Binga Dinshiya, the Director of Civil Litigation at the Ministry of Justice appearing for the Attorney General in the Supreme Court said Fatoumata Jahumpa Ceesay (FJC) is not the Secretary General of APRC as opposed to UDP's claims.
UDP have asked the Supreme Court to nullify the appointments of FJC, Ousman Rambo Jatta, Sheikh Tijan Hydara and Lamin Bojang in the foreign services. The position of the UDP is that they are serving executive members of political parties and therefore, their appointment in the public service was unconstitutional.
Foroyaa has in the last edition on Wednesday published the arguments of the lead lawyer for the UDP. Director Binga D. made the argument on behalf of the Attorney General.
Binga D. said the UDP failed to provide evidence to warrant the court to declare their appointments unconstitutional. He submitted that the videos submitted and played by UDP were mere speculations and there were inconsistencies in the date of the congress.
Binga said the Court should not rely on video clips obtained from social media to prove issues of constitutional importance. He added that UDP should have obtained the information about party leaderships from IEC to furnish the court rather than rely on social media videos to prove their case.
The State Lawyer said UDP sought to prove that FJC is the General Secretary of APRC by bringing three videos and a newspaper article.
"The authenticity of the videos was challenged during cross examination of the witness P1 Kemo Bojang. The witness could not authenticate the source of his videos and further, it is clear that the video he brought was a copy of another copy and possibly several other copies. This is hearsay and is contrary to the Evidence Act. The said videos ought to be disregarded," he said.
Binga added: "The first video purported to show a gentleman making general statements. The transcript (exhibit P5) refers even to "handsome" Secretary General, which is an attribute bestowed to a male.
He said the second video purports to be Fatoumatta Jahumpa Ceesay giving a statement at an APRC congress.
"The date of this congress is in controversy. The Plaintiffs (UDP) in their pleadings at paragraph 9 have stated that the congress in Janjanbureh was held in December 2022. The Plaintiff's witness Kemo Bojang (PW1) has testified that the congress was held between the 6th and 8th of January 2022. He had previously said it was December of 2022 and when it was put to him during cross examination that he had said it was December 2022 he clarified that it was actually in January 2022," Binga said.
He submitted that Haddy Jagne, the second witness for UDP was brought to court to testify on the transcripts of the videos she made.
"Some of those recordings were in Mandinka and PW2 admitted during cross examination that she does not speak mandinka and that it was a court staff, who assisted her in the translation. The court staff who conducted the translation was not called as a witness, and the court has no reason to believe the person is a competent interpreter and there is no way to test the veracity of the interpretation in the transcripts. We submit that the transcript is also hearsay and its contents should be disregarded by the Court," he said.
UDP also tendered a newspaper article.
"The newspaper article that was tendered we submit is opinion evidence and we submit that this cannot be relied on to establish the fact of the matters contained therein. The video of Ousman Jatta does not show when it was recorded. The dates of these events are significant because they need to be tied to the appointments of the Defendants to their positions in public office. When they were appointed to public office is not clear, and when they were purportedly holding political office is also not clear," he said.
"My Lord, in the case of Rambo Jatta, his appointment is proper in foreign services and the regulation of the foreign. There is no justification why his appointment violates the rules of Foreign Service," the State Lawyer said.
On the appointment of Lamin Bojang, Binga said "A military attached at Guinea Bissau. My lord the plaintiff alleged that Lamin Bojang is a military attached to Guinea. My Lord, it's our submission that Lamin Bojang is competent by virtue of his experience and expertise. My Lord, it is our submission the plaintiff didn't prove otherwise on the issue of Lamin Bojang being a party leader has not been proved, my lord we submit that there's no evidence before this Court that Lamin Bojang holds any position of in a political party which the plaintiff is claiming been a political leader."
He submitted that UDP failed to substantiate the claim that Lamin Bojang is a political leader. He relied on section 103, 104 and 105 Elections Act.
"My Lords, there is no evidence that the said person belongs to any political party and all we hear is speculation and the court has not disregarded it," he said.
He referred the court to Section 102 of the Evidence Act, which provides that a person who asserts must prove.
The State Lawyer said considering the law under sections 166, 170 and 179 of the Constitution and the General Order 3104 of the Republic of The Gambia and reference to section 102 of the Evidence, the UDP did not prove their case.
Binga said Section 23 of the Public Service Act makes communications between the Public Service Commission and other persons privileged in any legal proceedings unless the Minister consents in writing to such production or disclosure.
He said the provisions UDP relied on to bring the case refers to a public officer, seeking to be elected to political office. He added that there is nothing in all these legislation that provides for the reverse as we have in these situations. He explained that the reverse being, a person who is purportedly holding a political office, seeking to take on a public office.
"The law is settled that if the legislators wanted to put something in the law, they would have. The fact that they did not means that there is a lacuna in the law in this regard," he said.
Binga said General Order 03104 provides that "Every officer is entitled to his/her own political views, and may, if qualified, vote at elections. He/she may become a member of a political party or organization, but may not accept any office, whether paid or unpaid, permanent or temporary, in any political party or organization, nor may he/she make speeches, join demonstrations or in any other way indicate publicly his/her support for any political party, organization, person or policy, nor shall he/she be required to do so in the course of his/her duties."
Also General Order 03106 provides that "If a person who has obtained leave of absence in accordance with G.O 04119 is elected to a Political Office, he/she shall immediately resign or retire from his/her office in the public service and, if he/she fails to do, he/she shall be removed from such office.
Binga submitted that the General Orders simply reflect the provisions of the Constitution on the issue. He said section 170(2) of the Constitution also states "any person who holds an office in a public service who wishes to contest an election for a political office", but it is important to note that there is no definition of what a political office is. He added that General Order 03104 permits a public servant to be a member of a political party but states that they should not hold a political office.
"A reading of G.O 03106, we submit puts it to rest as to what is a political office because it states "is elected to a political office". From this provision it is clear that the political office in question is one that the person must be elected to," Binga said.
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"The court cannot merely presume that the office of General Secretary or whatever position the Defendants are alleged to hold are political offices to which they have been elected to in order to fall under the provisions of the Constitution and the General Orders. It is our submission that the Plaintiffs have not proved these facts," he said.
Binga said the reliefs being sought by UDP are not tenable considering the law, as well as the practicality of the situation at hand.
"Relief 1 seeks, in effect an injunction against the 1st Defendant from carrying out their office to which they have been appointed. If as per their argument, the Defendants are public servants, then the State Proceedings Act makes it clear that an injunction cannot be obtained against an officer of the state where the effect would be an injunction against the State. We refer the Court to section 17(4) of the State Proceedings Act on this point," he said.
He made a different argument from the position of the UDP saying this case is different from Ya Kumba Jaiteh's case against the Clerk of the National Assembly because she was not a public servant, but a National Assembly member.
"We submit also that in the event that it is considered that the Constitution and the G.O apply in this situation, the practicality of the situation would require the Defendants to elect which office they get to keep and which one they get to leave. It is not for the Plaintiff to decide which office the Defendants should maintain. It is also clear that it is only after the appointments have been accepted that the Defendants can resign from the office they previously held. This being the case, we submit, there can be no void appointment "ab initio" as is being canvassed by the Plaintiffs, and we submit that the prayer for a declaration in that regard cannot be granted. Because even the GO requires that a person who has been elected to public office should subsequent to that election resign from public office. So it is clear the person would have held both positions for a time before resigning from one."
