ANM Ousainu Darboe and Kemo Bojang at the Supreme Court.
By Landing Ceesay
Counsel Ida Drammeh, representing Sheikh Tijan Hydara, Gambia’s Ambassador to Cuba, asserted that the United Democratic Party (UDP) had misconstrued constitutional provisions while presenting their case before the Supreme Court Judges.
The UDP had filed a lawsuit at the Supreme Court of the Gambia, seeking to nullify Sheikh Tijan Hydara’s appointment as Gambia’s Ambassador to the Republic of Cuba by President Adama Barrow.
As part of their evidence, the UDP submitted several videos along with their transcriptions to the court.
In response to the lawsuit and the evidence presented by the UDP, Counsel Drammeh emphasized that the provisions of the Constitution had been misinterpreted. She highlighted that the UDP had called two witnesses who testified and submitted videos containing “screen recordings.”
Kemo Bojang, one of the UDP’s witnesses, stated that he obtained the videos from the internet, specifically from sources like Kerr Fatou and YouTube. Additionally, a newspaper was tendered through Kemo Bojang, and the second witness, Miss Njie, provided transcripts of the same videos.
Counsel Drammeh began her argument by emphasizing the seriousness of the case, which required the Supreme Court’s interpretation and application of constitutional provisions. She expressed concern about accepting the evidence presented by the Plaintiff (UDP) as a sufficient basis for the orders sought.
“The first comment we wish to make is that in as serious a case as this, which calls for the Supreme Court to interpret and apply constitutional provisions, it is our submission that it would be unsatisfactory and in fact somewhat dangerous to accept the pedigree of evidence that has been offered by the Plaintiff (UDP) as a basis for making the orders sought by the Plaintiffs,” she said.
“We submit that the law is clear on the burden of proof in a civil case—that he who asserts must prove. The burden of proof rested on the Plaintiffs (UDP) to prove the allegations in their statement of case,” Counsel Drammeh submitted.
Counsel Drammeh asserted that the United Democratic Party (UDP) had failed to establish their case. She cited a Ghanaian legal authority, specifically the ZAMBRAMA v. SEGBEZ report from [1991] GLR 221, which aligns with a similar proposition of law.
According to this Ghanaian authority, she cited: Where a “party makes an averment in his pleading which is capable of positive proof and that averment is denied, it is not sufficient for one making the averment to just mount the witness box and repeat it without calling some corroborative evidence.”
Counsel Drammeh pointed out that there is no evidence before the court regarding the timing of Sheikh Tijan Hydara’s appointment as Ambassador of the Republic of The Gambia to the Republic of Cuba by the President. Furthermore, there is no indication that the said appointment was ever conveyed by the second Defendant.
Additionally, she argued that there is no evidence confirming that the Gambia Alliance for National Unity (GANU) is a registered political party or even a political party at all. In paragraph 3 of the Defendant’s statement of case, it was admitted that Sheikh Tijan Hydara is a politician and a founding member of GANU. However, paragraph 3 was otherwise denied, and it was clarified that he had resigned from GANU since his appointment.
Counsel Drammeh emphasized that The Gambia has specific laws requiring political parties to be registered and their party officers to be named. She referred the court to sections 105 and 106 of the Election Act.
Lastly, she argued that mere claims of being an officer of a party, whether through rallies, speeches, Facebook posts, or Kerr Fatou publications, do not automatically confer such status. In her judgment, a purposeful approach should guide not only the interpretation of statutes, but also the interpretation of the Constitution itself.
“In the case of a Constitution, a judge must bear in mind that he is dealing with an instrument which is not only the primordial source, the fons et origo of all Acts – is itself the supreme Act- but it also delineates, controls and regulates the powers, functions and obligations of the government, the law-makers and the law-interpreters, which establishes the hierarchy, jurisdiction, status and powers of the courts, enumerates and protects the fundamental rights and freedom of the citizens and generally provides for the peace and good order of the society.
“There is a primary distinction between interpreting a statute simpliciter and interpreting a Constitution. In interpreting a statute, the modern approach seems to be purposeful; in the case of a Constitution, not only is the modern approach purposive, but having regard to its permanency and its relation to the past, present and future, I apprehend that it must be interpreted liberally and broadly so as not to thwart the intent of them that made it.” Counsel Drammeh submitted.