Tuesday, July 27, 2021

Justice Mahoney Says IEC Lacks Power to Authorize Banjul Mayor to Give Attestation

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By Yankuba Jallow

Justice Basiru V.P Mahoney on Tuesday held that the Independent Electoral Commission lacks power to authorize Banjul Mayor to give attestation in the voter registration exercise which wrapped up recently.

Justice Mahoney held that the Banjul Mayor has no powers under the Elections Act or the Constitution to give attestation to the constituent of Banjul.

The Judge 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.

He asked the Mayor, IEC and the Attorney General to pay twenty thousand dalasis (D20,000) to the two civil society groups and the Councilor of Box Bar Ward.

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The Judge stated that he is not convinced with the submissions of the lawyers for the Mayor, IEC and the Attorney General arguing that there is a gap in the Elections Act regarding who should issue attestation in Banjul.

Lawyer Kebba Sanyang for the IEC submitted that there is a gap in the Elections Act as to who should issue attestation to the people of Banjul as opposed to other areas where an Alkalo or a Chief can give attestation. On this basis, he said IEC relied under section 127 of the Elections Act, to authorize the Mayor to give attestation for Banjul constituency.

The Mayor in her argument stated that it has been a practice that her office gives attestation for the purpose of voter registration adding it has been a long-standing practice. She argued that she is authorized to issue attestations for birth certificates and death certificates in her capacity as Mayor and that the manner in which her office issues attestations is transparent, fair and just and that since the commencement of the voter registration exercise, she has issued more than 2,000 attestation forms to the people of Banjul.

Sulayman Joof, the Director of Administration at the IEC said the Mayor of Banjul has always provided attestations for unregistered adult Gambians living in the City and on this basis, the Commission authorized the Mayor to issue attestation.

The Applicant’s Arguments

Lawyer Abdoulie Fatty, Counsel for the Applicants (Gambia Participates, Councilor Abdul Aziz Gaye and the Centre for Research and Policy Development) submitted that the issue before the Court is whether the Mayor has the legal authority to issue attestations as part of the voter registration process.

Counsel referred to section 12 (2) of the Elections Act concerning the qualifications for registration of voters which was also stated in the IEC’s public notice on the registration exercise. Counsel submitted that the interpretation of the section 12 (2) (e) of the Elections Act, should be a literal one since the provision is clear and unambiguous.

Counsel argued that invoking section 127 of the Elections Act to authorize the Mayor to issue attestations would be changing the ordinary meaning of section 12 (2).

Barrister Fatty said the High Court has supervisory jurisdiction over all judicial and public bodies and institutions of which the IEC and the Mayor’s office belong to the latter and must be subject to control if they act unlawfully.

Counsel concluded that that the IEC cannot confer on themselves power that the lawmakers have not given to them.

“If Parliament had wanted to vest the Mayor with power to attestations, they would have included it in section 12; that where the language of the statute is clear, a literal construction of it should be adopted. And that if the Mayor has issued 2,000 attestations in Banjul, that is a significant number when the Mayor has no legal authority to issue or do so and thus has a significant impact on the integrity of the registration process,” Fatty said.

What was Mayor’s Argument?

Lawyer Sasum Sillah, Counsel for the Mayor argued against the application on the declarations by the applicants. On the declarations, counsel submitted that section 12 (2) of the Elections Act was amended in 2001 by removing paragraph (d) which allowed the attestation by five elders. Counsel submits that IEC conferred power on the Mayor to issue attestations for the people of Banjul by exercising its power under section 127 (1) of the said Act because the intention of the legislators was that section 12 (2) (e) (now (d)) was not for general application over the whole country but only for places with a Seyfo or Alkalo of which Banjul has none so that the general provision in section 127 was invoked to give uniformity and avoid discrimination and unfairness. She submitted that although where there is a specific provision, the general provision will not apply, there are exceptions such as where the intention of Parliament was not for the specific provision to be generally applicable. She presented that in this case, it is obvious that Parliament did not intend the general application of section 12 (2) (e), (now (d), so that there is a lacuna (gap) which was filled by the 2 Respondent allowing Banjul which has no Alkalo, or Seyfo, to have attestations issued by the Mayor.

On the consequential orders, counsel argues that the people whose voter’s cards are sought to be cancelled are not parties to the suit so that it would be against the rules of natural justice and fair hearing to have their cards cancelled without them being heard.

Counsel concluded her submissions by submitting that the application is geared towards disenfranchising some of the people of Banjul who have a constitutional right to be registered and vote.

What was IEC’s Arguments?

Lawyer Kebba Sanyang, Counsel for IEC submitted that section 12 (2) of the Elections Act provides for attestations in the absence of a birth identity card or passport. That in Banjul, without certificate, attestations, over 2000 citizens would be disenfranchised. He informed the court that IEC has always used the Mayor of Banjul to issue attestations, who would otherwise be disenfranchised?  

Counsel Sanyang also questioned the legal capacity of the Applicants, that they have not shown that they have sufficient interest to bring this suit or that Councilor Gaye is authorized by his constituents to bring this suit.

Sanyang said the IEC relied on section 127 of the Elections Act to authorize the Mayor to give attestation since section 12 (2) is silent on the issue of attestations for the people of Banjul. He submitted that section 12 (2) is supposed to apply throughout The Gambia and that by not applying to Banjul, it disenfranchises the City which violates the constitutional right to vote and discriminates against the people of Banjul.

The Senior Lawyer further submitted that the power given to the Mayor under section 127 cannot be questioned by a court adding the provision has ousted the jurisdiction of the court to inquire as to how the IEC arrived at the decision to give the Mayor the power to issue attestations.

The Argument of the Attorney General

Counsel Binga D. the Director of Civil Litigation for the Attorney General in his arguments against the application by the applicants submitted that certain paragraphs of the affidavit in support of the summons contain legal arguments and conclusions and violate the Evidence Act and ought to be struck out.

On section 12 (2) of the Elections Act, Counsel Binga submitted that with the repeal of the paragraph allowing attestations by 5 elders, the people of Banjul will be deprived unless somebody is authorized by an Act of National Assembly to provide attestations. That due to the lacuna or absence of anyone to provide attestations in Banjul, the IEC relied on section 127 to authorize the Mayor to issue attestations so that the residents of the City of Banjul will not be discriminated against.

The State Counsel submitted that with rising increase in youth population, a high percentage of the constituents of Banjul would be deprived and discriminated against so that it was only fair to the electorate that IEC invoked section 127 to enable them to be registered and vote.

Binga submitted that section 127 has ousted the Jurisdiction of the court to entertain matters regarding the IEC operational activities to enable them have a free hand within the ambit of the law.

Reply on points of law

Lawyer Fatty for the applicants in his reply on points of law submitted that section 12 cannot be said to apply to only certain parts of The Gambia since it is made pursuant to sections 42 to 45 of the Constitution.

On the argument that the persons affected have not been made parties, Counsel submitted that his argument is that the power given to the Mayor by IEC is void ab initio.

On the right to vote, Counsel Fatty submitted that the Constitution also contains eligibility requirements just as section of the 12 Elections Act so that the argument that the application discriminates against the people of Banjul is not supported.

On the locus standi [right to bring an action] of the Applicants, Counsel Fatty submitted that they are concerned persons and entities and have a right to challenge matters of public importance.

Jurisdiction of the Court

Justice Mahoney said the High Court has original jurisdiction to hear and determine all civil and criminal proceedings and to interpret and enforce the fundamental rights in the Constitution under section 132 of the Constitution. It also has supervisory jurisdiction over all lower courts and adjudicatory authorities in The Gambia under section 133 of the Constitution.

He held that Independent Electoral Commission is a public body since it is part of the public service under section 42 of the Constitution and administers a public function.

He cited the Courts Act 1964 by section 3 which he said vested the High Court with the following jurisdiction: “The High Court shall have the jurisdiction and powers provided by the Constitution and all the jurisdiction, powers and authorities which were vested in or capable of being exercised by Her Majesty’s High Court of Justice in England immediately before the eighteenth day of February, 1965.”

He said the High Court has judicial control over the acts of public bodies by judicial review. He maintained that acts of a public authority are lawful only so long as the authority does not exceed its powers and may be challenged in the courts on the ground that there is no such power, or the power has been exceeded or used for an improper purpose citing Constitutional Law by E.C.S. Wade and A.W. Bradley, 8″ Edition (1970), at pages 619 and 620.

In effect, he said the high court has jurisdiction to hear and determine applications for judicial review and actions for declarations and consequential orders in public interest cases.

He said the applicants have the legal standing to bring the suit before the high court as he relied on their affidavit in-support of their case.

Does the Mayor Have Power to Issue Attestation?

Justice Mahoney said this issue calls for the interpretation of section 12 (2) and section 127 of the Election Act. He said IEC claimed that they invoked section 127 of the Act to authorize the Mayor to issue attestations.

He said it would be prudent to identify the source of the law concerning voter registration. This can be traced to Chapter 5, Part I of the Constitution of The Gambia 1997 where at section 39 (1), it is provided that: “Every citizen of The Gambia being eighteen years or older and of sound mind shall have the right to vote for the purpose of elections of a President and members of the National Assembly, and shall be entitled to be registered as a voter in a National Assembly constituency for that purpose.”

It is further provided at section 41 of the Constitution that: “Subject to the provisions of this Constitution, an Act of the National Assembly may make provision for giving effect to the provisions of this Chapter and, without prejudice to the generality of the foregoing, may provide for the registration of voters for the purpose of public elections.”

He said the Elections Act 1996, the present statute in force on elections, provides the laws on registration of voters in Part 3 with Section 11 covering the Register of Voters, Section 12 the qualifications for registration, Section 13 the disqualifications for registration, Section 14 the period of general and supplementary registration etc.

He reproduced Section 12 of the Elections Act “Qualifications for registration (1) a person shall be entitled to have his or her name entered on a register of voters’ in a constituency if he or she

(a) is a citizen of The Gambia;

(b) has attained, or will on the date of the holding of the next election attain, the age of eighteen years, and

(c) is resident, or was born in that constituency

(2) 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;

(c) a National Identity Card;

(d) a document certified by five elders that the applicant

is a citizen of The Gambia; or

(e) 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.

(3) The Commission shall not reject a valid document produced under sub-section (2).”

He said it is relevant to note here that this Section was amended by deleting paragraph (d) on attestation by five elders.

On the rules of interpretation of statutes, he said it is well established that provisions in statutes are to be given their ordinary plain meanings unless it would lead to absurdity.

“This principle has been consistently applied in this jurisdiction,” he said.

He stressed that the Courts in interpreting and applying statutes have a duty to pay heed to the text of every provision and take account of the words as they stand. It should not add any words.

In the instant matter, he said a careful study of section 12 of the Elections Act appears plain and unambiguous. Subsection one gives the general qualifications for entry in the register of voters. It reflects the right to vote as provided in section 39 (1) of the Constitution. Then subsection two provides that a person’s name shall not be entered on the register unless he or she produces any one of four stated documents namely a birth certificate, a Gambian passport, a National Identity Card or 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.

On the controversy that appeared to have arisen is that there is no provision for ‘attestation for the people of Banjul because it is said Banjul does not have a District Seyfo or a village Alkalo and so there is a lacuna in the law.

“The ordinary interpretation is that notwithstanding the right of a Citizen of The Gambia above the age of eighteen who 1s not disqualified by reason of unsound mind among others, must produce one of four permitted documents in order to be entered on the register of voters. The four documents are: a birth certificate, a Gambian passport, a National Identity Card or a document certified by the District Seyfo or Alkalo of the village of birth of the applicant stating that the applicant was born in the District or village,” he said.

He said the second (passport) and third (national identity card) documents are confirmatory of citizenship while the first (birth certificate) and fourth (attestation) are only confirmatory of place of birth.

“The ordinary meaning of the fourth document, that is one certified by the Seyfo or Alkalo of the District or village of birth of the applicant stating that the applicant was born in the District or village, is that it merely confirms the place of birth of the applicant which achieves the same functions as the birth certificate,” the Judge said.

He said section 12 of the Elections Act is not ambiguous as he disagreed with the lawyers for the IEC, Mayor who both submitted that there is a gap in the law on the issue of attestation in Banjul.

The Judge held that on the attestation form the Mayor is attesting that the applicant is a Gambian citizen and is eligible to acquire a voter’s registration card for elections in The Gambia whereas paragraph (e) of section 12 of the Elections Act only confirms that the applicant was born in the District or village.

The Judge emphasized that the Birth, Deaths and Marriages Registration Act 1886 was originally only applicable to

Banjul and Janjanbureh and made it a criminal offence for parents not to register the birth of a child within a specified time. This did not apply to the Regions until the 1950s but it has never ben mandatory for parents to register the births of children outside Banjul and Janjanbureh.

“From the literal and purposive interpretation of section 12 (2) of the Elections Act, I do not see any lacuna…If the lawmakers had intended to cater for certification of place of birth in Banjul other than by birth certificate, they would have provided for it in the Act,” he said.

He relied on the legal statement of Justice Agim CJ as he

then was in the case of  U.D.P., N.R.P. and K. Sanneh versus The Attorney General (2010-2012), Supreme Court decision at page 245 in which Justice Agim said “The point need not be belaboured that where a constitutional or statutory provision expressly lists the things to which it applies, it is clear that the legislative intention is that it shall not apply to those not mentioned.

He read section 127 (1) and (2) of the Elections Act relied on

by IEC as “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.” Subsection 2 of the same provision provides “A decision of the Commission with respect to an issue arising under subsection

On whether section 12 (2) (e) is discriminatory to the people of Banjul, he said the document (attestation) in paragraph (e) is not a certification of citizenship but rather a certification that a person was born which has the same effect as a birth certificate.

“Persons born in Banjul are required by law to be registered in the register of births so that everyone born in Banjul should have a birth certificate,” he said.

The Judge said it cannot be said that there is a lacuna in section 12 (2) of the Elections Act and it also cannot be said that the issue of District Seyfo and village Alkalo certifications of birth otherwise called attestations not being available to the people of Banjul is an issue not addressed by the Act or any other law that needs to be resolved by the Mayor.

“The purported issue has in fact been addressed since persons in Banjul are required by law to register their births in Banjul to the extent that it is a criminal offence not to register a child born in Banjul. Consequently one can properly expect that everyone born in Banjul should have a birth certificate. I am therefore of the firm belief that there is no lacuna in section 12 (2) of the Elections Act and the issue of documents proving birth in Banjul has been addressed in the Elections Act and the Births, Deaths and Marriages Registration Act. Again, if the lawmakers had intended to cater for certification of place of birth in Banjul other than by birth certificate, they would have expressly provided for it in the Act,” he said.

The Elections Act itself prohibits the questioning of lists of voters except through the Revising Courts. Section 30 of the Elections Act provides “No list of voters, list of deletions and entry in such list shall be questioned in any proceedings (other than criminal proceedings) except in a revising court or an appeal from such revising court to the court in accordance with this Part.”

He said his court cannot make consequential orders especially cancelling the voters cards issued because it would offend section 30 of the Elections Act.

“Consequently, only a revising court established in accordance with section 24 of the Elections Act can deal with the individual entries in the register of voters,”

He concludes by emphasizing that there is no carte blanche or free hand for public bodies and authorities to perform their functions, adding they are required to act within the law or intra vires and not outside the law or ultra vires.

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