Referendum Season: Illiberalism Collides With Constitutional Entrenchment

By Lamin J Darbo

In light of the November 2014 full bench Supreme Court decision in Colonel Lamin Bo Badjie & 6 Others and the State (SC Crim. Appeal No: 1-7/2011), there is now legal certainty about when a court in The Gambia can impose a death sentence. For the first time, the Supreme Court abandoned its denial and embraced the clear command of section 18(2) of The 1997 Constitution of the Republic of The Gambia (the Constitution) that except where a crime involves “violence”, or “the administration of any toxic substance, resulting in the death of another person”, no court is competent to impose or maintain a death sentence.

Specifically, section 18(2) states: “As from the coming into force of the 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 any toxic substance, resulting in the death of another person”.

Apparently aggrieved by the Supreme Court decision in Colonel Lamin Bo Badjie & 6 Others and the State, the Executive proposes to amend section 18(2) of the Constitution by removing the critical restraint of causing “the death of another person” through “violence”, or “the administration of any toxic substance”. In other words, the Executive wants to give itself the power to impose the death penalty as it pleases, and for any crime, no matter how trivial. Given its routine disregard for the rule of law, and its bewildering propensity to use the courts as a tool for settling political scores through baseless prosecutions, no person in control of his or her faculties can travel with the Executive on its proposed death penalty journey.

The good news is that section 18(2) is an entrenched provision and lawfully amendable only via the very restrictive procedural safeguard of a referendum. Even better, section 18(2) cannot be amended in isolation given the Constitutional command that the death penalty itself must be subjected to a referendum by 16 January 2007 at the very latest. To amend 18(2), there must be another referendum on whether the death penalty should be maintained. A referendum on section 18(2) can only be lawful after a “yes” vote in a referendum on section 18(3) which reads: “The National Assembly shall within ten years from the date of the coming into force of this Constitution review the desirability or otherwise of the total abolition of the death penalty in The Gambia”. More on this in a separate piece!

But why do I contend we are in “referendum season”?

If the Executive ploughs along with its proposed amendments to the Elections Act, it must conduct at least three referenda on different questions in that area alone, and before the general elections slated for 2016. According to Foroyaa (17 June 2015) online edition, the Government is planning to “introduce a  bill which would make it a requirement for Presidential Candidates to deposit a non refundable fee of 1 Million Dalasis instead of a refundable fee of 10,000 Dalasis if one has 40 percent of the votes. If the bill is passed by the National Assembly and assented to by the
President, candidates during National Assembly would pay a non
refundable fee of 100,000 Dalasis instead of a refundable fee of Five
Thousand Dalasis if one has 20 percent of the votes cast”.

In this same issue, Foroyaa also quoted NRP leader Hamat N K Bah as saying “the proposed amendment of this Principal Act i.e. Section 43 is seeking to the raise the amounts from Ten Thousand Dalasi to 1 Million Dalasi for the deposit of a presidential candidate; from Five Thousand Dalasi to One Hundred Thousand Dalasi for a Member of the National Assembly”.

In an editorial 19 June 2015, The Point Newspaper lamented that parties must “pay a non-refundable amount of D1 million to have the candidature of their presidential candidate endorsed in each presidential election. Previously, it was only D10,000. Just like presidential candidates, parliamentary candidates have to ‘deposit’ D100,000 instead of D5,000 to contest in elections”. The media and opposition parties are watching the wrong gates! As far as lawfulness is the core issue, the proposed measures are, as the saying goes, dead on arrival.

There is clearly no need to panic over the proposed amendments to the Elections Act considering the most critical of them cannot take place without mandatory referenda. These are cases of illiberalism colliding with Constitutional entrenchment. The fundamental point to note on the architecture of entrenchment is that the National Assembly has no unilateral capacity to amend an entrenched Constitutional provision. It can only validly act in collaboration with the electorate, that is, through a referendum, a “yes” or “no” vote on a particular question of public significance.

In that regard, the opposition parties must undergo sincere soul-searching as all these battles are winnable where there is a serious united front committed to defeating the illiberal and needless measures of the Executive. As argued by various commentators time and again, a fragmented opposition is no match for a powerful incumbent committed to lifetime rule.

According to section 42 (2) of the Elections Act, “a candidate for election to the office of:-

1. President shall be nominated in the prescribed Form 1 of Part A of the Fourth Schedule by not less than five thousand voters whose names appear in the register of voters, with at least two hundred voters being drawn from each Administrative Area;

2. Member of the National Assembly shall be nominated in the prescribed Form 1 of Part B of the Fourth Schedule by not less than three hundred voters whose names appear in the register of voters for the constituency for which he or she seeks to be elected”

At section 43 (1) of the Elections Act, “a candidate shall, at the time he or she delivers his or her nomination paper to the Returning Officer for election to the office of:-

1. President, deposit or cause to be deposited with the Returning Officer, the sum of ten thousand dalasis

2. Member of the National Assembly, deposit or cause to be deposited with the Returning Officer, the sum of five thousand dalasis”

By section 44(1) of the Elections Act, “a deposit paid in accordance with section 43 shall be returned to the candidate if:-

3. In a contested election in relation to:-

1. The election of a President, he or she obtains not less than forty per cent of the votes cast for the elected candidate

2. National Assembly elections he or she obtains twenty per cent of the votes cast for the elected candidate

As it stands, the above Elections Act provisions would represent the law if the Constitution is silent on the particular questions. However, the Constitution, at section 47 expressly states that “a candidate for election to the office of President shall, on or before nomination day:-

1. Satisfy the Commission that his or her nomination is supported by not less than five thousand registered voters consisting of not less than two hundred from each administrative area, as signified by their signatures or otherwise

2. Deposit with the Commission such sum as may be prescribed by the Elections Act or any Act of the National Assembly replacing or amending that Act, which shall be returned if he or she receives not less than forty per cent of the valid votes cast at the election

In addition to the above Constitutional provisions on elections as they relate to the presidency, section 26 of the Constitution states that “every citizen of The Gambia of full age and capacity shall have the right without unreasonable restrictions

1. to take part in the conduct of public affairs, directly or through freely chosen representatives

2. 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”

I cannot overemphasize that with the Constitution, and inferior statutory law in the mould of the Elections Act speaking on the same issue, the former reigns supreme. It wins conclusively, pursuant to the supremacy clause at section 4 of the Constitution. Section 4 categorically states that the “Constitution is the supreme law of The Gambia and any other law found to be inconsistent with any provision of this Constitution shall, to the extent of the inconsistency, be void”. Sections 47 and 26 of the Constitution override all provisions of the Elections Act, and it is therefore the Constitution that must be amended as far as the impending illiberal elections-related proposals by the Executive. Tinkering with the Elections Act is a mere exercise in futility!

It gets even more daunting for the Executive.

As entrenched provisions, section 47 and 26 are amendable only via the restrictive procedure delineated at Section 226 of the Constitution, which states:

“(2) Subject to subsection (4), a Bill for an Act of the National Assembly under this section shall not be passed by the National Assembly or presented to the President for assent unless-

(a) 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, and

(4) A Bill for an Act of the National Assembly altering any of the provisions referred to in subsection (7) shall not be passed by the National Assembly or presented to the President for assent unless-

(a) the Bill is published and introduced in the manner required by paragraph (a) of subsection (2),

(b) The Bill is supported on the second and third readings by the votes of not less than three quarters of all the members of the National Assembly,

(c) the Bill has been referred by the Speaker to the Independent Electoral Commission and the Commission has within six months of such reference, held a referendum on the Bill; and

(d) at least fifty percent of the persons entitled to vote in the referendum have taken part in the referendum and the Bill is supported in the referendum by at least seventy five percent of those who voted

(7) Subsection (4) applies to-

(a) this section;

(e) Chapter IV (which provides for the protection of fundamental rights and freedoms)

(f) sections 39(1), 42(1), 47 (which relate to elections and the Independent Electoral Commission)”.

Therefore, on the non-refundability of the presidential nomination deposit, a mandatory referendum must take place to vary the forty per cent deposit refund threshold at section 47 of the Constitution. The non-refundability proposal is unconstitutional per se. As it currently stands, section 44(1)(d)(i) of the Elections Act is unconstitutional in so far as it stipulates that to be due a deposit refund, a candidate must obtain at least “forty percent of the votes cast for the elected candidate”. The stipulated Constitutional requirement is “not less than forty per cent of the valid votes cast at the election”.

Only five thousand people, two hundred per administrative area, are required to nominate a presidential candidate. Any attempt to vary these figures is unconstitutional per se and must go to a mandatory referendum.

On the utterly egregious and illiberal hiking of the deposit figure from ten thousand dalasis to one million dalasis, there is no suggestion that the Independent Electoral Commission cannot vary the figures, but it must do so within the bounds of reasonability. However, to hike the presidential nomination amount from ten thousand dalasis to one million dalasis is utterly unreasonable. It has no beneficial public purpose and must be rejected wholesale. There is no basis for it, embodies unreasonableness and violates section 26, an entrenched Constitutional provision. The proposed amendment, and all those related to the National Assembly, may be challenged at the High Court for unconstitutionality, and for a declaration that they must be subjected to a referendum for violating section 26, an entrenched Constitutional provision.

The lament of the opposition leaders is meaningless without a serious commitment to forging a united front against the incumbent in the mandatory referenda that must take place for these illiberal measures to pass the test of lawfulness. Need we remind them for the thousandth time that a fragmented opposition is no match for an illiberal incumbent!

I reiterate that none of the proposed amendments to the Elections Act can become law without a referendum on each question. The Executive’s legal advisers went to sleep over these pivotal questions. I wonder if the opposition leaders are about to join the nap fest.

The ball, as they say, lies squarely in the court of the opposition parties!

Remain disunited and perish in the process!

Ends