Sunday, 20 March 2011 15:26PDOIS´ Statement on the 2011 -2013 electoral cycle
Registration of Voters and Dates for Elections
A new electoral cycle has dawned upon us. Time really flies in the eyes of those who have too much on their historical plate to chew. It is stagnant to those who have no hope; no aim to achieve; no plan to implement; no target to meet; no agenda to prosecute, no task to perform, no powers to act and no resources to utilise. The machine of the IEC should have been in full gear by now but everything appears to be at a standstill.
Those Gambians who are conscious that they own the country would not wait for any one to alert their minds to the fact that 2011 to 2013 is a period set aside by law for them to exercise their right and powers as sovereign Gambian citizens to determine the manner of government of this country. During this electoral cycle the sovereign Gambian people have the right to go to the polls to elect a President, National Assembly members, Mayors and Councillors. Each Gambian has the right to stand and be counted. No one on the face of the earth could stop anyone from exercising that right. Every individual´s vote must be counted like that of any others regardless of whatever position one occupies.
The major problem confronting the sovereign Gambian persons are that no Gambian is aware when registration of voters and elections are to take place. Nothing is coming from the angle of the Executive or the National Assembly who are charged with the responsibility of providing the requisite funds for the holding of the registration of voters and the conducting of the elections.
The National Council For Civic Education and the Independent Electoral Commission that should engage in Civic and Voter education respectively so that the Gambian people would have first hand information on when, where, how and why to acquire voters' cards and cast their votes are also mute. The international Community is wondering what is going on and has been engaged in shuttle diplomacy to find out what the intention of the government is regarding the forthcoming elections. Speculations are rife and the information being received only increases the uncertainties. This is precisely the reason why PDOIS had to assume its supreme duty to clarify matters so that each Gambian would be fully prepared to take charge of his or her destiny.
The first election that is to take place is the Presidential election. Readers would recall that the President assumed office on the 15 December 2006. Presidential Election took place on 22 September 2006. According to the amendment of the Constitution done in 2001 "the person elected President shall assume office sixty days following the day of his or her election ." Any amateur Mathematician would have concluded that 60 days after 22 September 2006 should have been 21 December 2006. We did point this out in 2006 but the observations did not change the decision to have the President sworn in on 15 December 2006. It is such impunity that should no longer be tolerated. It is a mockery of constitutionality to hold a ceremony to swear in a president who assumes office on a date that contravenes the date established by the constitution. We have every power to take such matters up at the level of the Supreme Court so that it would declare such unconstitutional conduct null and void.
In our view, the bar association should not allow political parties to spend tens of thousands of dalasis like we did when we were trying to stop the reversal of a court decision to bar those whose names did not appear in a register of voters from voting as if political parties have exclusive interest in ensuring a free and fair voting system in the Gambia. The Bar Association should set up a council of the wise within their camp comprising the most senior counsels who would take up constitutional matters that affect the life of the nation no matter from what quarter it emanates to ensure that the rule of law is preserved. What then is the relevant lesson?
The relevant lesson is that the date the President assumes office must be relied on to determine the date of expiry of his or her mandate and the date of the next following Presidential Elections. Section 63 of the Constitution states that, "the term of office of an elected President shall ..be for a term of five years." The term of the current President will therefore end on 15 December 2011. One may now ask: When should election take place?
The answer is simple. Section 46 of the Constitution states that, "there shall be an election for the office of the President in the three months before the expiration of the term of the incumbent president."
Unless the Gambian Constitution is amended, Presidential elections must take place between 15 September and 15 December 2011. The latest date election could take place according to the current Constitution is 14 December 2011. Who then is to determine the concrete date? According to Section 43 subsection (1)(d) of the Constitution , " ..the Independent Electoral Commission shall be responsible for ensuring that the dates, times and places of public elections and referenda are determined, in accordance with law and that they are publicised and elections held accordingly." According to subsection (3) of this section, "In the exercise of its functions under the Constitution and any other law, the Commission shall not be subject to the direction and control of any other person or authority."
It should therefore be clear to all Gambians that if elections are held during rainy season or dry season it is solely the Commission that should be held responsible. A truly independent electoral Commission would consult with all stakeholders to hear there concerns regarding the best period, within the law, that is most convenient to the electorate to cast their vote and then fix a date. The date for holding elections may enhance or militate against voter turnout There is a general view that the holding of the 2006 elections in September was a disaster because of the rains and the preoccupation of the farming community with their crops. The political parties are stakeholders and they should ensure that the IEC keeps to its promise of fair play, Impartiality and transparency by consulting with all stakeholders before determining dates for elections.
It is important to point out that the reason why the Constitution bars anyone who has been nominated or appointed as a candidate for election or has held office in a political organisation or actively identified himself or herself with such an organisation, two years before one is due for appointment as á member of the commission, is barred from being appointed is designed to ensure impartiality and Independence, in the exercise of one's duties. The public, especially the stakeholders have the absolute right to vet the performance of election officers. We have power to invite judicial intervention to declare any action that violates the Constitution null and void. It is long overdue for stakeholders to take their stand to ensure Independence and Impartiality of election commissioners. The C.V of all election commissioners should be covered by the media and their words and deeds as election commissioners should be monitored and made public if they contravene their mandate.
Section 5 subsection (5) of the Elections Decree has made it abundantly clear that "a person appointed as an election officer shall be a public officer under the direction and control of the Commission." No election officer should be dictated to by any official of a Political Party, Minister, Governor, Mayor, Chief, Security Personnel, etc. In fact the law has made it abundantly clear that the public could object to the appointment of any election officer who has been involved in election fraud and so on and so forth.
Section 6 of the Elections Decree makes it mandatory for the Commission to publish the names of all appointed election officers in the Gazette and invite the members of the public to raise objections. It reads: "Where the Commission appoints a person as an election officer, it shall publish that person's name in the Gazette inviting the members of the public to make objections to the appointment." Subsection (2) adds that "a member of the public who objects to the appointment under subsection (1), shall within 7 days of the publication of the appointment in the Gazette, give the Commission his reasons in person or writing for objecting to the appointment."
It is after this that the Commission is mandated to take a final decision on appointments.
According to Section 8 subsection (2), "The Commission shall enforce on the part of election officers, fairness, impartiality..." and compliance with all electoral laws.
We the stakeholders are duty bound to censor the C.V. of all electoral officers. The media could play a major role in publishing the names of all election officers and clerks to give wider circulation to the vetting process. The starting point of a credible or corrupt electoral process begins with the appointment of election officers and clerks. Once these officers and clerks are known to strongly identify with political parties those who come to register may feel that one political force or another would manipulate the voting system. It is therefore important for the commission to screen its staff to ensure that they are neutral and are seen to be neutral in the performance of their duties from the period of registration to the Conduct of elections.
Registration of Voters
The voter's card is what differentiates a citizen with power and voice and one without power and voice. A Citizen without a voter's card is a powerless and voiceless citizen. This is why Section 26 of the Constitution states that, every citizen of the Gambia of full age and capacity shall have the right, without unreasonable restrictions
a) to take part in the conduct of public affairs, directly or through freely chosen representatives
b) to vote and stand for elections in genuine periodic elections for public office , which elections shall be by universal and equal suffrage and be held by secret ballot.
It is therefore an entrenched provision that every citizen has a right to vote in elections conducted in secret so that no one will fear to cast one´s ballot for the person of one's choice. It goes without saying that the right to vote goes hand in hand with the right to be registered as a voter. This is clearly stipulated in section 39 subsection (1) of the Constitution which states: "Every Citizen of the Gambia being eighteen years or older and of sound mind shall have the right to vote for the purpose of elections of a President and Members of the National Assembly and shall be entitled to be registered as a voter in a National Assembly Constituency for that purpose"
Hence every Gambian citizen who has attained the age of 18 years, whether staying at home or abroad has power to demand that he be registered as a voter and that demand must be addressed.
Section 12 of the Elections Decree therefore states that"a person shall be entitled to have his or her name entered on a register of voters in a constituency, if
a)he or she is a citizen of the Gambia ;
b) he or she has attained , or will on the date of the holding of the next election attain, the age of eighteen years;
c) he or she is resident or was born in that constituency."
According to subsection (2) one must provide one of the following documents before being registered
a) a birth certificate;
b) a Gambian Passport;
c) A National Identity card;
d) A Document certified by five elders that the applicant is a citizen of the Gambia; or
e) A document certified by the District Seyfo or an Alkalo of a village of birth of the applicant stating that the applicant was born in the district or village.
The basic problem of the registration exercise is due to the fact that since the birth of the Republic there has never been a compulsory system of registering all births and deaths in every village. Moreover, the constitutional provision and Nationality Act do not make being born in the Gambia the sole determinant of citizenship. If one has been born in the Gambia before 1965 one may acquire a birth certificate that indicates that one is born in the Gambia but according to the qualification for citizenship by birth, one of one's parents or grandparents must have been born in the Gambia. If one has been born in the Gambia after 1965 one of one's parents must be a citizen of the Gambia before one is qualified to be a citizen. This is why IEC personnel in the past used to raise questions even if one brought a birth certificate or attestation from a District Seyfo or Village Alkalo or Document from elders. The government came up with an amendment stating that, "the Commission shall not reject a valid document produced under subsection 2." This provision is grossly misplaced since a birth certificate alone does not signify that one is a citizen under Gambian Law. Instead of changing the law to make being born in the Gambia sufficient to be a citizen, the APRC law makers prefer to constrain the IEC from making the necessary enquiries to determine whether a claimant is indeed a citizen under Gambian law.
It is easy to see that party stalwarts and other corrupt persons could easily transform themselves into professional attesters who would attest to any one´s citizenship as long as he or she is willing to give something or assure them of his or her vote. Any group of five could come together and be as important as an immigration department in determining who should get a National Identity document in the form of attestation.
It is necessary for the IEC to link attestation to the possession of a National Identity card so that the person could be traced. All those who have voters' cards by attestation and those who did the attestation should be published with street names and compound numbers. One could take unqualified persons to a revising court but the absence of street names and compound numbers in registers makes it virtually impossible to trace the voters. In fact the Activity report of the African Commission on Human and Peoples' Rights contains a report of the Final Decision to a case lodged by PDOIS complaining of corrupt registration practices due to the absence of street names and compound numbers for registered voters.
The APRC government promised to implement the decision of the Commission that there should be street names and compound numbers for the voters in the registers. However this has been honoured with utter disregard over the years. We are demanding that the decision of the African Commission be respected otherwise we would be compelled to rekindle the case.
It goes without saying that while the law has made clear provision for polling agents to monitor the conduct of polling it has not provided the same mandate for parties to hire agents to monitor the registration of voters. The stakeholders have to demand for the right to have agents to monitor the registration of voters and those who are interested in a free and fair voting system should include in any assistant package for the IEC provision to support registration monitors.
Finally, stakeholders should cooperate to give the names of all registered voters in a village, street or ward with questionable identity to NGOs or party activists to monitor whether any one knows such people in the specific area. Media exposures of all corrupt practices could help to serve as a deterrent.
In 2001 the APRC decided to remove the responsibility of demarcating Constituency boundaries from the IEC and lodged it with a Constituency Boundaries Commission which has not been established since 2001. The National Assembly was supposed to come up with an Act to determine the criteria for the demarcation of constituencies. This is still illusive.
The transitional instrument it created to enable the IEC to demarcate constituencies prior to the establishment of the Constituency Boundaries Commission simply tied the hands of the Commission to the old demarcation based on chieftaincy districts for areas outside the city and the municipalities.
Section 88 of the Constitution states that The National Assembly shall comprise forty eight (48)constituencies demarcated by the Constituency Boundaries Commission. This Commission does not exist. Since the APRC has the overwhelming majority in the National Assembly they have done nothing to establish a Constituency Boundaries Commission. Hence the transitional provision under section 50 subsection (3) should apply. However, if one looks at the provision it becomes absolutely clear that the current constituency boundaries cannot be changed by the IEC. It states: "Until The National Assembly establishes a Boundaries Commission under subsection (1) the Constituencies as prescribed in Part II of Schedule 1 of the Elections Decree, 1996 and any additional Constituencies, required for the purposes of section 88 (1)(a), demarcated by the Independent Electoral Commission in consultation with the appropriate Department of State shall be deemed to be
constituencies for the purpose of returning members to the National Assembly under that section."
It is clear that the IEC could only demarcate constituencies when there is amendment of Section 88. It is clear that the country falls far short of international standards which empower Independent Electoral Commission to delineate constituency boundaries on the basis of population density; geographical features, etc., after every census. This is why the provision which was amended makes it a requirement for constituencies to be demarcated in not less than 8 years and not more than 10 years. Now there is no criterion for determining how to delineate constituencies. A party which is awakening monarchical despotism from the dead would certainly not be keen in adopting standards of best practice in the building of representative institutions.
History is teaching that this is the era of the sovereignty of the people. Governments are only legitimate if they derive their authority from the undiluted consent of the people. This is the aim of PDOIS and it will work with all stake holders to make that inevitable.
On The Validity of Voting Cards
Initially Section 21 subsection (2) (b) of the Elections Decree stated before its amendment that a voting card "shall be valid for the life time of a claimant and may not be renewed". However in 2001 the voting cards were renewed after an amendment was made to the Elections Decree in April. The amendment states that the voting card shall be "valid for a minimum period of ten years before it is changed or replaced by the Commission."
What should have actually been done is not just to make amendments haphazardly. The best thing should have been to link demarcation of constituencies to the Census that is conducted every ten years which should be followed by General registration of voters. Within the ten years supplementary registration of voters should take place to register newly qualified voters.
The IEC is given the sole mandate, by Section 14 of the Constitution to determine and declare the period within which it is to carry out a general and supplementary registration of voters in a constituency. The IEC with the support of the UNDP country office had engaged an election consultant in the person of Kwame Damoah Agyemang to prepare a report on the strengthening of the electoral process in the Gambia in 2008 which delved into registration methodology. It is endorsed by all stakeholders that General registration should take place before the next Presidential and parliamentary elections. The fact that the IEC has not held any supplementary registration of voters since the last election cycle confirms its intentions not to waste money on supplementary registrations. This decision, however has not been serving those who have reached the age to vote and who have been deprived of participation in all the by elections after the Local Government elections. Now it is still not certain when registration of voters would commence.
Under the present circumstances, General registration of voters cannot take place in March. According to Section 16 of the Elections Decree a notice to hold general registration of voters shall be published "not less than thirty days before the days of registration"
If no decision is taken on the registration of voters up to the end of Middle of April then a National Conference should be held to examine what would have been an institutional crisis for the IEC and get the stakeholders to map out a way forward, constitutionally and statutorily.
It is in the area of Finance that the state has displayed its incapacity or unwillingness to make the IEC work with efficiency and effectiveness. The IEC is made an autonomous public institution by the Constitution. In the area of Finance Section 44 of the Constitution states that "The Independent Electoral Commission shall submit its annual estimates of expenditure to the President for presentation to the National Assembly in accordance with this constitution. The President shall cause the estimates to be placed before the National Assembly without amendment, but may attach to them his or her own comments and observations"
Hence the financing of the registration of voters should have been budgeted for and approved by the National Assembly. The reports of the IEC have made it clear that the Constitutional provisions are not being adhered to. The IEC is treated by the Ministry of Finance more like a Government Department than an autonomous body. The IEC is required to defend its budget before the Ministry of Finance and is required to adapt its budget to ceilings established by the Ministry before it is submitted to the National Assembly. The IEC has made it clear in its 2006/2007 report that the IEC had to receive ten thousand dollars from the head of state to buy films to conduct supplementary registration of voters. In it's 2008/2009 Annual Report the IEC indicated that it prepared a budget amounting to D7, 672,211 (seven million six hundred and seventy two thousand, two hundred and eleven dalasis) to finance the local Government elections but that up to the time of
going to the polls the government had not released the money requested for the conduct of the elections. Financial assistance had to be provided by donors through the basket fund amounting to over 5 Million dalasis.
The IEC should hold a Press Conference and tell the Nation how much it has budgeted and how much has been allocated by the Gambia Government for the registration of voters.
THE WAY FORWARD
The People of the Gambia should be conscious of the fact that the period, 2011 to 2013 constitutes another electoral cycle. This period is the opportunity they have to determine the destiny of their country by casting their ballot in secret to entrust their sovereign power to a person of their choice who should shoulder the responsibility to serve them without fear or favour, affection or ill will. They should not allow their individual initiative to be diluted by corrupt electoral practices. All Gambians who live in the urban area should take note of their street names and compound numbers and use them during the registration exercise. Each should try to know the people living in one´s street and should check the list of voters once they are posted to see whether the right people have registered. Each should have a birth certificate, a national identity card, a passport, an attestation from an Alkalo of one´s village or chief of one´s district or a document certified by five elders that one is a citizen. The IEC should prepare such documents and issue it only to a person who makes a claim to be registered. It should be illegal for any other person to take possession of a bulk of such documents if one is not an authorized staff of the IEC:
NGOs and the Media
The NGOs that are interested in free and fair elections should begin to educate the people to keep the documents they need for registration in close proximity and be prepared to be among the first to get their voter's card. The NGOs should develop programmes to put up sign boards to identify street names and put compound numbers on gates in all urban centers. They should interview the IEC to find out whether they would require street names and compound numbers to be put in the list of voters for proper scrutiny. They should examine the security features of the forms that will be available for attestations and should serve as monitors during the registration exercise. They should publicize the name of electoral officers and monitor whether they could be Independent and Impartial.
The political parties should cooperate at the level of the inter party committee to establish a credible institution that the international community could rely on to gauge the needs of the IEC and whether the environment is conducive for free and fair elections. Each party should be empowered to post monitors at each registration centre to monitor the registration process. They should be positioned where they could see and hear interviews and responses of claimants and further gather information to prepare for objections that would be heard by revising courts.
The Government should enter into partnership with the Political Parties, The IEC and The International Community to ensure that there is free and fair elections. The 2011 to 2013 election cycle is the most significant electoral period in the history of the Gambia. Each Gambian must take his or her sovereignty seriously and become the architect of a destiny of liberty, dignity and prosperity.
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