Letter To IEC On The Qualifications To Be A Candidate For Elections The Gambia is going through the most delicate period of its history. All political forces are now operative and the IEC is being called upon to give backing to what is being said on political platforms. Now, more than ever the integrity of the IEC is hanging on the balance. What it does or fails to do can tip the balance on one side or the other. It is therefore absolutely essential for the IEC to remain an independent institution which cannot be subjected to the dictate of any authority. The duty of the IEC is to conduct free, fair and transparent elections. The questions as to who is qualified to be a presidential candidate is being debated. Some have called on the IEC to be mindful that some people have been disqualified from being candidates in presidential elections. The IEC must not allow itself to be hooked by the diverse propaganda schemes of the various political parties. It should maintain its bearing and do only what is reasonable and justifiable under the constitution and other laws of the Gambia. The IEC should therefore strengthen its branch for legal advise as we move towards the elections. We have seen the need to inject fresh thinking into the debate that is unfolding on political platforms and the national media. It is important for the Commission to know where its powers start and end. Section 39 subsection (2) of the Elections Decree does state categorically that: A person who desires to be nominated as a candidate for any elective office shall, before the acceptance of his nomination papers satisfy the qualifications stipulated for that office in the constitution, this Decree and any other law. The Elections Decree has indicated what should happened during the nomination of candidates for president. In short, when a date and place is appointed by a Returning Officer to receive the nomination papers of those who deem themselves to be qualified under section 42 of the Elections Decree five thousand voters must put their names on the nomination form with two hundred voters being drawn from each administrative area. If this is not satisfy the returning officer should reject the nomination papers of the applicant. The candidate is also required to sign a declaration indicating the following: I, the undersigned, Am the Candidate to whom this nomination paper relates and I hereby state that I am willing to stand for election to the office of president of the Republic of The Gambia. I hereby declare that I am qualified to contest as a candidate in the presidential elections and that I am not disqualified to be elected as president of the Republic of The Gambia for any of the reasons mentioned in the constitution or other law relating thereto. Without submitting such a declaration, the Returning officer should reject the nomination papers. Thirdly, the candidate should deposit D10, 000 dalasi. According to section 45 subsection (2) of the Elections Decree: The Returning officer shall, on receipt of the nomination paper and other relevant documents, make entries of the date and time on which the nomination paper and other relevant documents were delivered. Section 46 (1) adds that where: a Returning officer satisfies himself that all constitutional and other legal requirements for the nomination of a candidate have been complied with, he or she shall accept the nomination paper and complete in duplicate the acceptance of nomination. Section 47 (1) of the Elections Decree adds that: Where the Returning officer finds, after examining the nomination paper and other documents, that the particulars appearing in such nomination paper and other documents do not comply with the constitutional and other legal requirements for the nomination of a candidate, he shall reject the nomination paper and complete in duplicate the rejection of nomination form.... Section 47 subsection (3) of the Elections Decree adds: The rejection of a nomination paper shall be without prejudice to the delivering of a fresh nomination paper, provided that the subsequent nomination paper is delivered before the close of nomination. Here it is clear that the decree is more concerned with procedure than transforming the Returning officer into a judge who will determine whether a person is a citizen or has been disqualified in any way and manner that would require some judicial enquiry to determine right and wrong. This clearly falls within the jurisdiction of the Supreme Court. This becomes absolutely clear when we subject the terms for raising objections against the nomination papers under review. Section 49 subsection (1) states: A registered voter may object to a nomination paper on all or any of the following grounds but on no other ground- (a) that the description of the candidate is insufficient to identify the candidate; (b) that the nomination paper does not comply with or was not delivered in accordance with the provisions of the constitution or this Decree; (c) that it is apparent from the contents of the nomination paper that the candidate is not capable of being elected to the office to which his nomination paper relates. Here the grounds for objection relates to the failure to abide by simple procedures. It does not require the IEC to constitute a revising court for adjudication on constitutional matters. It is therefore important for the IEC to bear in mind that section 127 has stated categorically that: The Supreme court shall have an exclusive original jurisdiction- (a) for the interpretation or enforcement of any provision of this constitution other than sections 18 to 33 and section 36 (5); ( which relate to fundamental rights and freedoms) (b) or any question as to whether or not any person was validly elected to the office of president or was validly elected to, or vacated his or her seat in, the National Assembly... It is obvious that section 62 subsection (3) has been a subject of controversy. This provision does require interpretation which falls within the jurisdiction of the IEC. Allow us to draw some salient points. Section 62 subsection (3) reads: A person who, while holding public office in The Gambia has been (a) compulsorily retired, terminated or dismissed from such office; or (b) has been found guilty of any criminal offence by any court or tribunal established by law; or (c) has been found liable for misconduct, negligence, corruption or improper behaviour by any Commission or Committee of inquiry established by law shall not be qualified for election as president.... A careful reading of the provision would reveal many fundamental questions. Could it be said that the person who belongs to a government which was overthrown was holding public office when subjected to a commission of enquiry.? Secondly, the constitution came into force on 16th January 1997. If transitional provisions do not exist to make the provisions of section 62 subsection (3) applicable with retroactive effect can they be applied retroactively.? This is not a simple procedural question that the IEC can answer. This would require interpretation by the Supreme court. Take section 90 which has been referred to by some. The relevant portion being referred to is section 90 subsection (1) (e) which reads: No person shall be qualified for election as a member of the National Assembly if he or she has been found by the report of a commission or committee of enquiry, (the proceedings of which have been held and published in accordance with the relevant law) to be incompetent to hold public office by reason of having acquired assets unlawfully or defrauded the state or misused or abused his or her office or wilfully acted in a manner prejudicial to the interests of the state, and the findings have not been set aside on appeal or judicial review. It is clear that if a person is to be disqualified for election as president on account of not being qualified to be a member of the National Assembly on the grounds stipulated by section 90 subsection (1) (e), the Commission must state that the person is incompetent to hold public office. Suffice it to say, section 90 subsection (2) (c) sub-paragraph (ii) states: The period of disqualification under paragraph (d) or (e) of subsection (1) shall not exceed five years after the expiring of any period during which the person concerned has been debarred from holding public office. Hence, the IEC would have to have original records of the Commission to come to certain truths which is beyond its jurisdiction. Hence the period of debaring a person from holding public office must be stipulated It is therefore important for the IEC to concentrate on procedural issues and leave substantive issues of constitutional law to be interpreted by the Supreme court. It should not allow itself to be dragged into the province of the supreme court. By a copy of this letter, we also wish to call on the executive not to appear to be giving instructions to the IEC on its political platforms. The country needs standards. This is no time to govern by sentiments. Positions of leadership are positions of public trust. Rivalry between past and present regimes will not serve any purpose. There is no need to exclude any one by draconian means. What is required is to empower the people and leave them to express their sovereign power to decide who will manage the affairs of the country. Power belongs to no single individual. It never did! It never will! Power most fittingly belongs to the people. Whoever is entrusted with the responsibility of managing the affairs of the country should do so to promote the common good. To the Public in General We again wish to reiterate that the country needs a transition programme of one year to be led by an executive who can be trusted by all sides of the political spectrum, an executive which will be committed to carrying out its duty without fear or favour, affection or ill will, an executive which will pioneer constitutional and legal reforms that would eradicate all forms of political exclusion, an executive which will conduct civic education to ensure that there is no place for intimidation or inducement in our body politic, an executive which will free the national media to be utilised by political parties on a weekly basis not to insult but to explain their programmes to the people, an executive which will be capable of winning the respect and trust of the security forces and facilitate their re-orientation to be the true defenders of the sovereignty rights and properties of the people, an executive which will not hunger for power or wealth so as to overstay after a year, an executive which will be free to create peace and stability and call for fresh elections so as to ensure the undiluted choice of the people in free and fair elections that will earn the recognition of the whole world. This is the way forward. Those who try to cover up this way forward and continue to perpetuate the view that PDOIS has made it a precondition to lead a coalition or detach itself are just misleading people. The truth is too clear to be distorted. Gambia needs a democratic transition. This can be six months or a year so that all constitutional and legal instruments, democratic institutions and practices are put in place to make The Gambia free and stable for all Gambians. An Alliance for Democratic Transition is what the country needs not an alliance to share power. This is the simple and elementary truth. If we recognise it, the truth will set us free. If we ignore it we will only live to regret. History is again making its call to duty. It will be the final judge of all us. It will decide who the genuine patriots and who the power seekers are. Each of us must decide the final outcome by our practice. For The Central Committee _________________________________________________________________ Get your FREE download of MSN Explorer at http://explorer.msn.com/intl.asp ---------------------------------------------------------------------------- To unsubscribe/subscribe or view archives of postings, go to the Gambia-L Web interface at: http://maelstrom.stjohns.edu/archives/gambia-l.html You may also send subscription requests to [log in to unmask] if you have problems accessing the web interface and remember to write your full name and e-mail address. ----------------------------------------------------------------------------