documentBy Halifa Sallah
4th February 2013
President of the Republic
UFS Head of the Civil Service
Re: ON THE HARASSMENT OF THE INCUMBENT COUNCILLOR OF SUTUKONDING WARD
I am writing to you because it falls within your purview to appoint the members of the Management Committee that oversees a council after its dissolution, three months before the election of its members, as required by the Local Government (Amendment) Act 2007.
It is therefore important to bring to your notice the ultimate consequences of leaving loopholes in the administration of the Act which bred uncertainty on the part of a law abiding incumbent Councillor of Sutukonding Ward and fueled impunity of the highest order on the part of APRC party stalwarts.
You would agree with me that a National Assembly member and APRC Constituency Chairman and other party stalwarts have no jurisdiction in the administration of Councils and have no locus standi in determining Ward Development Committees. In the same vein incumbent Councillors before elections, are to be bound and guided by the provisions of the Constitution, the Laws enacted by the National Assembly and by-laws enacted by the councils. This assertion is incontrovertible.
Suffice it say that police officers are enforcers of the law and not its interpreters and adjudicators. They have no legal power to hold a law abiding person and impose an ultimatum for him to hand over materials belonging to a Ward Development Committee to a stranger, who has not provided any evidence to prove that she is legally mandated to receive them or face arrest and detention.
Any police officer who restrains any natural person for an issue that has nothing to do with suspicion that she/he as committed a crime or is about to commit one, should be held accountable for abuse of authority or be taken to the high court, under a civil suit, for unlawful arrest and detention. The question now arises: What then is the point at issue?
The local Government Elections is scheduled for 4th April 2013. The only local Government seat in the URR which has an opposition as an incumbent Councillor is Sutukonding Ward. The Electoral Commission has been engaged in sensitisation to convince the people that a level ground exists for free and fair local government elections. For your information the incumbent Councillor Saibeh Juwara has been subjected to trespass at his home by uninvited visitors and harassment by being summoned to a meeting at the Chief's residence without any just cause and was called upon to report at the Basse police station on two occasions where he was later subjected to unlawful arrest and detention from Thursday at 1.30 PM up to Sunday morning without being charged for a crime or being confronted with anyone alleging the commission of an offence. In short, since his arrest and eventual release on a 50,000 dalasi bail bond on Sunday, Saibeh was not told the crime he had committed or was suspected of being about to commit. The only question he was asked since his arrest was why he refused to hand over items he managed as Chairperson of the Sutukonding ward development Committee to a girl of unknown legal status. His answer, which he kept on repeating like a broken record has been: "I will only hand over to a person as prescribed by any law or by-law in force or on the basis of a written request from a constituted authority that has the legal mandate to issue such a memorandum".
The only answer he could get from the Station Officer, Basse Police Station regarding the cause for his arrest and detention is that it is an order from above. However that person above is still a ghost that is invisible to the naked eye.
This is why I chose to bring the whole matter to your notice for you to understand what people in the rural areas are going through even though it is claimed that there is community policing and that there exists equal standard of and access to justice irrespective of place of residence in the country.
The fishing expedition started on Tuesday, 29 January 2013 when the incumbent Councillor Saibeh Juwara received a verbal invitation to attend a meeting to be convened, the following day, at the residence of the Chief of Wuli West. When he arrived at the Chief's residence on Wednesday 30th January he met the Chief sitting with National Assembly member Kasim Jallow, the current member for Wuli West; Kassim Sowe, Kolly Bah, Mawdo Fatty and Langkoro Jawneh, all APRC stalwarts who had nothing to do with the Council that has been dissolved, the Ward Development Committee which was in existence or the interim Management Team which has been constituted to perform the functions of the Councils prior to the holding of council elections.
Despite my position on the constitutionality of such a management team which is beyond the scope of this memorandum, you would agree that any mature and fair minded person would expect the Management team to comprise technocrats who have no vested interest in usurping the role of councillors or in determining the outcome of the elections. To Saibeh's surprise it was the National Assembly member who requested for him to handover all the items he was entrusted with by the Ward Development Committee to a girl who had no credentials or letter from lawful authority in her possession to prove that she had the mandate to assume the responsibility of a trustee of the ward development Committee without any prior consultation with the Committee or the incumbent councillor of the ward.
Saibeh refused to cooperate with them unless they could show him a by-law that indicates that he should hand over to such a person or an official letter emanating from a responsible authority who has the legal powers to dispatch such a memorandum, stating the same. Since the National Assembly member and his team could not provide any document the meeting could not achieve the purpose for which it was intended and Saibeh went home.
The team of APRC stalwarts did not relent in their determination to compel the incumbent Councillor to hand over to the young girl. One of their youth leaders Langkoro Jawneh led the team to the incumbent Councillor's residence for further discussion. Despite the huge crowd which assembled at the compound Saibeh refused for the dialogue to be confrontational and maintained decorum as he stressed his position of non compliance with arbitrary requests that are not grounded on any legal authority.
They left Saibeh's compound only to return with three police officers in uniform and two in plain clothes who invited him to the police station in Basse.
He complied with their invitation and met Superintendent Danso who inquired into the matter. Saibeh explained that a group without any document to show that they are from constituted authority requested for him to hand over to a girl and that he had gone further to intimate to them that he would not do so until they bring an official letter to that effect. The Officer acted professionally and told him that if he knew the long and short of the matter, in advance, it would have sufficed to discuss the matter on the phone.
Saibeh left the station after 7pm and went home. On the following day, Thursday 31 January 2013 to be precise, Saibeh went to Basse on some errands and received a call from Police Commissioner Jatta who asked him about the handing over. When Saibeh maintained the same position he invited him to his office and later directed him to report at the Basse Police station. Saibeh left everything he was doing and went to the station thinking that he would be received with the same amount of respect he was first shown when he appeared there on Wednesday.
To his surprise when he arrived he was not engaged in a discussion. He was asked to sit behind the counter from 1:30 pm up to about 8pm before a plain clothes officer asked him to write a statement. When asked whether he was charged for an offence and what for, the officer told him that all he knew is that he has not handed over and there is no charge. Saibeh repeated the same thing in his statement and maintained that he would only hand over when there is a memorandum from lawful authority. After writing the statement he again asked whether he could leave and the response was that he should wait. Police officers continued to maintain that he was not under arrest but also told him that he was not free to go home. Technically Saibeh concluded that he was under arrest and detention. He was kept over night on Thursday 31st January. On Friday 1st February, the family members prepared themselves to meet any bail condition but were denied the opportunity to offer sanctuary to their loved one.
Mr Kijera, Mr Drammeh and Mr Juwara made effort to secure bail but to no avail. The officers insisted that he would acquire bail only if he hands over. The stand off continued up to Sunday when the 72 hours deadline had to compel the officers to allow him to secure bail by two sureties, Jambo Camara and Saikou Jawneh, who signed bail bonds to the tune of D50,000 dalasi. He is to report today without committing any crime.
Allow me to state the laws before showing how the behaviour of the APRC stalwarts and the police at Basse were in breach of the laws of the land.
First and foremost, Section 193 subsection (1) of the Constitution, which is an entrenched provision, states that: "Local Government administration in the Gambia shall be based on a system of democratically elected councils with a high degree of local autonomy"
Section 9A of the Local Government Act as amended added that:
"(1) A Local Government Council shall stand dissolved ninety days before a Local Government election.
"(2) On the dissolution of a Council, The President shall appoint, for each Local Government Area, an Interim Management Team, consisting of such persons as he or she may determine, to perform the functions and exercise the powers of a Council until the day preceding the first meeting of a Council after a Local Government election."
It is beyond the scope of this memorandum to dwell on the constitutionality of the replacement of the democratically elected councils by interim management teams comprising appointed members who are neither autonomous nor elected. We would go the Supreme Court for a decision on this matter if negotiations in the future do not lead to amendments.
What is relevant for Saibeh's case is that the provision provides for an interim Management team to replace the Councils. The Local Government (Amendment) Act 2007 did not touch on the state of the Ward Development Committees during the three month transition. It did not state the status of the Management team with regards to the properties of Ward Development Committees and the trustees. It did not talk about the status of the incumbent elected councillors or how and when they are to hand over any matter dealing with the ward development committees to an unelected individual member of the management team.
Hence what should have happened is for by-laws to be enacted to guide the operation of local committees such as ward development Committees during a transition period.
Section 54 of the Local Government Act states that: "A Council shall have powers to make laws not inconsistent with the Constitution or any other law made by the National Assembly."
Furthermore section 60 confirms that: "A Council may make By-laws for the guidance of its local committees, National Council of Seyfolu, District, Ward or Village Committees within its jurisdiction."
The Council had powers to make by-laws explaining what should happen to the Chairpersons of Ward Development Committees during transitions before its dissolution but did not exercise them and thus left a lacuna to be filled by the Ward Development Committee by relying on its own rule of procedures to manage their properties, in the interim, until the councilors are elected before proper handing over is done, if an incumbent councillor loses a seat.
At this stage If the management team is to decide on such a matter it must come up with By-laws that would treat all incumbent councillors in a uniform manner as dictated by the rules. The process of enacting By-laws is however cumbersome. In short, the enactment of by laws starts with the passing of a bill by the council.
Furthermore",(3) a local bill passed by a Council shall, before it is signed by the Governor, be forwarded to the Minister, who shall request the Attorney General to advise him or her whether or not the local bill is inconsistent with the Constitution or any other laws of the National Assembly."
Secondly, the by-law must be published in the Gazette as follows:
"(5) A By-law enacted by a Council, certified by the Minister and signed by the Governor shall be a By-law of the Council and shall be published in the Gazette and the local media.
Lastly "(6) The public shall be given access to any By-law passed by a Council."
Hence it is clear that in the absence of By-laws a responsibility entrusted by a ward Development Committee cannot be handed over to any other authority by the trustee. It could only be handed over to the Committee upon its request. Proper safeguards must be put in place to ensure that accounts are properly audited and signatories to accounts properly changed.
Where law is silent standards of best practice takes its place. The proper thing to do is for the incumbent to remain chairperson of the Ward Development Committee until the next following council assumes office and everything is handed over to a new councilor to ensure continuity and democratic transfer of power. This is how to avoid endless changes of signatures.
Suffice it to say that in the absence of standards of best practice, consent takes its place.
Since no provision exists on how the Ward Development Committees should relate to the incumbent Councillor during the transition, a meeting of the incumbent councilors, with the Officers of the Ward Development committees and the Interim Management team should be initiated to reach a consensus on the way forward during the transition.
We therefore hope that the Inspector General of Police will investigate the role of the police in this case and provide the necessary instructions to prevent them from straying into civil and electoral matters which are within the jurisdictions of the courts and the IEC, respectively. The Minister of Regional Administration should look at the lacuna in the law regarding the management of Ward development committees during the transition so that the appropriate by-law would be put in place in consultation with the office of the Attorney General. The office of Attorney should also examine the constitutionality of the management team in the face of the requirements of section 193 (1) of the Constitution.
Lastly, the APRC should put its members on the know of what is the rule of law and bar them from utilizing the authority of chiefs and the police to carry out activities that they are not mandated to handle.
To conclude, it is important to note that this case tends to show the state of the criminal justice system in the rural areas. If a renowned Councillor could be bundled up like this for no just cause, which poor farmer could hope to have his/her right protected unless your government gives examples of the implications emanating from violation of the rights of others. Where there is no political will to defend rights those at the grassroots are bound to suffer more from the deficits of liberty.
In that regard we are expecting concrete action from the government to resolve this miscarriage of justice otherwise we will be left with no option but to go to the courts for redress.
While anticipating maximum cooperation on the side of all stakeholders to address this miscarriage of Justice,
Yours in the service of people
CC. Attorney General
Minister of Regional Administration
Inspector General of Police
The Governor, URR
The National Assembly Member, URR
The Commissioner of Police, URR
The Incumbent Councillor
The Ward Development Committee