Hon. Hassan Jallow, Chief Justice of the Republic of the Gambia
By Landing Ceesay
In a ruling handed down by Chief Justice Hassan B. Jallow of the Gambia, the Supreme Court has rejected the election petition brought forth by Musa Cham, the United Democratic Party (UDP)’s candidate for the Chamen Ward, against the Independent Electoral Commission (IEC) and Edrissa Ceesay. This decision was delivered on a Tuesday.
On May 15, 2023, Cham submitted a petition dated May 12, 2023, challenging the IEC’s rejection of his nomination as a candidate for the councilor position in the Chamen Ward of the Central River Region. This petition stemmed from the Local Government Elections that took place on April 15, 2023. During these elections, the IEC accepted the nomination of Edrisa Ceesay (the 1st respondent) and declared him uncontested.
Musa Cham, the UDP candidate, contended that Edrisa Ceesay’s uncontested declaration by the IEC was unjust. He urged the Supreme Court to declare that Edrisa Ceesay should not have been allowed to run unopposed. Musa Cham further requested that the court order a new election for Chamen Ward in the JangJangbureh Administrative Area, where he and Edrisa Ceesay would be the sole contenders.
In delivering the verdict on this petition, Chief Justice Hassan B. Jallow clarified that the central issue to be determined was the legality and validity of the IEC’s rejection of Musa Cham’s nomination as a UDP candidate. The Chief Justice highlighted that the facts of the case, as presented through the pleadings and evidence, were straightforward. He emphasized that on January 30, 2023, the Chairman of the IEC (the 2nd Respondent) had issued a notice regarding the 2023 Councillorship Elections, indicating that they would be held on Saturday, April 15, 2023. Nominations for candidates in these elections were to be received from Tuesday, March 14 to Monday, March 27, 2023, at the IEC Regional Offices.
Chief Justice Hassan B. Jallow specified that this case pertained to events in Janjangbureh, situated in the Central River Region (CRR).
“One Yahya G. Sowe was fielded by the United Democratic Party (UDP) for Councillorship elections in Chamen ward CRR but withdrew his candidature on 8h April 2023. The UDP fielded the petitioner Musa Cham as their new candidate in replacement of Yaya Sowe on 8th April 2023, (Exh. P8). On the 11th of April 2023 the petitioner presented himself before and submitted his documents to the Returning Officer at IEC Regional Office in Janjanbureh for nomination as a candidate for the Chamen ward election.
“On the same day, 11th April 2023, the Returning Officer after having reviewed the documents submitted by the petitioner rejected his nonmination and handed to the petitioner completed Form 3 Rejection of Nomination for Election of Councilor (Exh. P9). The Form bears two dates of 11th March 2023 and 11th April 2023, with the latter endorsed with the stamp of the respondent IEC. AIl the parties are however agreed that the document was delivered on 11th April 2023 and I so find and hold that it is correct date of the document,” Hon. Chief Justice revealed.
The Honorable Chief Justice added that on the 12th of April 2023, Musa Cham, the UDP Candidate, filed an appeal with the Chairman of the IEC in response to the rejection of his nomination by the Returning Officer.
Furthermore, the Honorable Chief Justice pointed out that on the 13th of April 2023, the Chairman of the IEC rejected the appeal in a letter addressed to Musa Cham, the UDP Candidate.
The Chief Justice also emphasized that the Court concurs with Counsel Ida Drammeh, representing Edrisa Ceesay, on the significance of adhering to the legal timelines and procedures in conducting elections and managing election petitions.
He stressed that such compliance is essential for ensuring a well-organized and valid electoral process, including any related legal proceedings, and failure to comply with these timelines and procedures could have severe consequences for both candidates and election petitions.
“This particular process has been characterised significantly by the lack of compliance with deadlines set by the rules and by the Act. Section 51(1) of the Act requires a nominated candidate who wishes to withdraw his candidature to notify the Returning officer in writing of his withdrawal “not later than four 0’clock in the afternoon of the twentieth day before the date of election ……”
“According to the testimony of PWI and according to Exh. P10 the withdrawal
of candidature of Mr. Sowe, the first candidate nominated by the UDP, and the acceptance of the same “was effected on Saturday 8h April 2023.” This was just seven days before the elections. Not the twenty days required by Sec. 51(1) of the Act,” Hon. Chief Justice said.
The Hon. Chief Justice ruled that Mr. Sowe’s withdrawal from the election was not in compliance with Section 51(1) of the Act because he did not give the required 20-day notice period. The Chief Justice also noted that Mr. Sowe’s replacement, Musa Cham, did not submit his nomination papers until April 11, 2023, after nominations had closed on March 27, 2023.
“Although Sec. 51(4) of the Act entitles a political party, whose sponsored candidate has withdrawn, to field a replacement candidate within seven days of the withdrawal, the court finds that the nomination of any such replacement candidate must take place within the time frame for nominations as announced by the respondent IEC in the Gazette Notice or as amended or extended.
“The seven days period stipulated in Section 51(4) does not and cannot of itself be interpreted to extend the period of nomination. Such period remained as published in Gazette No. 18 of 2023 by the IEC. It was not amended or extended. Accordingly, the court finds and holds that at the time the petitioner filed his nomination papers, the period for nominations had already closed and he could therefore not be validly nominated to contest the elections for the office of councilor for the Chamen ward, ” Hon. Chief Justice stated.
The Chief Justice affirmed that on April 11th, a rejection form was issued to the UDP Candidate Musa Cham after he had submitted his nomination for the April 2023 Council Elections. In the form, the IEC Returning Officer certified that Musa Cham did not meet all the requirements specified in the Constitution to participate in the elections.
Furthermore, the Hon. Chief Justice explained that the IEC Returning Officer cited Section 52 of the Elections Act as the basis for the rejection and provided reasons for it in the form.
The Chief Justice also mentioned that Musa Cham, in his appeal to the IEC, contended that the Returning Officer did not reject his nomination due to a failure to meet any of the legal requirements of the Election Act. Musa Cham argued that Section 52 of the Act does not pertain to candidate nomination qualifications and that the required publication, as per Section 52, need not be in the Gazette but could be accomplished through radio and television announcements.
The Chief Justice continued to elaborate that during the petition hearing, counsel B.S. Touray, who represented Musa Cham, asserted that relying on Section 52 for the nomination’s rejection was inappropriate, as the duty of publishing the particulars listed therein rested with the Returning Officer, not Musa Cham.
The Chief Justice emphasized that counsel B.S. Touray was indeed correct in asserting that Section 52 did not impose any obligation on the petitioner (Musa Cham) to publish the listed particulars. This duty was exclusively assigned to the Returning Officer, and the method of publication was not a matter under consideration in the petition, leaving room for the possibility of the modes suggested by the petitioner in his appeal to the IEC.
“This Court does not need to decide what is not an issue here. The petitioner is indeed also correct to state that Section 52 does not provide the qualifications of candidates for nomination. It is however not the case of the respondents that the duty of publication is cast on anyone other than the Returning Officer. The Section is quite clear on that.
“Section 52 is however pertinent to the case at hand. The duty of publication cast on the Returning Officer is required to be carried out at the close of nominations. Or at least seven clear days before the election. The object of the publication is inter alia to notify and provide to the general public, particularly the electorate the names and addresses of all those deemed to be nominated candidates to contest the election,” he said. The Chief Justice said that it is important for voters to know who the candidates are before the election. The Returning Officer is required to publish the list of candidates at most seven days before the election. The Chief Justice also said that the Returning Officer could not have published the petitioner’s name and details on March 27, 2023, because he had not been nominated yet.
“At or after the presentation of his nomination papers on 11th April 2023 the Returning Officer was precluded by Section 52 of the Act from publishing his name because the presentation of his papers on 11th April 2023 for nomination not only felI beyond the nomination date of 27m March 2023 but could not satisfy the requiremernt for the publication to be made at least seven days before the election, with only four days left before the 15th of April, the date scheduled for the election,” Hon. Chief Justice said.
The Chief Justice also emphasized that the Returning Officer was unable to publish the petitioner’s name as a nominated candidate.
In delivering the judgment, the Honorable Chief Justice stated that the court found and held it reasonable, given the circumstances, for the Returning Officer to rely on Section 52 of the Act, along with the preceding paragraph of Form 3, as grounds for rejecting Musa Cham’s nomination.
He mentioned that the petitioner and their sponsor’s failure to comply with the specified timelines, notably the late withdrawal of a candidate in violation of Section 51(1) of the Act, was a significant factor.
Additionally, the Chief Justice noted that Musa Cham’s nomination papers were presented late, after the nomination deadline, as admitted by the petitioner. This presentation occurred on a date that made it impossible for the Returning Officer to publish Musa’s details as a deemed candidate, as outlined in Section 52 of the Act for the election. All these factors combined to disqualify the petitioner from contesting the election.