 |
|
| Author |
 Topic  |
|
|
Nyarikangbanna
United Kingdom
1382 Posts |
 Posted - 03 Feb 2008 : 20:17:49
|
Justice Savage’s Ruling – an Aberrant Abdication of Duty
Mr. Editor,
On the 30th October 2007, the National Parliament of the Republic of the Gambia passed a Bill amending the local government Act, the legislation that governs local government administration in the country, empowering the president to dissolve elected councils and replace them with presidential appointed ones. The Amendments also allow chairmen of the six provincial councils to be chosen by appointment. The main opposition United Democratic Party [UDP] and its coalition partner, the National Reconciliation Party [NRP] who vehemently opposed the amendments, claimed that the amendments contravene Section 193 of the Constitution and therefore unconstitutional. Section 193 provides that local government administration should be based on a system of democratically elected councils with high degree of local autonomy. UDP, NRP and the Minority leader in parliament, Hon. Momodou Sanneh, then filed a suit at the Supreme Court asking it to declare the amendments null and void. They also sought an injunction against the Independent Electoral Commission [IEC] forbidding it from holding the long awaited local government elections pending the outcome of the substantive matter. The case was presided over by the country’s Chief Justice, Justice Abdou Karim Savage who pursuant to Section 125 of the Constitution, was sitting as a single judge.
No sooner was the case mentioned, the Attorney-General, Ms Marie Saine-Firadus filed a preliminary objection questioning the jurisdictional competency of the court and the suit before it. She also contended that the 1st and 2nd plaintiffs, UDP and NRP respectively, lack the capacity to sue as they are not [allegedly] existing political parties by reason of their apparent membership of another political party, NADD. In respect of the 3rd plaintiff, the Minority leader, The Attorney-General stated that he lacks sufficient interest in the matter by virtue of his membership of the National Assembly, a position she claimed overrides his position in court. Counsel for the plaintiffs, Lawyer Ousainu Darboe responded that Section 127 of the Constitution confers original jurisdiction on the Supreme Court to determine whether or not a law passed by the National Assembly was made in excess of its powers as given by the Constitution. He also stated that the notion that UDP and NRP lack capacity to sue is inconceivable as the two are operating political parties who have not re-registered, and have rights to protect the interest of the nation. Mr. Darboe went on to observed that the Attorney-General did not provide any proof to the effect that the 1st and 2nd plaintiffs had de-registered with the Independent Electoral Commission adding that political parties cannot be members of a political party. ‘It is individuals who make political parties’, he emphasized. Mr. Darboe then dismissed the Attorney-General’s contention as an abuse of process. In respect of the 3rd plaintiff, he responded that the suit was not an attack on the procedures of the National Assembly adding that such a constitutional issue has never been raised in the history of Gambia’s legal jurisprudence.
Justice Savage’s Ruling
In his ruling, Chief Justice Savage stated that the plaintiffs lacked capacity to institute the suit as they are non-existent by reason of the fact that they are members of NADD. He also stated that the plaintiffs did not produce any papers to convince the court that they are no longer part of NADD adding that the Supreme Court decision in Hon. Halifa Sallah & Others v. The Clerk of the National Assembly [2005] that nobody could belong to two political parties is binding. He then dismissed the suit and awarded D20, 000 to the second defendant, the Independent Electoral Commission, as cost. This was mocked by counsel for the plaintiffs who ventured to expose the Chief Justice’s logical incoherence when he asked; ‘who will pay if the defendants are in-existent entities?’ The ruling however, deliberately failed to address other contentious issues namely; the question of the jurisdictional competence of the court and whether plaintiffs have a cause of action against the IEC. It also failed to explain why the third plaintiff, Hon. Momodou Sanneh who joined the suit in his personal capacity, could not proceed with the matter.
Do Plaintiffs have capacity to sue?
Under the rules of the Common law, a party to a civil suit will not normally have capacity [locus standi] to sue unless he can demonstrate that he has sufficient interest in the subject matter, sufficient interest being a detriment suffered or likely to be suffered. Thus, a legally registered political party acting in the interest of its members or the country as a whole should prima facie have standing to sue. However, if the party is in fact legally non-existent, its position is the same as that of a non-profit making Company formed to protect the site of a Shakespearian theatre. It lacks legal capacity and therefore does not have standing to sue except where the illegality of the action complained of is clearly apparent and risk going unchallenged. [See R v. Secretary of State for Foreign and Commonwealth Affairs, ex parte World Development Movement Ltd [1995] 1 WLR 386]. Therefore, if the 1st and 2nd plaintiffs are not bona fide political parties as contended by the Attorney-General, as a general rule and saved for the exception above, they do not have capacity to sue.
Are they legally non-existent?
In his ruling, the learned Chief Justice stated that the 1st and 2nd plaintiffs are non-existent political parties by reason of their membership of NADD. He cited an earlier Supreme Court decision in Hon. Halifa Sallah & Others v. The Clerk of the National Assembly [2005] as authority for his decision. It must be noted that the cited case which concerns the interpretation of Section 91[1][d], came about as a result of various opposition parties including the 1st and 2nd plaintiffs, coming together under an umbrella coalition called NADD. This body was inadvertently registered with the Independent Electoral Commission as a political party, a move which prompted the Clerk of the National Assembly to expel sitting parliamentarians of the concerned parties namely; Halifa Sallah and Hon. Sedia Jatta of PDOIS, Kemeseng Jammeh of UDP and Hamat N.K Bah of NRP, on the basis that they belong to two political parties contrary to Section 91[1] [d] of the Constitution. Section 91[1] [d] states;
‘A member of the National Assembly shall vacate his or her seat in the National Assembly if he or she ceases to be a member of the political party of which he or she was a member at the time of his or her election.’
Whether NADD was in fact a registered party was initially a contentious issue although this was later regarded, widely, as settled. Having satisfied itself that NADD was a registered political party, the Supreme Court affirmed the decision of the Clerk and declared the seats of the affected parliamentarians vacant. There was no suggestion, either from the clerk or indeed from the ruling, that the parliamentarians had cross-carpeted or ceased to be members of their original parties. The contention was only that they belong to two different political parties, their original parties and NADD. Thus, if the 1st and 2nd plaintiffs are in fact legally non-existent, the affected parliamentarians would not have lost their seats as it would have been illogical and factually inaccurate to state that they belong to two different political parties. The decision in Hon. Halifa Sallah & Others v. The Clerk of the National Assembly [2005] is therefore, and contrary to the Chief Justice’s postulation, a judicial recognition of the legal status of both the 1st and 2nd plaintiffs [UDP and NRP] as bona fide, registered and established political parties. Suffice to this, Section 91[1] [d] only seek to regulate the conduct of sitting parliamentarians. It speaks in the language of ‘a National Assembly member who ceased to be a member of a political party of which he/she was a member at the time of his/her election’, and does not, in anyway, concern itself with the activities of operating political parties. The Chief Justice’s claim that Hon. Halifa Sallah & Others v. The Clerk of the National Assembly [2005] is a binding authority for his decision is therefore completely untenable. In fact, Section 91[1] expressly provided that nothing in the paragraph should apply on a merger of political parties at national level provided that is permissible under the concerned parties’ constitutions.
The learned Chief Justice’s claim that plaintiffs had failed to produce any document to show that they are no longer part of NADD is both disingenuous and outrageous since neither plaintiff had asserted that they belong to NADD. It was the Attorney-General who propounded the preliminary objection, and it was she who asserted that plaintiffs are part of NADD. The burden of proof should therefore squarely lie on her shoulder. This is how it works in every common law jurisprudence and Gambia is no exception.
Was it necessary to demonstrate sufficient interest?
The question of sufficient interest is not merely a preliminary issue. It has to be resolved in relation to the merits of the substantive matter before the court [See R v. Inland Revenue Commissioners, ex parte National Federation of Self-employed and Small Businesses [1982] AC 617] and should not apply to exclude those with legitimate public concerns. [See R v. Somerset County Council ex parte Dixon [1998] Env LR 111]. Thus, even if the circumstance justifies that UDP and NRP should be deemed as lacking sufficient interest, as a matter of public policy, and given that the illegality of the action complained of is clearly apparent, their capacity to pursue the matter in court should still be recognized. Otherwise, a clearly illegal activity would most likely go unchallenged. That is not the right way to protect public interest. A residual power always lies in the courts to protect public interest whenever necessary. The Chief Justice’s failure to utilize this power in a moment of urgent need and near constitutional crisis therefore amounts to an aberrant abdication of duty.
Suffice to the above, Section 5 of the Constitution provides an unrestricted standing to anybody who alleges that an Act of the National Assembly or anything done under its authority, or any act or omission of any person or authority is inconsistent with or is in contravention of a provision of the constitution to bring an action in a court of competent jurisdiction for a declaration to that effect. [See Pa-Saikou Jabbi v. Kebba Fanta Comma [2001], Decisons of the High Court & Supreme Court of the Gambia]. Section 127 confers this jurisdiction on the Supreme Court. It states;
‘The Supreme Court shall have exclusive original jurisdiction for the interpretation or enforcement of this constitution other than any provision of sections 18-33 or Section 36[5] which relate to fundamental rights and freedoms.’
Therefore and regardless of what the 1st and 2nd plaintiffs hold themselves out to be, whether political parties or Yai Compins or better still, Teri Kafoos, as long as they can demonstrate that they are groupings of Gambian citizens of full age and mental capacity, and that the nature of their complaint[s] falls under the jurisdiction of Section 5, they have a right to be heard.
The case of the Minority Leader is even simpler and more straightforward. He is undoubtedly a Gambian citizen of prominent status and of full age and capacity who not only met the requirements of Section 5 but also appeared in the right court. He therefore has every right in this world to be heard. To shun him with the kind of contemptuous silence the Chief Justice has exhibited in his ruling is an absolute grotesque.
The question of locus standi [capacity] as understood at common law is by virtue of Section 4, utterly obsolete as far as constitutional litigations are concern as it is inconsistent with Section 5 of the Constitution. Section 4 states;
‘This constitution is the supreme law of the Gambia and any law found to be inconsistent with any provision of this constitution shall, to the extent of the inconsistency, be void.’
In that respect, whatever legal principle the Attorney-General purportedly relied on when she said the plaintiffs do not have capacity to sue, be it Customary law or Common law or better still, Canon law, as far as this matter is concern and all other matters that fall under the jurisdiction of Section 5, it is utterly void under Section 4 by reason of its inconsistency with Section 5. The Chief Justice’s decision to dismiss the suit is therefore not only illogical but also legally unsound. The plaintiffs should be encouraged to pursue the matter before the full bench of the Supreme Court. They should also insist that the Chief Justice be excluded from the proceedings since he has been involved in the matter at first instance.
The Bar Association should also consider making a proactive stand on issues of unethical practices at the bench, vices that are responsible for the continuing gradual but dangerous erosion of public confidence in our judiciary. They must begin to scrutinize every Supreme Court ruling and make their stand known once all legal venues are being exhausted by concerned litigants. That way, judges who are morally not fit for purpose would be grossly exposed and shamed. This is the fierce urgency of now and it is the only way we can hold back vices that continue to undermine the credibility of our legal system.
SS Daffeh
Essex, UK
|
I do not oppose unity but I oppose dumb union. |
Edited by - Nyarikangbanna on 03 Feb 2008 21:04:05 |
|
|
kobo
United Kingdom
7765 Posts |
Posted - 13 Feb 2008 : 19:41:13
|
So it implies that Lawyer Darboe did not do his homework properly as this article questions his competence. Looking forward to see a full text of his performance, submissions, arguments and address to the court.
Hope U.D.P should set-up a political organ and information center to apprise us with FACTS AND INFORMATION similar to what FOROYAA does BEST!
Thanks for dis-information and distortion of FACTS; until we gather more information from proper sources as what transpired in court and rationale to Justice Savage's DECISION!
U.D.P/N.R.P contradicts themselves by contesting the local government elections they consider illegal and challenging powers vested in the courts. |
Edited by - kobo on 13 Feb 2008 19:45:18 |
 |
|
|
kobo
United Kingdom
7765 Posts |
Posted - 14 Feb 2008 : 20:52:44
|
| The Point Newspaper reports and updates review of Justice Savage's Decision; featured as Tussle on Local Government Amendment Case Resurfaces under http://www.thepoint.gm/headlines2755.htm |
|
|
|
Nyarikangbanna
United Kingdom
1382 Posts |
Posted - 14 Feb 2008 : 21:57:48
|
Incompetent is a technical word in legal terms. It doesn't mean a bad work but only that the court before which it is presented cannot hear it for techincal reasons. In other words, incompetence is not meant in the literal sense. The jurisdiction under Section 125[2] until this ruling as being a grey area that has not been test. That is why the court had to aid itself with a statute to come to a decision, something which would not have been necessary if the constitution was clear. This ruling will now fill the lacuna that Section 125[2] seem to exhibit.
All what the judge is saying is; if you want us to hear it, you would have to make a fresh application which is essentially going to be thesame papers has was before Justice Savage but only that it will be re-sunmitted before a panel of Five judges this time around. But if you want to proceed with the review, then it would have to come before a panel of seven judges. Darboe would now have to advice his clients to elect an option.
I Personally would have chosen the review route because that would undoubtedly expose Justice Savage but given the nature of the delaying tactic the Attorney-general's team is using, I think plaintiffs should elect the Fresh application route. The Defence have exhausted their tactics now . They must face the wrath of the substantive issue before the court. The fact that Hon.Justice Doste recognised the merit of the suit is itself a slap in the face of Justice Savage, which I think is a good sign because it means the trial continues rather than being dismissed even before it is heard. Under the law, incompetence can never be a valid reason for dismissing these kind of cases. This ruling has taken cognisance of that fact. This is what Justice Doste had to said;
'Since it is a constitutional matter, it is the duty of the court to give the plaintiffs the opportunity to be heard by the competent and properly constituted court.'
I will call this a win rather than a defeat.
Another thing to noted is that given that they are the coalition that strives to protect our constitution since the birth of the second Republic, UDP/NRP has beocme the saviour of our democracy. They got almost all the constitution cases that went before the Supreme Court in their name and once again, they have proven to be the credible alternative to APRC misrule. Well done UDP/NRP and keep it up.
Thanks |
I do not oppose unity but I oppose dumb union. |
Edited by - Nyarikangbanna on 14 Feb 2008 23:30:19 |
|
|
|
Nyarikangbanna
United Kingdom
1382 Posts |
Posted - 14 Feb 2008 : 22:06:28
|
See senegambianews.com below.
The five man Panel of Supreme Court Justices that was expected to deliver judgment today in the ongoing Constitutional case between the Attorney-General and the United Democratic Party (UDP), National Reconciliation Party (NRP) and the Minority Leader in the National Assembly, Momodou Lamin Sanneh, has decided instead to defer the matter to a later date.
According to our Supreme Court sources, the Justices, at least two of whom are foreign judges, said a full Panel of Supreme Court Justices must comprise of seven Judges and not five. They therefore asked Lawyer Ousainou Darboe, counsel for the trio litigants to make amendments to the suit and resubmit paperwork before the Panel in 14 days.
Lawyer Darboe, our sources indicate, will resubmit the suit by next Monday.
Senegambianews.com also learnt that the foreign judges will be in the country for no more than two weeks.
The United Democratic Party (UDP), National Reconciliation Party (NRP) and Momodou Lamin Sanneh are seeking a Declaration to make Amendments to section 193 of the Constitution of The Gambia null and void, and therefore of no effect; that the law was discriminatory and unconstitutional. The plaintiffs argued that the Amendments were made in excess of powers vested in the National Assembly and on the President.
Although the plaintiffs were also seeking for an injuction to restrain the Independent Electoral Commission (IEC) from conducting Local Government Elections under the Amended Act as it gives the President powers to dismiss elected officials, those elections have already been held last month and the ruling APRC swept almost the entire country.
What remains to be seen is whether the Supreme Court Justices will declare Amendments to section 193 unconstitutional. If the plaintiffs win this legal battle in court, the Supreme Court can very well declare the elections, too, null and void and order fresh Local Government Elections under the previous Constitutional provisions.
|
I do not oppose unity but I oppose dumb union. |
|
|
| |
Topic |
|
|
|
| Bantaba in Cyberspace |
© 2005-2024 Nijii |
|
|
|
Topic Locked
