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th June 2015
FOR THE CENTRAL COMMITTEE
How Seasoned Parliamentarians Would Handle The Debate
The Legislative power of the Gambia is exercised by the National Assembly members by passing Bills which become law when assented to by the President and published in the Gazette.
Bills are introduced either by members of the Cabinet or a National Assembly member. To register the unalloyed interest of the executive in having the Bill passed it is introduced by the President of the Republic.
This however should not be given much weight by seasoned parliamentarians who are fully conscious of their oversight role and are not oblivious to the fact that the President is not immune to making errors of judgment.
The conduct of Parliamentarians should be bound by their oath of office or affirmation to uphold and promote the principles engraved in Section 112 paragraph (b) of the Constitution which states:
“…. all members shall regard themselves as servants of the people of The Gambia, desist from any conduct by which they seek improperly to enrich themselves or alienate themselves from the people, and shall discharge their duties and functions in the interest of the nation as a whole and in doing so shall be influenced by the dictates of conscience and the national interest.”
Hence National Assembly members are supposed to be servants of the people who are ready, at all times, to discharge duty in the interest of the whole nation and in doing so, are bound by the dictates of conscience and the national interest.
The Defective Nature of The Explanatory Memorandum Of The Bill
Section 101 Subsection (2) of The Constitution states that,
“No Bill, other than a Bill referred to in subsection (5), shall be introduced into the National Assembly unless it is accompanied by an explanatory memorandum setting out in detail the policy and principles of the Bill, the defects which it is intended to remedy and the necessity for its introduction.”
The Elections (Amendment) Bill 2015 contains the following explanatory memorandum which deserves interrogation:
OBJECTS AND REASONS
The Bill seeks to amend the provisions of the Elections Act which have been a cause of concern for the Independent Electoral commission in the conduct of public elections in The Gambia. This includes deleting the provisions of section 34 dealing with returns on deaths and sections 35, 36 and 37 dealing with transfer of registrations. The Bill also seeks to amend the provisions relating to the withdrawal period for candidates vying for elections as well as providing for counting of votes on the spot at the polling centres.
More significantly the Bill seeks to vest the power of granting permits for political processions and rallies in the Commission both during and outside of election periods. The Bill also seeks to ensure that political parties are highly organised and run by serious people by providing for certain minimum standards for the registration and functioning of political parties in The Gambia.”
The content of the objects and reasons could be divided into four components. The first indicates the attitude of the Government to the recommendations of the IEC. The amendments are not only pitifully inadequate if weighed against the recommendations of the IEC but are also not the least insightful since the memorandum does not lay bare the defects highlighted by the IEC which their recommendations intend to remedy since such explanation would expose fraudulent registration practices proven in court by PDOIS activists, which were made possible by the use of attestation aided and abetted by the introduction of a law which ousted the powers of registering officers to inquire into the validity of documents presented to them for determination of citizenship which included attestations by ghost elders.
It is important to note the silence on the issue enfranchisement of Gambians abroad and the absence of the Constituency Boundaries Commission to properly demarcate constituencies which has been shoved under the carpet since 2001. However, one cannot fail to notice their keenness in formulating amendments aimed at promoting self perpetuating rule. This is the first point.
Secondly, the explanatory note went further to promise the introduction of a law which would grant the Commission authority to issue permits for political processions and rallies during and outside campaign periods but did not mention a single provision in the Elections Act which should be amended to give effect to the issues mentioned. Hence the explanatory note is evidently misleading. Both the Elections Act and the Public Order Act would have to be amended if the objectives mentioned are to be attained. The Bill is therefore grossly defective in this respect since its content does not, in part , speak the language of the explanatory memorandum.
Thirdly the explanatory memorandum indicated the object of introducing amendments aimed at ensuring highly organised political parties run by serious people by establishing standards for the registration and functioning of parties.
The assumption is that the ruling party is an organised party run by serious persons and could therefore establish standards to determine which party is to exist or perish.
The explanatory memorandum aims to redress the problem of disorganisation and seriousness of leadership but it did not explain the characteristics of an organised party and the attributes of a serious leadership, highlight the failings of parties and identify the remedies that are necessary to redress the defect.
Finally, the explanatory memorandum did not explain the object and reason for increasing the deposits of the candidates. It did not highlight the defects of the current deposits and explain the necessity for increasing them.
THE CONTENT OF THE AMENDMENTS
There are a number of proposed amendments which are among the recommendations made by the IEC and the opposition which could have been a component of a more comprehensive and credible electoral reform package. We will therefore concentrate on the controversial aspects of the Bill.
Amendment of Section 105
What is the content of section 105? What is the content of Section 43? What defects have the executive identified in the Sections? What Amendments are being proposed to redress the defects? Are the proposals credible?
Section 105 and Section 43 of the Elections Act are designed to provide the procedures necessary to facilitate the implementation of Section 60 of the Constitution.
Section 60 deals with the registration of political parties. It states:
“(1) No association, other than a political party registered under or pursuant to an Act of the National Assembly, shall sponsor candidates in public elections.
(2) No association shall be registered or remain registered as a political party if—
(a) it is formed or organised on an ethnic, sectional, religious or regional basis;
(b) its internal organisation does not conform with democratic principles; or
(c) its purpose is to subvert this Constitution or the rule of law.
(3) An Act of the National Assembly shall make provisions for the better implementation of this section.”
In simple terms, a Political party is an association which has the right to sponsor candidates to stand in public elections under its name. The Principle that should govern the conduct of the party is that it must not be formed or organised on ethnic, sectarian or religious basis. Its internal organisation must conform to democratic principles.
It must not subvert the Constitution or the rule of law. This is the minimum standard established for the registration of a political party and no Gambian has ever complained that the standards are prohibitive or unreasonably restrictive.
Subsection (3) of section 60 asserts that an Elections Act must make provisions for the better implementation of section 60.
It is clear that no unreasonable and unjustifiable precondition has been established by Section 60 for forming and registering political parties.
The reason for this is simple. Section 60 is a provision aimed at fostering the better implementation of the rights enshrined in Section 25 Subsection (1)(e) of the Constitution. It reads:
“Every person shall have the right to – (e) freedom of association, which shall include freedom to form and join associations and unions, including political parties and trade unions;”
A political party is therefore an association like any other association. Nothing is more ridiculous than to establish a condition that an association must have 10000 members before it could be registered to become a trade Union.
In fact, since sovereignty resides in the people the right to political participation and representation is not restricted to members of political parties. Section 26 states:
“Every citizen of The Gambia of full age and capacity shall have the right, without unreasonable restrictions –
(a) to take part in the conduct of public affairs, directly or through freely chosen representatives;
(b) to vote and stand for elections at genuine periodic elections for public office, which elections shall be by universal and equal suffrage and be held by secret ballot;
(c) to have access, on general terms of equality, to public service in The Gambia.”
This is why a person could even stand as an Independent candidate.
Hence no unreasonable and unjustifiable restriction should be placed on the path of a Sovereign citizen to bar his or her participation as candidate in one’s individual capacity or through an Association or to vote.
These are the fundamental principles of the Constitution. An Elections Act and Commission are established to facilitate the better implementation of such constitutional principles and provisions, which should guide the letter and spirit of any amendment.
The Commission is to ensure fairness and transparency in the supervision of elections and in performing its responsibility. In this regard, it must not be subjected to the direction and control of any other authority. Section 43 states:
“In the exercise of its functions under this Constitution or any other law, the Commission shall not be subject to the direction or control of any other person or authority.”
Any law or practice which hinders the implementation of such principles is defective and should be redressed.
Where then does the proposed amendment of Section 105 and Section 43 of the Elections Act stand? Do the provisions contain inherent inadequacies or defects deserving remedy?
First and foremost, the Elections Act must complement sections 25, 26, 43 and 60 of the Constitution.
This is why Section 103A of the Elections Act states:
“Subject to the provisions of this Part, political parties may be established to –
(a) participate in the shaping of the political will of the people;
(b) disseminate information of political ideas and on political, economic, and social programmes of national character; and
(c) sponsor candidates for public elections.”
This is in line with the letter and spirit of section 60 of the Constitution.
Section 104 states among other things that:
“(1) The conduct of elections into an elective office in accordance with the Constitution and this Act shall be based on party politics.
“(2) Notwithstanding subsection (1), a person who is qualified to be registered as a voter under the Constitution and this Act may contest as an independent candidate in any election.
“(3) The number of political parties shall not be limited by law and every citizen of The Gambia shall have the right freely to choose whether or not he or she becomes a member of a political party and which party he or she supports.
“(4) A political party shall not be formed on sectional, religious, ethnic or regional basis.
“(5) Every political party shall conform to democratic principles, and its actions and purposes shall not contravene or be inconsistent with the Constitution or any laws.
This is in line with the letter and spirit of section 25, 26 and 60 of the Constitution.
It goes without saying Section 105 of the Elections Act cannot oust section 60 of the Constitution. It must be connected to, dependent on and determined by the content of section 60.
Section 105 states:
“The Commission shall, on the written application of a political party in the prescribed form, register the party, if the Commission is satisfied that
(a) the principal object of that political party to participate in the promote election under this Act including
(i) the nomination of persons as candidates for such election;
(ii) the canvassing for votes for a candidate at such election, and
(iii) the devotion of any of its funds or any part thereof to the election expenses of any candidate taking part in such elections;
(b) the internal organisation of the political party conforms to democratic principles;
(c) the purposes and actions of the political party do not contravene or are not inconsistent with the constitution or other laws; and
(d) the political party has a national character and is not formed on any sectional, religious, ethnic or regional basis.
(2) The application shall be accompanied by
(a) the political party’s constitution;
(b) the political party’s name and full address
(c) the names and addresses of all the registered officers of the political party;
(d) the full address of the political party’s secretariat;
(e) the political party’s emblem, colour, motto and symbol which shall have no ethnic, religious or regional connotation;
(f) a declaration signed by at least five hundred members of the political party whose names appear in the register of voters to the effect that such voters support the registration of the political party and seek its registration as a political party;
(g) such fee as the Commission may determine; and
(h) a written undertaking that the political party shall abide by the code on election campaign ethics which the Commission may from time to time prepare.”
These provisions are in line with section 60 of the Constitution. No stakeholder had ever taken up issue with the provisions as defective or unreasonable.
However the executive seeks to amend section 105 by adding the following controversial provisions
“(e) all the political party executives are resident in The Gambia;
(f) a declaration signed by at least ten thousand members, with at least one thousand members from each Administrative Area of the political party whose names appear in the register of voters to the effect that such voters support the registration of the political party and seek its registration as a political party;
(g) a registration fee of one million dalasis;”
It is even clear from section 105 Subsection (2)(g) that it is the commission which should establish the fee for registration which should reflect a modest administrative cost for registration.
Hence the executive aims to even usurp the powers of the IEC by proposing a registration fee of one Million Dalasis.
One must now question how would the imposition of a registration fee of One Million dalasi signify the quality of organisation of a party and the seriousness of its leadership. On the contrary, any billionaire would be able to Pay a Million dalasis to register a party while a civil servant with a PhD who had selflessly served the country on hand to mouth wages, for decades would have to get a patron to register a party. The fee aims to restrict the right to form a political association of once choice based on economic status
Furthermore, Independent candidates have even won elections while the ruling APRC with many members lost to them. Hence having ten thousand members does not make a party a formidable force in elections. In short, out of 187000voters in KMC only about 25 000 voters voted for the ruling party. The electorate should be left to determine the worth of a party.
A billionaire could bribe 10000 people to establish an autocratic party where only he has a voice. This does not signify quality of leadership or seriousness.
Lastly, Section 25 Subsection (2) states that
“(2) Every person lawfully within The Gambia shall have the right to move freely throughout The Gambia, to chose his or her own place of residence within The Gambia, and to leave The Gambia.”
Hence it does not matter where a Gambian resides. A Gambian is not automatically deprived of citizenship by being temporarily resident abroad. Gambians resident abroad still have political rights including rights to form or belong to political parties as enshrined in section 25 and to vote as enshrined in Section 39 of the Constitution. Gambians are only deprived of occupying the office of President under Section 62; Ministers under Section 71 and National Assembly members under Section 90 if they acquire the citizenship of another country .
To restrict a Gambian resident abroad from holding offices in political parties based in the country would be unconstitutional.
AMENDMENT OF SECTION 43
The IEC has been administrating the Elections Act for 18 years. In its strategic plan 2015 -2019, it has stated the following at pages 13 and 14:
“A person wishing to stand as president shall be nominated by not less than five thousand voters whose names appear on the register of voters, with at least two hundred drawn from each administrative area and make a payment deposit of ten thousand dalasis at the time of nomination.
In the case of nomination of a member of the National assembly, he or she shall be nominated by not less than three hundred voters whose names appear on the register of voters for the constituency for which he or she seeks to be elected and make a payment deposit of five thousand dalasis at the time of nomination.
To be nominated for the position of Mayor/ Mayoress, a person shall be nominated by not less than one hundred and fifty voters whose names appear on the register of voters for the electoral division (region) for which he or she seeks to be elected and make a payment deposit of two thousand five hundred dalasis at the time of nomination.
To be nominated for the position of councillor, a person shall be nominated by not less than seventy five voters whose names appear on the register of voters for the ward for which he or she seeks to be elected and make a payment deposit of one thousand two hundred and fifty dalasis at the time of nomination.”
It is clear from the strategic plan issued by the IEC covering 2015-2019 that it had no plan to recommend any increase in the deposits which would certainly make it impossible for youths and women in particular and most qualified Gambians in general to stand for elections.
It is undoubtedly the machination of the executive to not only increase the deposit to unprecedented heights but to also make it non refundable by proposing the amendment of section 44 of the Elections Act which makes deposits refundable in line with the constitutional provisions such as section 47 of the Constitution which some legal minds abroad have already taken note of to project the illegality of the proposed amendment.
Let us now look at the deposits being proposed to examine whether they are to remedy any defects.
ON DEPOSITS FOR PRESIDENTIAL CANDIDATES
Currently, Section 43 makes provision for a candidate to the office of
President, to deposit or cause to be deposited with the returning officer the sum of ten thousand dalasis. No stakeholder has ever complained about the deposit. Needless to say, Section 44 of the Elections Act makes the fee refundable if the candidate receives nothing less than 40 percent of the votes cast for the elected candidate. This is in line with section 47 paragraph b of the Constitution which indicates that deposits in presidential elections shall be returned to the candidate “.. if he or she receives not less than forty percent of the valid votes cast at the elections.”
No stakeholder has ever considered the provision for refundable deposit established by the elections Act for Presidential candidates for the past two decades to be unconstitutional, prohibitive, unreasonable or defective.
The Amendment Bill 2015 proposes a non refundable deposit of one million dalasis which is against the letter and spirit of section 47 of the Constitution. Hence, instead of providing remedy for a defect the bill itself is defective in letter and spirit by aiming to make non refundable under an Act what is refundable under the constitution. It also aims to impose unreasonable and unjustifiable financial obstacles to the exercise of the right to stand as a Presidential candidate by competent women, youths and men who are not financially endowed.
ON DEPOSITS FOR NATIONAL ASSEMBLY CANDIDATES
Currently, Section 43 has made it a requirement for Candidates contesting National Assembly Elections to deposit a refundable sum of five thousand dalasis. There has been a proposal by PDOIS for the sum to be reduced since it is not a revenue earning measure and qualified candidates, especially young people and women have had problems in contesting parliamentary elections because of lack of enough money to pay deposits. Some even dropped the idea of contesting as Independent Candidates to become party candidates because of finance. Political parties that are not financially endowed have also been putting up few national Assembly candidates because of the deposit. Hence to eliminate the financial restrictions placed on qualified men, youths and women to contest National Assembly Elections should have provided a remedy for the chronic practice of having uncontested seats.
Instead of addressing this defect the Amendment seeks to worsen it by proposing a non refundable deposit of 100,000 dalasis for candidates contesting National Assembly Elections.
Since the Constitution has made deposits of Presidential Candidates to be refundable upon getting 40 percent of the votes cast, it stands to reason that the provision in Section 44 of the Elections Act which makes a deposit for National Assembly Elections refundable if the candidate has twenty percent of the votes cast is speaking the language of the Constitution and should not be amended. In fact, it was stipulated in Section 52 of the Constitution before its amendment in 2001.
MAYORAL AND COUNCILLOR ELECTIONS
Currently, Section 43 of the elections Act requires Mayoral Candidates to deposit a sum of two thousand five hundred dalasis which is refundable under Section 44 if the candidate acquires 15 percent of the votes. This is speaking the language of the constitution and should be retained. The Amendment which seeks to increase a non refundable deposit for mayoral candidates to 50,000 dalasis does not speak the language of the Constitution and would impose financial restrictions on men, women and youths in the exercise of their rights to stand and contest to become representatives.
In the same vein, the candidates for councillor elections are currently required to deposit the sum of one thousand two hundred and fifty dalasis which is refundable if the candidate has fifteen percent of the votes cast. This speaks the language of the constitution and does not impose any unreasonable financial restrictions hindering the candidature of men, women and youths especially.
The amendment is proposing a non refundable deposit of 10,000 dalasis for candidates in councillor Elections which does not speak the language of the constitution. It aims to impose unreasonable financial restriction to the candidature of men, women and youths in councillor elections who are not financially endowed.
The IEC has made it very clear in its strategic plan that defective electoral laws affect its effectiveness. It has identified the inconsistency and restrictiveness of the law on the demarcation of constituency boundaries.
In 2000 the IEC under the Chairmanship of Reverend Tilewa Johnson exercised its power under Section 50 of the Constitution to start the process of demarcating Constituencies. Before giving the demarcation legal effect through publication in the Gazette unilateral action was taken to remove the Chairman when the IEC was getting ready to host a joint meeting with the Interparty Consultative Committee, to work on evening the political landscape. In 2001 the most intrusive constitutional amendments were carried out which abrogated provisions dealing with National Assembly elections such as Section 52 (c) which provided for a refund of deposits if a candidate has no less than 20 percent of the votes cast. In fact Sections 51 -57 of the Constitution were deleted as well as Sections 58 and 59 which dealt with Chieftaincy and Alkaloship elections.
Section 50 was amended to ensure that there would be no demarcation of constituency boundaries without constitutional amendments by removing the powers to demarcate constituencies from the Commission and entrust it to a non existing Constituency Boundaries Commission. Now the Commission is given a caretaker role to demarcate constituencies under Section 50 only when constitutional amendment of the number of constituencies is effected under Section 88. In effect it is the executive and the National Assembly who must conspire to demarcate constituency boundaries in accordance with their whims and caprices before any demarcation takes place. This is why gerrymandering is the order of the day. The Elections (Amendment) Bill 2015 did not undertake to fill this lacuna in the law.
The IEC has identified low voter turn out in National Assembly and Local government elections as a defect and has even proposed the aligning of Presidential and National Assembly elections, which would require constitutional amendments as a remedy. This has not been taken onboard by the Elections (Amendment) Bill 2015.
The IEC has proposed the adoption of paper ballot. That is honoured with disregard by the Elections ( Amendment) Bill 2015. We could go on and on.
Suffice it to say that the Opposition too has concerns for electoral reform.
Hence, if the Government was not a unilateral one it would have never submitted a Bill on Electoral reform without a tripartite meeting taking place, comprising the Government, the IEC and the opposition to determine an acceptable package of reforms.
Collective review and adoption of a reform package gives rise to collective responsibility. Unilateralism breeds incompetence, impunity, arrogance and conflict. The proposal for the deletion of Section 34 of the Elections Act which provides for periodic deletion of the names of those who pass away from the registers of voters without adding a more ideal procedure confirms the shallowness of the thinking behind some of the proposed amendments. We could go on and on to prove why the bill should be withdrawn or diplomatically killed by referring it to a Committee of the National Assembly for further review. The real solution is to take a tripartite approach to electoral reform involving the Government, the IEC and the political parties.
By 2016 the Electoral system which was carved in 1996 to usher in the era of the second Republic would be 20 years old.
As a new generation brought up and bred under the second Republic take their rightful place as sovereign voters in order to determine the destiny of the country, they should take a look at and gauge the credibility of an electoral system which a government that has presided over their affairs for 20 years aims to bequeath to them.
While PDOIS is proposing proportional representation system to ensure one third equity between men and women and significant youth and physically challenged in all representative institutions the APRC is bent on a programme of political exclusion of competent Gambians who are not financially endowed.
Those who intend to impose such huge non refundable deposits cannot claim to be progressive liberators of a people. They would qualify to be seen as self perpetuating patrons bent on subverting the Constitution by using their parliamentary majority to promulgate laws which galvanise self perpetuating rule. The time has finally arrived for Gambians to take their destiny into their own hands and save themselves from self perpetuating rule. All should note that only a government which concedes to a term limit could eradicate self perpetuating rule. Only parliamentarians who put conscience and national interest before personal and partisan interest would refuse to be accomplices of self perpetuating and monarchically designed leadership which is unsuitable for a Republic.
History is standing in judgment. It is recording the evidence point by point. It will deliver its verdict. The National Assembly and the executive should take note. What type of history would they want to leave behind? Do they really care? Posterity will know which parties are really ready to empower the people, especially the women and youth and which intends to behave like gods and monarchs above them. The future will tell.
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