS SUPPOSED TO ENFORCE THE ELECTIONS DECREE AND ELECTORAL LAWS OF THIS COUNTRY INCLUDING TAKING DISCIPLINARY ACTION AGAINST ANY POLITICAL PARTY THAT VIOLATES THE ELECTORAL LAW. BUT GAMBIANS WOULD RECALL THAT SINCE 1996, THE INDEPENDENT ELECTORAL COMMISSION HAS FAILED TO: ENFORCE THE PROVISIONS OF THE ELECTION DECREE THEREBY ALLOWING THE UDP TO ENGAGE IN CAMPAIGN OF VIOLENCE AND INTIMIDATION AGAINST APRC MILITANTS WHICH LED TO THE KILLING OF AN APRC SUPPORTER BY THE UPD LEADER AND HIS MILLITANTS IN BASSE IN 1998, WHICH COULD HAVE BEEN PREVENTED BY
 THE INDEPENDENT ELECTORAL COMMISSION HAD THEY ENFORECED THE ELECTORAL RULES WHICH GOVERN THE BEHAVIOUR OF POLITICAL PARTIES DURING POLITICAL CAMPAIGNS; PREVENT VIOLENCE BY THE OPPOSITION DURING THE 1996 AND 2001 ELECTIONS AND ALLOWED THE OPPOSITION MILITANTS TO HARASS THE RULING APRC PARTY MILITIANTS; UPHOLD THE ELECTORAL CODE DURING THE 2001 PRESIDENTIAL ELECTIONS WHEN THEY ACCEPTED BALLOT TOKENS FROM BRITIAN WHICH WERE IN THE COLOUR OF THE OPPOSITION PARTY UDP - YELLOW, WHICH IS A CLEAR VIOLATION OF THE ELECTORAL LAWS, AS NO BALLOT TOKENS OR MATERIAL USED BY VOTERS TO VOTE SHOULD NOT REPRESENT ANY COLOUR OR SYMBOL OF ANY POLITICAL PARTY I.E IT SHOULD BE OF A NEUTRAL COLOUR. AS A RESULT OF THIS VIOLATION IT CREATED A LOT OF CONFUSION AND CONSTERNATION AMONG ELECTORATES DURING THE 2001 PRESIDENTIAL ELECTIONS; ENFORCE THE LAW WHICH IS PART OF THE CONSTITUTIONAL PROVISION PREVENTING ANYBODY FROM BECOMING A MEMBER OF TWO POLITICAL PARTITIES AT THE SAME TIME. THE CASE IN POINT IS THAT
 OF THE OPPOSITION MEMBERS OF THE NATIONAL ASSEMBLY MEMBERS WHOSE SEATS SHOULD HAVE BEEN DECLARED VACANT BY THE INDEPENDENT ELECTORAL COMMISION AFTER THEY HAD FORMED AND JOINED A NEW POLITICAL APRTY. INSTEAD THE INDEPENDENT ELECTORAL COMMISSION WENT TO COURT TO DEFEND THE OPPOSITION MEMBERS OF THE NATIONAL ASSEMBLY IN AN ACT THAT IS NOT ONLY ILLEGAL BUT ALSO UNCONSTITUTIONAL. ANOTHER VIOLATION OF THE ELECTORAL LAWS BY THE INDEPENDENT ELECTORAL COMMISSION THAT WAS NOT SUPPOSED TO ENSURE FREE AND



FAIR ELECTIONS WAS THE PUTTING OF BALLOT BOXES IN DARK POLLING BOOTHS DURING THE PRESIDENTIAL ELECTIONS OF 1996 AND 2001. EVEN THOUGH SECTIONS OF THE ELECTORAL LAWS CLEARLY STIPULATES LIGHT TO ENABLE VOTERS TO DIFFERENTIATE BETWEEN DIFFERENT PARTY COLOURS AND PHOTOGRAPHS OF CANDIDATES, AND DESPITE COMPLAINTS BY THE GOVERNEMNT AND ELECTORATE, THE INDEPENDENT ELECTIORAL COMMISSION CONTINUED THIS MALPRACTICE THEREBY MAKING IT DIFFICULT FOR VOTERS TO DIFFERENTIATE BETWEEN THE YELLOW, GREEN, BLUE ETC, COLOURS OF THE VARIOUS POLITICAL PARTIEIS BECAUSE OF THE DARKENED ROOMS. LASTLY, WHEN A MEMBER OF THE NATIONAL ASSEMBLY FROM THE APRC WAS EXPELLED FROM THE PARTY, THE CHIRMAN INDEPENDENT ELECTORAL COMMISSION APPEARED ON THE “OBSERVER” NEWSPAPER SAYING THAT THERE WOULD BE A BYE-ELECTION IF THE HONOURABLE SPEAKERS OF THE NATIONAL ASSEMBLY DECLARED THE SEAT VACANT BUT WHEN THE MEMBERS OF THE NATIONAL ASSEMBLY FROM THE OPPOSITION PARTIEIS DECIDED TO JOIN A NEW PARTY, THE SAME CHAIRMAN
 INDEPENDENT ELECTORAL COMMISSION SAID THAT THEIR SEAT WERE NOT VACANT DESPITE THE FACT THAT THE NATIONAL ASSEMBLY DECLARED THEM VACANT. WITH ALL THESE CLEAR MANIFESTATIONS OF LEANING TOWARDS THE OPPOSITION BY A BODY THAT WAS SUPPOSED TO BE NEURAL AND INDEPENDENT, I HAVE NO CHOICE BUT TO REMOVE THE MEMBER OF THE INDEPENDENT ELECTORAL COMMISSSION FROM OFFICE IN ACCORDANCE WITH SECTION 42(6) (A) OF THE CONSTITUTION OF THE REPUBLIC OF THE GAMBIA, 1997, WHISLT CRIMINAL INVESTIGATIONS IN TO THESE ACTIVITIES ARE GOING TO BE INSTITUTED SOON. IN THE LIGHT OF THESE DEVELOPMENTS THE FOLLOWING HAVE BEEN APPOINTED TO THE INDEPENDENT ELECTORAL COMMISSION TO REPLACE THE THREE SACKED OFFICIALS. THEY ARE MR NDONDI SAMBA ZAKARIA NJIE AS CHAIRMAN OF THE INDEPENDENT ELECTORAL COMMISSION AND MESSRS SULAYMAN SAIT MBOOB AND FRANCIS SANNEH AS MEMBERS, IN ACCORDANCE WITH SECTION 42(3) OF THE CONSTITUTION OF THE REPUBLIC OF THE GAMBIA, 1997. GAMBIANS ARE HEREBY WARNED THAT THERE WOULD BE NO COMPROMISE ON
 VIOLENCE OR INSTIGATION OF VIOLATION BY ANY INDIVIDUAL OR POLITICAL PARTY DURING THE 2006 ELECTIONS. THERE WOULD BE ZERO- TOLERANCE ON INSULTS, INTIMIDATION, MUCH MORE VIOENCE DURING ANY CAMPAIGN LEADING TO PRESIDENTIAL ELECTIONS AND LEGISLATIVE ELECTIONS OR AT ANY TIME IN THE GAMBIA. ANYBODY OR ANY POLITICAL PARTY THAT DEFIES THIS WARNING WOULD BE DOING SO AT ITS DETRIMENTS.




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