Thursday, June 24, 2021

Is The Mayor /Mayoress Of Banjul Empowered To Attest To Citizenship For Registration Of Voters?

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QUESTION OF THE DAY

Section 12 Subsection (2) states:

“Notwithstanding subsection (1), 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)       a birth certificate;

(b)       a Gambian passport;

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(c) a National Identity Card; and

(d)      a document certified by the District Seyfo or an Alkalo of the village of birth of the applicant stating that the applicant was born in the district or village.”

The provision makes it mandatory for one to have the documents mentioned to be registered as a voter. The attention from a Mayor / Mayoress is not included.

Section 134 Subsection (2) states:

“The Commission may make Rules generally for the better carrying out of any of the provisions of this Act and shall in particular make Rules –

(a)         prescribing fees for the registration of political parties and any other fees which may be prescribed under this Act;

(b)         revising the deposits payable under this Act;

(c)         prescribing such procedures not covered under this Act as the Commission considers necessary for the effective conduct of elections;

(d)         authorizing individuals, local and international organisations, and members of the press and media to witness registration of voters and the conduct of elections;

(e)         regarding the certificate to be used by Returning Officers to allow election officers and police officers to vote at their places;

(f)           regarding the forms of the Report on the Closing of Polls and Report on the Counting of Votes;

(g)         prescribing the Certificate of Authorisation required under section 86;

(h)         prescribing the amount of donations and gifts which a candidate or political party may receive with respect to any election;

(i)            prescribing forms for returns of death and the registration of political parties; and

(j)            prescribing any matter which may be prescribed under this Act.”

However, rules are subsidiary legislation. Section 3 of The Interpretation Act defines subsidiary legislation as “any Proclamation, rule, regulation, Order, Notice, by-law or other instrument made under any Act or by or under any other lawful authority and having legislative effect.” 

Section 11 indicates how subsidiary legislation are put into effect to become law. It reads:

“Where an Act confers authority to make subsidiary legislation, the following provisions shall have effect with reference to the making and operation of the subsidiary legislation, unless a contrary intention appears

(a) the subsidiary legislation may be at any time be amended, varied, rescinded or revoked by the same authority and in the same manner by and in which it was done;

Provided that where the authority has been replaced wholly or partially by another authority, the power conferred herein upon the original authority may be exercised by the replacing authority concerning all matters or things within its jurisdiction as if it were the original authority;

(b)      there may be annexed to any subsidiary legislation, the penalty for any breach or contravention thereof not exceeding a fine of one thousand dalasis or imprisoned for a term of three months or to both the fine and imprisonment as the authority making the subsidiary legislation may think fit;

(c) a subsidiary legislation shall not be inconsistent with the provision of the Act;

(d)      Subsidiary legislation shall be published in the Gazette and shall have the force of law upon the publication thereof or from the date named therein:

Provided that a Proclamation may be published in such manner as the authority making it shall direct and upon publication the person making the Proclamation shall forthwith have the force of law unless the Proclamation otherwise provides.”

Hence there is no legal foundation at this stage for the Mayoress to attest the citizenship of claimants. If the practice continues court action may soon be instituted to stop it.

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