Gambia: Citizens Abroad Excluded From Election Excercise

Zimbabwe elections 2008, ballot box
opinion

It has been rightly argued that one of the fundamental pillars of influencing citizenry driven processes and expression of choice on how individuals wish to be governed is through voting. A week ago, the IEC forged ahead with its voter registration but 200,000 others who are living abroad, eligible Gambians and potential voters, were excluded from this exercise.

In mid-July this year, President Adama Barrow voiced lamentations at the difficulties associated with the Diasporans' right to vote. His excuses harbored technical difficulties in deploying such an exercise. He re-echoed the Independent Electoral Commission's own 'solution' to the continued disenfranchisement of the more than 200,000 eligible voters living abroad by simply suggesting that those Gambians could simply 'return' home and vote. A simplistic and lazy solution to an issue that is not new. The matter of Diaspora voting was one of the major priorities of the Coalition government, which Barrow led when victory was visited upon the new Gambia with the ouster of a 22-year-old dictatorship, whose demise was, in no small measure, supported by the Diaspora. They are now being disparaged and discriminated against by the very administration they helped bring to power. Indeed, Gambians abroad are once again being taken for granted.

Aside from the lack of political will, amply demonstrated by the Barrow administration, which had at least four years, to ensure that the political rights of all citizens, including the Diaspora, as enshrined in the Constitution, is respected, is also a matter of simple legality and constitutional obligations. Even the Supreme Court has ruled on this and reaffirmed the very principle on 27th January this year that the systematic and continued disenfranchisement of the Gambians living abroad is illegal and constitutes an assault on their fundamental rights. The highest court of the land so affirmed that: "Pursuant to section 39 of the Constitution, every Gambian, including those residing outside the jurisdiction, is entitled to be registered and to vote in an election to the offices of President, members of the National Assembly, for local government offices and traditional rulers as well as in referenda".

The clause in the Constitution under the political rights of citizens is the cornerstone of the fundamental right of freedom of expression, right to freedom of assembly, and participation in any democratic dispensation. Since 1996, and subsequently, after the birth of the Second Republic (to which we subscribe to and are guided by), the Government of the Gambia did not extend the right to vote to Gambians living and working abroad. More than 200,000 Gambians abroad have been systematically discriminated against and disqualified from enjoying the franchise and determining who and how they wish to be governed. The IEC, also, in no small measure, continues to abdicate its responsibility to show good faith and demonstrate goodwill to ensure that no citizen is denied the right to vote. It even went as far as admitting in court papers that it has indeed not lived up to expectation and took responsibility for the systematic omission of protecting and promoting the right to universal suffrage being extended to Gambians living abroad.

Added to this, the IEC chairperson had on many occasions made utterances to the effect that the disenfranchisement policy would be a thing of the past in the new Gambia. He was asked if Diaspora voters will have to register at their nearest embassies or at polling stations, to which he replied, "we have to conduct a study tour" to determine that ", and we have done two so far, we've been to Cape Verde and Sierra Leone, and hopefully we will do another study tour in Europe and the States". It is unclear what criteria were used to determine these two countries for study tours.

Further to this, the IEC had in 2020 announced a date for Diaspora voting, raising the hopes and expectations of many. The IEC again published its calendar, which aimed to conduct voter registration nationwide from 14th January to 26th February 2021. Diaspora voter registration was scheduled to take place from 1st July to 31st July 2021. This was substantiated by Samboujang Njie, IEC CEO, who stated: "It is in the Commission's plans to register the Diaspora. I can assure you that the IEC is very committed and ever ready to ensure that the Diaspora can vote. We didn't include them in the recent calendar because we want to conclude with the domestic registration first, after which we will communicate the date for the Diaspora registration". Alas, true to form, this statement was finally contradicted by his boss, Mr. Alieu Momar Njie, who stated on Friday 28th May 2021, that based on the 'existing' laws, Diaspora general registration of voters will not be conducted. The statement, as abrupt, contradictory and shocking as it is, also calls into question the issue of the IEC's wanton disregard for the Supreme Court ruling, which is now at the High Court for enforcement. Nevertheless, the IEC and the Barrow administration are silent conspirators in the disenfranchisement exercise. As in every instance, implausible excuses have been made as to why Diaspora voting is not possible, instead of seeking out solutions that would make Diaspora voting possible.

The excuse that the country could not afford to extend the franchise beyond the borders of The Gambia is flimsy, and the prohibitive cost argument does not meet the threshold of the reasonable restrictions provided for as a caveat in the Constitution. There is also ambiguities and contradictions between the IEC and the Barrow administration on Diaspora voting. The IEC stated that Government slashed their budget, the Finance Minister, Mamburey Njie, retorted the need for an appropriations option. Section 14, subsection 4 of the draft elections bill, which deals with the registration of Gambians abroad, speaks to budgetary implications, according to him, which apparently, did not only deal with the registration of Gambians abroad but also let alone availing them the opportunity to vote as Gambians in the Diaspora. "However, if the authorities want to proceed with this, and it's not already factored in the IEC budget, then we will have to consider an SAP (Supplementary Appropriation Bill) item, with a detailed cost to us," said the minister of Finance. It's unclear what the 'detailed cost to us' meant.

Nevertheless, he later reversed his analysis and stated that IEC was given the resources to register the Diaspora to vote. This stance was reiterated by communications minister Mr. Ebrima Sillah. The IEC was, indeed, given a budget of D165,164,100 for voter registration, and of that amount, D22,750,000 is allocated for travel and another D45,140,600 for allowances. The exorbitant travel cost can easily be repurposed to cover some of the gaps that the Diaspora voting may incur if, indeed, there are financial gaps to be filled.

All evidence, again, points to the direct abdication of the IEC in its mandate to make rules, proposals, prepare and implement a strategy to accommodate the Diaspora to be part of the elections exercise at every elections cycle dating back to 1996. This gross demonstration of wanton disregard for the Constitution is abhorrent. Precisely because it is driven by the political motivations of the incumbent, Jammeh, then, and now the same is being done by Barrow. Both have demonstrated disdain for the Diaspora as 'opposition' and therefore undeserving of exercising their fundamental right of political expression once they are out of the country.

The other excuse that has been monologed into the public space by IEC and now re-echoed by the Barrow administration is the legality of the issue, whereby new constituencies need to be created to allow Diaspora to register and then vote in the upcoming elections. Nowhere in the Constitution does it state that one must be in the country to vote.

The Act stipulates the following in section 11 that:

The Commission shall prepare, compile and maintain in accordance with this part a register of voters for each constituency and a register of Gambian registered voters in foreign countries. Additionally, it goes further to state in 12 (1) that: 'a person shall be entitled to have his name entered on a register of voters in a constituency if (a) he is a citizen of The Gambia; (b) he has attained, or will on the date of the holding of the next election attain, the age of eighteen years; and (c) he is resident, or was born in that constituency.'

There was also the issue of 'capacity and technical ability to register voters abroad and ensure that their right to vote is respected. The IEC, and again now being re-echoed by President Adama Barrow, bemoans the 'complexities' of operationalizing such an undertaking. These suggestions and worries are misplaced and highly disingenuous. Precisely because the Migration and Sustainable Development in The Gambia (MSDG) project, together with Right 2 Know Gambia and Gambia Conference on Reforms and Democracy (GAMCORD), have in no small measure pointed the way as to how Diaspora voting can be attained. Technical discussions with IEC, National Assembly members and other stakeholders have been ongoing as far back as June 2018, almost three years before the date of the anticipated election cycle. There is no excuse whatsoever for the feigning of capacity and external elections management know-how at this stage of the process.

Added to these pockets of resource hubs are also the high possibility of assistance, both technical and financial from development partners and continental bodies such as the AU Elections Assistance Unit, as well as ECOWAS Network of Electoral Commissions (ECONEC), International Foundation for Electoral Systems (IFES), Electoral Institute for Sustainable Democracy in Africa- EISA, International Institute for Democracy and Electoral Assistance (IDEA) and others. The excuse of technical prohibition is unfounded. President Barrow and the IEC have no evidence of such claims whose Commissioners he selects and appoints. None whatsoever.

The facts remain as follows: that the Barrow administration, together with the IEC, are unwilling to abide by a court judgement compelling them to halt their wanton abuse of the rights of the Diaspora to vote, and in the process, violating their constitutional rights.

The National Assembly has given complete latitude to the Executive and the IEC to continue the non-registration of Gambians living abroad. The political class- opposition parties- have not shown any interest in the matter and have generally kept silent on the issue and have seemingly accepted the continued disenfranchisement of the Diaspora.

In light of these worrying developments, we are hereby proposing the obvious, by way of triggering the Diaspora registration and voting:

President Barrow should instruct his cabinet to develop and approve a cabinet paper ultimately instructing the Minister of Foreign Affairs, (who has been unhelpful and none engaging, and seems to have forgotten that he is responsible for the Diaspora), to dispatch a Note Verbal to all Gambian embassies (The Gambia maintains 25 embassies and High Commissions abroad as well as 31 consulates), informing them to prepare to register eligible Gambians within their jurisdiction;

The IEC to swiftly reengage with the MSDG and other partners and revisit the proposals on the mechanics of holding a successful registration and voting exercise for the Diaspora, as well as send those proposals to the National Assembly; whilst the Attorney General prepares a Gazette for passage that would legally support this endeavor, as requested by law.

There is no need to create any new constituencies as the law is clear on that. Anything short of these undertakings will ultimately result in an election that will not be credible.

The Barrow administration and the IEC risks violating the Constitution, the African Charter on Elections Democracy and Governance, and the ECOWAS Supplementary Protocol on Governance and Democracy, if they continue on their quest to disregard the Supreme Court ruling by beating the path to systematic disenfranchisement of the Diaspora. Their actions fly in the face of the Universal Declaration of Human Rights, Article 21, which stipulates that: "The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret ballot or by equivalent free voting procedures."

Gambians abroad await with bated breath the outcome of the High Court, which rules on the enforcement of the Supreme Court ruling on Friday 30the July 2021, which reaffirmed the Diaspora's rights to vote and we will accept nothing less than the full enforcement of the Supreme Court decision. The world watches a dream deferred when The Gambia, led by President Barrow, who promised reforms across the board to implant a culture of democracy, inclusion and strengthened participation vested in the rule of law. Thus far, he has failed on all fronts. The courts have compelled him to act. Failure means he will become a constitutional delinquent, as will the IEC, an institution that purports to espouse the principles of fair play, integrity and transparency. Under such circumstances, arbitrariness and disregard for the rule of law become the order of the day. The violations of the rights of one out of five eligible voters in the upcoming 2021 Presidential elections will undermine the credibility of these elections. And thus, without the Diaspora voting, the elections cannot be free, fair, or credible. The consequences could be far-reaching.

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