The tricky business of relying on Military Junta decrees toorganise democratic elections in a post dictatorship era

By Pa Louis Sambou

For anyone who’s had to await decision on something which meant a lot to them and into which they invested so much: whether the outcome of a job application, publication of exam results or perhaps that maiden travel visa, the agony endured by the long list of President aspirants on Saturday 6thNovember 2021 must have felt familiar. For candidates to whom unfulfilled notices of outstanding information wereissued upon presenting themselves for nomination at the Independent Electoral Commission (the IEC), it is fair to say that their disqualifications would have already been obviousto them once nominations closed on 5th November. So one could, with a degree of certainty say that the latter category of aspirants were probably not sat in front of the television screen waiting in anguish. For all others, the question as to whether the IEC’s announcement to the effect that their nominations were ‘rejected’ is even valid, is one big question which emerged from such nominations which this piece shall objectively explore.

To properly address this question, one must first and foremostbegin by identifying and examining the metric upon which the IEC relied to assess eligibility of candidates being their published checklist of documents and information required of each candidate. Contrary to ‘popular belief’, such checklist does not constitute rules which the IEC invented by themselves in isolation of any authority. As a matter of fact, upon careful examination, one would notice that such checklist was drawn from information contained within Decree 78 of 1996 (the ‘Elections Act’) which is the authority on all matters regarding election nominations. So, on the facts, there is hardly anything to suggest that the IEC has notproperly discharged its statutory responsibility as regards this particular aspect of the nominations process. To the contrary, they overdelivered — somewhat an unusual grade to attribute to this IEC but, it is true and it has to be stated regardless of one’s subjective personal opinion on the institution and in spite of the series of errors which subsequently followed such stellar performance thus far.

For everything else subsequent to the above, the complete opposite is unfortunately the case and here’s why:

The Invitation for Public Scrutiny

The law (section 49 of the ‘Act’) accords citizens the right to raise objections as regards any candidate’s nomination. If the public scrutiny organised by the IEC on the morning of Saturday 6th November was designed to accommodate such, allocating a maximum inspection time of five minutes for those wishing to do so does come across as way too little time for any meaningful inspection to occur even if there were only two candidates. With a staggering number of twenty-one candidates, such a restriction is wholly indefensible and itslamentation and protest by journalists is an unflinchingly valid one.

In reality, an invitation for all eligible voters wishing to do so to attend one location only (Election House in Kanifing), to scrutinise nomination papers, by reason of geographical proximity to other parts of the country constructively excludes a vast majority of those entitled, from such exercise. To further leap from this to institute further restrictive measures which constructively denied those in attendance any meaningful opportunity to scrutinise anything was an errorwhich the institution must do all it can to prevent recurrence in future elections.

The ‘Rejection’ of Candidates

The IEC can, under section 47(1) of the ‘Elections Act’ reject the nomination of any candidate, on their nomination papers for any election. Section 47(3) of the ‘Elections Act’ sets out the boundaries of such power to reject as well as how such rejection authority must be exercised. The provision states:

“The rejection of a nomination paper shall be without prejudice to the delivering of a fresh nomination paper, provided that the subsequent nomination paper is delivered before the close of nominations.”

There are two interdependent parts to this statutory instruction:

1. “The rejection of a nomination paper shall be without prejudice to the delivering of a fresh nomination paper…”: that is to say, a rejection must not automatically deny the candidate an opportunity to seek a fresh nomination.

2. “…provided that the subsequent nomination paper is delivered before the close of nominations.”: that is tosay, a fresh nomination upon rejection is on condition that it is issued prior to the close of nominations.

Effectively, if the rejection of a candidate occurs after “the close of nominations”, then the IEC would have acted in “prejudice to the delivering of a fresh nomination paper” on the part of or by that ‘rejected’ candidate. In plain speak, as per the ‘Elections Act’, a valid rejection or notice of the same must occur whilst nominations are still open, not afterwards.

What the above means in practical terms is, with the exception of candidates who upon presenting themselves at the IEC for nomination, were given notice by the IEC that aspects of their papers had issues they must address by close of nominations, all other candidates whom the IEC announced it ‘rejected’ may not have been ‘rejected’ lawfully.

The IEC must, upon appeal by the respective candidates, carefully reconsider and address what is by all accounts an avoidable error.

Section 49(5) of the ‘Act’ does state that the appeal outcome of a candidate’s nomination rejection “…shall be final and shall not be called into question in any court of law.” I’ve noticed numerous commentators on this issue repeatedly use this to suggest it is the settled position of the law. It absolutely isn’t and here’s why: As this ‘Act’ which is effectively one of the AFPRC Decrees predates the existing Constitution, its restraint on the courts may have been valid prior to the coming into force of the Constitution but not anymore. The Constitution is the supreme law of the land and section 120 of the existing Constitution confers onto and vests judicial authority in the Courts and, unless there is another provision in the Constitution which prohibits the Courts from adjudicating on a particular matter, nothing else could prevent them from doing so. For the avoidance of doubt, no such provision in the Constitution prohibits the Courts from adjudicating on an appeal decision by the IEC under the ‘Elections Act’. Therefore, any decision by the IEC, whether on appeal or otherwise, it could most definitely be “…called into question…” in a “…court of law”. However, it need not get to that at all and I hope it won’t.

Author can be followed on Twitter: @that_Pragmatist