Lamin J Darbo
Perusing the 29 July issue of The Point Newspaper, I encountered an interesting article by my student colleague at the Saint Augustine’s High School, Henry D R Carrol, Doctor of Laws (Dr Carrol), on the impending and much-discussed Gambia Football Federation (GFF) executive elections. In Dr Carrol’s considered view, any involvement by the Independent Electoral Commission (IEC) in assisting the GFF with the conduct of its executive elections “would be illegal” because this particular transaction is not a “public election”.
According to Dr Carrol, he was so “terribly flabbergasted” by a potential case of monumental law breaking that the time of broadcast, he “went nearer his television screen to confirm” he was not hallucinating. In the frenzied words of the good Doctor, “if the I.E.C. makes the terrible monumental mistake of conducting the 2013 G.F.A. election, as erroneously suggested by Alhaji Mr. Omar Sey, that will certainly be illegal and unconstitutional …”
Why the “illegal and unconstitutional”?
In the considered judgment of The University of The Gambia “Founder Senior Law Lecturer”, it is explicitly stated at “Section 43(1)(a)” that ‘’Subject to the provisions of this Constitution the Independent Electoral Commission shall be responsible for – the conduct and supervision of the registration of voters for all public elections and the conduct and supervision of all public elections and referenda’’. In explicit terms, Dr Carrol contends:
The legal term ‘’public election’’ in this Constitutional context, does not necessarily mean, an election that is conducted in public. This may be the unfortunate or myopic interpretation of this laconic phrase, by laymen or laypersons. As far as the term ‘’Public elections’’ in this Constitutional context is concerned, it is only alluding to three types of elections (i.e., Presidential Election, a National Assembly Election, previously called “Parliamentary Election’’ during The First Republic and a Local Government Election).
To prove this submission of mine beyond all reasonable doubt, let me promptly refer my readers to Section 230(1) of the aforesaid Constitution, which authoritatively defines ‘’Public Elections’’ as ‘’The election for a President, National Assembly and a Local Government Authority’’. I am also humbly submitting, that even this Constitutional definition of ‘’Public Elections’’ is legally incomplete, because one type of Public Election, that is very well known, is conspicuously missing therefrom (i.e., “A BY-ELECTION’’).
On the available facts of this GFF election issue, Dr Carrol needlessly embarked on an extensive futile journey. The IEC “assisting” the GFF with the “organisation” and “conduct” of its executive elections implicates no Constitutional issue whatsoever. There is absolutely no suggestion that the IEC is asserting any sort of legal mandate over this particular election. In light of the tainted image of the GFF, there is some need to nurture public confidence by taking proactive steps in transparency and accountability. What better way than to invite an outside specialist election institution to assist in highlighting that organisational commitment to a transparent process in a transaction that generates so much public interest. More fundamentally, the IEC is not asserting any authority over these GFF elections, conclusively demonstrating that no matter the level of interpretational elasticity adopted, it would be wrong-headed to characterise its involvement as ultra vires, i.e., outside its legal remit. If it participates in these elections, the IEC is doing so as an invitee, and for the positive public purpose of the GFF’s efforts at rebuilding its battered image. It may be for a similar purpose that FIFA is sending a delegation to the elections.
Although the IEC’s involvement can be illegal under certain circumstances, Dr Carrol completely dropped the ball by not incorporating those possibilities in his discussion. For example, if the GFF’s own Rules, or FIFA’s guidance, precludes the involvement of an outside institution in this type of elections, any level of participation by the IEC would be illegal. However, responsibility for any such illegality is properly assigned to the GFF, not the IEC, an innocent invitee to participate in the process. It would be the GFF that deliberately acted outside the boundaries of its own Rules, and therefore the proper target of any ultra vires allegation. On the facts as we know them, Dr Carrol is guarding the wrong gates! He is “zealously” mistaken in his contention that “… if the I.E.C. goes ahead and conducts the 2013 G.F.A. Election, it will certainly be acting Ultra Vires …)”.
On by-elections (refer to Dr Carrol’s contention above), there is again no issue to discuss. A by-election for a National Assembly constituency, or a Local Government seat, is indeed a “public election” under the Constitutional provisions quoted by Dr Carrol. With all due respect to him, there is absolutely no need for a constitutional amendment as a way of clarifying the already crystal clear position that a by-election, either Parliamentary, or Local Government, is quintessentially a “public election” as that term is defined in the Constitution.
If the Gambia Bar Association gives credit for “pro bono publico” endeavours by Legal Practitioners, this particular venture by Dr Carrol should score no points for obvious reasons.