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
_________________________________________________________________
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