Former high court judge, Emmanuel Nkea, has postulated that the petition filed by APRC before the Supreme Court is unconstitutional and must be struck out. He said : “The Election Petition filed by the APRC is fundamentally defective and should be withdrawn or struck out. According to section 49 of the 1997 Constitution “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 filling a petition within ten days of the declaration of the result of the election.” 

emmanuel_nkea-d-1Section 100(10) of the Elections Act, Cap. 3.01 Vol. I Laws of the Gambia, 2009 provide 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 to the Commission”.

In the interest of disclosure, he continued It is very clear from the above statutory provisions that in election proceedings in Gambia, the person whose election is being challenged is the ‘statutory’ respondent in any valid election petition. Any other person or persons, if at all, shall for the purpose of the election petition be deemed to be a co-respondent and shall be joined in the election petition as a necessary party.

He maintained:  “With regards to the December, 1 2016 Presidential Elections, Mr. Adama Barrow was duly returned as the President elect. It is the validity of this historic election that the APRC party now seeks the Supreme Court to determine. President-elect Adama Barrow is therefore the ‘statutory’ respondent in any valid election petition touching on the December, 1 2016 Presidential elections in Gambia, and ought to have been so listed in the election petition filed by the APRC party. This, the APRC legal team failed to do. The sum effect is that the parties on the election petition are not properly constituted because the President-elect, who is a proper, necessary and desirable party, and whose presence is required for a just determination of the petition has not been made a party. 

It is very clear from the above constitutional provision that in any valid election petition, the person whose election is being challenged must be made a respondent and that every other co-respondent must be joined in appropriate cases. And this joiner must be done before the powers of the court can be invoked, not after, and where this is not done, the action is liable to be struck out as improperly constituted (Awoniyi v. Registered Trustees, AMORC (2000) 6 SCNJ).

Even in those cases where the courts have held a non joiner not to be fatal to the action, the courts proceeded hold that where such non joiner is likely to lead or leads to unfairness or injustice to the other party, the action will be struck out or the resultant judgment set aside on appeal (Ayorinde v. Oni (2000) 2 SC 33). In the instant case, the action must be struck out because by virtue of section 100(11) of the Elections Act (sic), the decision of the Supreme Court is not subject to any appeal. As such there would be no other avenue for the decision to be set aside. This is more so as the defect amounts to a constitutional violation, which should not and ought not to be treated as an ordinary violation of the law.  

Since the 1997 Constitution of the Republic of The Gambia (as amended in 2001) and the Elections Act (CAP 3:01 of 2009) provide the legal framework for all elections in the country, the constitution being a superior law, an election petition which is constitutionally irregular is fundamentally and incorrigibly defective and must be struck out”.

Written by Sainey Darboe 

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