Thursday, June 24, 2021

Could The IEC Be Misled By Section 127(2) Of The Elections Act?

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QUESTION OF THE DAY

Section 127 of the Elections Act reads:

“(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 and rules of natural justice and fairness.

“(2) A decision of the Commission in respect to an issue arising under subsection (1) shall be final and shall not be called into question in any court of law.”

The IEC may be misled to believe that decision made under section 127 cannot be challenged in a court of law. This is not the position of the Constitution. Such provisions are only applicable where you have the supremacy of Decrees over the Constitution. Where the Constitution is supreme legal provisions must conform to the dictates of the Constitution. Section 4 of the 1997 Constitution asserts the supremacy of the Constitution. It states:

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“This Constitution 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.”

Hence if section 127(2) of the Elections Act contravenes section 4 of the Constitution the Supreme can declare it null and void. Needless section 127 of the Constitution gives power to the Supreme Court to interpret the Constitution and any other law. It reads:

(1) The Supreme Court shall have an exclusive original jurisdiction – (a) for the interpretation or enforcement of any provision of this Constitution other than any provision of sections 18 to 33 or section 36(5) (which relate to fundamental rights and freedoms); (b) on any question whether any law was made in excess of the powers conferred by the Constitution or any other law upon the National Assembly or any other person or authority;……”

Hence the IEC needs legal advice on what ought to be done to establish procedures that would have the force of law such as the granting of mayor or mayoress the authority to give attestation to claims for citizenship and residence of claimants.

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