By Gambian Outsider!
APRC, the party of outgoing dictator of The Gambia has applied to the newly instituted Supreme Court in The Gambia to determine the validity of the December 1 election results. The Chief Justice is determined to have the case heard. Assuming that the Supreme Court hears the case, the analysis that follows is worthy keeping in mind to make a sense of things. The petition is not worth the paper on which it is written. The petition is only good to be used for igniting charcoal for Ataya; hence; I called it the Ataya Petition: The Laywal (first), The Zanny (second), The Tanny (Third)!
APRC invokes Section 49 of The Gambia Constitution which reads as follows: “Any registered Political Party which has participated in the Presidential election or an Independent Candidate who has participated in such an election may apply to the Supreme Court to determine the validity of the election of a President by filing a petition within ten days of the declaration of the result of the election.” A petition as defined by Black’s Law Dictionary is “[a] formal written request presented to a court or other official body.” The petitioner, that is, the party, asking the Court to do something in its favor is the APRC. The Respondent is the party who is to answer in opposition to the petitioner’s request. In the instant case, the Respondents are the chairman of the Independent Electoral Commission (IEC) and the Justice Department of the Gambia.
The dictator of The Gambia and his political party, which he is the head, is not only taking to court a government agency, IEC, but also the Department of Justice which is under the Executive Branch of the dictator’s government presently until January 18. Normally an agency of a government is supposed to have its own lawyers. In this case, it appears that the IEC does not have its’ own lawyers, hence, the Justice Department is joined as a Respondent to represent the IEC. How interesting! The Justice Department operates under the directions of the dictator yet the Justice Department is also expected to represent the IEC in opposition to the APRC’s position. Here we have two positions that are contrary to each other. If APRC wins, then IEC and by extension the coalition cannot win, and on the other hand, if IEC wins and by extension the Coalition, then, APRC and by extension the dictator cannot win. The first thing that jumps out of the petition is that, the Coalition is not named as a party. Who is to defend the Coalition’s interest?
The IEC is there to defend its work and supposedly to be represented by the Justice Department, which operates under the directions of the dictator. The Minister of Justice is the supervisor of the justice department lawyer who is going to represent the IEC. The same Minister of Justice was present at the State House when the dictator went on his rant-like briefing of The African Bar Association. It would be foolish to think that in representing the IEC, the Justice department will also be representing the interest of The Coalition.
I digress here for a little bit: The IEC is not independent because it has the term “Independent” in its name. The IEC is independent because it is separate from the three traditional branches of government. Section 42 of The Gambia Constitution creates the IEC, but this is not the norm. It is not the norm to have a governmental agency created by a constitutional provision. No one will find that in the United States Constitution and there is a reason why. A government agency is usually created by the Legislature. The statute that creates a governmental agency is called an organic statute. I support an Independent Electoral Commission, but I am completely against a government agency being created by a constitutional provision. After the new government settles down, I think Section 42 needs to be looked at.
My take on the African Bar Association is that the Coalition should never have given them one minute of their time. The African Bar Association was trying to legitimize itself and the dictator gave them a platform. When the dictator was on his rant-like briefing, he was holding some papers that he considered evidence that would support his case. Whatever is on those papers is as worthless as his rant-like speech he gave. I will get to those papers in a little bit.
Here is what needs to happen if it is not already in the works. Even though the period to file a petition on this matter has elapsed, according to Section 49 of The Gambia Constitution, the Coalition should prepare behind close doors as if it has already been joined as a party to the case. The ten days period to file a petition with regard to election results as stated in Section 49 is to be strictly construed. And if it is, that should be the end of the matter. Pearson v. Alversion, 49 So. 756, 757 (Ala. 1909) (noting that the public policy favoring electoral stability and finality justifies enforcing strict compliance with the [constitutional] or statutory limitations). The first obvious mistake in APRC’s petition is its failure to have joined the Coalition as a party.
The Coalition should request that it be joined as a party in the case. APRC is not duty bound to join the Coalition as a party to the case even though that would be to APRC’s advantage to do so. It is a mistake to think that the APRC has a duty to join The Coalition as a party. The Supreme Court can join the Coalition as a party to the case, because the Coalition is an interested party or a necessary party but it is not required to do so. In Boniface Nnorodim & Anor V. Ese Paul Ezeani & Ors (2001) 3 SCM 27 that court said: “If a party appears to be necessary as a third party so as to have a just decision in a suit, such third party can be joined. This joinder of the third party can be at the instance of the parties to the suit or at the instance of the third party, and at the instance of the court.” I am sure if one looks at the Rule of Civil Procedure in The Gambia, there is a rule to this effect. Atunrase & Ors V. Sunmola (1985) 16 NSCC (Pt 1) 115 teaches the importance of the diligent party where it says: “ In all actions, suits and other proceedings at law and equity, the diligent and careful actor or suitor is favored to the prejudice of him who is careless and slothful, who sleeps over his right. “ This is actually a maxims of Equity: Aequitas ignorantiae opitulatur, oscitantiae non item: Equity assists ignorance but not complacency (or carelessness). Another legal maxim that speaks about the same issue is Vigillantibus, non dormientibus, jura subveniunt: The laws assist those who are vigilant, not those who sleep over their rights.
Section 100(10) of the Elections Act, Cap.3.01 Vol. 1 Law of The Gambia, 2009 provides that “At the conclusion of the trial, the Supreme Court… shall determine whether the person of whose return or election complaint is made … was duly returned or elected, or whether the election was void, and shall certify the determination of the Commission.”
This Statute, Section 100(10) of the Election Laws of The Gambia does not deal with Constitutional issues at all. What the Statute deals with is a civil procedure issue as I have indicated in this article below. The language of Section 100(10) does not say anything whatsoever about joining a party or how a party is to be joined to a case. Any interested party can request to be joined. The Court can sua sponte (of [its’] own accord; voluntarily) request that The Coalition must be joined. Here is what a necessary party to a case need to do to be joined:
That its presence is necessary for the effectual adjudication of the matter;
That the [Petitioner’s] claim against the existing [Respondent] also affect its interest or
That its interest is the same as or identical with that of the existing [Respondent].
Mrs. Florence O. Carrena & Anor V. Chief Gafaru & 2 ors (2008) 6-7 SC (Pt. 1) 66. Can a court struck out a complaint because a necessary party is not joined; absolutely, but it does not have to do so either.
By directing a Political Party or an Independent Candidate to file a petition directly at the Supreme Court on issue of Presidential Election Results and not in any lower court, Section 49 creates what lawyers call original jurisdiction. This is nothing new, by that, I mean original jurisdiction. For example, Article Three of the United States Constitution section 2 reads as follows: “ The judicial Power [ Supreme Court] shall extend to all Cases, in Laws and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority….” The provision goes on to list specific cases. Section 49 of The Gambia Constitution does a similar thing except that it list only one type of case, contested election result for the office of the presidency. If this explanation is not good enough, here is a question to ponder. How come contested election results for National Assembly members or for other offices are not included under Section 49? This demonstrates that for contested election results that are not for the office of the presidency, contestants must go through the normal channels, like at the high court, then, of course, the loser may appeal to the court of appeals or appeals court and if necessary to the Supreme Court. Contested presidential election results do not have to go through all that and this is what gives the Supreme Court original jurisdiction in such cases under Section 49.
The Supreme Court in such cases should and must operate as a trial court. Why is this important? It is important because Supreme Courts or the highest court of a country or a state is a reviewing court. A reviewing court gets the court record that is created from a lower court, and it this record that is reviewed by a Supreme Court or an Appeals Court, followed by a vote and then the decision. Trial courts are traditionally courts of original jurisdiction. For example, in The Gambia both the magistrate court and the High Court are courts of original jurisdiction. Courts of original jurisdictions try cases and during those trials records of the proceedings are created. The party who does not win at the trial level may appeal to a higher court usually an Appeals Court. When an appeal is made, the record created at the trial court goes up to the Appeals Court and it is “reviewed” for errors on questions of law. Sometimes Appeals Court do consider factual questions but this is not the norm. Because the primary job of an Appeals Court is to review proceedings of trial courts when an appeal is made, Appeals Courts are called reviewing courts.
So, in giving the Supreme Court original jurisdiction under Section 49, it means there is no court-created-record to review which as a consequence means the Supreme Court is supposed to operate as a trial court and not as a reviewing court in this case filed by APRC. What is there for the Supreme Court to review if there is no record? Now if the Supreme Court operates in this matter as a trial court, a record will be created after testimonies are given, witnesses questioned through direct questioning and cross-examination then comes the decision. In a reviewing court, as far as I know, witnesses are rarely called to testify. In some jurisdictions like The Gambia, I believe, the reviewing courts only read the briefs of the parties and then debate it among themselves and vote then announce the majority’s holding. In other jurisdictions, beside the briefs, the lawyers of the parties are called to come before the reviewing court for oral argument.
Now if you go back to the Election Law statute, Section 100(10) I quoted above, you will noticed that I underlined “trial.” This is another proof that the Supreme Court should and must operate as a trial court instead of a reviewing court in this matter. Even if Section 100(10) of the Election Laws of the Gambia did not have the term “trial” as part of its language, Section 49 is more than enough to make the point as to how the Supreme court ought to operate.
The institution of a new Supreme Court to hear the instant case is highly questionable to say the least. If the APRC actually goes to court and that looks very likely as indicated above, it has set itself a trap, which it will not be able to get out of. First, APRC cannot win this case on point of law. I am breaking a rule by saying that, because when a case goes to trial, one is never one hundred percent sure of the outcome of the case. Secondly, what will APRC do if it loses the case? Is APRC then going to continue insisting on a new election? It sound ridiculous to say that, but then again, it is the APRC after all.
The dictator and the APRC claimed irregularities, but what exactly does irregularity means in the context of elections. Elections can never be perfect because elections are complex systems designed and run by fallible human beings. In other words, because humans are fallible, we cannot make perfect things. Therefore, it is not a surprise that mistakes, errors, or some other imperfection occurs during an election. However, not every error, imperfection, or combination of problems supports an election contest, voids the election, or changes its outcome.
There are two presumptions in favor of the declared winner that a contestant must overcome to prevail in his or her contest. The first presumption is that all votes counted by election officials are legal. McCavit v. Registrar of Voters of Brockton, 434 N.E .2d 620, 629 (Mass.1982). The second presumption is that election officials performed all their statutorily required duties. McDunn v. William, 620 N.E. 2d 385, 401 (Ill. 1993). Election contests typically involve: (1) disputes about the validity of individual votes; (2) allegations of frauds, and (3) allegations of electoral irregularities. Fraudulent votes should never be counted. Irregularities in casting a vote or in conducting the election do not necessarily void the affected vote or election. Courts usually apply election codes to protect – not defeat- the right to vote. Public policy favors salvaging elections and giving effect to the voter’s intent. Compliance failures do not automatically void the election, however, especially if the failure is not challenged until after the election. Election officials’ failure to precisely follow every election regulation is not, by itself, mal-conduct. Noble v. Ada County Elections Bd., 20 P.3d 679, 687 (Idaho 2000). A Contestant usually cannot maintain a contest on the mere belief that an irregularity occurred or on indefinite information, Akaka v. Yoshina, 935 P.2d 98, 103 (Haw. 1997). Courts usually cannot purge the alleged illegal votes based solely on general allegations of fraud, official misconduct, or misconduct by another candidate or his supporters. Nelson v. Sneed, 83 S.W. 786, 789 (Tenn. 1904).
APRC must allege facts in its petition that demonstrate the election’s true outcome differed from the results shown on the official returns. In other words, “but for” the irregularities, the election would have resulted in the dictator being declared the winner. APRC must also demonstrate that more legal votes were actually cast for its candidate than the winner. Under this requirement, the mere possibility that fraud, abuse, or election administration errors affected the election’s outcome cannot sustain a contest. Akaka v. Yoshina, 935 P.2d 98, 103 (Haw. 1997). The “but for” requirement is not in the petition of the APRC. May be, it is because APRC realized that it could not meet this requirement, so it just claims irregularities and leave it at that. The burden is on the APRC to prove its case by clear and convincing evidence. In its petition, APRC did not state the elements it must prove by clear and convincing evidence. The Coalition is the winner and the APRC has to prove to the court why The Coalition is not the winner. To prove its case, APRC cannot be helped by emotions, intimidation, self- righteousness and entitlement, or something like “I deserve to win” will not do.
The nonsense the dictator displayed on television on December 20th will not do. In fact, by talking in circles and bringing matters into his rant-like briefing that did not belong in the case, he hurt his case more than he realized. He did not realize that he was confusing the issue. Whatever the African Bar Association said has no bearing on this case. It would have been better for them to not show up at all. Those lawyers probably left State House with their heads spinning, probably saying to each other, chei!!. As matters stand, the dictator believes there should be another election but he does not have the facts to support his position. The facts contradict what is in his head. Waving papers as if they mean something may be nice in the court of public opinion but not in a court of law. Court of public opinion is not a court of law. No right thinking judge or justice will overturn the election results. Methinks the dictator is claiming irregularities but what he actually mean is fraud. Here is what APRC must prove if it alleges fraud:
That the IEC asserted representation of material fact to the plaintiff (APRC voters);
That IEC knew that the representation was false, or the representation was with such reckless disregard for the truth that knowledge of the falsity of the statement(s) can be imputed to IEC;
That IEC made the false representation for the purpose of defrauding the voters;
That the voters relied with justification upon the misrepresentation; and
The voters suffered damages as direct result of the reliance upon the misrepresentation.
APRC must be able to prove all five elements with specificity by clear and convincing evidence. Good luck with that. Whew!
The affidavit APRC prepared and the investigations it claimed to have made are all hearsay and cannot come in as evidence. Hearsay is defined as an out-of-court-statement that is offered to prove the truth of the matter asserted. Hearsay evidence generally is inadmissible unless it falls within an exception or exclusion. Both the affidavit and the results of the investigation are self-serving. The investigation claimed to have been done by APRC was not conducted by neutral-interested persons.
Here is another blunder APRC made. APRC needed to report any irregularities to IEC and let IEC did the investigation. In that case, the findings of IEC’s investigation would be allowed as evidence under an exception to the hearsay rule, the “Public Record” exception because IEC is a governmental agency and its work is for the public and it is IEC’s duty to do that kind of work. A certified copy of a record of such investigation by IEC would fit the bill. APRC is a political party and not an agency of the government. APRC is not owned by the government so whatever it does, in this case an investigation, is not public record. The investigation was performed by APRC and therefore it is not credible no matter what APRC members may like to think. Every person who took part in any investigation regarding the matter must be subpoenaed to court and be cross-examined under oath if it comes to that. APRC can get the best witnesses money can buy but not a single one of them will survive the crucible of the court or in other words, cross-examination.
The dictator does not seem to understand why almost everyone outside of The Gambia is against him staying in power. Repeatedly, he has been hearing people say that he lost the election and conceded and that is the end of the matter. What the dictation does not get is that he became bound to the election results when he went through the requirements of Section 47 of the Constitution of The Gambia and all the electoral laws derived from that provision. The dictator did not realized it but when he went with his motorcade with thousands of his supporters to the office of the IEC to put in his nomination, he was entering into a contract that he would be bound by Section 47 and all the laws that are derived for it. He accepted the results of the election and conceded defeat. His fate was sealed that day. The day the dictator announced that the results of the election were null and void; he breached the contract he entered.
I apologize for citing mostly U.S case law and not African Election Case Law. That should not be a surprise to anyone that election case law in Africa is not developed. Our dictators love to steal elections. The principles that bottom the cases cited are applicable anywhere there is rule of law.