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.
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
¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤ To unsubscribe/subscribe or view archives of postings, go to the Gambia-L Web interface at: http://listserv.icors.org/archives/gambia-l.htmlMusa,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 sectionsThere 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]
¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤ 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] ¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤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 ticketFrom: "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
Subject: Re: constitutional question
To: [log in to unmask]
Date: Thursday, 17 August, 2006, 9:38Sorry 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 presidencyThe pertinent conditions for contesting the presidency are to be found in the following sections of The 1997 Constitution of the Republic of The GambiaSection 62: Qualifications for Election of PresidentSection 89: Qualifications for Membership of National AssemblySection 60: Political PartiesSection 47: Nomination of CandidatesSection 49: Challenge to Election of PresidentSection 230: InterpretationIn 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 inconsistencyFor 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 sectionsThere 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 challengesLJDarboNB: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 stakesEndNote: 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.ThanksMusa 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
MusaNotwithstanding 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 emissaries from 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
¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤ 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] ¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤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
¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤ To unsubscribe/subscribe or view archives of postings, go to the Gambia-L Web interface at: http://listserv.icors.org/archives/gambia-l.htmlAbdou: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 Jammeh the 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 youMusa 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 PPP was 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.
¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤ To unsubscribe/subscribe or view archives of postings, go to the Gambia-L Web interface at: http://listserv.icors.org/archives/gambia-l.htmlDate: 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 LJD launching 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 wrongsMusa 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
¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤ 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] ¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤
¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤ 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] ¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤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 hasparticipated in such an election may apply to the Supreme Court todetermine the validity of the election of a President by filling apetition within ten days of the declaration of the result of theelection."
"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]
LondonThe United Kingdom09 November 2011The ChairmanIndependent Electoral CommissionElection HousePO Box 793BanjulThe GambiaDear SirHamat Bah is legally barred from contesting the presidency as an independent candidate
“No association, other than a political party registered under or pursuant to anAct of the National Assembly, shall sponsor candidates for public elections”s. 60(1) of the 1997 Constitution of The GambiaWith 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 ConstitutionAlthough 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 DarboCc:Daily News GambiaFreedom NewspaperGainako Newspaper OnlineGambia EchoGambia LGambia PostHello GambiaJollof NewsMaafanta.comSenegambia Newspaper
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