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The Supreme Court of the Gambia has recently dismissed the 2008 judgment by the former Chief Justice Abdou Kareem Savage.
Background
In December of 2008, the United Democratic Party and the National Reconciliation Party sought an injunction from the court to prevent the electoral commission from conducting local government elections after Parliament empowered the president to dissolve Area Councils and appoint their chairpersons.
The UDP/NRP sought for a declaration to make amendment to section 193 of the Constitution of The Gambia null and void, and therefore of no effect; that the law was discriminatory and unconstitutional. The plaintiffs argued that the amendment was made in excess of powers vested in the National Assembly and on the President.
The plaintiffs were also seeking for an injunction restraining the Independent Electoral Commission (IEC) from conducting Local Government elections under the amended Act as it gives the President Powers to dismiss elected officials.
Here is the summary of the recent Supreme Court Decision:
RE: SUPREME COURT CIVIL SUIT NO. 4/2007
IN THE MATTER OF SECTION 5 AND 127 OF THE CONSTITUTION OF THE REPUBLIC OF THE GAMBIA 1997
AND
IN THE MATTER OF THE LOCAL GOVERNMENT (AMENDMENT) ACT 2007
Facts and decision
The Applicants, i.e., the United Democratic Party, the National Reconciliation Party, and Mr Momodou K Sanneh, the Minority Leader, in a bid to prevent the Local Government elections from taking place, sought the intervention of the Supreme Court under section 127 of The 1997 Constitution of the Republic of The Gambia (the Constitution). Specifically, the Applicants sought to have the Supreme Court invoke its section 127 powers, i.e., its original jurisdiction over Constitutional matters, to:
1. declare the Constitution of the Republic of The Gambia 1997 (Amendment) Act as a nullity
2. grant an injunction barring the Independent Electoral Commission, the second defendant in the matter, from conducting Local Government elections slated for 24 January 2008.
In responding by way of a Preliminary Objection, the Attorney General asserted that:
1. the suit is improperly constituted and thereby incompetent before the Court
2. the suit filed is an abuse of Court process because the reliefs sought are legally unavailable as the Court cannot grant same
3. the plaintiffs lack locus standi to initiate the suit
4. the Supreme Court lacks original jurisdiction to entertain election matters
Dismissing the application, Savage CJ, concluded thus:
In view of the above, I agree entirely with the Learned Attorney General that the suit is improperly constituted and is thereby incompetent and I so hold.
The Second Defendant’s counsel associated herself with the submission of the Learned Attorney General on this score. I also agree that to seek to maintain the present action in the names by which they have come oblivious of the fact that they still form part and parcel of NADD is a misnomer. I therefore find and hold that the Preliminary Objection succeeds on this score and because it is
fundamental as any other issues derives its legitimacy from this, I hereby therefore dismiss the matter. I shall not comment on the other issues raised by the parties as this would only tantamount to an academic exercise.
Section 125 (2) of the Constitution mandates thus:
The Supreme Court shall be constituted by an uneven number of not less than five Judges of the Court. Provided that a single Judge of the Court may exercise the powers of the Court in any interlocutory matter, which may be subject of a fresh application to a bench of five Judges of the Court.
Having unanimously decided that Savage CJ had no authority to do what he did, the Court ordered that “Civil Suit No. 4/2007 be heard”, that the jurisdictional objections advanced by the State, and the Independent Electoral Commission, be considered, and that the motion for interlocutory injunction be heard by the Supreme Court with a full bench of five Judges.
Analysis by Lamin J. Darboe, United Kingdom
Viewed strictly as a matter of constitutional jurisprudence in The Gambia, the decision on this particular aspect of the matter is quite laudable. At issue was the very limited question regarding the authority of a single Judge of the Supreme Court to make a binding decision that purports to finally settle a dispute touching on the constitutionality of government conduct, in this case, The Constitution of the Republic of The Gambia 1997 (Amendment) Act, and the legality of Local Government elections on the ostensible authority of that Act to be held on 24 January 2008.
As far as the Applicants were concerned, they wanted a declaration to the effect that the pertinent amendment to the Constitution was invalid. However, the fact that the Supreme Court appeared not to be in any particular hurry to substantively determine the application even as Local Government elections were to be imminently held, prompted the Applicants to ask for temporary relief, i.e., an injunction prohibiting the elections from proceeding.
The only issue on review was whether Savage CJ, sitting as a single Judge, could validly dismiss the application in light of the strictures of section 125 (2) of the Constitution.
As far as the Supreme Court is concerned - and I must admit, this outcome is the only acceptable one - Savage CJ, acted outside his authority, and his decision was properly set aside. Under section 125 (2) of the Constitution, Savage CJ had no legal authority to make a final binding decision on the application brought by the UDP, NRP, and Mr Sanneh.
I must however, point out that this is a merely technical decision, a procedural skirmish that leaves the crux of the application untouched. Although the Supreme Court sounded high minded, the fact remains that the underlying dispute is a highly toxic matter, and I cannot envisage the substantive decision going the way of the Applicants.
This Supreme Court is extremely heavy on foreign Judges, and on current trends, it is unrealistic to expect even a 5-Judge panel to declare The Constitution of the Republic of The Gambia 1997 (Amendment) Act a nullity. As to the interlocutory injunction, this is 2010, and the Local Government elections were held in 2008, effectively rendering that aspect of the decision a complete nonsense.
The unstated nuances of the decision are also worrying. Savage CJ illegally dismissed the original Application in 2008, and the Supreme Court only reviewed that decision in November 2009, almost two years later. By this time, Savage CJ, was out of office, and out of favour, and therefore in no position to create difficulties for other Judges.
An interlocutory injunction is supposed to be an emergency application! You have to wonder why a Chief Justice like Agim is grandstanding on a procedural skirmish, when he is likely to decide for the State at the substantive level. The decision under analysis has no negative implications for either Agim CJ, or the other Judges who participated in the matter.
Although Savage CJ was a partisan whose partiality blinded him regarding the limits of his legitimate legal authority, the part of the decision that stated that the UDP, and the NRP, are part of NADD should cause some concern. Notwithstanding that Savage CJ’s legal nicety on the relationship between UDP/NRP, and NADD, was overtaken by practical events in 2006, the legal nature of the relationship is an issue that requires further investigation. There is a prior Supreme Court decision stating that UDP/NRP were, and remain subsumed in NADD.
In a nutshell, the substantive decision, when made, will likely go against the Applicants. Under our current political realities, the Supreme Court will not declare The Constitution of the Republic of The Gambia 1997 (Amendment) Act a nullity, and as for the interlocutory injunction, I merely point out that the municipal elections are history.
Savage CJ failed to consider the merits of the Application, and a properly constituted Supreme Court of 5-Judges must now do that under the terms of the review decision. The procedural skirmish is won, but the indications are that the substantive battle will be lost.
Overall, the decision is of mere academic jurisprudential interest. It is dishonest!
Please read below a comprehensive coverage of the issue as reported by Senegambia News in 2007/08:
