Banjul Mayor cannot administer attestation forms for registration – Court of Appeal affirms

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Rohey Malick Lowe

By Yankuba Jallow

The Gambia Court of Appeal has on the 2nd November 2021 dismissed the appeal case brought by the Mayor of Banjul against two civil society groups and the Councillor Abdul Aziz Gaye.

The appeal was against the judgment of the high court dated the 13th July 2021 by Justice Basiru V.P. Mahoney which was delivered against the Mayor of Banjul.

At the High Court, Gambia Participates and Centre for Research and Policy Development (both civil society organizations) and the Councillor for Box Bar Ward in Banjul North (Abdou Aziz Gaye) on 23rd June 2021 filed a summons before the High Court against the Mayor of Banjul (Rohey Malick Low), the Independent Electoral Commission (IEC) and the Attorney General challenging the legality and validity of the mandate accorded to the Mayor to issue attestations to the constituents of Banjul in the past general voter registration exercise.

It was the position of the three plaintiffs that there is no legislation (law) that mandates a “Mayor” to issue attestation to constituents in order to apply for a voter’s card as this power and authority is only vested to Village Alkalo or District Chief (Seyfo) as per section 12 subsection (2) paragraph of the Elections Act. Therefore, they argued that the actions of the IEC and the Mayor were in conflict with the laws governing voter registration and are therefore, ultra vires and a grave violation of the Elections Act and other relevant laws.

The three plaintiffs contended that the issuance of attestation to constituents of Banjul was unlawful and was not in conformity with the relevant laws governing elections in the country.

The Plaintiffs argued that the mayor lacks such powers and her action is a serious contravention of the Elections Act.

The three wanted the high court to make a declaration that the actions of the Mayor of Banjul in issuing attestations to constituents of the City of Banjul in the ongoing Independent Electoral Commission (IEC) general registration of the voters contravenes section 12 (2) (e) of the Elections Act.

Also, they wanted the court to make a declaration that the actions of the Independent Electoral Commission (IEC) in conferring the power to the Office of the Mayor of Banjul to administer attestation forms generated by the IEC for the purpose of claiming voters’ cards in the City of Banjul contravenes section 12 (2) (e) of the Elections Act. They wanted the high court to make an order quashing the decision of the IEC to bestow upon the Mayor of Banjul the power and authority to issue attestations to the Constituents of the City of Banjul.

Also, they asked the court to make an order setting aside all attestation forms endorsed and or issued by the Mayor of Banjul for which voters’ cards were issued by the IEC. Consequently, an order striking-out and or cancelling all voter cards issued by the IEC that were supported by attestation forms issued and or endorsed by the Mayor of Banjul.

High Court judge, Justice Basiru Mahoney in his judgment declared that the Elections Act does not empower Mayor Rohey Malick Lowe to give attestation to the people of Banjul for the purpose of registration for voter’s card. He further held that the Independent Electoral Commission (IEC) does not have the power to authorize Banjul Mayor to give attestation in the ongoing voter registration.

Justice Mahoney declared that the actions of the Mayor of Banjul in issuing attestations to constituents of the City of Banjul in the Independent Electoral Commission (IEC) general registration of voters process are in contravention of section 12 (2) (e) of the Elections Act. He also declared that the actions of the Independent Electoral Commission (IEC) in conferring the power to the Office of the Mayor of Banjul to administer attestation forms generated by the IEC for the purpose of claiming voter cards in the City of Banjul are a contravention of section 12 (2) (e) of the Elections Act.

Dissatisfied with the decision of the high court, the Mayor of Banjul filed an appeal before the Gambia Court of Appeal. Justice O.M.M Njie in delivering the lead judgment said there were hardly any disputes of fact and the matter centred mainly on issues of law as raised in the body of the summons.

The Mayor contended that the high court judge erred in law in holding that the Independent Electoral Commission does not have the power to give the Mayor power to issue attestation. On the particulars of the error, the Mayor contended that the Judge did not avert his mind to the fact that IEC derived its powers under section 127 (1) of the Elections Act. The Mayor said the trial judge failed to avert his mind to the fact that Section 12 of the Elections Act has not catered for the people of Banjul. Also, the Mayor said the high court judge failed to avert his mind to the previous year’s practice of the IEC in respect to the people of Banjul.

On the second ground of appeal, the Mayor said the high court judge erred in holding that the Mayor’s act of issuing attestation for voter’s card to the people of Banjul is unconstitutional. On the particulars of the error, the Mayor submitted that the trial judge failed to draw his attention to the Constitutional provisions of section 33. The Mayor further argued that the trial judge failed to state the Constitutional provision which she offended by issuing attestation to the people of Banjul.

On the third ground of appeal, the Mayor submitted that the high court judge failed to analyse the entire evidence she presented. On the fourth ground of appeal, the Mayor submitted that the Judge failed to avert his mind to the fact that the franchise of the people of Banjul will be affected if she does not issue attestation. On the fifth ground of appeal, the Mayor said the high court judgment was against the evidence adduced at the trial. On the sixth ground of appeal, the Mayor contended that the high court judge was wrong in holding that section 12 subsection 2 of the Elections Act has no lacuna. On the seventh and final ground of appeal, the Mayor submitted that the high court judge was wrong to hold that the IEC acted outside the law or ultra vires by empowering her to issue attestation.

Justice Njie in his analysis said Section 12 of the Elections Act deals with person’s qualification for registration as a voter in elections in the Gambia and subsection 2 specifically deals with the documents that a person needs to produce to be entitled to such registration.

Subsection 2 of section 12 of the Elections Act states “a person’s name shall not be entered on a register of voters in a constituency unless he or she produces any one of the following documents – a birth certificate, a Gambian passport, a national identity card, a document certified by five elders that the applicant is a citizen of The Gambia or a document certified by the District Seyfo or an Alkali of the village of birth of the applicant stating that the applicant was born in the district or village.”

Justice Njie raised the question as to whether the Mayor, on the direction or authorisation of the IEC, is empowered by the provisions of section 12 (2) of the Elections Act to certify the document mentioned therein.

It was the position that the IEC has such powers under section 127 of the Elections Act to authorize her to give attestation for voter’s card and that the exercise by the IEC of its powers under section 127 cannot be questioned by any court of law.

Section 127 of the Elections Act states “(1) Where an issue arises relating to electoral matters, which is not addressed by this Act or any other law, the Commission shall resolve the issue in keeping with the standards of rules of natural justice and fairness. (2) A decision of the Commission with respect to an issue arising under section (1) shall be final and shall not be called into question in any court of law.”

Justice Njie further raised a question as to whether an issue has arisen relating to electoral matters which is not addressed by the Elections Act or any other law which requires the IEC to solve.

The Mayor’s position was that there is a lacuna in Section 12 (e) of the Elections Act because Banjul does not have an Alkalo or a Seyfo but has a Mayor. It was her position that if the Mayor does not exercise the powers in subsection 2 of section 12 of the Elections Act then the constituents of Banjul would be discriminated against and partly disenfranchised. In order words, it was the position of the Mayor of Banjul that the word “Mayor” ought to be added to the words “District Seyfo” and “Alkalo” contained in the said provision of the Elections Act.

“In my view, the language of Section 12 (2) (e) is very clear and unambiguous and it refers only to a village Alkalo and a District Seyfo, being empowered to do the required certification (attestation) and not a Mayor,” Njie said.

Justice Njie added: “Neither the courts nor the IEC nor the Mayor of Banjul have the power to read the word “Mayor” into the provisions of Section 12 (2) (e) of the Elections Act – only the National Assembly of the Gambia has that power under the Constitution and the doctrine of legislative supremacy of parliament.”

He cited section 100 of the Constitution which provides that the legislative power of The Gambia shall be exercised by Bills passed by the National Assembly and assented to by the President.

“To my mind, the issue of documents to be produced for entitlement to voter registration does not relate to an electoral matter not addressed by the Elections Act such that the IEC would be empowered by Section 127 (1) to intervene and resolve same,” Justice Njie said.

He added: “The matters mentioned in section 12 (2)  are those of nationality and birth, which no law has empowered the IEC to play any part in.”

He said the issuance of passports and national identity cards is legally the responsibility of the immigration authorities and that of birth certificates is that of the medical and health authorities. He added that the National Assembly, in their own wisdom, as the representative of the people, in the Elections Act, gave additional powers to the Alkaloli and District Sefolu to certify that a particular person was born in a particular village so that he or she can register to vote in the constituency in which that village is located.

“The National Assembly has not given the IEC any authority to extend the power to certify nationality or birth to any other official whether the Mayor of Banjul or anyone else,” Njie said.

He said section 12 subsection 3 of the Elections Act provides that the IEC shall not reject a valid document produced under sub-section 2.

“Impliedly therefore, the IEC has no role to play in the production of documents listed in the said subsection 2 as it has no power to even reject any of them once it is issued by the competent authority,” he said.

He added: “I cannot see how the same Commission (IEC) can arrogate to itself the power to authorize an official (The Mayor of Banjul), who is not named in the said subsection (2), to certify a document referred to in paragraph (e) therein.

On the issue of discrimination, Justice Njie said Acts of National Assembly have, for good reasons, been known to be applicable only to the regions in this country and not to extend to Banjul. He cited the District Tribunal’s Act which only to the Regions and does not extend to Banjul or Kanifing Municipalities.

The Judge said if it is felt that the Mayor of the city of Banjul ought to have similar powers to that of Alkalolu and District Seyfolu to certify births in Banjul for the purpose of electoral registration, then the legally proper step to take is not for the IEC to insert the word “Mayor” in the provisions Section subsection 2 of the Act, thereby usurping the functions of the National Assembly, but for the National Assembly and the President of the Republic to amend the said provision accordingly.

He said the provisions of section 12 subsection 2 of the Elections Act are not discriminatory adding it is not a violation of section 33 of the Constitution. Justice Njie held that the IEC acted outside the powers conferred on it by section 127 (1) of the Elections when it authorised the Mayor of Banjul to certify documents for people in Banjul for the purpose of registration for voter’s card.

He dismissed Mayor Lowe’s appeal saying it lacks merit and awarded cost of D50,000 in favour of Gambia Participates and the other defendants.

Justice Aminata Saho-Ceesay supported the judgment with similar reasoning and analyses.

However, Justice Haddy Cecilia Roche gave a dissenting judgment. She held that the decision of the high court is not only a disenfranchisement of the 2000 constituents of Banjul concerned, it also sadly denies them their fundamental right to identify which section 29 of the Constitution seeks to protect. She held that there is a lacuna or deficiency in the Elections Act which results in discrimination against the constituents of Banjul who have a fundamental constitutional right to be protected from discrimination, and who have a constitutional right to vote if qualified to vote under section 26 of the 1997 Constitution. She said the actions of the IEC were legitimate, for they were meant to give the 2000 constituents of Banjul “access on general terms of equality to public service in The Gambia” for the exercise of their right to be registered to vote and to vote under section 26 of the Constitution.

“The actions of the Independent Electoral Commission were fair and accord with the rules of natural justice bearing in mind that the people of Banjul are placed at a disadvantage, and are being discriminated against as far as the provisions of Section (1) of the Elections Act are concerned,” she said.

She said the intention and purpose of the legislature was to give effect to the right to vote and the right to be registered to vote. Otherwise, there would be no logic for the presence of section 127 (1) in the Elections Act.