Says it is without merit
By Yankuba Jallow
Justice Francis Achibonga of the Banjul High Court on Friday dismissed the application brought by Momodou Sabally.
Sabally, an erstwhile Secretary General and Head of Civil Service was challenging the Independent Electoral Commission’s (IEC) decision in rejecting his nomination.
The Returning Officer for Brikama Administrative Area rejected Sabally’s nomination and this decision was upheld by the Commission on appeal. Sabally wanted the court to set aside the decision and give an order directing the Commission to accept his nomination.
The Judge said Sabally was challenging the decisions of the both the Returning Officer and that of the Independent Electoral Commission in rejecting his nomination as a candidate for the forthcoming National Assembly elections for Busumbala consistency.
He said the reason for Sabally’s rejection was based on section 90 subsection (1) (e) of the 1997 Constitution, which made him ineligible to contest for the seat. The Judge said Sabally argued that both the Returning Officer and the IEC misapplied section 90 (1) (e).
The Judge explained that the grounds set out in this section of the Constitution are that a person is not qualified to contest as a candidate for the National Assembly elections if a Commission of Inquiry finds the person to have acquired assets unlawfully, defrauded the State, misuse or abuse his or her office, or willfully acted in a way prejudicial to the public interest.
The Judge said the Returning Officer rightly relied on this provision of the Constitution in rejecting Sabally’s nomination.
He said there was a Commission of Inquiry set up under law to investigate the financial dealings and connected matters of the former President Yahya Jammeh and his close associates. He said the Commission did its work and came up with its findings and recommendations. He added that the Report of the Commission containing the findings and recommendations were submitted to the President and published in line with the requirement of the law. He pointed out that specific findings were made against Momodou Sabally.
The Judge cited two transactions in which Sabally made cash withdrawal of over one million dollars from the National Youth Development Fund and International Gateway Account. He said cash of that magnitude is an asset to the State. He said such act was detrimental to the State and it was a conduct prejudicial to the public interest.
He dismissed Sabally’s arguments saying there were specific findings against him by the Commission of Inquiry. He said the Commission of Inquiry recommended for Sabally to be banned from holding public office or become a director of any State Owned Enterprise.
The Judge held that the Commission acted within its powers in rejecting Sabally’s nomination.
“There is no evidence before me that the findings of the Commission of Inquiry have been set aside or suspended,” the Judge said.
He said section 39 subsection (2) of the Elections Act stipulates that each nominee for the National Assembly elections must satisfy the requirements of sections 89 and 90 of the Constitution.
He said section 47 subsection (1) of the Elections Act empowers the Returning Officer to reject any nominee if the person does not fulfil the requirements for nominations.
“If a Returning Officer is satisfied that a nominee is not qualified to run for the office of a National Assembly, he has the power to reject the nomination,” the Judge said.
The Judge emphasized that the Returning Officer acted within his powers and was right in law in rejecting Momodou Sabally.
“The decision of the 1st Respondent [Returning Officer for Brikama Administrative Area] was in accordance with the law and cannot be quashed under this circumstance by way of an order of certiorari,” the Judge said.
Justice Achibonga held that Sabally is incompetent to contest for the National Assembly seat since he has been banned from public office for ten years.
He dismissed Sabally’s application labelling it as one without merit.
Request for Costs Against Momodou Sabally Rejected
Justice Francis Achibonga on Friday refused the request by the lawyer representing the Independent Electoral Commission for costs against Momodou Sabally.
The IEC Lawyer made this request immediately after the Court dismissed Momodou Sabally’s application.
The Judge made this ruling following human rights lawyer Abdoulie Fatty’s objection to the application for costs.
Lawyer Fatty said the court has the discretion to award costs. However, he enjoined the court to put into consideration the nature, facts and other circumstances of the case. Fatty submitted that the public should have full confidence in seeking redress in court, adding that they should not have the fear of paying costs at the back of their mind.
He told the court that Sabally’s application was not frivolous or vexatious, but an exercise of his constitutional right guaranteed by the Constitution.
“Citizens should not think twice in making application for judicial review,” Fatty said.
He argued that citizens’ participation in the democratisation process is invaluable, adding that one of the way is through judicial review. He stressed the importance of Judicial Review to the court and urged it not to award costs against Sabally.
The Judge said: “I don’t think cost is appropriate in this case to award cost. Awarding cost would discourage the public in participating in democracy. The public should have confidence in exercising their rights.