Judges of The Three Supreme Court

By Yankuba Jallow / Kemeseng Sanneh

The Supreme Court of the Gambia will today March 15, 2019, decide on whether to issue an interim order restraining the Speaker of the National Assembly from swearing in the newly nominated member of the National Assembly (NA), Foday Gassama. Ya Kumba Jaiteh, who is the plaintiff/applicant in this case is also asking the court to issue an order restraining the Clerk and Speaker respectively from attempting in any manner, to bestow upon Foday Gassama, any right, privilege or role as member of the National Assembly. She is as well asking the court to issue an order restraining Mr. Foday Gassasma from parading himself as a member of the National Assembly in any manner or form.

There is yet another case related to the revocation of the nomination of Ya Kumba Jaiteh by the President. The case is filed by Lawyer Lamin Mboge and Lawyer Ibrahim Jallow. They say that the revocation of the nomination of Ya Kumba Jaiteh is constitutional but till their case is heard they want the court to issue an order restraining Ya Kumba Jaiteh from occupying the office of member of the National Assembly.

In short, the Court will rule on the interim orders sought in two cases, namely the case between Ya Kumba Jaiteh versus the Clerk of the NA, the Speaker of the NA and the Attorney General on the one hand; and the case between Lawyers Lamin K. Mboge and Ibrahim Jallow, versus the Attorney General, Ya Kumba Jaiteh and thirty one National Assembly Members (NAMs) on the other.

Both cases relate to the sacking of Ya Kumba Jaiteh, whose nomination was revoked by President Adama Barrow. Meanwhile, the Court has struck out the names of the thirty NAMs as defendants in the case of Lawyers Mboge and Jallow v the Attorney General, Ya Kumba Jaiteh and thirty one NAMs, but maintained that Ya Kumba Jaiteh will remain a defendant.

Ya Kumba Jaiteh, the plaintiff in the case between her and the Clerk of the NA and two others, seeks a declaration that President Adama Barrow lacks the power to revoke her nomination, and wants the Supreme Court to declare the action of the President as unconstitutional.

When the case was called, Lawyer Borry Touray, Lawyer Lamin Darboe and Lawyer Aziz Bensuda represented the appellant, Ya Kumba Jaiteh, whilst Binga D. appeared on behalf of the State.

In his submission, Lawyer Bory S. Touray told the Court that the action of the president to revoke the nomination of Jaiteh, was unconstitutional.

“By virtue of Section 91 of the Constitution of The Republic of The Gambia from which the powers to confer the nomination of Yakumba was derived, we are humbly submitting that the president has no powers to rescind the nomination of a National Assembly Member,” Lawyer Touray, the Lead Counsel for Yakumba Jaiteh, said.

He prayed for the Court to bar Foday Gassama as replacement for Yakumba Jaiteh, from assuming the office of National Assembly, and argued that if Gassama is not barred from assuming office, this may cause controversy; that because Yakumba has not accepted her dismissal as a National Assembly member and such situations will see two people holding one seat at the house.

Readers are reminded thatYa Kumba brought an action before the Supreme Court to seek their indulgence in determining nine issues, namely:

  1. A declaration that the seat of a member of the National Assembly may only be vacated pursuant to Section 91 (1) and not in any other circumstance;
  2. A declaration that no person or authority other than the Supreme Court of the Gambia is competent to determine the question of whether or not, the Plaintiff or any other member’s seat in the National Assembly has become vacant;
  3. A declaration that the purported termination of the Plaintiff’s membership of the National Assembly through an Executive decision communicated to the Plaintiff by a letter referenced PR/C/66/Vol4/(66-EOC) and dated 25th February 2019, is null and void and of no effect;
  4. A declaration that the Plaintiff is a member of the National Assembly and her seat has not been vacated through an event of disqualification;
  5. An order directing the Defendants and any other person or authority of whatever description, not to interfere, impede or obstruct the Plaintiff in the performance of her Constitutional functions as a member of the National Assembly until she ceases to be a member by virtue of Section 91 of the Constitution of the Republic of the Gambia;
  6. A declaration of the purported nomination of the 3rd Defendant as a nominated member of the National Assembly, to be null and void and of no effect;
  7. An order restraining the 2nd Defendant (the Speaker of the National Assembly), from administering the prescribed oath under Section 88 (2), onto the 3 Defendant (Mr. Foday Gassama);
  8. An order restraining the 1st Defendant and 2nd Defendant (the Clerk and Speaker respectively), from attempting in any manner, to bestow upon the 3rd Defendant (Mr. Gassama), any right, privilege or role as member of the National Assembly, and
  9. An order restraining the 3rd Defendant from parading himself as a member of the National Assembly in any manner or form.

Yakumba Jaiteh is challenging the revocation of her appointment as a nominated member of the National Assembly by the president, Adama Barrow.

In their objection to the plaintiff’s case, Lawyer Binga D. who appeared on behalf of the Attorney General, said the president has the right to rescind the appointment of any nominated member of the house. “Nominated members have limited rights under the circumstances of the Law and the President has all rights to rescind the appointment of any nominated member,” said Binga D. He asserted before the Supreme Court Judges; that if the Supreme Court grants the declarations of the Plaintiff, it will put the State in a difficult situation and will derail the overall process of the National Assembly. He submitted that a nominated National Assembly Member has privileges and those privileges should not be considered as rights.

The Court will rule on this case as to whether it will grant what the plaintiff sought or otherwise.

In a related civil suit brought by two Lawyers against the Attorney General and thirty one members of the National Assembly, Lawyer Lamin K. Mboge told the Court that the action before them is to seek a declaration to enforce the 1997 Constitution; that the President has the powers to revoke the nomination of a nominated NAM. 

Lamin K. Mboge

The Supreme Court has partially upheld the objection made by Lawyer Azziz Bensouda for the defendants, by striking out their names. However, the Court indicated that the action brought by the two lawyers is legitimate and the Court has jurisdiction to interpret and enforce the provisions of the Constitution of the Gambia. Bensouda, in his submission argued that the plaintiffs (the two Lawyers) do not have the locus standi to bring an action against Members of the National Assembly; that the action of the lawyers was frivolous and pleaded for the Court to award a substantial cost in favour of each of the Members. The Court in its yesterday ruling did not award any cost in favour of the defendants. Lawyer Mboge told the Court to take action on the threat posed by Ya Kumba Jaiteh that she will continue as a nominated NAM.

“I shall therefore continue as a nominated member of the National Assembly until 2022, when my nomination shall expire,” Mboge quoted from the letter that Jaiteh sent to the President.

He argued that Section 88 of the Constitution gives the president the power to nominate five members of the NA. “Two members cannot occupy one seat in the National Assembly. That is why we brought the matter to Court for redress,” Mboge told the Court.

Mboge put forward that the National Assembly will Monday March 18th 2019, schedule the swearing ceremony of the newly nominated member at the NA.

“We are seeking this Court to act in accordance with the provisions of the Constitution to determine our application before the 18th March 2019,” he said.

Mboge argued that Ya Kumba Jaiteh became a member of the National Assembly when the president acted on the powers conferred on him in the Constitution.

The Court will Today rule on the exparte motion that seeks for an injunction to restrain Ya Kumba Jaiteh from assuming office of the National Assembly, pending the determination of the case by the Supreme Court.

 

Lawyer Ibrahim Jallow

The reliefs sought for by the two Lawyers (Mboge and Jallow), are:

1)    A declaration that the President has powers to revoke the nomination of Ya Kumba Jaiteh by relying on the 1997 Constitution of the Republic of The Gambia, particularly Sections 76 (1) and (2), 91 (1) (b) and 231 (1) and (5);

2)    A declaration that the revocation by the President of the Republic of the Gambia of the nomination of the 2nd Defendant as a member of the National Assembly;

3)    A declaration that the purported resolution of the National Assembly signed by the 2nd to 32nd defendants, and by signed by the 2nd to 32nd defendants on Monday the 25th February 2019, is procedurally defective, illegal, unconstitutional, fraudulent and therefore impermissible and contrary to public policy;

4)    A perpetual injunction restraining Ya Kumba Jaiteh from occupying the office of member of the National Assembly on the grounds that her nomination as Nominated Member has been revoked by the President who nominated her into that office, and

5)     An order of the Supreme Court directing the defendants (the NAMs) to give effect to the declarations of the Supreme Court.

The Coram of the Court are the Honourable Justices of the Supreme Court Hassan B. Jallow (Chief Justice), R.C. Sock, Gibriel Samega Janneh, Cherno Sulayman Jallow (QC) and M.M. Sey.

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