By: Ousman Saidykhan
The Supreme Court of The Gambia has ultimately dismissed the case brought by Ousainou Darboe, leader of the opposition United Democratic Party, and Ebrima Dibba. Darboe and Dibba challenged the appointments of six special advisers and deputy special advisers to President Adama Barrow, the Public Service Commission, and the Attorney General. The court stated that these appointments are valid and fall within the authority granted by the Constitution.
The UDP leader and Mr. Dibba, who are the first and second plaintiffs, respectively, argue that the appointments of the first defendants—Dembo Bojang, Lamin Cham, Dodou Sanneh (also known as Do Sannoh), Henry Gamez, Lamin K. Saidy, and Sulayman Camara—violate Section 170 of the Constitution. They contend that these individuals were holding positions at the time of their appointments, making the appointments unconstitutional and, therefore, null and void.
The plaintiffs sought an order from the Supreme Court directing all the first defendants to cease to act, preside, describe themselves, or perform the functions of the posts they had been appointed to by President Barrow.
“The court further finds and holds accordingly that the appointments by the President under Section 80 of the Constitution of the 1st defendants…whilst they hold office in various political parties, does not contravene Section 170 of the Constitution. The appointments are valid and intra vires (within the powers of) the ConstitutionConstitution. The claims of the plaintiffs are accordingly dismissed in their entirety,” said the jury, headed by Chief Justice Hassan B. Jallow.
The plaintiff called two witnesses: Kamo Bojang, a councilor in KMC, and Haddy Jagne, a transcriber in the Judiciary. Mr Bojang tendered video recordings downloaded from the Internet, marked as Exhibits P1 to P7. He said they were evidence of the first defendants’ holding of offices in their political parties. Meanwhile, Haddy testified to transcribing the audio from the said videos.
The judges agreed with the plaintiffs that the first defendants held office in their political parties at their appointments by the President under Section 80 of the Constitution.
Dembo Bojang was the National President of UDP and, subsequently, the National President of NPP. Dodou Sannoh, National Organising Secretary, NPP; Henry Gomez, Leader of Gambia Party for Democracy and Progress (GPDP); Lamin K. Saidy, National Youth Coordinator of NPP; Sulayman Camara, Secretary for Madia and communication of NPP; and Lamin Njie, National Campaign Manager of NPP.
Section 80 of the Constitution gives powers to the President to constitute public offices and make appointments and terminations. Section 170 (1) of the Constitution also states: “A person holding an office in a public service shall not hold office in any political party.
Senior Counsel, Lawyer Darboe, argued in his statement of case and final oral address that Section 170 of the Constitution has been breached. He submitted that any appointment by the President under Section 80 of the Constitution is an appointment into a Public Office and that any such appointment into public office is an appointment into the Public Service, making reference to the Constitution and Public Service Act.
The counsel for the first defendants, I. Drammeh, on the other hand, said there is a constitutional distinction between public office and public service. Counsel Drammeh argued that the restriction on holding office in a political party imposed by Section 170 (1) of the Constitution applies only to public officers who are members of the Public Service.
She argued that the first defendants are not disqualified from holding office in a political party while holding office under Section 80 of the Constitution, submitting they are not Civil Servants and urging the court to dismiss the plaintiffs’ claims.
The counsel for the second and third defendants, Y.H. Cox, also submitted that the President’s power to appoint under Section 80 of the Constitution is separate and distinct from the power to appoint to the public service, arguing that the limitation on holding office in a political party imposed by Section 170(1) of the Constitution does not apply to appointees under Section 80.
“Both learned senior counsels of the defendants were right in their submissions in this respect. The Code of Conduct for Public Officers in Chapter XXI of the Constitution, for instance, clearly illustrates the distinctions between the position of a public officer and a public servant,” said the court in the judgment. “There may be an overlap between the two, but they are not synonymous.”
The jury held that holders of office under Section 80 fall under Chapter VI of the Constitution dealing with the Executive, whereas the restriction on political activities of office holders falls under Chapter XI, and its application is limited to public servants or civil servants.
“Thus, whereas all public servants are public officers, the reverse is not accurate as not all public officers are public officers are public servants,” said the Judges.
