PDOIS’ statement on the unconstitutionality of the insinuated terms in the IEC’s request for regularalisation of existing political parties.
BY Halifa Sallah
For The Central Committee
The Central Committee of PDOIS received a letter from Alhagie Mustapha L Carayol, dated 19th August 2015 captioned “Regularisation of existing political parties in the Gambia.”
The letter made reference to the amendments made to section 105 of the Principal Act without going into the controversial details such as the increment of registration fee from five thousand dalasis to one Million dalasis and the increment of the registered membership from five hundred to ten thousand with at least one thousand members coming from each administrative area like Banjul , where only 9733 voters participated in the Mayoral elections and called for compliance by 31st March 2016 or face deregistration.
We have decided to write to show case how badly this country’s electoral system is being managed and administered and how by commission and omission the APRC representatives with legislative and executive authority have been aiding and abetting such mis-governance of the electoral system. It is hoped that this would be an eye opener which would make the government appoint another Chairperson for the Independent Electoral Commission and accede to dialogue to discuss the reform proposals of the opposition.
In short, It is an irony of history that those who belong to a generation that is born and nurtured during the Independent and Republican era and who sneaked into power ahead of our generation under the pretext that it was better suited to defend the sovereignty of the people and ensure that power must emanate from their sovereign and undiluted will, without any hindrance, are systematically and calculatingly propagating values and conduct aimed at fettering democratic participation, dismantling checks and balances in democratic governance and openly promoting self perpetuating rule or presidency for life.
Let us now offer irrefutable proof.
A LAW WHICH IS SELECTIVELY ENFORCED IS A BAD LAW
When the Elections Amendment Bill 2015 was published in the Gazette in June 2015 we cautioned that the amendments to section105 requiring political parties to pay one Million dalasi registration fee could not be retroactively enforced on registered political parties and is therefore a bad law. We argued that Section 100 of the 1997 Constitution Subsection (2) has made it abundantly clear that “the National Assembly shall not pass a Bill to alter the judgment of a court in any proceedings to the prejudice of any party of those proceedings, or deprive any person retroactively of acquired or vested rights ……….”
We argued that since the amended version could not be applied retroactively to deprive registered political parties their right to exist it would be discriminatory in effect if new parties are required to pay a fee of one Million and to have 10000 members before they could be registered as political parties in the Gambia.
We argued that a Law which could not be enforced is no law at all and therefore proposed for the rejection of the Bill.
The National Assembly disregarded the virtues of political consultation and pluralism and turned its back to the opinions of the other side and passed the Bill. The executive also ignored the opinion of the other side and assented to the Bill on 20th July 2015.
It was published in the Gazette as Act No: 6 of 2015. It is now law.
If the Act was applied retroactively, in full, in July 2015 there would not have been a by election in Lower Saloum. In short, all political parties should have been automatically de-registered. All National Assembly members would have lost their seats except the independent members. The National Assembly would have ceased to exist. Legislative power would have become null and void. A constitutional crisis would have been engendered.
By elections would have had to be held and all would have had to contest as independent candidates until the parties are registered under the new law.
Now that the IEC has seen the absurdity and irrationality of applying the law retroactively with immediacy, it has decided to apply the principle of administrative convenience while the APRC Executive looks at the other side with administrative indifference. This is why it has unilaterally postponed the date of reckoning to 31st March 2016, an election year. Instead of using one Million dalasi to conduct electoral campaign parties would be putting the sum in the coffers of the IEC as fee just to exist as a political party. Nothing could be more absurd than this.
However, parties without seats in the National Assembly have options. They could ask their presidential candidates to take the Independent route and not waste resources on bureaucratic obstacles just to remove the incumbent and then uproot all the stumbling blocks to democratic participation after victory.
However, parties with seats in the National Assembly risk losing those seats by 31st March 2016 if they do not meet all the conditions, and the regime does not have a change of heart.
Hence the decision of the IEC to enforce the Act by 31March 2016 is a manifestation of administrative impunity and not rooted in law, common sense, justice or fair play. It is arbitrary and unconstitutional. It imposes undue hindrance in the exercise of freedom of association and the right to participate to vote for the candidate of one’s choice even though the Constitution speaks against retroactive application.
THE LEGITIMIZATION OF IMPUNITY
On 26th August 2015 Mr Carayol indicated at a workshop on electoral reform, that “the IEC has created five more constituencies making the total number of constituencies now fifty three.”
Section 88 of the Constitution states that” The National Assembly shall comprise forty eight members elected from constituencies demarcated by the Boundaries Commission”
Where then does the IEC come in? The answer is simple. The IEC used to be responsible for the demarcation of constituencies under Section 50 of the Constitution until it was amended in 2001 to give the role to a Constituency Boundaries Commission which has never been established because of executive and legislative indifference.
Suffice it to say, even though Section 88 restricted and still restricts the number of constituencies which could exist at a time, which is also an absurdity which will bind the hands of the Boundaries Commission once established and needs redress, the IEC under Bishop Tilewa Johnson did retain the number of constituencies but re-demarcated the boundaries to ensure that each constituency contains, as nearly as possible, equal number of inhabitants . The Constitution was amended through the collaboration of the executive and the legislature to make the work of his team, null and void. Section 88 was amended to provide room for the Constituencies to be increased from 45 to 48 and the IEC was given the following role:
“Until the National Assembly establishes a Boundaries Commission under subsection 1, the constituencies as prescribed in Part II of schedule I to the Elections Act and any additional constituencies required for the purpose of section 88(1) (a) demarcated by the Independent Electoral Commission in consultation with the appropriate Department of State shall be deemed to be constituencies for the purpose of returning members of the National Assembly under that section.”
This simply means that Section 88 must be amended to make room for 53 Constituencies before the IEC could legally carry out any demarcation of constituencies. Mis-governance of the electoral system and Impunity also exist in this domain aided and abetted by the ruling party which has the parliamentary majority and should have enacted a Constituency Boundaries Commission Act since 2001 but has honoured this duty with utter disregard.
Furthermore, when the IEC first announced on 28th May 2015 that there would be a By election in Bwiam ward on 23 July 2015 due to the expulsion of the Councillor from the APRC party we pointed out that there was no provision in the local government Act which provided for vacation of council seat due to expulsion from a party. The IEC revoked the By election. Since the Councillor had already left the jurisdiction she could vacate her seat either by resignation or absenteeism or being recalled by the electorate.
Interestingly enough on 7 July 2015 the National Assembly passed a Bill which was assented to on 20 July 2015 amending section 19 of the local Government Act to make it possible for a member of a Council to lose his or her seat “if he or she ceases to be a member of the political party of which he or she was a member at the time of his or her election”
It is therefore clear that laws are not being amended to empower the electorate but to consolidate the absolutism of executive power. This is ushering the Gambia towards a perilous route of self perpetuating rule if the people are distracted and misled to mystify the absolutism and invincibility of power.
We will not take the route of whining and mystifying power. Power is in the hands of the sovereign people. Legislative and executive powers are borrowed powers. They are not owned. They could be reclaimed and seized by the owners
We know that when those entrusted with executive and legislative power lack the confidence of the support of the people they must take desperate measures to mask their weakness. PDOIS will not be distracted. It has been building its grassroots base and branches in villages, districts, constituencies and regions before any amendment Act was envisaged. We are now consolidating those branches and the membership.
We have held a Congress in May 2015 while the ruling party has been postponing its congress even though it has more resources at its disposal.
The Congress adopted an enhanced version of the party Constitution and Manifesto which are now being edited for publication and mass circulation by the end of September.
Our Central Committee is enlarged to include regional representation based on Gender parity. Hence there is more than 33 percent gender parity and youth representation in all party Committees or decision making bodies.
We have held successful rallies and tours and will continue to intensify them to mobilise the people by their tens of thousands for democratic change. We will educate them to know that law making is based on borrowed power while power to employ law makers is owned by the people. Hence when people are dissatisfied with laws they should not become apathetic and surrender power to those who would abuse power of representation but should in fact become more resolved to replace those law makers who breach their trust with others who would obey their dictates. The wages of making bad laws is to vacate one’s seat. Impunity should not pay dividend. It should come with a heavy price that no one would wish to pay. That is the way to end it.
We will intensify our diplomatic initiative in the sub-region, Africa, US and Europe to promote international support for electoral reform. When governments are unilateral in their actions and are not opened to their opposition mediation must be sought to avoid conflict. We are willing to collaborate with opposition parties and civil society to attain the goals of genuine electoral reform and ensure democratic change.
Neighbouring Senegal could contribute to fairer elections by closing its borders on election day and advising all its citizens not to take part in the elections. Civil society in Senegal would be encouraged to do the same. 2016 will not be a child’s play. Power will not be surrendered by apathy. It will be entrusted by a re-energised, re-activated and re- motivated electorate, to whom they so will.
We are on course to open up the list of Candidature and hold a primary to select our presidential Candidate before the end of the year.
We would not be distracted in promoting the candidature of the choice of our members and advocate for electoral reform in collaboration with all other stakeholders.
We would hold a Congress at the end of February 2016 to review all developments on the political landscape and come up with a resolution on the way forward for PDOIS and the country.
Every just human being would agree with us that law breakers have no moral authority to be law enforcers. It is out ardent hope that before presiding over the de-registration of parties on 31 March 2016 Mr Carayol who has served as IEC member for more than the two seven year term limit established by Section 42 of the Constitution, would recognise that he is no longer qualified to be a member of the Commission and would vacate his seat.
We hope an executive that preaches dialogue to political stakeholders in Guinea Bissau would equally understand the importance of electoral reform to keep hope alive when a people are faced with unbridled economic hardship.
Despite the repetition of an ambition of being an economic superpower the GAMBIA is still ranked among heavily indebted poor countries of the world.
We are importing 1.9 billion worth of rice despite the claim of a self sufficiency drive under Vision 2016. There is a big gap between the 46,000 tons (forty six thousand tons) produced in 2014 and the 200,000 (200,000 tons) needed. NEMA, FASDEP and GCAV which should have injected 130 million dollars in the agricultural sector are now in limbo.
In 2013 The Gambia earned 415 Million dalasis from domestic exports and 3.4 Billion dalasis from re-exports while spending 12,5 Billion Dalasis on imports leaving the country with a trade deficit of 8..7 Billion dalasis. The Trade deficit for 2014 is estimated to be 250.2 Million Dollars or 10 Billion dalasis at current exchange rate. The growth in GDP has declined to 0.5 percent in 2014.
The budget deficit in 2014 is estimated at 3.4 Billion dalasis. Hence domestic borrowing which is beyond 19 Billion dalasis will continue to increase.
Prices of goods are getting higher, quality and quantity of goods for money are dropping.
The lower 40 percent are living on an income of less than 1000 dalasis per month which is equivalent to the price of four kilos of meat and less than a bag of rice.
Drugs are more expensive and maintaining a family has become prohibitive.
While Singapore has a per capita income of 78,763 dollars while UAE has a per income of 59 845 dollars while Gambia has per Capita income of 1661 dollars as per World Bank Report. Where then is the basis of the claim of heading towards an economic super power status.
When will we be able to move from being a debtor country to become creditor when our mineral resources could not even account for a rise in per capita income which does not even take wealth distribution into account.
In this regard, there is nothing to be gained by political intolerance and the propagation of the doctrine of self perpetuating rule for life under the pretense of divine mandate. Such an ideology only breeds absolutism and autocracy and subverts the sovereignty of the people and democratic participation.
The homeland is in need of a new breed of citizenry who would abhor ignorance, degradation, greed, poverty and tyranny and adore awareness, dignity, prosperity, justice and liberty. This is the demand of the 21st Century. We must answer to the call or perish.