Friday, September 17, 2021

High Court Dismisses BB Darboe and Co Suit Seeking Enforcement of Diaspora Voting Rights

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By Yankuba Jallow

A high court judge today dismissed a suit brought by Bakary Bunja Darboe and others before her seeking an order (of mandamus) from the court to direct the IEC to register Gambians living abroad (diaspora).

Bakary Bunja Dabo, Cherno M Njie, Pa Samba Sadaga Jow, Jeggan Gerald Grey-Johnson and Sidi Mohammed Sanneh brought a civil action against the Attorney General and the Independent Electoral Commission (IEC) to enforce the Supreme Court Judgement that went in their favour. In that case, the Supreme Court found and declared that pursuant to section 39 of the Constitution every Gambian, including those living outside the jurisdiction, are entitled to register for and vote in elections to the offices of the President, members of the National Assembly, for local government offices and traditional rulers as well as referendum.

For the applicants (Darboe and others), IEC has not taken steps to register Gambians in the Diaspora for the forthcoming national elections which in their view is a gross disregard to the judgment of the apex court. It was their position that the IEC deliberately disregarded the judgment of the Supreme Court by not registering Gambians living in the Diaspora.

The Lawyer for Bunja Darboe and others, Abdoulie Fatty submitted that the high court has control over public bodies including the IEC. He argued that the Constitution places an obligation on the high court to abide by court decisions. He said the Supreme Court decision still stands and it should be enforced as he relied on section 39 of the Constitution. He said IEC has an obligation not to disenfranchise any eligible Gambian, including those living abroad, from voting.

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It was the contention of Darboe and co that the IEC is under duty bound, as per the judgment, to amend the Constitution and include new constituencies to enable them register Gambians living outside the jurisdiction.

Senior Lawyer Kimbeng T. Tah for the Attorney General said the high court cannot make any orders on the same matter different from the ones the Supreme Court already made since it is a subordinate court. He argued that the high court cannot make an order of mandamus in the instance case since the Supreme Court has already decided on it.

Counsel Tah said what BB Darboe and co were seeking for was an order from the high court directing for an amendment of the Constitution to introduce new constituencies, a power the high court lacks.

“The supreme law of the land does not cater for what they want,” Tah said.

The senior State Counsel said IEC is not subjected to the supervisory jurisdiction of the high court. However, it was Lawyer Fatty’s argument that the high court has supervisory jurisdiction over public bodies, including the IEC.

Lawyer Kebba Sanyang for the IEC said the application for an order of mandamus by BB Darboe and co was incompetent and urged the high court to dismiss same. He argued that the high court cannot enforce the judgment of the Supreme Court since there is nothing to be enforced. He submitted that the right to vote under the Constitution only applies to the Gambians living within the jurisdiction and does not include those living outside. He described the application as frivolous and vexatious as he urged the court to dismiss it.

Justice Amina Saho-Ceesay said her court has the jurisdiction to make orders of mandamus as she relied on sections 7 and 130 of the Constitutions as well as the Laws of England Application Act. She also held that IEC is a public body and it is subjected to judicial control, adding the electoral body is subjected to the supervisory jurisdiction of the high court.

“The high court has judicial control over public bodies,” she said.

On whether to grant the application, she asked the question what is in the judgment that is to be enforced. In answering the question, she said the Supreme Court only made a declaration that every Gambian, including those living outside the jurisdiction has the right to be registered and vote in public elections pursuant to section 39 of the Constitution.

However, she rescinded from making an order of mandamus directing the IEC to register Gambians living outside the jurisdiction.

“This honourable court cannot grant an order different from the Supreme Court,” she said.

She agreed with Lawyer K. Tah that the apex court only made a declaration and there were no consequential orders capable of being enforced.

“The judgment only made declarations. Declaratory judgments are not capable of being enforced. It is a judicial statement,” she said.

She said the Supreme Court judgment was not an executory judgment capable of being enforced.

“Declaration is in itself unenforceable,” she held.

She said in order to enforce declarations; it requires catalysts such as bringing an action seeking an enforcement of the rights, a power that the high court has exclusive jurisdiction under the constitution to grant.

She held that the applicants (Darboe and co) should have brought an action for the enforcement of their rights instead of seeking an enforcement of the judgment. She stressed that every Gambian, including those living outside the jurisdiction, have the right to register and vote as provided in the judgment of the superior court.

She dismissed the application and did not make any orders as to cost. Her reasoning was that the current case and the one that was at the Supreme Court were one and the same, adding the high court cannot make any orders different from the ones made by the Supreme Court.

Lawyer Kimbeng Tah described the decision as rick adding it would greatly contribute to the enrichment of the jurisprudence of the country. Lawyer Abdoulie Fatty said despite the fact that the decision did not go in their way, he however, paid tribute to the Judge in the manner she expeditiously tried the case. Like Counsel Tah, Fatty said the decision would enrich the jurisprudence of the country. Lawyer Fatou M. Jawo, who appeared for IEC said as a young legal practitioner, she appreciated the well-reasoned decision of the court adding it would serve as a stepping stone and guidance in her career pursuit. She also congratulated the Judge on her promotion to the Gambia Court of Appeal as a judge.

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