PDOIS’ Position On The Bills Requiring A Million Dalasi To Register A Political Party And Extending The Death Penalty To Crimes Not Associated With Killing
The Executive Is On A Collision Course With Law, Reason And The Principle Of The Sovereignty Of The People
Events of far reaching political significance are unfolding right before our own eyes. Many lessons of fundamental significance to our existence as a people need to be drawn. History teaches us that those who are to be equal to the task of being the architects of their own destiny must neither be driven to a state of despair or desperation. Despair leads to passivity and resignation while desperation leads to adventurism and over-reaction. A Sovereign people must always be in charge. They must never fear difficulty. They must be ready to make all necessary sacrifices to surmount every challenge to be in charge of their own destiny.
ON A COLLISION COURSE WITH LAW AND REASON
Two Bills are already published in the Gazette. Gazette No: 13 of 1st June 2015 publishes a Bill aiming to amend the Elections Act which includes key clauses which are unreasonable and unjustifiable and whose implementation, if enacted, would contravene the letter and spirit of the Constitution.
Allow us to start with the amendments proposed for Section 105 of the Elections Act which deals with the registration of political parties.
If the Bill is enacted, political parties would be required to pay a registration fee of one Million Dalasis among other requirements. Why are these amendments on a collusion course with law and reason? The answer is simple.
APRC, GMC, GPDP, NRP, PDOIS, PPP and UDP are already registered political parties. These parties cannot be de-registered for not complying with a law which was not in existence when they were registered. This is clearly stipulated under Section 100 Subsection (2) (c) of the Constitution. It leaves no ambiguity in stating that “The National Assembly shall have no power to pass a bill to deprive any person retroactively of vested or acquired rights. The National Assembly should heed the command of law and seek not to deprive any party of its acquired rights. Any such attempt could be challenged.
Needless to say, if the bill is enacted to govern the registration of new parties without the retroactive application of the law an absurdity would be engendered. In short, one would have two different standards for registration for parties which should have equal rights. This would also be unconstitutional since section 33 of the Constitution has stated without ambiguity that “Subject to the provisions of subsection (5), no law shall make any provision which is discriminatory either of itself or in its effect.”
It defines discrimination as “affording different treatment to different persons attributable wholly or mainly to their respective descriptions by race, colour, gender, language, religion, political or other opinion, national or social origin, property, birth or other status whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject, or are accorded privileges or advantages which are not accorded to persons of another such description.”
Hence PDOIS calls on the executive to withdraw this Bill, open up consultation with the opposition to reach a consensus on credible electoral reform and set the Gambia on the trail of free, fair and genuine elections starting with Presidential elections in 2016.
There is no way of escaping a formidable opposition in 2016. No bad law could stop a people who are determined to take charge of their destiny. The greater the obstacles, the greater becomes the resolve to overcome them. Only the chicken hearted try to cheat destiny and they do so without any honour due to them. The lion-hearted always look at destiny squarely in the face. History will tell how our current decision makers would be classified.
The second amendment is published in Gazette No. 14 of 10th June 2015. It seeks to amend Section 18 Subsection (2) of the constitution which states: “As from the coming into force of this Constitution, no court in The Gambia shall be competent to impose a sentence of death for any offence unless the sentence is prescribed by law and the offence involves violence, or the administration of toxic substance, resulting in the death of another person.”
In short, the Constitution is saying he or she who has not used violence to kill any one does not deserve to be sentenced to death. This is a just and reasonable law.
The executive of the Gambia is however not satisfied with the law. It wants Subsection (2) to be amended by “deleting the words appearing immediately after the word “law”.
Hence if the amendment happens to be enacted the constitution would permit the sentencing to death of any person for offences other than using violence or toxic substances to kill another person. In short, once a law is passed in the National Assembly allowing a sentence of death for economic crimes, sedition , libel, false news , etc it could be enforced by the courts.
This matter should not be taken lightly. In fact, in 2010 the National Assembly and the executive enacted a law which imposed the death penalty for crimes associated with drugs. We are among those people who exposed that the law was unconstitutional pointing out that it contravened Section 18 Subsection (2) which does not permit any body to be killed who has not killed another person by using violence or toxic substances.
Eventually, the state had to repeal the law in 2011. Now they want to amend Section 18 Subsection (2).
What then are its objects and reasons for proposing an amendment?
It is strange that the executive only stated the policy direction of the bill without stating what they wanted to remedy.
It simply states that “the amendment seeks to amend the 1997 Constitution of The Gambia to provide for the application of the death penalty in circumstances other than where there is actual violence or administration of toxic substance resulting in death.”
Why would the executive aim to apply the death penalty on people who have not killed? Which mind or conscience could justify such logic? The Constitution was however sensible enough not to give them the final say.
Since life is very precious the Constitution decided to give the final say to the people to decide on such an amendment through a referendum.
This is why the executive mentioned the following in the bill:
“However, since Section 18 falls under the entrenched clauses of the Constitution the amendment Bill will also have to be subjected to a referendum after it is passed by the National Assembly.”
However, the constitution is categorical in stating that a Bill of the National Assembly altering any of the entrenched provisions, “shall not be passed by the National Assembly or presented to the President for assent unless-
“before the first reading of the Bill in the National Assembly, the Bill is published in at least two issues of the Gazette, the latest publication being not less than three months after the first, and the Bill is introduced into the National Assembly not earlier than ten days after the latest publication;
Hence the Bill cannot be tabled at the National Assembly before September 2015 when the three months and ten days would have elapsed as required by the constitution.
It is at this point that the Bill would be subjected to a second and third reading at the National Assembly and if supported by three quarters of the members the National Assembly it would then be referred to the Independent Electoral Commission by the speaker. The Commission is required to hold a referendum within 6 months.
Before an amendment could take effect fifty percent of the persons who are entitled to vote in the referendum must vote and at least seventy five percent of those who voted must support the Bill.
If a Bill is supported the Commission must issue a certificate indicating compliance with all the constitutional procedures which must be presented to the President with the Bill for his assent which must be done within seven days for the amendment to take effect after publication in the Gazette.
Power belongs to the people. PDOIS will leave no stone unturned in doing its duty to raise the awareness of the people and organise them so that they would be conscious of their transformative powers. The type of people we have will determine the type of society we are going to live in. We are all in it together. Together we will make history in rejecting any attempt to use death as a punishment for crimes which entitle a person rehabilitation and in refusing for “Money–cracy” to prevail over democracy.
The people will prevail since they possess superior power. This is the verdict of history and it is irrevocable.
The End
Wow, hasn’t the PDOIS nibbed the whole scheme of Jammeh in the bud.” APRC, GMC, GPDP, NRP, PDOIS, PPP and UDP are already registered political parties. These parties cannot be de-registered for not complying with a law which was not in existence when they were registered. This is clearly stipulated under Section 100 Subsection (2) (c) of the Constitution. It leaves no ambiguity in stating that “The National Assembly shall have no power to pass a bill to deprive any person retroactively of vested or acquired rights. The National Assembly should heed the command of law and seek not to deprive any party of its acquired rights. Any such attempt could be challenged”.
How about this:”Power belongs to the people. PDOIS will leave no stone unturned in doing its duty to raise the awareness of the people and organise them so that they would be conscious of their transformative powers. The type of people we have will determine the type of society we are going to live in. We are all in it together. Together we will make history in rejecting any attempt to use death as a punishment for crimes which entitle a person rehabilitation and in refusing for “Money–cracy” to prevail over democracy.”
If Jammeh has to succeed to referendum, he has to republish the bill in the Gazette for three more months before putting it before the National Assembly and referendum 6 months later. That would already be in the election year of 2016.Stage by stage it is becoming clear.
Yero bah, PDOIS got it wrong on their discrimination claim. The only issue here is irrationality and unreasonable restriction on the exercise of political rights contrary to section 26 of the constitution.
All their other points are spot on but no different from what other parties and people including myself have said.
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Explain how PDOIS got it wrong, Lafia… It is not helpful when you make a statement like the one above and not substantiate it..
Bax, tell me how pdois’s discrimination claim is valid?? I am sure that would be even more helpful.
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Lafia: Can you please respond to Bax and give reason why you think the PDOIS discrimination claim is wrong. Readers are left in the dark.
What PDOIS is saying is simply this and i quote”Needless to say, if the bill is enacted to govern the registration of new parties without the retroactive application of the law an absurdity would be engendered. In short, one would have two different standards for registration for parties which should have equal rights. This would also be unconstitutional since section 33 of the Constitution has stated without ambiguity that “Subject to the provisions of subsection (5), no law shall make any provision which is discriminatory either of itself or in its effect.”
So why are you looking for difference in what people wrote on this issue? For me i am satisfied with all that i have heard so far, all showing how callous the Jammeh regime is and its undesirable intention to want to perpetuate itself in power by all means.
My other observation is that the 1997 constitution is so dialectically written that it is not easy to tamper with it. Any tampering with one section would likely touch another section and that it is not easy to just get up and change any provision. PDOIS and Lamin Darbo have clearly shown that difficulty.So bravo to all.
“Needless to say, if the bill is enacted to govern the registration of new parties without the retroactive application of the law an absurdity would be engendered. In short, one would have two different standards for registration for parties which should have equal rights. This would also be unconstitutional since section 33 of the Constitution has stated without ambiguity that “Subject to the provisions of subsection (5), no law shall make any provision which is discriminatory either of itself or in its effect.””
Did PDOIS make any discrimination claims as Lafia is alluding to?
This is the problem with Lafia. He has to find something that he disagrees with in any PDOIS public statement. If there is nothing to disagree with he will then find something that he can disagree with. But what he finds and what he disagrees with are his own making. This is very typical of him. He will then ascribe to PDOIS the statements that are his own making.
I have read the PDOIS publication. No where did PDOIS use the word discrimination. The constitution as the arbiter between all the contending parties in this dispute is the document that makes such an inference. PDOIS is merely quoting what the constitution says. It says “no law shall make any provision which is discriminatory either of itself or in its effect.” And in order not to be ambiguous the constitution goes on to define what is discriminatory.
By explaining what the laws says and also exposing what the propose amendments seek to do, PDOIS has brilliantly articulated how the proposed amendments are in a collusion course with the law, reason and the principle of sovereignty. Nothing more and nothing less.. Anything else that you want to ascribe to them is the figment of your own imagination.
“Needless to say, if the bill is enacted to govern the registration of new parties without the retroactive application of the law an absurdity would be engendered. In short, one would have two different standards for registration for parties which should have equal rights. This would also be unconstitutional since section 33 of the Constitution has stated without ambiguity that “Subject to the provisions of subsection (5), no law shall make any provision which is discriminatory either of itself or in its effect.”- PDOIS
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Amending Section 105 of the Election Act does not exhibit any discrimination for the following reasons:
1. There will be no two standard of rules to be applied. It is just one rule replacing the other and the latter ceasing to exist while the former unable to be applied retroactively and as such cannot be applied to already registered parties whose registration preceded the coming into force of the new rule. For example, when the UK Home Office effected a change of immigration rules, some of which contains fee increments, they don’t go around asking people who have applied before the new rule came into being or received approval under the old rule, to come back and be subjected to the new rule. Does that mean they have discriminated against new applicants who are subjected to the new rule??? Absolutely not. It is the same analogy here with the Section 105 proposed amendment. This is just common sense;
2. The new rule is not prejudice to any political opinion or the protected characteristics enshrined in the discrimination provision of the constitution . i.e. race, colour, gender, language, religion, social origin, property or birth status. It will applies to all aspiring political parties intending to register with the IEC regardless of the protected characteristics of their members or executive.
This is does not mean that the amendment is fine, far from it but common sense have it that the only problem it exhibited is an unreasonable restriction placed on the exercise of political rights in the country contrary to section 26 of the constitution, not discrimination.
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Lafia, you made a very bold statement :That PDOIS got it wrong on their “discrimination” charge against the new Amendment bill…
I am only asking you to do the reasonable thing and substantiate your claim…
Tell the audience how the proposed amendment on registration CANNOT be discriminatory against newly established parties, especially when the fee so much.
See my comments above, Bax.
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For there to be discrimination, there must be a comparator in the same situation who is favoured over others. We do not have that situation here of a possibility of the same. PDOIS talibehs have very serious knowledge deficit.
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For there to be discrimination, there must be a comparator with the same attributes saved for the protected characteristics, in the same situation who is favoured over others. That is not even a possibility here.
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“Political rights 26 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 election 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.”
“Yero bah, PDOIS got it wrong on their discrimination claim. The only issue here is irrationality and unreasonable restriction on the exercise of political rights contrary to section 26 of the constitution.”
Lafia, you are creating an argument here just for the sake of saying nothing. Why did you not quote section 26 instead of referencing it. If you did it would have tantamount to being superfluous. Why?
Because you are talking about the same thing which is the basis of what PDOIS’s argument is all about. Fundamental rights.
And instead of examining the context in which PDOIS argues these fundamental rights, that is the propose amendments that may contradict the letter and spirit of Section 26, you deliberately accuse them of making discrimination claims.
Then you create your own argument. PDOIS is wrong on their discrimination claim when they did not make any such claim. And you contend that the issue is about irrationality and unreasonable restrictions, when PDOIS has at the outset stated that the “Executive is on a collusion with Law, Reason …. ”
PDOIS has established on the basis of the arguments they make that the proposed amendments are unreasonable and irrational. Unless you want to argue for the sake of saying nothing you are not discounting anything that PDOIS stated neither are you saying anything new.
What makes this argument strange enough is when Bax asked you to explain how PDOIS got it wrong “on their discrimination claim.”
And instead of justifying 1. what is their discrimination claim, and 2, Why the claim is wrong you put the burden of proof back to him. You asked him to tell you: “how PDOIS’s discrimination claim is valid.”
Oh! boy. Oh! boy. You would have driven an attorney nuts if you were conducting a deposition against a plaintiff with the attorney sitting right there,
“All their other points are spot on but no different from what other parties and people including myself have said. ”
As if there were any disagreements in the first place. But you just have to try and make PDOIS look bad. And guess what: what they are saying is “no different from what other parties and people including yourself have said.”
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Reply
“Discrimination as “affording different treatment to different persons attributable wholly or mainly to their respective descriptions by race, colour, gender, language, religion, political or other opinion, national or social origin, property, birth or other status whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject, or are accorded privileges or advantages which are not accorded to persons of another such description.”
Lafia:you are very interesting because you are comparing UK Home Office to Gambia when the UK has no constitution.You are simply basing your logic on common sense which does not apply always. The Gambia has a republican constitution which provision is quoted above. You should quote a UK or other constitution which is saying what you are saying.
” section 33 of the Constitution has stated without ambiguity that “Subject to the provisions of subsection (5), no law shall make any provision which is discriminatory either of itself or in its effect.”
The PDOIS is saying since the new law would not be applied to the already existing parties, it should not have come into being because its effect would be discriminating to parties intending to register.This has saved all the parties from the impending bad law and this is why i said PDOIS has nibbed the whole scheme of the APRC in the bud. Please give credit to PDOIS for saving everyone.
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Lafia Touray la Manju
June 23, 2015 at 5:16 PM
“Needless to say, if the bill is enacted to govern the registration of new parties without the retroactive application of the law an absurdity would be engendered. In short, one would have two different standards for registration for parties which should have equal rights. This would also be unconstitutional since section 33 of the Constitution has stated without ambiguity that “Subject to the provisions of subsection (5), no law shall make any provision which is discriminatory either of itself or in its effect.”- PDOIS
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Lafia, the argument I am making is that in the above statement PDOIS does not make any discrimination claims.
Instead it left it to the relevant provision in the constitution to establish that fact. And the provision that established the fact is section 33 of the constitution: “subject to the provision of subsection (5), no law shall make any provision which is discriminatory either of itself or in its effect.”
And consider how PDOIS wittingly invokes section 33 of the constitution: that “if the bill is enacted to govern the registration of new parties without the retroactive application of the law AN ABSURDITY WOULD BE ENGENDERED.
What is the absurdity? There would be two different standards for registration of parties that have equal rights. Once there is basis to invoke section 33 the constitution speak for itself.
This is why I said you (Kamalo) cannot read. How can you say PDOIS does not make any discrimination claim. What is this below;
“In short, one would have two different standards for registration for parties which should have equal rights. This would also be unconstitutional since section 33 of the Constitution has stated without ambiguity that “Subject to the provisions of subsection (5), no law shall make any provision which is discriminatory either of itself or in its effect.”- PDOIS
You are confused by Halifa’s use of the word absurdity. I now break that down for you;
When something is wildly unreasonable, illogical or inappropriate, it is said to be absurd or borders on absurdity. So when Halifa said “..if the bill is enacted to govern the registration of new parties without the retroactive application of the law an absurdity would be engendered”, he is basically saying that any failure to apply the new registration fee to the already registered political parties is wildly unreasonable, illogical and inappropriate. That makes me wonder if he is in his trees. Why would anyone apply the new registration fee to parties that are already registered? He already confessed that retroaction application is illegal but would still argue that not doing so amounts to absurdity. This is really lacking coherence.
I have already stated that the amendment is about replacing one rule with another with the former ceasing to exist. That makes Halifa statement that “one would have two different standards for registration for parties which should have equal rights” is wholly and total preposterous and lacking basis in facts.
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Hahaha! Yero bah said Uk has no constitution. What a fool. There is something called unwritten constitution which does not necessarily mean that nothing is written down. That’s the type Uk has.
The other fool Kamalo cannot read I believe. Section 26 is not about discrimination but exercise of political rights without unreasonable restriction.
It’s only pdois who put discrimination into this when there is no basis for it.
As I have explained, the proposed amendment does not seek to promulgate two standards of rules for registration. All it seeks to do is just to replace one rule with another with the latter ceasing to exist while the former unable to be applied retroactively as that would be unconstitutional and as such cannot be applied to already registered parties whose registration preceded the coming into force of the new rule
Not to apply the new law retroactively is simply a constitutional dictate as retroactive application of laws are unconstitutional and unlawful. That is not about discrimination neither.
Like I said prior, discrimination can only take place where, there is a comparator with the same attributes saved for the protected characteristics, in the same situation who is favoured over others. This is not the case here. The already registered political parties already have legal status while those who are yet to register does not. Also, IEC can only use the rule in place at the time of a given registration. They are only required to apply the rule in place in a given time equally and fairly.
I go back to my UK example again, when the Home Office effected a change of immigration rules, some of which contains fee increments, they don’t go around asking people who have applied before the new rule came into being or received approval under the old rule, to come back and be subjected to the new rule. Does that mean they have discriminated against new applicants who are subjected to the new rule??? Absolutely not. It is the same analogy here. Let yero bah be informed that Gambia’s legal system is based on the Uk model.
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Kamalo can only copy and paste. Absolutely talentless!!
These pdois talibehs need to do something about their knowledge deficit.
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Hahaha! JK is really good at knocking the opposition heads against each other.
The proposed law is meant for Diaspora Gambians wanting to register new parties and not those existing and registered already, right.
Jammeh knows his biggest treath comes from the diaspora, yes you are the ones making the world know how beastly he rules the Gambia, how he steals the economy and plays with taxpayers monies.
Local politicians should concentrate on WEEDING out the foreign voters from our election register, if they hope to win Jammeh. Period. Foreigners form over 50% of the voters and all of us know it but are not doing anything about it. More foreigners will be registered including their children who would reach age 18 by 2016.
This is why Jammeh will NEVER be happy because he knows it is foreigners who vote him in office.
Thank you Lafia for the explanation and for exposing yourself again.Your strategy of “putting words in someone’s mouth” and then arguing against your own idea is truly shown here.
Well done Kamalo and Yero Ba…You have done a fantastic job.
Hey Bax the obscurantist!! , see my response to Kamalo below:
This is why I said you (Kamalo) cannot read. How can you say PDOIS does not make any discrimination claim. What is this below;
“In short, one would have two different standards for registration for parties which should have equal rights. This would also be unconstitutional since section 33 of the Constitution has stated without ambiguity that “Subject to the provisions of subsection (5), no law shall make any provision which is discriminatory either of itself or in its effect.”- PDOIS
You are confused by Halifa’s use of the word absurdity. I now break that down for you;
When something is wildly unreasonable, illogical or inappropriate, it is said to be absurd or borders on absurdity. So when Halifa said “..if the bill is enacted to govern the registration of new parties without the retroactive application of the law an absurdity would be engendered”, he is basically saying that any failure to apply the new registration fee to the already registered political parties is wildly unreasonable, illogical and inappropriate. That makes me wonder if he is in his trees. Why would anyone apply the new registration fee to parties that are already registered? He already confessed that retroaction application is illegal but would still argue that not doing so amounts to absurdity. This is really lacking coherence.
I have already stated that the amendment is about replacing one rule with another with the former ceasing to exist. That makes Halifa statement that “one would have two different standards for registration for parties which should have equal rights” is wholly and total preposterous and lacking basis in facts.
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Is that all you can do, Bax; obscurantism??
Tell Halifa that section 33 which concerns discrimination does not apply here. Read lawyer Darboe’s interview and Lamin J Darboe’s article and be appropriately informed about the issues. None of them argued about discrimination or absurdity. Only Halifa did that and we now why. Halifa likes to exaggerate by playing with words so as to mesmerise people like yourself who are too lazy to verify and learn by themselves.
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Lafia, you may continue to argue about whether the amendments can be viewed as discriminatory or not, and whether PDOIS got it wrong or not, but that does not change the fact that PDOIS, as always, has fulfilled its role of scrutinising every move of the APRC administration and educating the public about how to respond..And they have done that very well in this instance.
Needless to say that of the statements or utterances of opposition parties or their leaders before us on this matter, the PDOIS statement stands out as the most serious and detailed one.
Finally, common sense would dictate that when entities with the same attributes or characteristics relevant to qualification are subjected to different rules, then discrimination has taken place, regardless of the time frame and whether such treatment can be challenged in courts as discriminatory or not…
You keep citing UK but don’t you know that some Immigration Amended Rules of the UK are considered hugely discriminatory and do get challenged at times…
For example, attempts to place restrictions on EU migration of new member states has to be abandoned because of its discriminatory nature.
If we view political parties as members of a comparator group (group with whom new parties share the same characteristics relevant to qualification for registration), then any amendments that affects only the new members is discriminatory, even if the law says otherwise..That’s just common sense..The law, as the saying goes, can be an ASS sometimes.
I have read Mr L.J.Darboe’s views and he, as always, argued his points very well.
However, Mr LJD is a legal professional and only argues from a legal perspective…
PDOIS is a political party and that is why their statement should not be interpreted/understood from a legal point of view only…
In fact, in my view, the heading of the statement made that very much clear thus :
“The Executive Is On A Collision Course With Law, Reason And The Principle Of The Sovereignty Of The People”
I have not seen Lawyer Darboe’s interview or UDP Statement in full. I’ve only seen excerpts as carried by both the Point and Kaironews and I can’t see why you directed me there…
Hello Bax, I like it when you concede stuff and try to take it back again but anyway, let me take you through this once again:
“You keep citing UK but don’t you know that some Immigration Amended Rules of the UK are considered hugely discriminatory and do get challenged at times. For example, attempts to place restrictions on EU migration of new member states has to be abandoned because of its discriminatory nature.”- BAX
Well, I never said no UK Immigration rules was ever considered discriminatory and challenged successfully in the courts. All I have said is that it is common in the UK for Immigration rules to change especially regarding fee. They don’t require the Home Office to go around asking people who have applied before the new rule came into been or received approval under the old rule, to come back and be subjected to the new rule because the application of the new rule to new applicants does not manifest any discrimination against them as that is the rule in place at the time.
On EU migrants, that is a different issue which you are taking out of context. EU law requires all citizens of member states to be treated as if they are citizens of that country.- there are exemptions to this albeit limit. That is different from applying two different set of standards to your own citizens regarding fee as PDOIS’ have suggested.
Also, UK knows that they cannot impose such restriction on EU nationals unless they derogate from those treaty provisions. That’s why the British Prime Minister in going around Europe trying to negotiate a deal without which they will either come out of the EU or keep placing no unreasonable restriction on EU nationals, which is what they are currently doing- no unreasonable restriction on EU nationals.
“Finally, common sense would dictate that when entities with the same attributes or characteristics relevant to qualification are subjected to different rules, then discrimination has taken place, regardless of the time frame and whether such treatment can be challenged in courts as discriminatory or not”-Bax
Well, there amendment does not seek to create two different rules. Thus, there will be no two different rules. Just that the old rule on registration fees will cease to exist and the new rule on fees will replace it.
If we view political parties as members of a comparator group (group with whom new parties share the same characteristics relevant to qualification for registration), then any amendments that affects only the new members is discriminatory,-BAX
like I said, it is not like the same rule is been applied favourably to some parties over others of the same legal status. Those who are yet to register and having to face the new fee regime to become registered have no legal status yet whereas those who have already registered under the old fee regime already has legal status as they are already bona fide and duly registered political parties. So the two are not even in the same group and therefore cannot be taken as comparators.
Also, the new rule cannot and will not apply to the already registered parties by virtue of the constitutional bar on retroactive application. That also means the two groups are not even in the same situation and therefore cannot be taken to be comparators.
Finally, all that is required of the IEC is to apply the rule in place at a given time equally, fairly and without discrimination. As the old rule on registration fees would have been abrogated by virtue of this amendment, The IEC cannot apply or consider a rule that has already been abolished by virtue of the amendment. That is just common sense. It also means the already registered political parties are not in any situation which requires them to re-register. It is the contrary for those who have not yet register with the IEC.
Let me do a recap of the issues for you once again:
Amending Section 105 of the Election Act does not exhibit any discrimination for the following reasons:
1. There will be no two standard of rules to be applied. It is just one rule replacing the other and the latter ceasing to exist while the former unable to be applied retroactively and as such cannot be applied to already registered parties whose registration preceded the coming into force of the new rule. For example, when the UK Home Office effected a change of immigration rules, some of which contains fee increments, they don’t go around asking people who have applied before the new rule came into been or received approval under the old rule, to come back and be subjected to the new rule. Does that mean they have discriminated against new applicants who are subjected to the new rule??? Absolutely not. It is the same analogy here with the proposed Section 105 amendment. Again, this is just common sense;
2. The new rule is not prejudice to any of the protected characteristics enshrined in the discrimination section33 of the constitution concerning discrimination . i.e. race, colour, gender, language, religion, social origin, property or birth status. It will apply to all aspiring groups or associations intending to become registered political parties regardless of the protected characteristics of their members or executive. Those who have applied under the old fee regime successfully are already registered political parties and therefore have nothing to worry about in this regard.
Like Kamalo, you are simply confused by Halifa/PDOIS’ use of the word absurdity. I now break that down for you;
When something is wildly unreasonable, illogical or inappropriate, it is said to be absurd or borders on absurdity. So when Halifa/PDOIS said “..if the bill is enacted to govern the registration of new parties without the retroactive application of the law, an absurdity would be engendered”,- this is what he basically considered to be discriminatory- he is basically saying that any failure to apply the new registration fee to the already registered political parties is wildly unreasonable, illogical and inappropriate and therefore discriminatory. That makes me wonder if he is in his trees because it is that analogy that is absurd rather than the absurdity he claimed will be engendered. Why would anyone apply the new registration fee to parties that are already registered and bona fide?
They have already conceded that retroactive application of the new fee regime will be illegal but still went on to argue that not doing so would amount to absurdity. This is really lacking coherence.
“If we view political parties as members of a comparator group (group with whom new parties share the same characteristics relevant to qualification for registration), then any amendments that affects only the new members is discriminatory, even if the law says otherwise..That’s just common sense..The law, as the saying goes, can be an ASS sometimes”.- BAX
I have already stated that the amendment is about replacing one rule with another with the former ceasing to exist. That makes Halifa statement that “one would have two different standards for registration for parties which should have equal rights” wholly and total preposterous and lacking basis in facts. Another point is that until registered or unless registered before under the old regime, parties that are yet to register under the new regime are not even bona fide political parties in the legal sense of that word.
Now, let me make it absolutely clear that I am not suggesting that the proposed amendment is fine, far from it. Just that common sense have it that the only problem it exhibited is an unreasonable restriction placed on the exercise of political rights in the country contrary to section 26 of the constitution, not discrimination.
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Lafia: “Hahaha! Yero bah said Uk has no constitution. What a fool. There is something called unwritten constitution which does not necessarily mean that nothing is written down. That’s the type Uk has.”
, even small children know that UK has an unwritten constitution. What i was implying is that Gambia has a Republican Constitution while UK does not. But that is beside the point i really wanted to make. My point is: “Discrimination as defined by the Gambia 1997 constitution “affording different treatment to different persons attributable wholly or mainly to their respective descriptions by race, colour, gender, language, religion, political or other opinion, national or social origin, property, birth or other status whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject, or are accorded privileges or advantages which are not accorded to persons of another such description.” Are you saying that asking emerging parties to pay a registration fee of 1 million dalasis while all the other registered parties will not be subjected to the same condition is not in your opinion discriminatory in its effect?
Well, all those with some commonsense would agree that based on the above definition. Clearly, the new parties lining up to register are already put in a disadvantage and are deprived of the privileges or advantages accorded to the registered political parties.
Remember that we are dealing with politics in this case not merely analyzing law for its shake. PDOIS’ analysis has put the APRC government in the defensive and robbed it off the basis to deprive emerging parties from registering through this bill because of money considerations. It has also freed other registered parties because it is telling the executive that if you think you can use this bill to stop poor parties like the PDOIS from operating you are wrong because you cannot use this retroactively.
Lafia: “Let yero bah be informed that Gambia’s legal system is based on the UK model”. You are wrong again, Gambia’s 1997 Constitution is not modeled on the UK unwritten constitution. Gambia has a republican constitution and the UK is not.
Lafia: Unlike many other nations, the UK has no single constitutional document. This is sometimes expressed by stating that it has an uncodified or “unwritten” constitution. Much of the British constitution is embodied in written documents, within statutes, court judgments, works of authority and treaties. The constitution has other unwritten sources, including parliamentary constitutional conventions.Wikipedia.
The other fact worthy of citation is that “Since the Glorious Revolution in 1688, the bedrock of the British constitution has traditionally been the doctrine of parliamentary sovereignty, according to which the statutes passed by Parliament are the UK’s supreme and final source of law.[3] It follows that Parliament can change the constitution simply by passing new Acts of Parliament.” Is that the case in Gambia?
Lafia: Is the Gambian constitution modeled on the UK Constitution? Who is the bigger fool now?Lafia or yerro?
PDOIS’ claim of Absurdity explained below:
1. When something is wildly unreasonable, illogical or inappropriate, it is said to be absurd or borders on absurdity. So when PDOIS said “..if the bill is enacted to govern the registration of new parties without the retroactive application of the law, an absurdity would be engendered”,- this is what they basically considered to be discriminatory- he is basically saying that any failure to apply the new registration fee to the already registered political parties is wildly unreasonable, illogical and inappropriate and therefore discriminatory. That makes me wonder if they are in their trees because it is that analogy that is itself absurd rather than the absurdity they claimed will be engendered by this proposed amendement. Why would anyone apply the new registration fee to parties that are already registered and bona fide?
2. PDOIS have already conceded that retroactive application of the new fee regime will be illegal but still went on to argue that not doing so would amount to absurdity. This is really lacking coherence.
3. PDOIS’ statement that “one would have two different standards for registration for parties which should have equal rights” is preposterous and lacking basis in logic and facts as the proposed amendment is about replacing one rule with another with the former ceasing to exist. Another point is that until registered and/or unless registered before under the old fee regime, groups or organisations that are yet to register under the new fee regime are not even bona fide political parties in the legal sense of that word. Therefore, they not of equal status with already registered political parties. The latter group already has legal status whilst the former does not.
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Lafia please, what’s your point(s) of argument… ? You have said quite a lot but I can’t make head or tail of what you are trying to argue about…
It’s all FUTILE ARGUMENT and here’s how..
Firstly, you claimed that PDOIS got it wrong on their discrimination allegation but you have failed to convincingly show how..
Instead, in your futile attempt to argue your points, you are trying to give the impression that PDOIS is implying that two standards will be in operation at the same time.
So you had to make.it clear (to PDOIS & to us “Talibehs”) that the old law ceases to exist because it will be replaced by the new law…Really Lafia..!..Really..! Who doesn’t know that amendments nullify what they replaced..
The PDOIS Statement is very clear…
It states : “Needless to say, if the bill is enacted to govern the registration of new parties without the retroactive application of the law an absurdity would be engendered.
In short, one would have two different standards for registration for parties which should have equal rights. ”
Here, it is clear that this is not implying a “dual system” (standards ) in operation for different parties at the same time, as you seem to argue, but rather, different standards for political parties that have equal rights and should be treated equally…One standard for the existing parties and another for future ones..
The statement asserted that this was unconstitutional and backed it up with a quotation from Section 33.
I don’t know what the UK laws say about what the Home Office can or can’t do, but The Gambia’s Republican Constitution is very clear.
Secondly, you have a problem.with PDOIS’ position on the “ABSURDITY” of the amendments for the registration of political parties and this is how you put it…
@Lafia…”PDOIS’ claim of Absurdity explained below:
1. When something is wildly unreasonable, illogical or inappropriate, it is said to be absurd or borders on absurdity. ”
“So when PDOIS said “..”if the bill is enacted to govern the registration of new parties without the retroactive application of the law, an absurdity would be engendered…”
Comment: If the above is your definition of an.”absurdity”, why do you disagree with PDOIS when they stated the same things: That the bill goes beyond reason, against law and inappropriate…Futile argument again..
You continued….” this is what they basically considered to be discriminatory- he is basically saying that any failure to apply the new registration fee to the already registered political parties is wildly unreasonable, illogical and inappropriate and therefore discriminatory.”
Comment: Is this what the statement says or is that your own imagination ? You conveniently defined “absurdity” and then imposed your definition on the PDOIS statement as the right meaning.
Indeed, the absurdity of this bill can be viewed from the definition you provided, but should not be limited to it, as absurdity means more than what you provided.
My understanding of the term’s usage in the statement is that it is implying that it is ridiculous, illogical, senseless, preposterous, etc, to ask some parties to pay D1M to register whilst others paid only D10 000 for the same purpose…and they are supposed to be equal in status and enjoy the same rights..
This, according to the statement, creates two standards for political entities that have equal rights and should be treated equally and.therefore unconstitutional…Hence it quoted Section 33 to back up the assertion..
It is Section 33 that asserts that it is unconstitutional to pass any law that is “discriminatory in itself or its effects”.
Like I stated before, PDOIS did not produce a Legal Statement that should be scrutinised from a legal perspective, but a political document responding to a political situation…
And they have responded very well to the situation at hand.That is what really matters to genuine people, who do not have ulterior motives or axes to grind any time the party is mentioned.
Well if you can’t make anything out of what I have said, its only because you are bitter. Your objective is not to make sense of what I am saying but to obscure it from the readership so as to seal PDOIS’s fake reputation. You are not registering progress my friend.
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All the parties have responded well. Pdois exaggerated their response.
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“All the parties have responded well. Pdois exaggerated their response,” Lafia’s opinion.
PDOIS’ analysis has put the APRC government in the defensive and robbed it off the basis to deprive emerging parties from registering through this bill because of money considerations. It has also freed other registered parties because it is telling the executive that if you think you can use this bill to stop poor parties like the PDOIS from operating you are wrong because you cannot use this retroactively.”PDOIS’ statement saved all the parties,” Yerro’s opinion.
Yankuba Colley, the APRC spokesman, is only referencing Lawyer Ousainou Darboe of UDP in his response. Not anybody else or party.
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Lafia Touray la Manju
June 24, 2015 at 10:47 AM
Hey Bax the obscurantist!! , see my response to Kamalo below:
This is why I said you (Kamalo) cannot read. How can you say PDOIS does not make any discrimination claim. What is this below;
“In short, one would have two different standards for registration for parties which should have equal rights. This would also be unconstitutional since section 33 of the Constitution has stated without ambiguity that “Subject to the provisions of subsection (5), no law shall make any provision which is discriminatory either of itself or in its effect.”- PDOIS
Lafia, we are both reading and referencing the same quote above. What makes you think your opinion that PDOIS makes a discrimination claim is right, and my opinion that PDOIS does not make a discrimination claim is wrong?
You are the one who asserted that PDOIS made a discrimination claim. And that claim is wrong.
I responded that PDOIS did not make a discrimination claim. Therefore PDOIS did not make a claim that is wrong. Are you following the logic of our argument?
Since you are the one who stated that PDOIS made a discrimination claim you have the burden to proof that this is the case. So far you have not been able to prove your allegation.
Contrary to your assertion that PDOIS made a discrimination claim, I proffer the argument that what PDOIS did is to invoke section 33 of the constitution that established a fact.
And the fact is: “subject to the provisions of subsection (5), no law shall make any provision which is discriminatory either of itself or in its effect,”
The whole basis of PDOIS’s argument is premised on this fact. PDOIS also quoted the relevant clauses in the constitution that defines a discriminatory act. What PDOIS is doing is using the facts, logic and reason to argue its points.
It is now clear that PDOIS did not make a discrimination claim. It is also clear that PDOIS did invoke section 33 of the constitution to establish a fact.
Now, we all know that “claim” and “fact” are two different things. They connote two different realities. A claim is a claim. It could be true and it could be right. It could also be false and it could be wrong.
But a fact is a fact. It cannot be not true. In other words it cannot be untrue. And this is the difference. You are arguing on a basis of a claim. And I might add which is wrong. PDOIS is arguing on the basis of the facts, reason and logic. This is the reason why their argument is always superior.
“You are confused by Halifa’s use of the word absurdity. I now break that down for you;
Well, this is the only thing you are very good at. Casting aspersion. But I didn’t tell you that I am confused. I understand very well why Halifa choose to use the word absurd; the logic and the reason is very clear to me.
‘When something is wildly unreasonable, illogical or inappropriate, it is said to be absurd or borders on absurdity.”
“So when Halifa said “..if the bill is enacted to govern the registration of new parties without the retroactive application of the law an absurdity would be engendered”, he is basically saying that any failure to apply the new registration fee to the already registered political parties is wildly unreasonable, illogical and inappropriate.”
Why do people have points of disagreement? And they are arguing on the basis of the same set of laws.
Now you want to tell me that your understanding of the definition of absurdity and the context in which it is used is correct, and Halifa’s understanding of the definition of absurdity and the context in which he used it is wrong. And what gives you the authority to make such a bold assertion?
An English teacher once told me to try and use words for their suggestiveness.
“That makes me wonder if he is in his trees. Why would anyone apply the new registration fee to parties that are already registered? He already confessed that retroaction application is illegal but would still argue that not doing so amounts to absurdity. This is really lacking coherence.”
Why do you have the discrimination clause in the constitution? Are they there just for mere decoration?
This is the reason why I stated that PDOIS’s arguments are superior. They do not only argue on the facts but also on the basis of reason and logic.
And logic dictates that if you have a constitutional provision that forbids discrimination and you also want to engender a law that creates discrimination this creates a contradiction. How then do you resolve this contradiction?
You asked the question: why would anyone apply the new registration fee to the parties that are already
registered?
Conversely: why would anyone create a new registration fee for the political parties that are yet to be registered?
already stated that the amendment is about replacing one rule with another with the former ceasing to exist. That makes Halifa statement that “one would have two different standards for registration for parties which should have equal rights” is wholly and total preposterous and lacking basis in facts.
Hang on a Minute! I thought you said PDOIS does not make any discrimination claim and that everything was my fiction???? Why then are you saying this below? You are just confused.
“And logic dictates that if you have a constitutional provision that forbids discrimination and you also want to engender a law that creates discrimination this creates a contradiction.”
“We already stated that the amendment is about replacing one rule with another with the former ceasing to exist. That makes Halifa statement that “one would have two different standards for registration for parties which should have equal rights” is wholly and total preposterous and lacking basis in facts.’
Your problem is that you still have political parties that are operating in the old rule that you want to change. And the new rule that you want to put in place violates entrenched provisions in the constitution. So if some of the old rules are entrenched and you want to create new rules that contradict the old, in essence you are creating two different standards for registration.
The new rule is not a rule yet as it is no law yet. When it became law it would automatically and simultaneously abolish and replace the old rule. So there can only be one rule at any given time.
The second point is; until a party is duly registered, it has no legal status and therefore cannot be taken to be of equal status with those already with legal status. How is this difficult for your understanding?? Pitiful!!
Lafia Touray la Manju
June 26, 2015 at 10:50 AM
“Hang on a Minute! I thought you said PDOIS does not make any discrimination claim and that everything was my fiction???? Why then are you saying this below? You are just confused.
“And logic dictates that if you have a constitutional provision that forbids discrimination and you also want to engender a law that creates discrimination this creates a contradiction.”
Is the statement true? If it is, it is a statement of fact. All you have to do is ether agree or disagree, And if you disagree state the reason or reasons for your disagreement.
What you are trying to do is throw back my own statement to me and then ask me to argue with myself.
I have already explained to you the difference between “making a claim” and “stating a fact”. I have also proven to you that PDOIS did not “make a claim” instead they have “stated a fact” by invoking section 33. Can I be any clearer?
Kamalo, thank you so much trying to wake somebody up who is not sleeping. Lafia has now explained to the readership why he is engaged in this seemingly futile goose chase. He believes that PDOIS’ reputation can be dangerous to his comfort and therefore takes up the agenda to derail that reputation and that is what is responsible for all these futile arguments on all the statements made by the party. This is why even where you are saying the same thing with him he would have to digress to appear different otherwise he is acknowledging PDOIS’s reputation.
Lafia: PDOIS’ reputation is like a sun which cannot be covered with a palm without burning oneself.So please give credit to PDOIS for saving everyone.
Yero bah, who guys are the ones concern about pdois’s reputation. I am only concern about facts. I am a straight shooter.
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“The new rule is not a rule yet as it is no law yet. When it became law it would automatically and simultaneously abolish and replace the old rule. So there can only be one rule at any given time”
If the new rule is not a rule yet then that means there is already and old rule. If the new rule is not a law yet then that means the old rule is the law.
Now the question before us is whether the new rule can become a law and automatically and simultaneously abolish and replace the old rule. And more importantly what is contained therein in the new rule.
To answer this question we look into the constitution itself which is the arbiter between all citizens who have equal rights and equal protection.
“The second point is; until a party is duly registered, it has no legal status and therefore cannot be taken to be of equal status with those already with legal status.”
What happens then if the proposed amendments cannot affect those parties that are duly registered and have legal status as is the case with the law against retroactivity. And the proposed amendments affects only the parties that would be registered and have legal status.
Now if the proposed amendments become a law, and it cannot retroactively affect those parties that are already registered and have legal status, then the law cannot abolish and replace the old laws that are protected under the retroactivity clause. Therefore there cannot be only one rule.
How is this difficult for your understanding?? Pitiful!!