By Madi Jobarteh
To start with, there should be no attestation for the purpose of obtaining a voter’s card. This is because only citizens are required to vote. Citizens acquire a birth certificate and a national ID card as the primary legal evidence of citizenship status. But an attestation only confirms if one was born in a particular locality. Yet to be born in any part of the Gambia does not necessarily confer citizenship as prescribed in the Constitution. Secondly an attestation cannot determine the age of person. Hence attestation could potentially enable a non-Gambian and an under-aged person to obtain a voter’s card which is unconstitutional and illegal. Therefore, attestation as a means to obtain voters card should be abandoned.
The Elections Act in Section 12(2)(e) amended in 2001 provided that either a birth certificate, ID card, passport or an attestation should be produced in order to register. For an attestation, it stated that it should be signed by an alkalo of a village or a seyfo of a district. Clearly this provision has not mentioned a mayor or a chairperson and indeed any other public official. Therefore, no mayor or chairperson, councillor or National Assembly Member could assume that power on his own. IEC cannot also confer such authority on any other person other than an alkalo and seyfo.
Yes, Banjul and Kanifing Municipality have mayors. But in the case of Banjul particularly, there is no neighbourhood of the city that has an alkalo or seyfo. Thus, on a logical basis, and in order not to disenfranchise some people, one may argue that the IEC could allow the mayor to assume the function of giving attestation. One can argue that the IEC could take this decision based on Section 127 of the Elections Act which has empowered the IEC to resolve issues not addressed in the Act based on natural justice and fairness. One can even go further to cite Section 134(2) which gives power to IEC to make rules for the better carrying out of the provisions of the elections law.
I do not think one can depend on the above provisions to make the mayor give attestations, nor can we assume that the fact that there was no expressed provision for that purpose, such power could be derived or implied. Where and how is that power implied from? Is it just because Banjul has no alkalo or seyfo? Or is it that because failure to give attestation may disenfranchise some people? True and legitimate as those concerns maybe, they are still inadequate to give power to the mayor to give attestation.
I do not think the mayor or anyone can change a substantive provision by adding or reducing it just to take care of what was not addressed originally. For example, the law identified a birth certificate, ID card or passport as one of the documents necessary to register, but it did not mention a driver’s license. Therefore, under no circumstance could the IEC add a driver’s license to the list just because one may not have all of the above documents for any reason.
We must bear in mind that the fact that there is a specified list of documents means that the law drafters and lawmakers knew what they wanted. The lawmakers, who are in fact from political parties knew there was a city called Banjul which has neither an alkalo nor a chief. They did not forget nor were they ignorant of that fact, hence we cannot correct that issue now by the mayor giving attestation. That, to me, would defeat the purpose of sections 127 and 134 as well as effectively give unlimited power to the IEC to practically change any provision in the Elections Act.
I hold that sections 127 and 134 give such powers as to enable IEC to address operational and administrative issues for the purpose of better implementation of the provisions of the law. But sections 127 and 134 cannot give the power to IEC to make substantive changes to any provision which would tantamount to making the IEC a lawmaker. Hence if the IEC can add a mayor to the list of persons who can give attestation then IEC is amending that provision (Section 12.2.e) for which it has no powers to do so. Therefore, there is no basis for the Mayor of Banjul to give attestations.
In making this observation it is also necessary to state that this unfortunate scenario only highlights, once again the failure of political leadership ranging from the Executive to the Legislature to political parties and IEC. The practice of attestation was first introduced in the laws in 2001. But on 17 June 2015, the Gambia Opposition for Electoral Reforms (GOFER) submitted a 12-point document in which the removal of attestations was one of the key demands. They perceived attestation as fraudulent. In the document, this is how they put it,
“The Opposition endorsed the IEC’s recommendation to the National Assembly for electoral law review to exclude Attestation Forms from the documents that are to be forwarded to the Registration Officers during registration of voters to determine citizenship and the request to re-introduce the screening of registration applicants by registering officers.”
GOFER was constituted in 2012 by GMC, GPDP, NRP, PDOIS, PPP and UDP and they submitted their demands in 2015 jointly to the President, IEC Chair, the Speaker of the National Assembly, the Chief Justice, the Attorney General and Minister of Justice, the Secretary General, as well as to the UN, AU, EU, ECOWAS, US Secretary of State and Rev. Jesse Jackson. Wow! The issue of attestation has been a very longstanding contentious issue. For example, the Commonwealth election observation mission noted in their observation report on the 2011 presidential election that opposition parties and CSOs had raised the issue with them that the practice was prone to abuse.
Therefore, one wonders how come the issue of attestation still remains in the law when these GOFER parties were the ones that formed a coalition to remove the former regime. Most of them are currently key members in both the Executive and the Legislature. In 2017, when they amended the electoral law to reduce the cost of nomination, why did they not also remove attestation altogether as a long-held concern? Even in the Elections Bill 2020, one can find attestation still there! Why?
Therefore, none of these parties and indeed the IEC has any moral authority to support or oppose attestation today because they had the opportunity to change it since 2017. Why did they refuse to do so? Rather, what is manifesting is the utter failure and lack of political will by the President, political parties and their leaders and the National Assembly. They have demonstrated that they are good at only rhetoric and showmanship but they lack any commitment to the true transformation of this country into a true democracy and good governance.
Just as it is with attestation so also is the same poor leadership they have shown when it comes to diaspora voting. While they all love to pontificate about the right of Gambians abroad to register and vote yet no party or its leader, neither the Government nor IEC has shown any genuine interest or taken any practical step to make it happen. Otherwise the diaspora would have registered and voting since a decade ago!
Stand up and speak up to hold political party leaders accountable!
For The Gambia Our Homeland