By Mamadou Dem & Rohey Jadama
Three petitions filed by the Alliance for Patriotic Re-Orientation and Construction (APRC) challenging the outcome of the December 2016 Presidential election could not proceed yesterday, 10 January, at Gambia’s apex court because of the fact that the judges expected to constitute the panel did not turn up.
Attorney for the petitioner (APRC), Edward A. Gomez, accompanied by Ibrahim Jallow, disclosed to the court that the first respondent, Independent Electoral Commission (IEC), were still not served. “I was reliably informed by the process server, Mr. Gibba, and I believed in the facts stated in the affidavit which he swore,” he told the court. He added “I was informed that he was hindered from effecting service because when he went to the premises of the IEC, he could not find anyone to serve with the process of this court.”
Lawyer Gomez continued “My lord, for that being the case, we crave the indulgence of the court to file the necessary papers to substitute services.”
He said he would file fresh summons to be published in a popular newspaper.
The second respondent, the Attorney General, represented by Saffie Sankareh, did not object to the application for adjournment to enable services on the first respondent (IEC).
Consequently, the trial judge ruled that the matter shall be adjourned to Monday, 16th January, for services to be effected on the concern parties as well to allow Mr. Gomez to make an application for substitution.
In another petition filed on behalf of the outgoing president against the Independent Electoral Commission (1st respondent), the Returning Officer of the IEC (2nd respondent), Adama Barrow (3rd respondent) and the Attorney General (4th respondent), the attorney for the petitioner disclosed to the single judge that he believed the 1st, 2nd and 3rd respondents were not served. “Hence, there is no affidavit of service, then there is no proof of service. I’m diligently informed that the process server has done everything possible to effect services on the 1st 2nd and 3rd respondents but to no avail. For that circumstances, we intended to file an application seeking for an order for substitution of service,” said lawyer Gomez.
At this juncture, Chief Justice Fagbenle intimated that he received notices from Sierra Leone and Nigeria indicating that the judges that were said to be appointed by the Gambia Government cannot make it to the Gambia for the January season.
According to Justice Fagbenle, the judges within the sub-region are familiar with Gambia’s Supreme Court sittings as they do sit in May and November respectively. “If we have to adjourn then it has to be in May or November unless ECOWAS intervention gives us some judges because even if there is substitution on the application for services to be effected, the petition could only be heard if the Supreme Court constitutes the panel of judges as required by law. They are saying January is not common with them because they are familiar with May and November respectively. So the next time we expect them here would be in May,” he said.
Lawyer Gomez said “My lord, I’m aware we will advise ourselves on what to do.”
In his ruling, the trial judge said in view of the application by the petitioner to file an application for substitution of service and also ensure services on the other parties, the case is coming up for the first time and there is no proof of service on the parties concern.
“Given that I have received notice from Nigeria and Sierra Leone that the judges cannot make it for January season, it is very clear that the petition can only be heard before a panel of Supreme Court judges.”
He added that the said judges were appointed since July 2016 and were released by the Judicial Service Commission (JSC) of their respective countries and are expected in May and November. He called for the mediation by the regional body, ECOWAS as a “welcome decision.” “Any alternative resolution for the settlement of the dispute is welcome,” said the chief justice.
The Chief Justice further noted that the intervention of the ECOWAS mediation team can assist Gambia to resolve issues even before the court, adding that Gambia is known for peace and has contributed towards peace keeping. “Every contribution is important and every sacrifice is paramount. I urged the elders of The Gambia not to be tired in yearning for peace,” appealed the chief justice.
In a similar but different petition against the IEC, Adama Barrow and the Attorney General, filed by Yankuba Colley on behalf of the APRC, the same issues of substantive and application and lack of services on the parties were reiterated. Consequently, the matter was adjourned to the 16th of this month for further mention and services.
However, prior to the commencement of the case in chambers, APRC supporters and sympathizers were seen wearing t-shirts and photos of the outgoing president and singing and dancing within the court premises. After the court proceedings, they converged at the entrance of the court and marched towards Mccarthy Square.
Talking to journalists after the court, Barrister Gomez said his advice to his clients is to pursue their legal right to the fullest, adding that the outgoing President is entitled to his opinion on the inauguration of the incoming President Adama Barrow and also on the right of the APRC to pursue its case before the court.
Asked to shed light on his reaction regarding the position of the chief justice that the case cannot proceed in court in the absence of judges. He responded, “My reaction is to wait till there is a full panel.”