Sabally Disqualified: Why Did Justice Apongabuno Achibonga Rule Against The UDP Strongman?

By Amara Thoronka

On Friday 1^st April 2022, high court judge Justice Apongabuno Achibonga ruled against the United Democratic Party (UDP) strongman Momodu Sabally in the case between him and the country’s elections body.

Early last month, Mr. Sabally was disqualified by the Independent Electoral Commission (IEC) on the basis that adverse findings were leveled against him by the Janneh Commission of Inquiry. Dissatisfied with the decision of the IEC, Sabally went to court.

Below are key highlights of Justice Achibonga’s ruling:

“Section 90 (1) (e) of the 1997 Constitution of the Gambia states: No person is qualified for election as a member of the National Assembly if he/she has been found by the report of a Commission of Inquiry, the proceedings of which have held and published in accordance with the relevance laws to be incompetent to hold public office by reason of having acquired asset unlawfully or defrauded the State or misused or abused his/her office or willfully acted in a manner prejudicial to the interest of the State; and the findings have not been set aside on appeal or judicial review”

“From the above, the grounds for which a person can be said to have been found to be incompetent to hold public office are when a Commission of Inquiry finds:

1. That the person has acquired asset wrongly
2. That the person defrauded the State
3. That the person misused his/her office
4. That the person abused his/her office
5. That the person willfully acted in a manner prejudicial to the interest of the State”

“In this case there is no dispute that there was a Commission of Inquiry set out to inquire into the financial activities of corporate bodies, enterprises, and offices as regards their dealings with former President Yahya A.J.J Jammeh and connected matters. There is also no dispute that the Commission submitted its report to the Government, and there is no dispute that the Government issued a white paper accepting the findings and recommendations of the Commission”

“In the said report [page 270], the following finding was made against the applicant: Former Secretary General Mrs. Mobugbu L. Bah and Momodu Sabally facilitated the processes for ex-president Jammeh to withdraw sums of money from numerous accounts. The proceeded that Mr. Momodu Sabally withdrew One Hundred Thousand United States dollars from the national youths government fund on 13^th February 2014 and One Million United States dollars from the international gateway account and monies should be refunded by him”

“From the above, there is specific finding made against the applicant (Momodu Sabally) by the Commission of Inquiry which findings in my view qualify the law under the basis for which a person can be incompetent to hold public office. I am therefore satisfied that there are specific findings made against the applicant by the Commission of Inquiry which qualifies the basis upon which the applicant has been said to be incompetent to hold public office. The Commission recommended that the applicant should not serve in public office for ten years.

“As to whether the findings and recommendations of the Commission of Inquiry are right or wrong is not for this court to determine as it does not have the jurisdiction to do so. There is no evidence before me that shows that the findings of the Commission of Inquiry have been set aside or the enforcement of same has been suspended”

“Having found that there is a commission of inquiry report that has made adverse findings against the applicant so as to make him become incompetent to hold public office and debarring him from serving in public office for ten years, the next issue is whether or not the 1^st Respondent (Independent Electoral Commission) can rely on the findings and recommendations of the said commission of inquiry to reject the applicant’s nomination. The resolve the above issue, guidance should be heard through the Elections Act. Section 39 (2) od the Elections Act provides that: a person who desires to be nominated as a candidate for any elective office shall before the acceptance of his/her nomination papers must satisfy the requirement in the Constitution, this Acts [Elections Act] and any other Act.

“Section 47 (1) of the Elections Act provides as follows and I quote: Where a Returning Officer finds that the particulars of the nomination do not comply with the legal requirement for nomination, he/she shall reject the candidate’s nomination papers. This empowers the Returning Officer to scrutinize the nominee to ensure that he/she is qualified under the Constitution or any other law to be so nominated for that elective office”

“I find that the Returning Officer acted within the remit of his power by law in rejecting the nomination papers of the applicant and was right in law in rejecting the nomination paper of the applicant. The decision is in accordance with law”