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 theelection 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
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Subject: [>-<] Hamat Bah is legally barred from contesting the presidency as an independent candidate 
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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
 

 
                                          

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