By Landing Ceesay
At the Supreme Court of the Gambia, lawyers argued over the motion seeking dismissal of the United Democratic Party (UDP) petition case seeking the nullification of the December 4 presidential election results.
The UDP has filed an election petition at the Supreme Court against President-Elect Adama of the National People’s Party (NPP), as the first respondent and the Independent Electoral Commission (IEC) as the second respondent, seeking the court to nullify the December 4 presidential election results alleging irregularities in the presidential election campaign.
The UDP accused Barrow and his National People’s Party (NPP) of bribing and inducing the electorates during the campaign period; and accused the IEC of conspiring with Barrow and his party and used NPP supporters as presiding officers in the presidential election.
During the first hearing of the petition case on 16th December at the Supreme Court, lawyers for the first respondent filed a “notice of motion” for the court to dismiss the case based on Constitutional grounds.
In the “notice of motion”, the lawyers of the first respondent argued that a sitting President under the 1997 Constitution of the Republic of The Gambia, cannot be tried in court.
However, during today’s hearing, the lawyer for the 1st respondent Sheriff Marie Tambadou in his submission before the court said there were irregularities and non-compliance with regard to the petition.
He said neither the petition filed on the 14th of December 2021, nor the amended petition was served to the 1st respondent within the period of the mandate of the election rules, and such non-compliance with the Election Act is fatal to the petition.
Lawyer Tambadou said the petition was filed pursuant to section 49 of the Constitution which requires a registered political party in this instance, the petitioner to file to the Supreme Court a petition to challenge the validity of the election within 10 days of the announcement of the results.
“The petition was filed on the 14th of December 2021, which was the 9th day after the declaration of the results. Now an amended petition was filed on the 15th of December, on the 10th day after the declaration of the results. My Lord, sitting as a single judge in the chambers, makes an order to join the Independent Electoral Commission (IEC) as a 2nd-second respondent. This was done on the 16th of December, on the 11th day after the declaration of the results.
“My lord, rule 12 of the Election Act rules, sub-rule (1) there states every petitioner shall be served on the respondent. Sub-rule (2) states that the service of the petitioner shall be personal to the respondent. Unless the Supreme Court on an application letter within a certain time where personal service is not possible to other substituted services,” Lawyer Tambadou counsel for the respondent stated.
Lawyer Borry S. Touray, in response to the first respondent’s Lawyer, argued that both the petition and the amended petition were filed within the period specified in the Elections Act.
He said section 32 of the Interpretation Act said when the announcement of the results falls under a Sunday or public holiday counting should start the following day which is neither Sunday nor a public holiday.
“Before I proceed My Lord, may I correct certain misconceptions? My Lord, the announcement of the results took place on the 5th of December, 2021 which was on Sunday, that was a non-working day My Lord. Therefore, Sunday cannot be counted. The counting starts on Monday, the 6th day of December 2021, and the authority for this argument can be found in the Interpretation Act section 32 of the interpretation of time.
“My lord this petition which was filed on the 14th, was on the 8th day after the declaration of the results not the 9th day after the declaration of the results as stated by my learned friend. My Lord, contrary to his assertion that the amended petition was served on 16th with all due respect to my learned friend, it was filed on the 15th, not on the 16th,” Lawyer Borry S. Touray argued.
He said the arguments, and the summary canvassed by the counsel for the 1st respondent are only mere in the form of technicality.
“I don’t think those few technicalities should be allowed to play in these proceedings. Which stipulates the sovereign will of the Gambian people. In the interest of transitional justice, My Lord, all the motion applications before this Honourable Court, evidence and all the arguments by the 1st respondent should be thrown out with the cost,” he said.
The lawyers of the Independent Electoral Commission (second respondent) and the Attorney General (third respondent) are aligned with the arguments and submissions of the lawyers of President-elect Adama Barrow (1st respondent).
The Chief Justice of the Supreme Court adjourned the hearing of the motion to 28th December 2021.