Post Legislative Scrutiny: A Tool for National Assembly to Evaluate Laws of The Gambia

Post Legislative Scrutiny: A Tool for National Assembly to Evaluate Laws of The Gambia

Introduction

One of the important roles of parliament is to make laws that meet the needs of the people. The process of lawmaking, otherwise called legislation, generally entails a series of parliamentary procedures that seek to review the needs of society with a view to responding to those needs appropriately and adequately in an efficient and resourceful manner.

Post legislative scrutiny or ex-post evaluation of legislation is generally recognised as a tool for evaluating and assessing enacted laws by parliament to inform itself of how these laws affect the lives and livelihoods of the citizens. Franklin De Vrieze describes PLS as a stand-alone activity that enables a parliament to self-monitor and evaluate and reflect on the merits of its own democratic output and internal technical ability. Often, and despite the best of intentions it might have, the focus of parliament at the time of legislation is to have the law enacted. It rarely pays attention to how well the law is being implemented over time and its resulting positive and negative effects. Thus, in PLS, parliament is availed the opportunity to directly evaluate and assess the efficiency, effectiveness, and impact of its laws on society. This helps parliament to understand whether a law or set of laws has served the purpose for which they were enacted or not, and if not, then parliament could decide to correct the anomaly.

The process of assessing the effectiveness of a law is multifaceted and is not automatic. The implementation of any law is largely tied to an inextricable network of factors that include funding, compliance, commitment, support and cooperation from institutions and citizens, as well as changes in the politics and economy of the country or society. Consequently, the London Declaration on PLS noted that the implementation of legislation depends on such factors as the clarity of the legislative texts; compatibility with other laws and the constitution; availability of human and financial resources to implement the law; full and unrestricted access to the legislation by enforcement authorities; and timely issuing of secondary or delegated legislation.

To this end, the ultimate objective of PLS is for parliament to oversee the implementation of the laws it has passed, take note of the areas that were successful and highlight those that require improvement. It also gives Parliament the opportunity to gather from the individual and collective experiences of the citizens regarding the implementation of the law and prepare itself for a review where required to ensure that laws always benefit citizens.

This paper is an attempt to popularise the concept of PLS for the National Assembly of The Gambia in particular and parliaments in general. It is anticipated that the National Assembly may consider using PLS as a tool of engagement and assessment of its passed laws. Using a comparative approach, this paper discusses the use of PLS in other jurisdictions, underscores some laws in The Gambia that could be subjected to PLS and makes some compelling conclusions.

Post Legislative Scrutiny in perspective

Social theorists often argue that the fundamentals of any law for a society is to shape and improve the lives of the people through what that law permits or prohibits. In other words, the need for a law is to constrain or empower, restrict or enhance. Therefore, while parliaments debate legislation, it should not be seen as the end of the process because a law may have unintended outcomes or simply have no effect at all.

PLS is often done through a committee of parliament that may either be set up for this purpose or assigned on an ad hoc basis. Parliamentary committees offer the most direct form of engagement. From jurisdiction to jurisdiction, the nature and terms of reference of a committee differs. In parliamentary jurisdictions like Indonesia and Belgium, there are committees set up for the specific task of ex-post evaluation of legislation. However, there are others, including in South Africa, that are set up on the basis of necessity and usually outsourced to investigate specific issues of ex-post evaluation of legislation. For the House of Commons and House of Lords of the UK, all the committees have the freedom and latitude to conduct PLS. In most parliamentary jurisdictions where ex-post evaluation of legislation is done, the law has to be in place for at least three to five years before PLS can be sanctioned.

In a WFD-funded review, De Vrieze and Hasson (2017) reveal that the Federal Parliament of Belgium created a parliamentary committee in 2007 for the specific mandate of ex-post evaluation of legislation. The responsibilities of the committee include: to receive petitions that highlight problems arising from the implementation of a specific law that has been in force for a minimum of three years; to conducting post-legislative review on the basis of recommendations made by the rulings of the Court of Arbitrage/Constitutional Court on the application of specific legislation; and to respond to issues raised in the annual report that is submitted by the General Prosecutor of the country to Parliament, highlighting problems related to the interpretation or enforcement of specific laws.

De Vrieze and Hasson note that in Indonesia, the House of Representatives established a Standing Committee on Legislation, referred to as Badan Legislasi (BALEG), that has a central role in the law-making process within the parliament, particularly in conducting Post-Legislative Scrutiny. They reveal that the Committee monitors whether the government enacts implementing regulations or not, monitors if the law is being challenged at the Constitutional Court, and evaluates the applicability of the laws by the implementing agencies and the impact of the laws on the people. BALEG refers the results of its Post-Legislative Scrutiny to relevant subject committees, which then take further actions to government ministries, agencies, or judiciary agencies within their jurisdictions.

In South Africa, since the Parliament does not have the internal capacity to do PLS, it has commissioned an external panel of senior experts to systematically examine the effects of laws passed by the National Assembly since non-racialised majority-rule was established in 1994. De Vrieze reveals that in the 2004 report of the UK House of Lords’ Constitution Committee, there was a recommendation for PLS to be a routine feature of parliamentary scrutiny. The Committee took a holistic view of the legislative process, encompassing not only the passage of a bill after introduction but pre-legislative scrutiny and post-legislative scrutiny.

It can be adduced that scrutinising the implementation of a law may take the form of a committee hearing where government representatives, along with other stakeholders such as civil society organisations that work on such specific issues, can be invited to report on the implementation of the law. And as a follow-up, committees can make specific recommendations to the House or the plenary. The rationale for these recommendations and their adoption is to lend greater credence and attention to some provisions of the law that are either not being implemented or only partially implemented. If parliament adopts these recommendations, the committee thereafter monitors their implementation. In some cases, discussions on the implementation of a law may lead to immediate legislative amendments that may propose corrective intervention or readjust the original provisions of the law to accommodate events that have transpired since the law was adopted.

According to Franklin De Vrieze, a parliament’s capacity and performance in PLS are, to a significant extent, determined by the presence of parliamentary procedures and structures that are specific to PLS and the extent to which the PLS inquiries generate written findings and recommendations (PLS reports), as well as monitoring and conducting follow-ups to those findings.

The status of oversight at the National Assembly of The Gambia

The National Assembly has twenty-three (23) committees. Fourteen (14) of these committees are standing committees whilst eight (8) are select committees. The Constitution empowers the Assembly to establish standing committees. However, the establishment of a select committee is dependent on the need for it. The Assembly can establish as many select committees as it considers necessary through a motion tabled by the Committee of Selection (Standing Order 95(3)). In accordance with Standing Order 95(5), special select committees may also be established to deal with any specific time-bound matters.

The National Assembly has not assigned an exclusive mandate to any committee to evaluate laws. However, all committees are directed to identify, monitor, and cooperate with all MDAs in matters relating to their terms of reference and to receive and review Bills, activity reports, domestic and foreign policies, agreements, strategic plans and other measures and decisions of the institutions under their purview.

The focus of National Assembly oversight or scrutiny by its committees is mostly limited to how the budget is being implemented as appropriate based on the annual estimates approved by the Assembly. Each of the committees of the Assembly works with its line ministries, departments, and agencies (MDAs) to monitor and measure the extent to which resources and services are being distributed and delivered and to determine the impact of this distribution and delivery on the lives of the common people.

The committees invite sectors and interface with them, receive reports from institutions that may outline the details of their activities, and make field visits to assess the performance and challenges of institutions vis-à-vis their terms of reference. For example, in 2022, when a massive oil spill occurred at Mandinary Oil Depot in the West Coast Region, the Committee on Environment visited the site to assess the veracity of the damage caused. The Committee on Health also visited some major hospitals and pharmacies and had a series of engagements with the concerned authorities when an Acute Kidney Injury outbreak was declared in the country that killed over four dozen children. These incidents have been noted as the result of the failure of institutions to implement and enforce the existing laws effectively. However, in each of these instances, the focus was never on how well the law was implemented. Instead, the focus was on establishing the factors that led up to those incidents. It may be argued that if the laws are being periodically reviewed to assess the extent to which they have been implemented and benefitted the people, such incidents may likely not occur.

Some laws that could be reviewed

The Constitution of the Republic of The Gambia vests the legislative power of the State (power to make and amend laws) in the National Assembly. The Constitution also empowers the National Assembly to delegate some of its lawmaking powers to an individual or other body. In The Gambia, any law made by a person or body by virtue of delegated law-making power is referred to as subsidiary legislation (also known as secondary legislation, subordinate legislation, or delegated legislation). Subsidiary legislation must generally be made within the framework of an Act of the National Assembly. In this regard, a case can be made for the Assembly to monitor the exercise of the lawmaking power it has delegated through a review of the implementation of subsidiary legislation.

It could be argued that some of the laws of The Gambia are obsolete or have no longer been implemented. Some of these laws include the Motor Traffic Act, 1948; Price Control Act, 1974; Injuries Compensation Act, 1990; The Gambia Fertilizer Fund Regulations, 1966; Old Metal Dealers Act, 1917; Skin Bleaching (Prohibition) Act, 1996; and the Anti-Littering Regulations, 2007. The ultimate intent of any law is to improve, deter or regulate human behavior and the way societal structures are managed. Where this cannot be achieved by any law, then there is no need for it.

The proposal for a thorough review of the Motor Traffic Act of The Gambia, for instance, is informed by the appalling rate and gravity of road traffic accidents in the country. It could be that this law does not suffice to deter the behaviours that lead to the occurrence of the serious accidents on the roads, or the provisions are not adequately implemented and enforced. In April 2022, the Point Newspaper reported that the World Life Expectancy ranked The Gambia fourth place among world’s worst countries where accidents are mostly registered. The report indicated that the total number of accident cases recorded in The Gambia by April 2022 reached 11,995, whilst the death toll accelerated to 365. It further noted that from January to April 2022 alone, The Gambia registered a whopping 1,825 cases of road accidents.

The proposal for a thorough review of the Price Control Act is informed by the apparent lack of price control in the market, which has contributed to the increase in prices of goods and commodities at a high, frequent, and unpredictable rate.

As to the Injuries Compensation Act, the proposal to review this Act is informed by the need to protect all persons, especially those working in the public sector who sustain injuries or die of injuries sustained at work and to allow the compensation scheme to accord with existing realities.

The proposal for a thorough review of the Skin Bleaching (Prohibition) Act is informed by the March 2021 claim of the executive Government of The Gambia that it lacks the required resources to implement and enforce the Act. A bill was subsequently tabled before the National Assembly to repeal the Act. However, the bill could not get the required votes to pass. The general claim of the Members that voted against the repeal was based on religious principles.

How can the National Assembly incorporate Post Legislative Scrutiny in its oversight functions?

There are three options available to the National Assembly should it decide to use PLS to monitor the implementation and improve the quality of its legislations. According to De Vrieze, the options available to parliament are as follows:

First, parliament could require ministries to provide regular reporting to parliament on the implementation of laws after three or five years of their enactment.

Based on this, the National Assembly could require government ministries, departments and agencies to regularly report to parliament on laws that are three to five years into their implementation just as they are already doing on their terms of reference. To do this, and for ease of reporting and assessment, committees, in collaboration with the Office of the Clerk and support partners such as the CSOs, may provide a template or a scorecard that MDAs would use as guide.

Second, parliament could outsource or commission research on the implementation of a law to external institutions, either autonomous official institutions (such as the Auditor General’s Office) or external independent institutions such as universities.

The National Assembly could equally outsource or commission research on the implementation of specific laws. In other words, the National Assembly can commission research by inviting research institutions in the country to evaluate the degree to which a certain law or collection of laws has been implemented. This would include outsourcing research to specific external and autonomous official institutions such as the National Audit Office, Judiciary of The Gambia, or independent institutions such as the University of The Gambia, especially where the workload required would overwhelm the capacity of the Assembly Service.

Third, the parliament could conduct its own inquiries on the implementation of selected laws by holding public hearings, collecting evidence, and conducting in-house research by staff of the Parliament, such as through a research unit or legislative unit.

To this end, the National Assembly could initiate and conduct its own inquiries on the implementation of selected laws by holding public hearings, collecting evidence, and conducting in-house research by staff of the Assembly Service, such as through the Research Unit. It could be argued that assigning such duties to the Assembly Service might be more cost effective. The Assembly could also establish a specific committee or committees for the sole purpose of conducting PLS or incorporate PLS as part of the terms of reference of all its committees.

What challenges would the Assembly likely face in adopting Post Legislative Scrutiny as a tool?

The National Assembly of The Gambia is a legislative parliament with most of its scrutiny and oversight activities centered around assessing the trickledown effect of national resources and services to the people.

Since the focus in “legislative parliaments” is mainly on debating and adopting legislation, and oversight is often limited to budget oversight, De Vrieze opined that introducing PLS in such parliaments will broaden its oversight functions, giving it a new agenda that would result in new workload for both staff and MPs.

Therefore, while the National Assembly is being encouraged to adopt PLS as a tool in its parliamentary business, it is equally encouraged to address critical human resource and capacity challenges of the National Assembly Service, factors that are central to the success of the tool.

Conclusion

PLS is a tool that encourages citizens’ participation and engagement with parliament. When enhanced, these engagements can serve to reduce ambiguity and public distrust as the citizenry would be more informed of the activities, powers, and limitations of the National Assembly.

PLS will help NAMs to better understand how the laws they pass affect the people. In this regard, the National Assembly could opt to evaluate the laws of The Gambia itself or commission independent research to look at some of the archaic laws in our statute books that no longer serve the relevance and purpose for which they were legislated. However, the Assembly must first review its Standing Orders to provide for PLS prior to introducing it. As it is, there is no provision in the Standing Orders of the National Assembly that advocates for post-evaluation of legislation.

SUGGESTED CITATION: Dumbuya Alhagie M., Post Legislative Scrutiny: A Tool for National Assembly to Evaluate Laws of The Gambia, Law Hub Gambia blog, August 9, 2023, www.lawhubgambia.com/lawhug-net/post-legislative-scrutiny.

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REFERENCES

·The London Declaration on Post Legislative Scrutiny. Westminster Foundation for Democracyhttps://parlamericas.org/uploads/documents/2018-12-19%20Declaration%20on%20PLS%20-%20EJLR_ENG.pdf  (accessed 19 January 2023).

· Franklin De Vrieze and Victoria Hasson. (2017). Post-Legislative Scrutiny: Comparative study of practices of Post-Legislative Scrutiny in selected parliaments and the rationale for its place in democracy assistance. (2017). Retrieved on January 12, 2023, from https://www.wfd.org/sites/default/files/2022-01/Comparative-Study-PLS-WEB.pdf   

·  Parliamentary Innovation. (16 June 2022). Seven questions on Post Legislative Scrutiny. Retrieved on January 12, 2023, from https://gpgovernance.net/seven-questions-on-post-legislative-scrutiny/ 

·Franklin De Vrieze. (23rd July 2018).  A Guide to Post-Legislative Scrutiny. WFD. Retrieved on January 27, 2023, from https://www.wfd.org/what-we-do/resources/guide-post-legislative-scrutiny 

· Franklin De Vrieze. (27th Sept. 2021). Parliamentary and legislative indicators for Post-Legislative Scrutiny. West Minster Foundation for Democracy. retrieved on January 31, 2023, from https://www.wfd.org/sites/default/files/2022-02/2021-09-27%20PLS%20indicators%20-%20Concept%20Note_.pdf 

·European Partnership for Democracy (EPD). Expert insight: Why Post-Legislative Scrutiny may be considered a public good. Retrieved on January 31, 2023, from https://epd.eu/2021/03/17/post-legislative-scrutiny-public-good-lord-norton-de-vrieze/  

· Revised Standing Orders of the National Assembly of The Gambia. (2019).

· Pa Modou Cham. (Apr 27, 2022). Gambia ranked 4th in world's road accident. Retrieved on February 6, 2023, from https://thepoint.gm/africa/gambia/headlines/gambia-ranked-4th-in-worlds-road-accident

· Modupeoluwa Adekanye. (March 23, 2021). Gambian Members of Parliament To Uphold Skin-Bleaching Ban. Retrieved on February 6, 2023, from https://guardian.ng/life/gambian-members-of-parliament-to-uphold-skin-bleaching-ban/

Ahlagie M. Dumbuya

About the author

Alhagie M. Dumbuya is the Director of Research and Library Services at the National Assembly of The Gambia

Point of Order: The Parliament of The Gambia in Operation

Introduction

One of the cornerstones of parliamentary procedure is that proceedings in the Assembly are conducted in a free and civil manner. To facilitate this recognised principle, the Assembly adopted rules of procedures [ii] for the maintenance of order and decorum for the conduct of members and to regulate its own proceedings. Considering the sacred nature of the institution of parliament, members are expected to show respect for one another, and the competing different viewpoints. Therefore, offensive or discourteous behaviour or language is intolerable.

The Sixth Legislature of the National Assembly (the parliament) of The Gambia was elected to office in April 2022; relatively new in office at the time of writing this article. The majority membership of this legislature is first-timers in parliamentary practice and procedure.

A few months into parliamentary proceedings and the apparent enthusiasm to employ and test every opportunity and tool at their disposal, the conduct of some members during proceedings reveals the normal inexperience associated with new membership to any organisation as well as the creative art of politicians seeking to be recognised in every gathering.

The fundamental rules and precepts of the routine important parliamentary tool of point of order cannot be ignored in any parliamentary proceedings. There is no device, which is most frequently used and abused than a point of order.

This paper, therefore, examines the practices and rules pertaining to point of order in the Assembly and the powers of the speaker, as the presiding officer to enforce order and decorum when breaches occur. It provides some understanding and clarifications on the principles, usage, and the rules of parliamentary point of order with specific emphasis on The Gambia’s context.

 Point of order

Generally, it is a fundamental parliamentary law that a member speaking must be heard in silence by others in every proceeding of the parliament and members are condemned to making unseemly disruptions while a member is on his or her feet speaking.[iii] Hence, a “point of order” is a privileged permissible interruption granted to a member to interrupt another member on an alleged breach of rules of procedure or a matter of procedure requiring the speaker’s elucidation.[iv] The rules require that a point of order may be raised if there is any alleged deviation from parliamentary rules, existing laws, or whether the proper procedure has been, or is being, followed in the Assembly.

Equally and in principle, a point of order, especially on a substantial matter, could be raised by a member or a chairperson of a committee seeking the guidance of the speaker on a matter of procedure affecting the Assembly in its operation or proceedings. Essentially, a member can use a point of order to seek guidance from the speaker in the chamber on a matter of parliamentary procedure.[v]

It is therefore pertinent to note that a point of order in its general parliamentary sense is an appeal to the presiding officer for clarification or judgment on a matter of procedure in the National Assembly. 

What form should a point of order take?

There may not be a specific form in which a point may be raised. However, it is a settled rule that a member can make a point of order relating to a particular breach, or matter of procedure during proceedings of the Assembly. In practice, a member is required to catch the speaker’s eye by raising his or her constituency tag or standing in one’s place shouting or indicating “Hon. Speaker, point of order!”

Substantial points of order, and ones not related to a specific proceeding but affect a procedural matter of the Assembly may be taken by the speaker.[vi] However, the speaker may decide not to make an immediate ruling on such kind of points of order but ask for time to reflect on the issue. In practice, and advisably a member wishing to make a substantial point of order should give prior notice to the speaker’s office. This is desirable as substantial points of order are usually intricate and may require some technical research.

It is a decried practice where members often abuse points of order or misconstrue it with “point of observation or clarification”[vii] to participate in a debate. This is many a time frowns upon by the speaker as against the rules of the Assembly. For a point of order to be legitimate, it must relate to a matter of procedure or allege a breach of it for the speaker to decide on the matter.

What happens when a point of order is raised?

It is a cardinal rule that any member who is on his or her feet speaking must resume his or her seat whenever a point of order is raised, and the member raising the point must equally submit his or her point to the speaker for determination.[viii] It is equally imperative that, except by leave of the speaker, no other member must rise until the speaker decides on a point of order and when a ruling is made on the point, the member who had the floor is entitled to proceed, subject to the decision.[ix] This is a very fundamental rule that ought to be observed by members of parliament at all times in the proceeding of the Assembly. 

Speaker’s duty on point of order

It is the duty of the speaker to decide on all matters of order and procedure in the chamber of the Assembly. The speaker as the presiding officer responsible, in the Assembly, for the observance of the rules of order and procedure, his or her decisions are not subject to appeal except on a substantive motion for which notice must be given.[x] Equally, the speaker has the duty to call any member to order if he or she considers any member’s action a violation of any provision of the rules or a breach of general parliamentary procedure and practice regardless of whether a point of order was raised or not.

The speaker has the responsibility to examine the issue(s) raised in a point of order to determine its propriety and may rule it out of order even where no point of order is raised from the floor. It is, however, not the duty of the speaker to decide any question which is not directly presented in the Assembly.

The speaker may likewise decline to rule on a substantive point of order to a later time or date for examination and ruling, and on very rare occasions submit a question of procedure to the Assembly for a decision. However, in making a ruling on a point of order, the speaker may hear arguments from members or even refer to parliamentary usages, customs, and conventions.

Members must alert themselves that the speaker has the mandate of ensuring that proceedings and behaviour of members are confined to the rules and practices of the Assembly, and to safeguard itself from excesses. While it is generally agreed and recognised principle that parliament is the master of its own proceedings and the speaker is its servant, the speaker has extensive powers to enforce the rules and maintain order for the smooth and orderly conduct of parliamentary business.[xi]

Multi points of order

Customarily, a point of order raised must be disposed of before another point of order may be made. This further epitomises the rule that once a point of order is raised all members must be seated to hear the speaker rule on the matter. This is an inviolable rule for the orderly operations of parliamentary proceedings. In exception, however, the speaker has the discretion to entertain multiple points of orders at the same time to make a ruling.[xii]

In practice, the speaker usually decides on a particular point of order before another point is raised for determination. Essentially, and as alluded to earlier, this does not preclude the presiding officer in his or her own judgment to take more than one point of order alleging a violation of a particular rule or a matter of procedure, or even a point upon a point of order for determination. It is appositely important to note that, where the speaker decides to entertain more than one point of order at a time, he or she may rule separately on each point of order in such manner or form as he or she may determine. This procedure enables the speaker to save the time of the Assembly by hearing all points of order and upholding any legitimate one of it without deciding on the others. Thus, where several points of order are made against an issue and the speaker sustains one, that would suffice for the other points on the same issue. Therefore, it could be safely concluded that it is a permissible practice that multi-points of order are allowed in rare cases but at the discretion of the speaker. 

The speaker’s ruling or decision

Where a point of order is sustained against a member on his or her feet, the member is required, to the extent of the ruling of the speaker, to discontinue his or her speech.[xiii] This rule is sacrosanct and binding, thus members must respect and not disregard it. The effect of a speaker’s ruling on a point of order may extend to Hansard, the verbatim record of the proceedings. For instance, if the ruling is not in favour of a word or phrase uttered by a member to be unparliamentary, the speaker may, in addition, ask that the language is expunged from the records.

While acknowledging the rules of decorum, courtesy, and respect in parliamentary proceedings as important, it is a cardinal principle not to interrupt the speaker. The speaker must always be heard in silence. Even under permissible interruptions, members are highly expected to be courteous or and respectful to the Assembly, the speaker, and other members. Thus, all members, and not only the speaker, must be on alert for any infractions of procedure or order. Of course, remedies are available in parliamentary law against disrespectful or disorderly behaviours in the Assembly. Remedies include being brought to order by the speaker, made to apologise or withdraw one’s statement, and where required suspended from the sitting.

Generally, membership in any Assembly comes with certain obligations, and some of these are enshrined in the rules of such parliament.[xiv] This is common to all parliaments or any formalised group of people. The most important of these are the obligations to abide by the rules of the Assembly and to abide by the lawful decisions in a parliamentary democracy. Notably, in a parliamentary setting, members are obliged not to oppose the ruling of the speaker except through an appropriate mechanism, such as a substantive motion to overturn or reconsider such decision. 

The precedent rule

It is trite that a decision of a higher court is binding on a lower court on a question of similar fact – stare decisis. Similarly, it is a parliamentary law that the speaker’s ruling serves as a precedent for ensuing matter of same issue or fact. In referring to precedent to resolve a point of order, the Assembly is applying a judicial doctrine, stare decisis, under which a judge is bound by an earlier decision of a higher court on similar facts and law. In practice, the Assembly is equally bound by the previous rulings of the speaker on matters of similar fact and rule.

 Notwithstanding this doctrine, the speaker may after further argument or examination reverse his or her own ruling on a point of order or even that of a former speaker, where present circumstances dictate such ruling to be overturned or modified. For example, it is arguable that speaker’s ruling No. 3 of 2020[xv] should be reviewed for modification regarding negatived ordinary bills at Second Reading stage.

In principle, while the speaker ordinarily avoids disregarding a previous decision on similar facts, such earlier decisions may be examined, modified, and even overruled where cogent reasons are present to do so.

Time to take a point of order 

Certainly, a member can use a point of order for guidance from the speaker in the Assembly on a matter of procedure or on an allegation of breach of procedure. Generally, there may not be any specific rule indicating the time at which a point of order may be raised. In practice, especially in the House of Commons, a point of order relating to a particular incident could be raised immediately after the incident.[xvi] Essentially, if there is any alleged breach of procedure, a point of order may be raised immediately thereof.

In the UK, a more substantial point of order or one not relating to a specific event in the chamber or to a member speaking is usually taken in the chamber after Question Time, and any urgent questions or oral statements.[xvii] Under the practice of Gambia’s Parliament, such substantial point of order unconnected to live happening in chamber may be taken immediately after the correction of records of votes and proceedings. It is advisable if a member wants to make a substantial point of order to give advance notice to the speaker’s office. This is so desirable especially when the matter is complex and requires some research.

Grounds

As discussed above, a point of order must ordinarily be based on an objection that the pending or an ongoing matter or proceeding is in violation of some rule, or a matter of procedure of the Assembly requires the speaker’s elucidation. Any point of order that falls short of meeting this requirement is inadmissible.

Therefore, for a point of order to be legitimate, it must satisfy the criteria of an alleged violation of the Assembly’s rule or must be a procedural matter that requires elucidation from the speaker. The speaker has the duty to ascertain or be convinced of the rule(s) being cited. While questions of order arising under the rules are determined by the speaker, he or she does not rule on questions of, hypothetical nature, constitutional interpretation, or legal effect of propositions, propriety, or expediency of a proposed course of action, and upcoming incidents. In the UK, speakers had refused entertaining points of order were allowing it would itself breach the rules of the Assembly.[xviii] In a similar but unrelated scenario in The Gambia, the speaker refused to entertain a point of order from a member[xix] where the member deviated procedure to be heard.

 Relation to other business

When a point of order is invoked against a specific matter or business, consideration of that business is suspended until the objection is cleared. In addition, where the objection is regarding a method of voting or thereabout on a matter, the speaker should rule on the point of order before proceeding to other questions. Clearly, a point of order may only be deferred when it is substantial or does not affect an ongoing procedural matter before the Assembly. A legitimate point of order takes precedence over all prepositions or business until it is disposed of. In other words, proceedings on a particular business shall not continue until a valid point of order is resolved.

Debate on points of order

Debate on a point of order is only permissible at the discretion of the speaker. It is generally unallowable to debate on a point of order. However, members seeking to be heard must address the chair and cannot engage in colloquies on a point of order. The discussion and time to be allowed for debate on a point of order is the sole discretion of the speaker. A member speaking on a point of order must not engage in a debate either but strictly to the point he or she wishes to bring to the attention of the speaker and Assembly.

Pertinently, it is a deprecated growing practice of interruptions by members when a member on his or her feet refuses to give way on a point of clarification or observation[xx], and members commonly rise on a point of order only to get their words heard in a debate. It is opined that such interruptions constitute fraudulent points of order and should be avoided.

 Scope of debate

It is a trite parliamentary rule that any permissible debate on a point of order must be relevant thereto. Debate is limited to the order in question and may not go to the merits of the proposition being considered. The speaker should not grant requests to make extensive remarks on points of order.

Burden of Proving a point of order

The member rising on a point of order has the burden of proving an allegation of breach of rule or procedure. Ordinarily, a member who alleged that a violation of the law occurs must give reason(s) for believing so and the speaker decides whether it is a valid or not. For example, under the Assembly’s practice and rules, a committee report on a bill must possess certain elements and thus where a point of order is raised against consideration of a committee report on a bill on the ground that the report thereon does not reflect the expectations in the existing rules[xxi], the proponent of the point of order has the burden of proving and must cite the specific provision of the rules. Importantly, in the absence of such citation, the point may not be entertained by the speaker.

Thus, a point of order having been raised, the burden of proving it falls on the proponent. However, it is pertinent to note where the authority under which a point of order is raised is common knowledge, the burden of proof is waived for the proponent.[xxii] Thus, it is important for a member to advance reason(s) for believing a breach of the rules occurred, is about to occur or there is a lacuna in the rules for the speaker to decide or otherwise.

 Withdrawal of a point of order

A point of order may be withdrawn at any time before the speaker rules on the matter. However, a point of order withdrawn may be revived by another member. Where a member decides to withdraw his or her point of order, the speaker must be notified in good time before a ruling is made. Where it is done after a ruling is made, it is now the discretion of the speaker to rescind its own ruling or otherwise.

Can a speaker’s ruling be appealed?

 In principle, a ruling of the speaker on a point of order may be contested through an appeal by a member. Indeed, the right of appeal from decisions of the Speaker on questions of order is provided for by the rules of the Assembly.[xxiii] The speaker has the duty to ensure the care for law and order in the Assembly. Based on this rule, speaker’s decisions on questions of order and procedure are not subject to appeal except on a substantive motion for which notice must be given.[xxiv] This signifies that the speaker’s decision on a point of order cannot be appealed forthwith but only later by the Assembly on a substantive motion.

 Conclusion

Fascinatingly, freedom of speech is one of the most important privileges enjoyed by National Assembly Members.[xxv] However, this freedom is constrained by rules of maintaining order and decorum in parliamentary proceedings. Thus, the right to speak is tempered by the written rules of the Assembly which are generally limited on what may be said, when, whom, and time.

 It is worth concluding by recognising that the speaker is collectively the custodian of the rights of members and the Assembly and is also responsible for facilitating the smooth and orderly conduct of the business of the Assembly. During proceedings, the speaker ensures that all corners of the Assembly are heard and whenever a point of order is raised, he or she is required to interpret the rules, study, and in some cases refer to precedent, if any. In addition, when necessary, the speaker is expected to evolve a new practice by using discretionary powers[xxvi], and pronounce rulings as was the case in the speaker’s ruling[xxvii] of 12th September 2022.

Erskine May[xxviii] opines that the speaker is under a duty to intervene to preserve order but may refrain from intervening if he or she considers it unnecessary to do so. However, even if the speaker does not believe that a breach of an order has been committed, it is the right of any member who believes so to interrupt any member on the floor and direct the attention of the speaker to the alleged breach.[xxix] 

As observed earlier, the onus lies on the proponent of any point of order to simply direct attention to the point complained of and submit the same to the decision of the speaker. Where the speaker is of the opinion that the words or conduct complained of are outside the bounds of the rules or practice, the concerned member will be called upon to conform him or herself to the rules. 

It is customary and so trite parliamentary rule that the speaker is given utmost respect and attention by all members of the Assembly. Parliamentary law dictates that whenever the speaker rises to speak, he or she is heard in silence and any member who is speaking or wants to speak is required to be seated.

It is significant to note that no person is expected to leave the chamber when the speaker is addressing the Assembly, as this may imply disrespect to the chair. It is also concluded and for members to alert their minds that the speaker’s rulings cannot be questioned except on a substantive motion, and they constitute precedents that are collected for future guidance.

Finally, it is procedurally depressing that members habitually rise on a point of order when a member on his or her feet refuses to give way on a point of clarification or observation, only to interrupt the member on the floor without any genuine procedural breach. The speaker including the Assembly must denounce this growing practice of interruptions of debate by members where such interruptions constitute a blatant breach of parliamentary rule and a recipe for chaos and disorder in the Assembly.

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SUGGESTED CITATION: Mbye, Kalipha MM, Point of Order: The parliament of The Gambia in operation, Law Hub Gambia blog, November 7, 2022, https://www.lawhubgambia.com/lawhug-net/wwwlawhubgambiacom/lawhug-net/point-of-order

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Kalipha MM Mbye is the Deputy Clerk for Legal and Procedural Matters at the National Assembly of The Gambia. He holds an LLB degree (Bachelor of Laws) from the University of The Gambia, and an LLM degree (Master of Laws) in International Legal Studies Law from the University of Bradford, UK. He has interests in parliamentary democracy, constitutional law, public international law, and the rule of law.

Disclaimer: The opinion expressed in this article is entirely that of the author’s and does not represent the views or opinion of the National Assembly of The Gambia or any institution or person he may be associated with.

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[ii] Standing Orders of the National Assembly of The Gambia was adopted by members of the fifth legislature in September, 2019 following an extensive review of its earlier version of 2001.

[iii] Standing Orders, National Assembly of The Gambia, 2019, Order 17(f)

[iv] Standing Orders, National Assembly of The Gambia, 2019, Order 18 and 32

[v] Points of Order, MPs’ Guide to Procedure, https://guidetoprocedure.parliament.uk/articles/f1OqrfIi/points-of-order (accessed 20th September, 2022

[vi] Points of Order, MPs’ Guide to Procedure, https://guidetoprocedure.parliament.uk/articles/f1OqrfIi/points-of-order (Accessed 28th September, 2022)

[vii] In The Gambia, a point of clarification or observation is a permissible interruption provided that the member on his or her feet is ready to give way.

[viii] Standing Orders, National Assembly of The Gambia, 2019, Order 32(2)

[ix] Standing Orders, National Assembly of The Gambia, 2019, Order 19

[x] Standing Orders, National Assembly of The Gambia, 2019, Order 20

[xi] M. Robert Marleau and M. Camille, House of Commons Procedure and Practice, 2000, Canada https://www.ourcommons.ca/marleaumontpetit/DocumentViewer.aspx?Sec=Ch13&Seq=5&Language=E&Print=2

[xii] Points of Order; Parliamentary Inquiries, US House Practice: https://www.govinfo.gov/content/pkg/GPO-HPRACTICE-104/pdf/GPO-HPRACTICE-104-38.pdf

[xiii] Standing Orders, National Assembly of The Gambia, 2019, Order 19

[xiv] L. James, Meeting Procedures: Parliamentary Law and Rules of Order for the 21st Century, Scarecrow Press, Inc. Lanham, Maryland, and Oxford 2003

[xv] It was held in this ruling that an [ordinary] must complete all its stages notwithstanding it is negatived at second reading stage. This implies that even if an ordinary was voted down at second reading stage the bill must continue to the next stage of the legislative process.

[xvi] Points of Order, MPs’ Guide to Procedure, https://guidetoprocedure.parliament.uk/articles/f1OqrfIi/points-of-order (Accessed October, 2022)

[xvii] Ibid

[xviii] Erskine May: Parliamentary Practice, (25th edn,) https://erskinemay.parliament.uk/section/4900/right-of-members-to-direct-the-attention-of-the-chair-to-supposed-breaches-of-order-points-of-order/?highlight=point%20of%20order (accessed 22nd October, 2022)

[xix] 2022 State of the Nation Address by the President of the Republic

[xx] Standing Orders, National Assembly of The Gambia, 2019, Order 32(1)(b)

[xxi] Standing Orders, National Assembly of The Gambia, 2019, Order 69

[xxii] Speaker’s ruling of 19th September, 2022 during Third Ordinary session of the Assembly.

[xxiii] Standing Orders, National Assembly of The Gambia, 2019, Order 20

[xxiv] Standing Orders, National Assembly of The Gambia, 2019, Order 20

[xxv] Constitution of the Republic of The Gambia, 1997, s113 and Standing Orders of the National Assembly of The Gambia, 2019, Order 17, 18, 21 and 22.

[xxvi] Standing Orders, National Assembly of The Gambia, 2019, Order 8

[xxvii] Ruling No. 1 of 2022, the speaker ruled on a matter of procedure affecting the Assembly on unfinished business of the immediately preceding Assembly [the Fifth Legislature]. The Speaker adapted and contextualised the parliamentary convention that one parliament cannot bind its successor parliament.

[xxviii] Thomas Erskine May produced the first edition of his ‘Treatise on the Law, Privileges, Proceedings and Usage of Parliament’ in 1844 in the House of Commons, UK and the publication came to be named after him.

[xxix] Erskine May: Parliamentary Practice, (25th edn,) https://erskinemay.parliament.uk/section/4900/right-of-members-to-direct-the-attention-of-the-chair-to-supposed-breaches-of-order-points-of-order/?highlight=point%20of%20order (accessed 20th September, 2022)

Placing free, prior, and informed consent at the center of extractive industry’s regulatory reform in The Gambia

Placing free, prior, and informed consent at the center of extractive industry’s regulatory reform in The Gambia

1. INTRODUCTION

The extractive industry regulatory agenda constantly attracts debate and demands for reform. This is mainly due to its intrinsic social and environmental impacts. Almost, always, the mines and quarries that host mineral exploration activities would be found in lands situate around inhabited or farming communities. It is not uncommon therefore to have members of those communities displaced or conflicts brewing within such catchment areas or both. There is little need for debate on the amount of Africa’s mineral reserves, except perhaps the rate of its diminishing returns. However, the mineral codes of many mineral-rich African countries that were mainly promulgated in the ’70s to ’90s were, at the turn of the millennium subjected to enormous criticism and reviews. Many countries were urged to not only revised their mineral codes, but also renegotiate the investment contracts, and promulgate stricter environmental and remedial measures in the industry. 

The role of the private sector companies and sometimes specifically identified corporations, bilateral and multilateral financial agencies, remains critical to establishing mineral exploration regulatory regimes that are responsive to the social and environmental development needs of concerned communities. Many have written to question who’s benefit those the mining laws and relevant regulations seek to benefit. Arguably, the immediate post-independent African legal frameworks and regulatory reform meant to harmonize and stabilize the sector led to the creation of a more favorable business environment for foreign direct investments albeit with little impact on development. The reforms of the 80s reduced the role of the state to a mere setting of the stage. These reforms largely reduced the institutional capacity and drove down the standards in key areas for socio-economic development, and the protection of the environment in many mining countries on the continent.[1]

Arguably, new African mineral sources are going into production, and resource-rich African nations continue to earn remarkable or supposed profits. But profits are not the premise of regulation, these are always contained in separate complex web of legal documents carefully crafted to serve the peculiarity of each of those investment agreements. For every lawyer around such a table, the peculiarity of each such agreement is largely dependent on the terms of risk-sharing and insuring or hedging against the same or more of the same. This article is not intended to review any such investment contracts or propose appropriate terms for developing country investment contract negotiation.

The principal legal framework for the extractives industry in The Gambia is the Mines and Quarries Act of 2005, Petroleum (Exploration, Development, and Production) Act 2007, the Gambia Maritime Administration Act 2006, Petroleum Commission Bill 2021 (pending completion of the parliamentary process at the time of writing), and regulations relating to trading in precious minerals and stones.

Let me state that whilst the extractives industry concerns both mineral and hydrocarbon resources, the focus of this article is on the regulation of mineral resources despite the difficulty in separating them in the discourse of relevant legal and regulatory frameworks. Certainly, there are more regulations for hydrocarbons for both downstream and upstream, including Health and Safety and Environmental Regulations, in addition to the National Environment Management Act and Environment Impact Assessment (EIA) Regulations 2014, requiring EIA’s for a host of projects including explorations for hydrocarbons and mineral resources.

This article attempts a regulatory diagnosis of the country’s extractive industry and argues the central role that concerned communities must play in discussions regarding prospecting for minerals, the carrying out of mining and quarrying operations, and related social and environmental impact evaluation and remedial measures.

 2. THE EXTRACTIVES INDUSTRY IN GAMBIA

2.1  Industry background and context

The Gambia might be the smallest mainland African country. It is, however, acclaimed to be host to varying mineral resources including liquefied gas (LPG), clay, silica, sand, titanium tin, and zircon, amongst others, with an estimated reserve of recoverable minerals yield a conservative total of about 995, 000 tonnes.[2] The 2005 Minerals Year Book[3] which published United States Geological Survey into Mineral Industries of The Gambia, Senegal, and Guinea Bissau, described mining in The Gambia to have initially been limited to clay, laterite, sand and gravel, silica sand, and zircon, albeit they didn’t make any significant contribution to the economy of the country. The country has provided mining license to the Australian company, Carnegie Mineral, and at least two local companies, Alhamdullillah Petroleum and Mining Company (APAM), Gambia Africa Mining Company GAMICO, and more recently, GATCH. Mainly along with the coastal states of Sanyang, Batukunku, Karton, Bafuluto, and in the far-away remote village of Badari in the Upper River Region.

According to the 2005 Mineral’s Year Book:

Carnegie Corporation Ltd (CCL) of Australia (50%) in joint venture with Astron Ltd of China (50%) held exclusive prospecting license from the Batukunku, the Kartong, and the Sanyang mineral sand deposits in Brufut. In 2005 the joint venture completed a second-round trial dredge program at the Sanyang deposit following the completion of this dredge program and of an environmental impact assessment study, the company submitted an application to convert its prospecting license to a mining lease. As of year-end, CCL continued to wait for government approval. Total measured, indicated and inferred resources at Batukunku, the Kartong and Sanyang deposits were estimated to be 18.8million metric tons (Mt) that contained about 1 Mt of heavy mineral at cut-off grade of 1%. The heavy minerals assemblage for these deposits was estimated to be about 71% imenite, 15% zircon, 3% rutile, and 11% others…

The involvement of Carnegie is perhaps the most publicized. In 2008 the Gambia Government unilaterally terminated the Carnegie mining license. Both the company and its manager Mr. Charlie Northfield were prosecuted and convicted for economic and financial crimes against the state, who was accused of illegally mining for titanium, iron ore, and uranium.  The Special Criminal Court of the Gambia fined the company a staggering $200 000 000 and forfeited the assets and HMC stockpiles left by the company to the State. Carnegie refuted the allegations of illegal mining pointing out that titanium and iron oxide were components of ilmenite, while uranium was an inseparable trace elements within the zircon it was licensed to mine.  Carnegie initiated an arbitration before the International Centre for Settlement Investment Disputes (ICSID. The arbitral tribunal awarded $31 million Australian Dollars to Astron Corporation Limited, the parent company of Carnegie Mineral.

Interestingly, the HMC stockpiles and assets later came to be managed and explorations carried on by APAM and GAMICO, companies believed to be associated with the country’s former President.  It was not until 2017 with the establishment of the Janneh Commission Financial Inquiry into the financial carnage of the President that the country’s mineral and mineral industry came under even closer scrutiny when the Commission heard and received evidence, including site visits to the affected communities. These visits brought to the fore the immense environmental degradation that the mining activities have resulted in. There is no evidence of any direct benefit to the community from the proceeds of these exploration activities.

Beyond the few known cases of precious metals and stones mining that is reported in the country, mining of general construction sand and gravel takes place across the country.

2.2 National Mining Legal and Regulatory Framework

The Mines and Quarries Act is the country’s major legal instrument for the regulation of its mining industry. It makes provision for prospecting for minerals, for carrying out mining and quarrying operations, and for connected matters.[4]  The Act has 123 sections, making provision for the ownership and control of minerals.  And the rights and responsibilities of mining and quarrying license. Petroleum exploration and production is excluded from the application of this Act.[5]

The Act emphatically states that “for the avoidance of doubt, it is hereby declared that the entire property in and control of all minerals, in, under on the sea-bed and sub-soil of the continental shelf of The Gambia resides in the state.”[6]  The authority to issue a mining or quarrying licence resides in the Minister on the advice of the Chief Geologist. Applications are received by the Chief Geologist, who is obliged to consult with government departments, each government agency, and the relevant local government authority.[7]  The Mineral right conferred by the issued license shall be exercised reasonably and its enjoyment shall not injuriously affect the interests of an owner or occupier of the land over which the right extends.[8]  The authority may confer an exclusive right to prospect, mine, or quarry the specified mineral or minerals within the period specified.[9] The holder may subject to informing the Chief Geologist, and the payment of royalties, respectively build necessary structures and dispose of the recovered minerals.[10]

The Act further provides, subject to general capacity to contract, persons otherwise not permanently resident or incorporated in The Gambia shall not be granted a mining or quarrying license.[11] It also allows for the refusal, cancellation, or approval subject to conditions. The grant of a license shall take stock of the States mineral interests; protect the environment[12] and the lawful interests of other mining rights holders. [13] in respect of landowners, it states:

A Lawful occupier of land specified in a mining license, mining permit or quarrying license shall not erect a building or structure on the land without the consent of the holder of the license or permit;[14]

If the Chief Geologist considers that the consent is being unreasonably withheld, he or she may consent to the erection of the building or structure.

The Act makes provision for payment to fair and reasonable compensation to the lawful occupier of land, described in the Act as the person in actual occupation of the land. The accountable and transparent mechanism through legislative frameworks supported by governments, multinational corporations, political and civil society organizations continue to widen the poverty gap for the people who ought to be the primary beneficiaries of these natural resources.[15] Domestic mining or petroleum laws specify and regulate the granting of concessions and other operational rights for exploitation, royalties, taxes, and other incentives in the extractive industry.[16] Other legal instruments establish procedural requirements for human rights-based approaches and the conduct of the social and environmental impact assessments. Whilst these regulatory requirements focus mainly on the grant of concession and exploration and/or mining rights, attention ought to also be paid to the people who are disposed of their lands in favor of investors.  It’s worthy to note that although the decisions of the African Commission on Human and People’s Rights on access to land, natural resources, and to development, generally, based on articles of the African Charter, including, articles 21(2), “in case of spoliation, the dispossessed people shall have the right to the lawful recovery of its property as well as to adequate compensation.”[17] Indeed, under section 22 of the 1997 Constitution of the Republic of The Gambia, every expropriated property shall entitle the owner to receipt of payment of prompt, effective, and immediate payment of compensation. The case that has come before the African Commission regarding the right to land, natural resources, as a human rights issue, concerned mainly indigenous people. This article is not intended to underscore whether the Gambian has ‘indigenous people’ or not. Notwithstanding, the emergence of development as a human right, and its associated requirement of “free, prior, and informed consent” requires that every community that has its lands become the subject of allocation for development of extractives purposes, shall be accorded an “active, free and meaningful participation” in the entire process of such determination and not merely be consulate.  The question is whether the Gambians regulatory framework for its extractives industry has placed the members or people of the relevant communities at the heart of this natural resources development.

Decisions of the Chief Geologist and Minister are subject to Appeal at the High Court within 30 days of the decision. The Chief Geologist may also hear disputes concerning involving private persons with interests in the prospecting, mining, or quarrying operations. [18] Certified copies of the orders of the Chief Geologist are enforceable by a Civil Court with territorial jurisdiction over the subject matter.[19]

The Act further creates offences. It criminalizes, subject to public information and the disclosure relevant for the administration of the Act, to disclose any information received from a person concerning his/her affairs and the mining business without the consent of the person concerned and to falsify minerals.

The holder of a mining or quarrying license is obliged to maintain an insurance cover as customarily or prudently insured in the international mining or quarrying industry. He/she shall indemnify the State against any claim for loss, injury, or death.

3.     The human rights of free prior and informed consent

Various standard-setting international institutions and organizations exist that promulgate various regional and multilateral principles as benchmarks of standard regulatory governance of the extractive industry.  This includes the Extractive Industry Transparency Initiative (EITI), which is a global standard that ensures transparency of revenue from natural resources; Publish What You Pay, Revenue Watch Institute; Oxfam; Transparency International; Global Witness; Global Reporting Initiative; Alliance for Responsible Mining; Natural Resource Charter; and Transparency and Accountability Initiative[20] and the World Bank’s Extractive Industries Review. The incorporation of international human rights in business regulation imposes on state parties the obligation to inculcate terms and conditions in their contracts with investors. These terms seek the objective realization of environmental and climate conditions and the right of the people to development and freedom from exploitative business practices. The Gambia is a party and has international obligations to allow the participation of local communities in the process of issuance of a mining license and ensure that the exploration of its extractive resources is in the best interest of the communities concerned.

The African Charter on Human and People’s Rights obliges state parties to ensure respect for human rights in all matters of natural resources exploitation, extraction, toxic waste management, and governance in international cooperation, investment agreements, and trade regulations.  Member states, like The Gambia, are further required to promote natural resources legislation that respects human rights of all and requires transparent, maximum, and effective community participation in decision making in the prioritization, scale of and benefits from any development and on the land and other resources that affect them in any substantial way.  The state parties are further required to ensure independent social, human rights, accountability, and transparency monitoring in the entirety of the process regarding natural resources exploration. [21]

The Charter imposes a duty on contracting states to ensure that human rights are justiciable and extractive industries and investors held legally accountable in the country hosting and sending state. It guarantees for the people the right to pursue their economic and social development and to dispose of their wealth and natural resources in general.

The extractive industry of any country has a primary relationship with its land law regimes. The Gambia has different land law regimes including leasehold over state lands and customary tenure.[22] Consequently, whilst the Land Region’s Act places people at the mercy of the state on sites that are the subject of the extractive industry. This has implications on their socio-economic rights as discussed above. This section discusses the efforts that are undertaken at the international level aimed at ensuring that the people do not only benefit from these extractive resources but also partake in making decisions and are protected from the adverse effects that often characterize the extractive industry.

The Rio Declaration on Environment and Development recognizes the sovereignty of States over natural resources and places people as the centerpiece of sustainable development.[23] It recognizes that human beings are entitled to a healthy and productive life in harmony with nature. It adds that local communities have a vital role in environmental management and development and therefore their interests must be protected.[24]

Special protections also exist for indigenous people in international human rights legal frameworks. This includes groups of individuals with cultures and ways of life considerably different from the dominant society.[25] They have historical ties handed down from generations, magnified by language, social organization, religion, and spiritual values, modes of production, laws, and institutions, and usually victims of subjugation and/or discrimination.[26] participation of locals in matters regarding the use of their ancestral lands in general, and the exploitation of the natural resources on those lands, is relevant to the enjoyment of their right to self-determination.[27]

The international definition of Indigenous people may remain problematic, however, the Principle of Free Prior and Informed Consent (PFIC)[28] is material in protecting the rights of locals to self-determination.[29]  Considered to be developing into an international customary law[30], PFIC creates the “the duty of States to obtain Indigenous Peoples’ FPIC, entitles Indigenous people to effectively determine the outcome of decision-making that affects them, not merely a right to be involved.”[31]

The state in the issuing mining license is required in good faith to consult with the aboriginal groups or communities asserting title to land.[32] The degree of consultation and negotiation with aboriginal rights holders and accommodation required varies depending on the group’s claims to the land and severity of potential adverse effects upon the interests claimed.[33] It is not clear whether the aboriginal title as obtained in Canada is the same as the customary title to land as obtained in The Gambia. Within the West African Sub-regional framework, the ECOWAS Directive on the Harmonization of Guiding Principles and Policies and Policies in the Mining Sector (DHGPP),[34] sets the standard on the requisite regulatory principles that should guide exploitation of the mining resources. It doesn’t only put the locals and their interests at the core of mining regulation but as well seeks civil society participation. Most importantly, it makes provision for the need to obtain the free and informed consent of communities that are privy to the mining sites.

DHGPP expects the acquisition of land for the development of mineral resources to be according to domestic laws. It requires the payment of adequate compensation to be paid to the lawful occupiers of the land(s) in question. In considering what is adequate as compensation the following considerations need to be made;

1.     The loss to be suffered user/occupier of the land.

2.     The inconvenience which can be assessed according to legal principles in monetary terms caused to the landowner or lawful occupier.

3.     The losses and damages suffered by the immovable assets and appurtenances including loss of revenue, expected losses of agricultural income and the reasonable proven losses by providing compensation.[35]

This is in consonance with the Constitution of the Republic of The Gambia, which allows compulsory land acquisition in the interest of defense, public safety, public order, public morality, public health, town and country planning, or the development of property in order to promote public benefit and that the hardship of the compulsory acquisition is reasonably justified in accordance with the law coupled with prompt and adequate payment of compensation.[36]

DHGPP mandates the State to designate certain areas as “no mining zones” for environmental, social, and culturally sensitive to mining operations. It imposes on the holder of mining license the adoption of necessary measures to protect forests, water resources, the environment, other natural resources, and public health in its mining and to operations and operated with due regard to the environment, public health, and safety in accordance with domestic laws and international agreements.[37] In fact, Corporate Social Responsibility (CSR) and Alternative Livelihoods Programme (ALP) and required to be conditioned for grant of mining rights.[38]

It is certainly not unusual to find in Bilateral Investment Treaties (BITs) what is often called local content requirements.  The DHGPP seeks the same content in asking mining rights holders to submit a detailed programme for recruitment, technological transfer, and training local personnel.[39] The State parties are required to promulgate laws that will provide artisanal and small-scale mining rights to citizens that are environmentally sustainable. [40]

Perhaps the most important regulation demand of the DHGPP is the democratization of governance and the demand for transparency. It makes a case for member countries to achieve this transparency by subscribing to EITI and were not available, pass the freedom of information law in that regard.[41]

4.     Conclusion

 Respect for human rights and most importantly the right of the locals whose communities are the subject of mining and other extractive industry operations should form the crux of the framework for the extractive industry in The Gambia. The DHGPP in this light recognizes the economic, social, cultural, and right to the political development of these communities and the most effective participatory approach of “obtaining free, prior and informed consent of local communities before the exploration and ensure continuous consultation involving civil society organizations.  Indeed, sporadic conflict within communities associated with and relating to mining and quarrying activities ought to be a wakeup call for role players to ensure at all times that the free prior and informed consent of the people that would be directly affected by the explorative of license holders in the grant and management of extractives and other industries. Including the fishing industry.

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SUGGESTED CITATION: Saho, Abdou Aziz, Placing ‘free prior” and ‘’informed consent’’ at the center of extractive industry’s regulatory reform in The Gambia, Law Hub Gambia Blog, May 12, 2021. https://www.lawhubgambia.com/lawhug-net/extractive-regulatory-reform-gambia.

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Whatever it is, the way you tell your story online can make all the difference.

About the author

Abdou Aziz Saho is a State Counsel at the Attorney General’s Chamber and Ministry of Justice. The former Magistrate is a University of Pretoria trained international trade and investment lawyer. His practice and research interests include hydrocarbons and energy law, international trade law, and financial services regulation and arbitration. The views and opinions expressed in these articles are those of the author and do not reflect the views of the Gambia Government or the Chambers.

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 [1] B Campbell, “Regulating Mining in Africa: For whose Benefit?”, Discussion Paper 26, Uppsala (Sweden) (2004)

[2]  Fortune of Africa, Natural Resources of Gambia, http://fortuneofafrica.com/gambia/2014/02/05/natural-resources-of-gambia/  last accessed 21 June 2020

[3] O. Bermundez-Lugo, THE MINERAL INDUSTRIES OF THE GAMBIA, GUINEA BISSAU, AND SENEGAL, 2005 MINERALS YEAR BOOK, https://minerals.usgs.gov/minerals/pubs/country/2005/gapusgmyb05.pdf Last accessed 21 June 2020

[4] See the Preamble to the Mining and Quarries Act, Cap. 64: 01, Vol. 10 Laws of the Gambia, 2009.

[5] The legal regime for the exploration and production of petroleum products is regulated by the Petroleum (Exploration and production Act) Cap. 64:02 Vol 10 Laws of The Gambia 2009

[6] S. 4(2) of the Mines and Quarries Act, supra

[7] S. 14 Mines and Minerals Act, supra

[8] S.81 of the Mines

[9] See sections 61,62 and 79 of the Mines and Minerals Act, supra

[10] Ibid

[11] S. 50, ibd

[12] S. 113 of the Mines and Minerals Act requires compliance with the National Environment Management Act (NEMA).

[13]

[14] S. 84(1), Mines and Acts, supra

[15] Shari Bryan and Barrie Hofman (Eds.) , Transparency and Accountability in Africa’s Extractive Industries: THE ROLE OF THE LEGISLATURE, National Democratic Institute for International Affairs, (2007)  available at https://www.ndi.org/sites/default/files/2191_extractive_080807.pdfl; last accessed 21 June 2020

[16] Ibid

[17] E Ashamu, “Centre for Minority Rights Development (Kenya) and Minority Right Group International on behalf  of Endorois Welfare Council V. Kenya: A Landmark Decision from the African Commission,” Journal of African Law, Vol. 55 No.2 (2011) pp. 300-313

[18] S. 110 of the Minerals and Mining Act, supra

[19] S. 91 of the Mines and Quarries Act, supra

[20] J.O. Adeumi, “GOVERNANCE IN THE NIGERIA EXTRACTIVE INDUSTRY:  FROM HUMAN DEVELOPMENT PERSPECTIVE”,https://www.luc.edu/media/lucedu/prolaw/documents/volume4/D.%20GOVERNANCE%20IN%20THE%20NIGERIAN%20EXTRACTIVE%20INDUSTRIES.pdf Last accessed 21 June 2020

[21] See articles  20, 21 and 24 of the African Charter on Human and People’s Rights, 1969,

[22] See State Lands Act and Land Regions Act

[23] Rio Declaration on Environment;

[24] See Principles 2&22 of Rio Declaration on Environment and Development

[25] African Commission Work on Indigenous Peoples in Africa, “INDIGENOUS PEOPLES IN AFRICA: THE FORGOTTEN PEOPLES?” (2006) available at http://www.achpr.org/files/special-mechanisms/indigenous-populations/achpr_wgip_report_summary_version_eng.pdf last accessed 28th June 2020

[26] Food and Agricultural Organization (FA0) “Free and Informed Consent, An Indigenous People’s Right and a Good Practice for Local Communities” Manual for Practitioners,  available at http://www.fao.org/3/a-i6190e.pdf last accessed 28th June 2020

[27] See art. 1 of International Covenant on Civil and Political Rights and Covenant on Economic, Cultural and Social Rights; see also n25

[28] See United Nations Declaration on the Rights of Indigenous People; International Labour Organization 169; and the Convention on Biological Diversity

[29] Ibd

[30] Cultural Survival Quarterly, “Free, Prior and Informed Consent: Protecting Indigenous People’s Rights to Self-Determination, Participating and Decision-Making” available  https://www.culturalsurvival.org/publications/cultural-survival-quarterly/free-prior-and-informed-consent-protecting-indigenous

[31]

[32] Tsilhgot’in Nation Vs. British Columbia

[33] Ibd

[34]

[35] Article 4, ECOWAS Directive on the Harmonization of Guiding Principles and Policies in the Mining Sector,

[36] S.22 of the Constitution of The Republic of The Gambia, 1994

[37] Art. 6, (n34)

[38] Art. 11 (n34)

[39] Ibd

[40]  Ibd

[41] Art. 13 (n34)

The Supreme Court of The Gambia and the power of Parliament in the budget making process – opinion on the judgement!

Introduction

The recent judgment passed by the Supreme Court of The Gambia, hereinafter referred to as ‘the court’, on a matter between two civil society organisations and Parliament has stimulated a great debate in the public space on Separation of Powers and the Rule of Law in The Gambia. It should be a good case of interest for scholars who are interested in Parliamentary independence and democracy, particularly in The Gambia where the subject has little or no attention and literature.

 The two civil society organisations invoked the original jurisdiction of the Supreme Court seeking, inter alia, a declaration that the amendment done by the National Assembly (Parliament) by including a budget line item of D54.4m is in contravention of sections 151, 152, and 155 of the Constitution and a violation of section 47 of the Public Finance Act, 2014.

 The court, in a unanimous decision, held that the inclusion of D54.4m by Parliament in the Estimates contravened the provisions of sections 152 and 155 of the Constitution as well as violated section 47 of the Public Finance Act; thereby stroke out the said sum from the Appropriation Act, 2021.

 The court, however, in its judgment sees ‘…NOTHING inconsistent with or in contravention of the Constitution on setting up loan scheme for the members and staff of the National Assembly...' This simply means, as per the court, the allocation of funds for loan scheme for members and staff of the National Assembly is/was legally, ethically, and morally correct but, flawed the procedure or process. The initiative and objective of the scheme were not to enrich any member or staff of the National Assembly.

 Now, let us get into the issue of how we respectfully disagree with the court in faulting the procedure or process of Parliament allocating funds in a purported creation of a new budget line item in the Estimates by Parliament. Why the word ‘purported’ new budget line is used would be answered later.

The Annual Estimates and the Annual Appropriation Bill

 In an attempt to interpret the word 'approve' in section 152(1A), the Supreme Court failed to interpret the preceding word 'consideration' and I do not know why but its interpretation could have had a significant bearing on the case.

 Similarly, the court misconstrued a Bill under 101, which has no bearing on the suit, with the Annual Estimates of Revenue and Expenditure which is the main issue for determination under section 152.

 The court’s failure to give meaning to the word 'consideration' in section 152 suggests a deliberate move to deny Parliament that flexibility intended by the drafters, knowing fully well that interpreting the word may lead them to inquire into the Standing Orders of Parliament which they lack jurisdiction as per section 108 unless it is contrary to the Constitution. It must be emphasised that the Constitution in this case is silent on how the Estimates should be considered but the Standing Orders of Parliament did detail out the consideration stage of the Estimates extensively.

In addition, I do agree with the court’s assertation that:

Central to the safeguards for the protection of the Consolidated Fund and other public funds is the balanced apportionment and separation of powers and responsibilities of eth Executive and Legislature in respect of the control and administration of these funds. The Executive has the responsibility of preparing detailed proposals of the Budget and also of lending public funds and entering into financial agreements such as loans and guarantees. The Legislature, on the other hand, exercises financial scrutiny and oversight on these matters through its powers of amendment and approval as per sections 101, 151, 152, and 155 of the Constitution and sections 14 and 47 of the Public Finance Act, 2014.

However, again, the court acknowledged the power of Parliament to amend and approve but failed to recognise or give meaning to the power of ‘consideration’.

 Blackwell, A. (2008) in Essential Law Dictionary, defined ‘consideration’ to mean: ‘The payment or reward essential to the formation of a contract and that persuades a person to enter the contract; something of value given in exchange for a performance or a promise.’ For the purposes of this context, consideration could be defined to mean negotiations and exchanges between the Minister of Finance and Parliament that persuaded the former to create the budget line item in Parliament.

 The procedure of considering the Estimates is regulated in detail by the Standing Orders, since both the Constitution and the Public Finance Act are silent about it, and this is what Standing Order 91(3) states:

(3) In considering the Estimates, the Committee of Supply shall take into consideration the reported findings and recommendations of the Assembly Committees and the Finance and Public Accounts Committee’s consolidated report on the Assembly committees’ consideration of the draft budget, and shall ensure that –

 (a) an increase in expenditure in a proposed Estimate is balanced by a reduction in expenditure in the same or another proposed Estimate; or

(b) a proposed reduction in expenditure is used to reduce a deficit in the Budget.

 This means that the only thing Parliament is restrained of, even by its own Standing Orders, is to increase the overall Estimates without the Minister’s consent. It is evident that the Estimates were never increased by Parliament, rather the deficit was reduced.

 Assuming, without conceding, that section 101 of the Constitution, especially paragraph (4), is relevant for the case, that provision is not a matter for the court to interpret in such a way it did but a procedural power for the Speaker of the National Assembly to exercise in his or her own opinion.

Section 101(4) reads:  

 Without prejudice to the power of the National Assembly to make any amendment (whether by the increase or reduction of any tax or charges, or the amount of any payment or withdrawal, or otherwise), the National Assembly shall not give consideration to a Bill that in the opinion of the person presiding makes provision for any of the following purposes –

(i) for the imposition of taxation or the alteration of taxation;

(ii) for the imposition of any charges on the Consolidated Revenue Fund or any other public fund of The Gambia or the alteration of any such charge;

(iii) for the payment, issue or withdrawal from the Consolidated Revenue Fund or any other public fund of The Gambia of money not charged thereon or any increase in the amount of such payment, issue or withdrawal; or

 (iv) for the composition or remission of any debt due to the Government, unless the Bill is introduced into the National Assembly by the President.

 Still, on section 101(4) of the Constitution, why did the court refuse to take cognisant of the word ‘otherwise’ in the said construction of the provision even though it has emphasised that provision in rejecting the submission of the counsel for the 2nd, 3rd, and 4th defendants? The word ‘otherwise’ here in Parliament’s power of amendment may include the power to do anything associated with the amendment to the document before it.

 Assuming further that section 101 is relevant to the case, I do not agree with the court's rejection of the defendant’s submission that the power of Parliament to amend the Estimates extends to creating new budget lines or fresh expenditure in the Estimates. The court further went to hold the view that Parliament cannot, on its own or permitted by sections 152 and 101(4) of the Constitution, create a new or fresh charge in the Consolidated Fund under the Estimates.

 Interestingly, the court could not alert its mind that an allocation in the Estimates is not necessarily a direct charge on the Consolidated Fund, but it is only the Appropriation Bill when approved that puts a charge on the Consolidated Fund. This is illuminated by sections 151 and 152(3) of the Constitution.

 Section 151(1)(a) and(b) of the Constitution states:

No money shall be withdrawn from the Consolidated Fund except – (a) to meet expenditure charged on that fund by this Constitution or an Act of the National Assembly; or (b) where the issue of that money has been authorised by an Appropriation Act, a Supplementary Appropriation Act or in accordance with subsection (4) of this section.

Furthermore, for purposes of clarity, section 152(3) of the Constitution states: ‘When estimates of expenditure have been approved by the National Assembly, an Appropriation Bill shall be introduced in the National Assembly for the issue from the Consolidated Fund of the sums necessary to meet that expenditure (other than expenditure charged on the Consolidated Fund), under separate votes for the several services required and for the purposes specified therein.’

Section 101 of the Constitution talks about the introduction of Bills and motion in the National Assembly and has nothing to do with the consideration of the Estimates. The most relevant section dealing with the Estimates is section 152 of the Constitution. The Appropriation Bill cannot be introduced without first dealing with the Annual Estimates as clearly asserted by section 152(3) of the Constitution above.

 This means that there is no way that the Appropriation Bill could be dealt with without the Annual Estimates disposed first, and then the Minister of Finance prepares his or her Appropriation Bill for introduction in Parliament.

I do agree with the court that the Legislature cannot introduce money Bills as per the Constitutional framework, but it has not barred them the power to amend, change or modify that Bill once tabled before for consideration. While this is a settled Parliamentary convention in all commonwealth jurisdictions, it has been further codified in the Standing Orders of the Parliament of The Gambia under Order 79. However, and I repeat, it is important to note that the Appropriation Bill was never and had never been, introduced by Parliament but the Minister of Finance.

 Consequently, therefore, the court should have also alerted its mind to the fact that the National Assembly did NOT ‘…introduced ANY Bill that provides for withdrawal from the consolidated fund for any transaction, which creates or is likely to create long-term commitments without the prior consent of the Minister of Finance.’ Rather, the Appropriation Bill was introduced by the Minister of Finance, days after the approval of the Annual Estimates of Revenue and Expenditure.

 Independence of certain Constitutional Independent Institutions

 The court had also failed to dwell on the intention of the drafters or the fundamental principle of the Constitution granting certain independent institutions, or similar status with Parliament, such as the Judicature, NAO, and IEC, explicit protection from Executive interference in their budget preparatory process but not to Parliament. This is because, in my view, the drafters knew that Parliament ultimately have the final say in the budget, and if their Budget to the Executive is not accommodated in the submitted version then they could implicitly redress that at their consideration stage.

 The court was vigilant to the fundamental principles behind the following Constitutional provisions accorded to such institutions of equal status with Parliament, if not more important. Sections 44, 144(1), and 159(4) of the Constitution respectively state:

 The Independent Electoral Commission shall submit its annual estimates of expenditure to the President for presentation to the National Assembly in accordance with this Constitution. The President shall cause the estimates to be placed before the National Assembly without amendment, but may attach to them his or her own comments and observations.

The Chief Justice shall submit the annual estimates of expenditure for the Judicature to the President for presentation to the National Assembly in accordance with this Constitution. The President shall cause the estimates to be placed before the National Assembly without amendment, but may attach to them his or her own comments and observations.

 The Auditor-General shall submit the annual estimates of expenditure for the National Audit Office for the following year to the President for presentation to the National Assembly in accordance with this Constitution. The President shall cause the estimates to be placed before the National Assembly without amendment, but may attach to them his or her own comments and observations.

Ideally, the mind of the drafters for this provision is to guarantee these important institutions their financial independence and free from Executive interference in their budget preparatory process, unlike Parliament who has the final say in the budget when their demands are not met by the Executive.

 Since the alleged violation of the provisions of section 151, 152, and 155 of the Constitution and section 47 of the Public Finance Act is ambiguous and not literally clear, I believe the court should have drawn its mind to the fundamental reasons of Parliamentary independence and swim in the ocean of the doctrine of separation of powers to give effect to the meaning of the independence of the Legislature just like that of the Judicature.

 The Public Finance Act its interpretation

 The court’s reliance on the Public Finance Act requiring the prior consent of the MoFEA and the need for an agreement before a loan scheme or any other kind of loan is established is fatal. This is because the court is implying that provision which is intended to regulate conventional loan between the State and a State, national or multinational corporations, national or international organisations/entities is also applicable to a mere institutional service loan. Otherwise, the Civil Service loan scheme itself would be rendered illegal because there was no such agreement tabled before the National Assembly for approval, rather the fund was just allocated in the Estimates and thereafter responsible institution, the Personnel Management Office (PMO), came up with the implementing structure or governing regulation likewise the NAO staff loan scheme.

Furthermore, it agreeable that section 47(1) of the Public Finance Act, subject to sub-paragraphs (2), (3), and (4), did give the Minister of Finance the sole authority to lend State funds. However, it would have been good for the court to dwell on the intention of this legislation and that of section 155 of the Constitution. Basically, section 155 of the Constitution and the said legislation seeks to regulate or govern the lending of State funds outside the ordinary institutional State structure like public enterprises, private institutions, international organisations, or other Nation-States. This provision does not necessarily apply to administrative and institutional loan structures or schemes, otherwise, even the Civil Service loan Schemes and that of the NAO, which they have just secured from the same budget approval process under review, would be rendered unlawful. This is because none of their structures/agreements had ever been subject to Parliamentary approval as it would have been required by section 155 of the Constitution and section 47(4) of the Public Finance Act if the interpretation of the court is anything to go by. Therefore, in my view, sections 14 and 47 of the Public Finance Act are irrelevant to the case. It is not the State that is lending as envisaged by the Public Finance Act but the institution loaning within itself – it is an internal and administrative loan scheme.

 Lord Denning stated his view in Magor and St Mellons Rural District Council v Newport Corporation (1952):

 We do not sit here to pull the language of Parliament to pieces and amend nonsense of it…we sit here to find out the indention of Parliament and carry it out, and we do this better by filling in the gaps and making sense of the enactment than by opening it up to destructive analysis.

 Based on the above quotation by Lord Denning, it is my considered view that the court could have adopted the purposive approach to give effect to the true purpose of the Public Finance Act – State-to-State lending or State to other private or international corporations.

The main issue of the suit and the locus standi of the plaintiffs was an alleged violation of the Constitution. Why did the court engage itself in a fishing expedition? It was supposed to be the court’s responsibility to interpret the provisions of the Constitution especially section 152 in its entirety, together with the mind of the drafters and intention of Parliament rather than extending a generous interpretation of section 101 of the Constitution as if a provision in the fundamental rights chapter is in dispute, leaving out section 152(1A) without greater analysis.

 In answering the purported element of a new budget line created by Parliament, I wish the court could have extended its fishing expedition to the side of the defendants to unveil the fact that the said budget line which the court in fact quoted as budget line number 2111280 of which the D54.4m was allocated was created by the Minister of Finance, of course at the request of Parliament. Without conceding that Parliament cannot create its own budget line, it should have been the Minister of Finance’s responsibility to object to the request and if need be, request the court’s declaration that the request made by Parliament was unlawful for him to execute. There is no evidence suggesting that Parliament created the budget line, but the only available is that the motion was made by a member of Parliament requesting for the Minister to create the budget line. A Parliamentary motion is defined in Standing Order 1(1) to mean “the means of initiating an Assembly debate, in which a course of action is proposed and/or an Assembly decision sought on a relevant issue.” Furthermore, the Standing Orders provide that a motion may be tabled by Ministers, Committee Chairs on behalf of Committees and by Members.

 Therefore, the Minister as a defendant in the suit has not deposed anything that he is against the creation or he was under duress, if I may say, to act on the request of Parliament. The Minister could have invoked his privilege to move a motion to challenge or nullify that member’s motion.

The loan scheme

 On the issue of the legality or otherwise of the loan scheme, the court has satisfactorily dealt with the merit of the scheme, that it is not inconsistent with the law for such to be accorded to the Legislature as an institution within the governance structure of the State. I, therefore, need not to belabor the point but just to reiterate the issue in the court’s own words: ‘Just like the revolving loan scheme set up for the Civil Service, I see nothing inconsistent with or in contravention of the Constitution on setting up a similar loan scheme for members and staff of the National Assembly…’

 Notwithstanding, the court went further to put a caveat to this, that the establishment of the loan scheme ought to go through a proper process such as an enabling legislation or regulation to allow for the setting up of governing and administrative structures, including necessary rules or policy to safeguard the public funds before seed money is made in the Estimates. This, to me, reveals that the court failed to even interrogate, as a whole, the Finance Act it relied on.

 Section 28(3) of the said Act has designated the Clerk of the National Assembly as the voting controller of the National Assembly and paragraph (5) of the same section charged the voting controller the legal obligation ‘to properly and efficiently manage the utilisation of public funds under his or her custody and shall:

 (a) comply with all the regulations, instructions and directions issued in respect of such funds; and

(b) maintain proper systems for effective internal control.’

 Primarily to the above, section 111(3) of the Constitution has mandated the Clerk of the National Assembly as the administrative head of the National Assembly Service under the supervision of an Authority comprising of five National Assembly members including the Speaker.

A combined reading of section 111 of the Constitution with section 28 of the Public Finance Act implies that there is enough administrative structure to safeguard the public funds as well as the established fact that no fund could be released without the necessary governing rules. In fact, the existing internal governance structure of the State, such as the functions of the internal audit department prescribed in section 68 of the Public Finance Act, would not have allowed any public funds spent without safeguard measures or legitimate reasons in place. The court ought to have drawn its attention to the fact that there is a difference between allocation and disbursement of funds. The appropriation of funds in the Estimates and the Appropriation Act are all mere allocation of funds but the actual disbursement of funds is regulated and controlled by the Ministry of Finance under the Public Finance Act and the attendant Financial Instructions.

 Conclusion

 In conclusion, I wish to reiterate that, the court’s inference of giving the Executive the exclusive power to be creating a budget line item for the Legislature unlike the Judicature, is the same as subject the Legislature at the mercy of the Executive which is, of course, against the fundamental principle of separation of powers and an affront to Parliamentary independence. The court failed to appreciate the fact that the ordinary administrative requirement of budget bilateral is purely meant for institutions and agencies, directly or indirectly, under the Executive but not for Constitutional Independent Institutions like the Judicature, Legislature, NAO, and IEC. Subjecting Parliament to budget bilateral or Executive control is identical to equating the former to an Executive agency or institution.

 One of the principles under the doctrine of separation of powers is parliamentary sovereignty, though not absolute in The Gambia. Under most Constitutional frameworks and governance structures like The Gambia, the Constitution is supreme, and this is indisputable. However, under the same Constitution, Parliament is not an ordinary institution and any action of it that is under review by the Judicature must not be interpreted generously against its underlying existence unless it is a matter affecting the fundamental rights provisions.

 Has the court considered the consequential effects of its holding that Parliament cannot create a new budget without the prior consent of the President/Minister of Finance? As reiterated earlier, the court knows best the cornerstone of Judicial and Parliamentary Independence in a democracy is Executive-free interference and adequate resources. Certainly, the independence of the Judiciary, as well as that of Parliament, cannot be guaranteed in the absence of adequate resources. There is no doubt with the court’s ruling in the instant matter, the Judicature has legitimised Executive interference in Parliament. For instance, if Parliament during the budget preparatory process proposes to create an oversight or any other budget line item that it sees fit to effectively operate and to have funds allocated to that like but Government/MoFEA rejects such a proposal, who would rescue Parliament or check on the Executive to ensure the former gets the said budget line created since the court has already stated that Parliament cannot create its budget line unless agreed by the Executive?

 The Commonwealth Parliamentary Association (CPA) had argued that governments, generally, do not like Parliamentary oversight/accountability and they could do anything within their powers and privileges to stifle such. It is always good to take special note that Parliament is not an ordinary institution, in fact not an institution but an organ of State, that should be considered or treated as other institutions operating under the pleasure of Government (the Executive). These are the fundamental reasons why the drafters of our 1997 Constitution expressly safeguarded the Judiciary, NAO, and IEC from such Executive budgetary control and granted them the expressed easy ride to prepare their budget untouched by Government, but Parliament may touch. Contrarily, Parliament was not given such an express provision because the drafters knew that Parliament is ultimately in control of the budget and in spirit could decide on their fate.

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SUGGESTED CITATION: Mbye, Kalipha MM, The Supreme Court of The Gambia and the power of Parliament in the budget making process – opinion on the judgement!, Law Hub Gambia blog, May 10, 2021, https://www.lawhubgambia.com/lawhug-net/wwwlawhubgambiacom/supreme-court-and-parliamentary-power-in-budget-making.

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 Kalipha MM Mbye is Head of Table Office at the National Assembly of The Gambia. He holds an LLB degree (Bachelor of laws) from the University of The Gambia. At the time of writing this opinion, he was pursuing his LLM degree (Master of Laws) in International Law at the University of Bradford, UK. He has his interests in parliamentary democracy, constitutional law, public international law, and the rule of law.

 Disclaimer: The opinion expressed in this article is entirely that of the author’s and does not represent the views of any institution or person he may be associated with.

FGM AND THE LAW

Background 

 It is that period of the year when the world acknowledges and brings to light the various forms of violence faced by women and girls. This period runs every year from the 25th November (International Day for the Elimination of Violence against Women) to the 10th December (Human Rights Day) to raise awareness about violence against women as a human rights issue with focus on gender-based violence especially. This campaign originated at the inaugural Women’s Global Leadership Institute and continues to be coordinated each year by the Centre for Women’s Global Leadership (CWGL).[1]

 According to the World Health Organization (WHO), violence against women is defined as “any act of gender-based violence that results in, or is likely to result in, physical, sexual, or mental harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life.’’ Globally, 1 in 3 women experience violence in a lifetime. This shows that more than 1 billion women and girls face physical and sexual abuse. It is also important to know that violence against women does not discriminate as it affects women of all ages, abilities, classes and backgrounds.[2]

 In the context of The Gambia, there is still a prevalence of gender-based violence as a result of the patriarchal norms that continue to violate the human rights of women. In our own case, the atrocities are mostly caused by family or individuals that are close. We have experienced sexual violence (including rape), domestic abuse, sexual harassment, forced marriages, psychological violence and the center of discussion in this write up; female genital mutilation (FGM), which is one of the most practiced forms of gender-based violence in The Gambia- a practice that has been promoted by patriarchy for so long to control women’s sexuality.

 It is important to acknowledge that The Gambia as a state party to the UN Convention on the Rights of the Child (UNCRC), the UN Convention for the Elimination of all forms of Discrimination against Women (CEDAW), and the Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa (Maputo Protocol) has recognized the need to provide the enabling legal framework for the promotion and protection of women’s rights.

In this same vein, the Women’s Act, 2010, a domesticated legislation of the two abovementioned human rights instruments prohibits all forms of violence and discrimination against women.  Similarly, an amendment to this Act was made in 2015 to prohibit FGM in The Gambia. Since the passing of the anti-FGM law, there have still been underreported cases of FGM. Perhaps, this is as a result of the low level of awareness to the extent of the implementation of the law. 

This post will look at FGM in the Gambian context, its legal implications while providing viable recommendations. 

What is FGM? 

Female Genital Mutilation (FGM) is a deeply rooted and entrenched cultural practice in The Gambia. It is an act that involves the removal of the female clitoris. According to WHO, FGM comprises of procedures that involve altering or injuring the female genitalia for non-medical reasons.[3] 

 Moreover, based on research in The Gambia, it has been established that there are four (4) main types of FGM practiced: 

• Type I – this is the removal of the clitoral hood with or without removal of all or part of the clitoris.

• Type II – this involves the removal of clitoris together with part or all of the labia minora and with or without the labia majora.

• Type III – this is the removal of part or all of the external genitalia and stitching or narrowing of the vaginal opening leaving a very small opening for urine and menstrual blood.

• Type IV – this type includes all other harmful procedures to the female genitalia for non-medical purposes, e.g. pricking, piercing, incising, scraping and cauterizing the genital area.[4]

From individual experiences, type III is regarded to be the most commonly practiced in our local context. However, asides from the numerous health complications accompanied with it, there are also legal implications attached to practicing FGM in The Gambia.

 The Gambian law on FGM 

 In 2015, a law was passed through an Act of National Assembly to amend the Women’s Act, 2010 to cater for an anti-FGM legal provision. This was referred to as the Women’s Amendment Act, 2015. 

The Act under Section 32A(1) clearly stipulates the prohibition and punishment for FGM in The Gambia. This implies that practicing FGM in The Gambia is illegal and therefore a crime.[5] 

Section 32A (2) sets out the punishment for anyone found to be engaging in FGM with the punishment ranging from imprisonment for a term of 3 years or a fine of D50,000 or both. The question as to whether “both” can apply will depend on the discretion of the court of competent jurisdiction.[6] 

There are also instances where FGM leads to death. This attracts a punishment of life imprisonment for the perpetrator(s).[7] An example was the case of Sankandi v the Inspector General of Police (IGP) where a life was lost during the practice of FGM as a result of excessive bleeding from the cut. 

Under Section 32B (1), the Act defines who an accomplice is. An accomplice is any person who aids or abets the person committing the offense of FGM. Therefore, such a person who requests, incites or promotes FGM by providing tools or any other means meant to carry out the practice is punishable for 3 years imprisonment or a fine of D50,000 fifty or both.[8]

 Section 32B (2) added that a person who without good cause fails to warn or inform the proper authorities promptly that FGM is about to take place or has taken place is punishable to a fine of D10,000.[9] 

Conclusion 

Notwithstanding, this provision has its own shortcomings. For instance, the issue of cross-border cutting is not addressed, and it also fails to provide mechanisms or ways to include victim-compensation for the physical and psychological harm endured. 

In conclusion, I am putting the following recommendations forth:

• We need to revisit the amendment to address some of the missing loopholes highlighted above to identify red-light areas where cross-border cutting takes place and include punishments for it, while providing a meaningful compensation for victims from the perpetrator(s).

• There is a need to build more impactful strategies for the implementation of this law. Having a law is important but its implementation is indeed critical. There’s still need to have strong precedents to serve as deterrent factors.

• Finally, the law enforcement officers need to work closely with the 1313 GBV hotline in The Gambia to entertain creative reporting mechanisms on cases involving FGM.

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Suggested Citation: Awa Gai, ‘FGM and the Law’ Law Hub Gambia Blog (December 4, 2020): https://www.lawhubgambia.com/lawhug-net/2020/12/3-fgm-and-the-law

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[1]https://www.womankind.org.uk/16-days-of-activism/.

[2]Ibid.

[3]https://www.who.int/news-room/fact-sheets/detail/female-genital-mutilation#:~:text=Female%20genital%20mutilation%20(FGM)%20involves,benefits%20for%20girls%20and%20women.

[4]Ibid.

[5]Women’s Amendment Act, 2015.

[6]Ibid.

[7]Ibid.

[8]Ibid.

[9]Ibid.

2019 Global Review of Constitutional Law: The Gambia in Focus

Congratulations to Dr Satang Nabaneh, Founder & Editor, Law Hub Gambia, Gaye Sowe, Executive Director – Institute for Human Rights and Development in Africa (IHRDA); and Maria Saine, Legal Fellow, IHRDA & University of The Gambia. Their joint country report on The Gambia was published as part of the I-CONnect-Clough Center 2019 Global Review of Constitutional law. We are pleased to circulate this report published by the Clough Center for the Study of Constitutional Democracy.

Abstract

This is the fourth edition of the I·CONnect-Clough Center Global Review of Constitutional Law. This 2019 Global Review assembles detailed but relatively brief reports on constitutional developments and cases in 73 jurisdictions during the past calendar year. The reports are authored by academic and/or judicial experts, and often the reports are co-authored by judges and scholars. The reports in this first-of-its-kind volume offer readers systematic knowledge that, previously, has been limited mainly to local networks rather than a broader readership.

Available at SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3736382

Suggested citation:

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Nabaneh, Satang and Sowe, Gaye and Saine, Marie ‘Gambia’ in Albert, Richard and Landau, David and Faraguna, Pietro and Drugda, Šimon, I·CONnect-Clough Center 2019 Global Review of Constitutional Law (November 26, 2020) The I·CONnect-Clough Center 2019 Global Review of Constitutional Law, pp. 129-133.

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The Gambia: In focus

 The year 2019 saw The Gambia move from setting up key institutions such as the Constitutional Review Commission (CRC), Truth Reconciliation, and Reparations Commission (TRRC) and the National Human Rights Commission (NHRC) to actualising the key transitional justice standards required to restore rule of law and democracy in the country.

This report gives a brief overview of constitutional developments and major constitutional law cases in 2019 and looks at the way forward for The Gambia in 2020.

Download The Gambia Chapter here.

The full report is available here.

The status of the findings of the African Commission on Purohit and Moore V The Gambia : Seventeen Years of Nothingness

It took two mental health advocates to raise the sorry situation of mentally-ill persons in The Gambia at the continental and global stages. In 2001, Ms. H. Purohit and Mr. P. Moore filed a Communication at the African Commission on Human and People’s Rights (the Commission) against the Republic of The Gambia on behalf of “patients detained at Campama, a Psychiatric Unit of the Royal Victoria Hospital, and existing and ‘future’ mental health patients detained under the Mental Health Acts of the Republic of The Gambia”[1].  The complainants made the following allegations against The Gambia:

a.     The governing mental health law in the Gambia was obsolete

b.     There is no definition of “lunatic” in the Lunatics Detention Act and no provisions and requirements establishing safeguards during the diagnosis, certification and detention of the patient

c.      Overcrowding in Campana

d.     No consent to treatment or subsequent review of continued treatment.

e.      no independent examination of administration, management and living conditions within the Unit itself

f.      patients detained in the psychiatric unit are not even allowed to vote.

g.     no provision for legal aid.

h.     provision for a patient to seek compensation if his/her rights have been violated.

On admissibility of the Communication, meaning whether the complainants had exhausted local remedies as condition for presentation of a complaint, The Gambia concedes that;

the Lunatics Detention Act does not contain any provisions for the review or appeal against an order of detention or any remedy for detention made in error or wrong diagnosis or treatment. Neither do the patients have the legal right to challenge the two separate Medical Certificates, which constitute the legal basis of their detention[2]

The Gambia submitted that the vulnerable groups have recourse to constitutional protection pursuant to section 7(d) of the 1997 Constitution of The Gambia. Also, it contended that the complainants could have sought tortious remedies for wrongful diagnosis. The Gambia promised amendment of the Lunatics Detention Act as it was imperfect.

in 2003,tThe Commission found The Gambia to be in violation of Articles 2 (non-discrimination) , 3 (equality before the law and equal protection), 5 (respect of the dignity and no cruel or inhuman treatment), 7 (1)(a) (right to appeal) and (c) (right to defense and representation), 16 (enjoyment of best state of physical and mental health) and 18(4) (special measure of protection for the aged and disabled) of the African Charter. The findings against The Gambia were as laudable as the recommendations of the Commission. The Gambia was strongly urged to:

a.     as soon as possible, repeal the Lunatics Detention Act and replace with a new legislation for mental health in The Gambia.

b.     create expert body to review cases of persons detained under Lunatics Detention Act.

c.     Provide adequate medical and material care for persons suffering from mental health problems in the Gambia.

Enforcement of the Decision and Outcomes:

There is no report from The Gambia about the implementation of the recommendations as requested by the Commission. The government of The Gambia was requested to “report back to the African Commission when it submits its next periodic report in terms of Article 62 of the African Charter on measures taken to comply with the recommendations and directions of the African Commission in this decision”.

The Next Periodic Report, and in fact the only Periodic Report after the Purohit decision, was the Combined Report on the African Charter on Human on Peoples’ Rights for the Period 1994 and 2018 and Initial Report under the Protocol to the African Charter on the Rights of Women in Africa (1994-2018). Surprisingly, there was no specific information on the implementation of the foregoing three recommendations of the Commission. The Lunatics Detention Act is still the extant law in The Gambia on mental health and no report or data is available on the creation of the review body and on its proceedings and recommendations on the cases of persons detained under the Lunatics Detention Act. Although the Campama Unit was closed and a better and more spacious detention facility was opened at Salagi Called Tanka Tanka, more mentally-ill persons are seen on the street more frequently now than before.

Seventeen years and counting, The Gambia has failed to implement the key recommendation of the African Commission. The Lunatics Detention Act which was enacted in 1917 and last amended in 1964 is not repealed or amended to capture the concerns of the Commission and the changed circumstances in the country. Equally, the draft Mental Health Bill as recommended by the Commission is on hiatus at the National Assembly.

The procedure in case of the lunacy or other incapacity of an accused person is still regulated by the Criminal Procedure Code and the Lunatics Detention Act. The appearance, bail and detention of an Accused Person who is of unsound mind and incapable of making his or her defense rest with the trial court and the minister responsible for health.

In 2012, the Summary Report of the WHO Country Office on Mental Health in The Gambia attributed the poor situation of mental health in The Gambia to;

mental health services are very limited in the Gambia; there are significant gaps in capacity, human resources, materials, medication and outreach services, most of which stem from very limited budget allocation (about 0.5% of the national health budget is spent on mental health services).[3]

Is the 2012 situation of mental health in The Gambia different from the current situation?

Would Purohit and Moore be glad with the no-progress report about the reform of mental health law and situation in The Gambia?

An anatomy of the National Health Policy 2012 – 2020 provides a measure of lack of progress for mental health in The Gambia. The Policy ends this year and its objective of improving access to quality mental health care for all Gambians is far from achieved. The formulated policy measures such as implementing the Mental Health Policy and Strategy; strengthening the capacity for the diagnosis, Management, prevention and control of mental and neurogical disorder; providing quality, equitable and affordable mental health services; revise the Lunatics Detention Act; and develop Mental Health Bill, have not happened as planned. These measures which were basically uplifted from the moribund Gambia Mental Health Strategic Plan 2007 – 2012 are either not fully implemented or not implemented at all. For example, Strategy 7 was to “strengthen community involvement and participation in mental health care delivery” through, among other activities, the creation of “local associations of psychological rehabilitations involving formal health care providers, community leaders and traditional healers within each health division”. Until today, this strategic activity did not happen. There are no in-patient mental health units to “accommodate twelve patients” in all the hospitals and major health centers in the country. Families arrange for transport and bear the cost of ferrying their mentally-ill persons to Polyclinic in Banjul or to Tanka Tanka Psychiatric Unit.

Consequently, what the Purohit Decision exposed about mental health in The Gambia and what research showed is the existing moribund and obsolete legislations and policies. The Lunatics Detention Act of 1917 and the Criminal Procedure Code 1935 have outlived their efficacy and usefulness to the management and trial of mentally ill persons. The Draft Mental Health Bill is comatose at the National Assembly without any chance of being revived soonest. The National Mental Health Policy of 2007 is outdated and the Mental Health Strategic Plan 2007 – 2012 has phased out with nothing much to ride home about.

Until seriousness, more budgetary allocation and specialized trainings are provided to the Mental health sector of the health system of the Gambia, over 118, 000[4] persons with mental health problems will continue to suffer and be discriminated.

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 About the Author:

Simon Sabally is a Gambian living and studying outside of The Gambia. He writes on law and constitutional matters, especially on the Constitution of The Gambia, 1997.

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[1] Purohit and Moore v. The Gambia, African Commission on Human and Peoples' Rights, Comm. No. 241/2001 (2003)

[2] Ibid. para.27

[3] Point Newspaper, “Mental Health in The Gambia, Sep. 25, 2012

[4] Sanneh, Amie, “Over A Hundred Thousand Gambians Suffer From Mental Health Problems” Foroyaa Newspaper, Aug. 28, 2018.

Parliamentary sovereignty: The Gambia’s perspective

Kalipha MM Mbye

Head of Table Office, National Assembly of The Gambia

Abstract

 The fundamental principle underlying the 1997 Constitution of the Republic of The Gambia is the ‘separation of powers’. This paper discusses Parliamentary sovereignty (it also referred to as ‘Parliamentary Supremacy) in the Gambian context as well as the doctrine of separation of powers. The Constitution of The Gambia is the supreme law of the land and any law or rule that contradicts it is void to the extent of the inconsistency.[1] This suggests that Parliament is not sovereign or the provision impairs Parliamentary supremacy. Whether that is true or not, this paper seeks to provide some opinion or answers on the matter. The paper also discusses the various powers that Parliament has over other organs of the State – the Executive and the Judiciary. Finally, the paper concludes on Gambia’s limited Parliamentary supremacy with comparative analysis of the English absolute Parliamentary supremacy.

 Introduction

The fundamental principle underlying the 1997 Constitution of the Republic of The Gambia is the ‘separation of powers’. The principle developed by the 18th century French philosopher, Montesquieu, divides or shares the powers of the State among three organs: The Executive, the Legislature (Parliament) and the Judiciary. The Executive powers are exercised by the Executive comprising the Government and its servants such as the civil servants, the police; the Legislative powers are exercised by Parliament (National Assembly and the judicial powers are exercised by the Judiciary, the judges.[2] The preamble of the 1997 Constitution, basically, promotes this principle of separate of powers by clearly defines the functions of the organs of State; their independence secured as well as provide checks and balances to ensure harmonious working relationship for the ‘common good’.

Parliamentary sovereignty is the other word for parliamentary supremacy. The doctrine of Parliamentary sovereignty is the principle that Parliament is the supreme law-making authority in the country – can make and unmake any law. Generally, the principle embodies that the Judiciary cannot set aside a law made by Parliament and Parliament can undo a law made by its preceding Parliament.[3]

 Does the 1997 Constitution safeguard Parliamentary supremacy?

As discussed earlier, parliamentary supremacy gives Parliament absolute authority to make and unmake law any law it wishes and this cannot necessarily be overruled by another organ of the State, in particular the court. For instance, in the United Kingdom where this doctrine is strictly applied, the Parliament is the highest source of law and as far as the law is made in accordance with the Parliamentary rules of procedure the courts MUST apply it.[4]

Furthermore, a prominent legal philosopher, Dicey (1982), explained in accordance with Parliamentary supremacy, Parliament has:

‘under the English Law, the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.’

Thus, under the British Constitution, suggest that no matter how cruelty, or public outcry, has the law made by Parliament, the law still remains valid and the courts would, in theory, be obliged to uphold the law.

However, under the 1997 Constitution, Parliament is subservient to the Constitution. The Constitution is the supreme law of the land and any law or rule that contradicts it is void to the extent of the inconsistency.[5] This suggests that Parliament is not sovereign, or the provision impairs Parliamentary supremacy. Whether that is true or not, this paper seeks to provide some opinion or answers on the matter.

Parliamentary sovereignty in Gambian context

 Establishment

The Parliament is established by the Constitution through an entrenched provision of the latter.[6] This connotes that Parliament exist by the will of the people and no authority, body or organ of State – neither the Executive nor the Judiciary, has the mandate to scrap its existence, except the people through a referendum. Even with the people’s power to scrap its existence, Parliament itself has to consent to it, first, before reaching them – the people.[7] Thus, one can opine that this provision on the existence of the Parliament has satisfied the principle of ‘Parliamentary sovereignty’.

 Legislative powers

Parliament is vested with the ‘exclusive’ jurisdiction to make laws through bills passed by it and assented to by the President.[8] Bills duly passed by Parliament and assented become law.

Theoretically, the President must assent to a Bill passed by Parliament before it can become a law.[9] However, this is more of a ‘ceremonial role’ under the Constitution. The President is required, within thirty days, to assent to a Bill presented to him or her or return it with, comment(s), requesting for reconsideration by Parliament. Where Parliament reconsiders the Bill requested by the President and revolved by votes supporting the Bill with or without the comments requested by the President, it shall again present the Bill to the President for assent and the President is statutorily compel to assent to the Bill within seven days.[10] In fact, in practice, the President has always given consent to Bills passed by Parliament.

This indicates that Parliament is granted the exclusive law-making power of the State; the President’s role is more of cosmetic and, in principle, for the Executive, as the executing organ, to be put on notice of laws being made in Parliament.

Where it is acceptable for the Judiciary, for instance the Supreme Court, to check Parliament on the law it makes, it does not mean that the judiciary has the power to strip Parliament off its power of law-making. Rather, it is a check in two-fold – whether Parliament has gone beyond its limit or whether it was made in accordance with the procedure enshrined in the Constitution or other laws.

This was manifested in the case of Kemeseng Jammeh v Attorney General in 2001. In this case, Parliament was challenged at the Supreme Court for alleged amendment of an entrenched section of the Constitution without exhausting the procedure prescribed in the Constitution. The Court partially allowed the plaintiff’s application and held that the alleged amendment of section 1(1) and paragraph 13 of schedule II to the 1997 Constitution were made in excess of the legislative powers conferred by the 1997 Constitution and are accordingly null and void.[11] However, the Court refused the application to strike out the amendment in toto, arguing that the other parts of the amendment Act cannot be severed as it was within the province of Parliament and therefore cannot be declared a nullity.

Unlike in England, where the Constitution assigned no limits to the authority of Parliament over all matters and persons within its jurisdiction[12], in The Gambia, Parliament’s legislative powers have been limited.[13] Parliament has no power to make a law establishing a one-party or religious State and to alter the decision or judgement of a court in any proceedings to the prejudice of any party to those proceedings, or deprive any person retroactively of vested or acquired rights.

Finally, others may argue that other bodies such as Councils, subsidiary law-making authorities, do make laws. To the contrary, these bodies’ law-making functions are delegatory and exist under the pleasure of Parliament.

 Procedure of law making

 Generally, Parliament is granted the power to regulate its own procedure, proceedings and how to make law.[14] In other words, Parliament is the master of its own procedure and has been allowed to make its own rules of procedure – Standing Orders.

Furthermore, save for any rule specified in the Constitution or any other law, the courts are barred from enquiring into any ‘decision, order or direction of the National Assembly or any of its Committees or the Speaker relating to the Standing Orders of the National Assembly, or to the application or interpretation of Standing Orders, or any act done by the National Assembly or the Speaker under any Standing Orders’.[15] This means that the rules of procedure of Parliament, its interpretation and application cannot be questioned in any court. Procedurally, Parliament is above board.

 Powers over the Executive

 In accordance with the Constitution, the Executive power is vested in the President and this can be exercised by him or her directly or through his or her officers including the Vice-President or Ministers.[16] In a representative democracy like The Gambia, Parliament has tremendous powers to hold the Executive to account in numerous facets. Parliament has

The Executive, including the President and Cabinet, are accountable and answerable to Parliament in the administration of the State. Section 77 of the 1997 Constitution compels the President to, at a minimum of once each year, to attend a sitting of Parliament and address it on the condition of The Gambia, the policies of the Government and the administration of the State. Furthermore, subsection 2 provides that, Parliament can, if it so wishes, request the President to attend a sitting of it for the discussion of a matter of national importance.

Similarly, the Vice-President and Ministers are collectively responsible to Parliament for any action in Cabinet and also accountable to Parliament for the administration of the departments and other business of Government committed to them.[17]

Effectively, Parliament can, by a vote of no-confidence, a motion on grounds of mental or physical incapacity, or a motion on grounds of misconduct, remove the President from Office.[18] Similarly, Parliament has the power to pass a vote of censure against the Vice President or any Cabinet Minister based on abuse of office or violation of any provision of the Constitution, misconduct in office, or any cause of inability to perform the functions of his or her office. Once the vote of censure [motion] is passed by Parliament, the resident is imperatively required to revoke such appointment of the Vice President or a Minister.[19]

Oversight powers

Equally, Parliament has oversight duty over the Executive and to some little extent to the Judiciary. Parliament has the mandate and power to perform oversight overt the Executive, including its agencies, departments and institutions. The Vice-President or a Minister is compelled to report to Parliament on any matter concerning a department or other business of Government committed to him or her, when requested to do so.

Parliament has the power and mandate to perform oversight over the Executive and in doing so, can investigate or inquire into the activities or administration of ministries or departments of the State, and investigate any matter of public importance.[20] For instance, the Finance and Public Accounts Committee (FPAC) has the mandate to examine the audited accounts of government and the Report of the Auditor General on those accounts. Similarly, Public Enterprises Committee (PEC) is established as a standing Committee to perform oversight on State Owned Enterprises. The Committee monitors the operation of enterprises and to promote efficiency, transparency and probity. Essentially, all State machineries and institutions, including the Judiciary and independent institutions are accountable to Parliament in the administration of their activities and finances.

 Grey areas: Parliament v the Executive

It is arguable that the President under section 96(2) has equally the power to dissolve Parliament. However, this is debatable and may be subject to interpretation by the competent authority. Section 96(2) provides:

“…the President may, in the public interest, declare by Order published in the Gazette, that a general election of all members of the National Assembly shall be held on such date as he or she shall determine.” 

This is subject to interpretation in a ‘purposive’ or ‘mischief’ approach by the courts, as the word ‘in the public interest’ has a purpose and is pre-requisite for such a power to be legally triggered. In case of Ya Kumba Jaiteh v Clerk of the National Assembly and Ors., the Court expounded and reasoned on the interpretation of a statute that ‘…every enactment has a purpose; the Court must seek to ascertain and to promote the object and purpose of the enactment. Words, phrases, indeed whole sections should not be read in isolation from others. Often there are linkages between different enactments and between provisions in the same enactment which need to be read together and given effect in a holistic manner’.[21]

It is arguable that if the court was to interpret the application of section 96(2) by the President, it would ascertain whether the ‘public interest’ has arisen for a general election for Members of Parliament to be held earlier that its constitutional fixed term period. The court would further read section 96(2) together with the object and purpose of enactment – whether it was enacted to deal with a scenario where Parliament was holding the general public interest at random or Parliament was in extreme chaotic situation or at standstill in performing its functions.

 International relations

Parliament has crucial constitutional mandate and responsibility over how the State conducts its international relations. The President has the responsibility to conduct international relations and the negotiation of treaties and other international agreements with other State and international organisations. However, this power is constrained that it is subject to ratification of Parliament before any treaty or international agreement can come into force. In addition, the State cannot become a member of any international organization unless Parliament is satisfied that it is in the National interest and that the membership does not derogate from the country’s sovereignty.[22] Therefore, international relations are subject to legitimate Parliamentary scrutiny and oversight.

Similarly, the Constitution provides that the President cannot declare a war or make peace with any Nation or deploy any armed troops outside The Gambia without the prior approval of Parliament.

 Powers over the Judiciary

Judicial independence is a cornerstone of democracy and the rule of law, such as the independence of Parliament. The judicial powers are vested in the courts and are exercisable by the judiciary as per their jurisdiction.[23]

In as much as independence of the judiciary has been given great importance in the Constitutional arrangement, Parliament also has some degree of oversight and check over the judiciary. This does not impair the doctrine of separation of powers and the independence of the judiciary as discussed earlier, rather it complements the principle separation of powers – no organ should operate unchecked.

In addition, although, the Judiciary is granted the power to check on Parliament in accordance with section 127(1)(b), Parliament has also been granted the power to remove a judge from office if he or she is unable to exercise the functions of the office – whether arising from infirmity of body or mind, or for misconduct.[24] Furthermore, Parliament also decides or approves the annual budget of the Judiciary.[25] This means that Parliament has mandate to hold the judiciary to account in the performance of its legitimate functions. Powers of the judiciary are exercisable only by the courts as prescribed by or under the Constitution and Acts of Parliament.

Immunity

Parliament enjoys considerable immunity ranging from: freedom of speech and debate, protection from civil or criminal proceeding for anything said in Parliament, protection from arrest while on the way or from Parliament, and cannot be compel to appear as witness before any court proceeding while attending Parliament.[26] Parliament and its officers enjoy immunity while performing their legitimate functions.

Conclusion

 Based on the above analysis and provisions of the Constitution, it could be safely concluded that Parliament of The Gambia is sovereign, but that sovereignty is not absolute, unlike the Parliament UK which is absolute and unlimited. In the UK, a law made by Parliament might be unjust or contrary to the fundamental principles of governance; but Parliament was unconstrained, and if it erred, such errors may not be corrected by any other authority but only by itself.[27]

 The power of the judiciary to question the validity of an Act of Parliament would not necessarily mean a breach of the fundamental principle of Parliamentary supremacy. It depends on the manner in which it is exercise by the court and the Parliament’s right or power to legislate.[28] For instance, in the case of Jammeh v Attorney General, 2001 , the Court agrees to the fundamental principle that an Act of Parliament duly passed and in consistent with the Constitution cannot be nullified.

Finally, it also settled that the independence of Parliament is crucial in the discharge of its functions and any attempted impairment of this from the Executive [or even the Judiciary] would be a gross violation of both the letter and spirit of the Constitution and undermine the doctrine of Parliamentary independence.[29] Based on the letter and spirit of both the Constitution and the doctrine separation of powers, Parliament is immune and sovereign while performing its legitimate functions.

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About the Author:

Kalipha MM Mbye is the Head of Table Office at the National Assembly of The Gambia. Mr. Mbye holds LLB degree (Bachelor of laws) from the University of The Gambia. Currently, he is pursuing his LLM degree (Masters of Laws) at the University of Bradford, UK. He has his interests in parliamentary democracy, Constitutionalism, the rule of law and public international law.

Suggested citation: Kalipha MM Mbye, ‘Parliamentary sovereignty: The Gambia’s perspective’ Law Hub Gambia Blog (November 3, 2020) https://www.lawhubgambia.com/lawhug-net/parliamentary-sovereignty-gambia-perspective

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[1] The Constitution of the Republic of The Gambia, 1997, s 4

[2] Emily Allbon and Sanmeet Kaur Dua, Elliott and Quinn’s English Legal System (20th edn, Pearson 2019/2020) 5

[3] ibid

[4] Allbon and Dua (n 2 above) 5

[5] The Constitution of the Republic of The Gambia, 1997, s 4

[6] ibid, s 87

[7] ibid, s 226(4)

[8] ibid, s 100(1)

[9] The Constitution of the Republic of The Gambia, 1997, s 100(1)(5)

[10] ibid, s 100(3)(4)

[11] Jammeh v Attorney General (2002) AHRLR 72 (GaSC 2001)

[12] Erskine May: Parliamentary Practice, (19th edn, Butterworths)

[13] The Constitution of the Republic of The Gambia, 1997, s 100(2)

[14] The Constitution of the Republic of The Gambia, 1997, s 108(1)

[15] ibid, s 108(2)

[16] ibid, s 76(1)

[17] ibid, s 74

[18] Ibid, s 63, 66 and 67

[19] The Constitution of the Republic of The Gambia, 1997, s 75

[20] ibid, s 109(2)

[21] Ya Kumba Jaiteh v Clerk and Ors, SC NO: 001/2019 (unreported)

[22] The Constitution of the Republic of The Gambia, 1997, s 79

[23]ibid, s 120(2)

[24] ibid, s 141(3)

[25] The Constitution of the Republic of The Gambia, 1997, s 144(1)

[26] Ibid, s 113, 114, 115, 116, 117

[27] Erskine May: Parliamentary Practice, (25th edn,) https://erskinemay.parliament.uk/section/4535/extent-of-legislative-authority-of-parliament/ (accessed 02nd November, 2020)

[28] Jonathan L. Black‐Branch, Parliamentary Supremacy or Political Expediency?: The Constitutional Position of the Human Rights Act under British Law, Statute Law Review, Volume 23, Issue 1, 2002, Pages 59–81, https://doi-org.brad.idm.oclc.org/10.1093/slr/23.1.59 (accessed 02nd November, 2020)

[29] Ya Kumba Jaiteh v Clerk and Ors, SC NO: 001/2019 (unreported)

International Court of Justice (ICJ) Provisional Measures in The Gambia v Myanmar Case: A commentary

1.    Introduction

Earlier this year, the International Court of Justice (ICJ) indicated provisional measures in the case brought by The Gambia against Myanmar (The Gambia v Myanmar No. 2020/14) requesting five provisional measures to preserve and protect the lives of Rohingya Muslims in Myanmar under the Genocide Convention.[1] The request has raised a number of critical questions around the importance of provisional measures in the work of the ICJ and how they are framed touches on the core responsibility of states to protect human rights. This commentary is an attempt to highlight the reasoning for the granting of provisional measures in the protection of human rights. While the ICJ is not a human rights court properly so called, its evolving jurisprudence has taken into account the need to protect human rights in the adjudication of international law.

Before the Court grants provisional measures, certain conditions must be fulfilled. The Court must have competent jurisdiction to take on the matter. Secondly, the party initiating the request must have prima facie locus standi without which it will have been unable to bring the case forward as it would not have any interest, whatsoever to seek preservation for the rights which it does if there were no connection to it through a treaty (the Genocide Convention). Third, a link between the measures being sought and the rights being violated must be established. Lastly, there must also be a real risk that irreparable damage is likely to take place at any time before the Court gives its final decision.[2]

The Court, after realizing that all the conditions set forth had been fulfilled, made the indications of the provisional measures sought by the Gambia against Myanmar in 2019. The nature of the provisional measures are such that as long as the Court has not made any specific indication that they are not binding, the parties and all involved shall see the measures as binding on the States parties to the proceedings. This decision was made in the LaGrand case[3] where the question as to the binding nature of the provisional measures arose before the Court and a decision was made that the purpose of the indications would be missed if they were not binding. The Court’s decision in the LaGrand case made it possible for states to be forced to implement the provisional measures since failure to do so would give the applicant state the right to request for a sanction giving the Court ways to ensure compliance of said measures.[4]

Numerous scholars are of the opinion that the ICJ has not yet established a concrete framework[5] of the remedies that are available however, the Court does have jurisdiction to determine the character or extent of the reparations or measures to be taken for the breach of an international obligation.[6] Provisional measures as a protection of a guarantee for preventive character serves as one of the most fundamental instruments used by adjudicatory bodies to protect existing rights. These measures are susceptible to improvements into more permanent remedies rendering them basically temporary.[7] Provisional measures are made to safeguard the main object that relates to a case and prevent its change in any way.

The Court’s power to grant interim reliefs i.e. provisional measures to requesting parties is derived from Article 41 of the ICJ Statute. The said Article reads:

1.    The Court shall have the power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party.

2.    Pending the final decision, notice of the measures suggested shall forthwith be given to the parties and to the Security Council.[8]

As demonstrated in the cases of Interhandel (Switzerland v. United States of America) and the Legality of Use of Force (Yugoslavia v. Spain), there is no specific level of urgency that surrounds the request of reliefs by the parties and acceptance by the Court.[9] In the former, the Court stated that there was no urgency to the request of Switzerland as the USA had given assurances not to conduct a sale of the object of the matter[10] while in the latter, the Court refused to indicate measures but relayed its deep concern for the tragedies that were happening.[11] It is important to note that any procedure that relates to provisional measures is entirely based on the discretion of the Court. The Court is guided by the authority that is the Statute but it has discretion to determine the requests made and to make them in accordance with their finding and deliberation based on the circumstances they may consider as necessary to be the foundation of the interim reliefs.

2.    The Rights Whose Protection is Sought and the Link Between Such Rights and the Measures Requested

 As already mentioned above, the rights whose protection is sought must be linked with the measures that are requested. As articulated in Article III of the Genocide Convention, the following acts shall be punishable: 

a)    Genocide; 

b)    Conspiracy to commit genocide; 

c)    Direct and public incitement to commit genocide; 

d)    Attempt to commit genocide; 

e)    Complicity in genocide.[12]

The provisions above seek to protect the rights of members of a national, ethnical, racial or religious group. Rights which The Gambia claimed in its request for provisional measures and the Court found that the people of Rohingya were in fact, a group that fell under the provisions of the Genocide Convention.

The Court found that the link between the provisional measures sought and the rights claimed has been established as it recalled that certain genocidal intentions/acts were deducible from the conduct against the people of Rohingya in Myanmar as can be found in the reports of the Fact-Finding Mission.[13] At the hearings of the matter, Myanmar stated that international humanitarian law may have been violated during something that was referred to as “clearance operations” that took place in Rakhine State in 2017. The Court further refers to resolution 73/264 adopted on 22 December 2018 by the General Assembly of the United Nations, in which the latter condemned the widespread and systematic crimes committed by Myanmar forces against the Rohingya in Rakhine State.[14]

3.    Risk of Irreparable and Imminent Damage

On the issue of irreparable damage and urgency, the Court noted from the Fact-Finding Mission that horrific acts such as mass killings, widespread rape and other forms of sexual violence, as well as beatings, destruction of villages and homes, denial of access to food, shelter and other essentials of life are all inflicted upon the Rohingya group in Myanmar affecting their rights as provided by the Genocide Convention. In consideration of all these, the Court finds that there was a real, imminent and irreparable damage to the rights as claimed by The Gambia.[15]

4.    Conclusion

As one of the objects recognized for provisional measures, the Court’s interest is protecting public interest and maintaining peace and order through maintenance of the rights provided in the relevant conventions. The Court concluded that all the conditions required by its Statute to have the request for provisional measures granted had been met and proceeded to granting the requests made by The Gambia against Myanmar. Even though, this decision may not have any bearing on the merits of Gambia’s claim, it indicates the potential of ICJ in reminding states their primary responsibility in international human rights law.

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About the author

Ms. Jeng is a final-year Law student at the University of The Gambia. She is ambitious about writing and editing. Although this is her first legal article, she maintains a blog that can be found at: https://yaawajeng.wixsite.com/perfectbruises1 where she occasionally posts her various write-ups based on a wide range of topics that she finds interesting. She hopes to pursue a career in Criminal Psychology.

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[1] https://www.asil.org/ILIB/icj-indicates-provisional-measures-gambia-v-myanmar-case

[2] https://baripedia.org/wiki/Provisional_measures#Concept

[3] ibid

[4] ibid

[5] https://law-journal.de/archiv/jahrgang-2017/heft-1/remedies/

[6] ICJ Statute, Art. 36(2)(d).

[7] https://www.corteidh.or.cr/tablas/r23114.pdf

[8] ICJ Statute Article 41

[9] Ateno Law Journal-Vol. XLV No.1-2001 pg. 130

[10] https://www.icj-cij.org/en/case/34

[11] https://www.icj-cij.org/en/case/112

[12] Genocide Convention, Article III <(https://www.ohchr.org/EN/ProfessionalInterest/Pages/CrimeOfGenocide.aspx)>

[13] https://www.icj-cij.org/files/case-related/178/178-20200123-ORD-01-00-EN.pdf

[14] https://www.icj-cij.org/files/case-related/178/178-20200123-PRE-01-00-EN.pdf

[15] Ibid

THE JUDICIARY: BEACON OF HOPE FOR THE PROTECTION OF HUMAN RIGHTS AND DEMOCRACY IN THE GAMBIA

Introduction

Since the ousting of former President Yahya Jammeh on 1 December 2016, the protection of human rights has taken a center stage in The Gambia. The preamble to the Universal Declaration of Human Rights (1948) states that, the recognition of the inherent dignity and of the equal inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world. The preamble to the African Charter on Human and People’s Rights (1986) expresses the conviction of African States to promote and protect human and people’s rights and freedoms taking into account the important African values. The 1997 Constitution of The Gambia does not only resolve for good governance and a just, secure, and prosperous society, it also makes provisions for a plethora of rights with mechanisms for their enforcement. The organ of government that bears a primary responsibility in the protection and enforcement of these rights is the Judiciary.

In this article, an attempt is made to examine how effective the Gambian Judiciary has been in the protection of human rights and sustenance of democracy in The Gambia. The paper also examines how well the Judiciary has impacted on the country’s nascent democracy in the performance of its role as well as its traditional duty of checking the excesses of the other two organs of government. This is because ‘’rights are among the essential building blocks of a democratic process of government’’.[1]

The organ of government that bears a primary responsibility in the protection and enforcement of human rights is the Judiciary.

While there is widespread acceptance of the importance of human rights in a democratic society, there is considerable confusion as to their precise nature and role in law. The question of what is meant by right is itself controversial and the subject of intense jurisprudential debate. The problem of enforcement and sanctions with regards to human rights is another issue which can affect the characterisation of the phenomenon. According to the United Nations, human rights are ‘’those rights which are inherent in our nature and without which we cannot function as human beings.’’[2] Thus, human rights underpin the aspiration of a world in which every man, woman, and child lives free from hunger and protected from oppression, violence, and discrimination.

Understanding the nature of the ‘’right’’ involved can help clarify one’s consideration of the degree of protection available, the nature of limitation or exceptions, the priorities to be afforded to various rights and delicate balancing of competing interests. The answers to these questions will evolve overtime through rulings, interpretations, judgments and in some cases pragmatic compromises. But how those answers emerge will be largely influenced, if not driven by the legal and moral justifications of the human rights in issue.

Entrenchment of Human Rights

The question of entrenchment of human rights in the constitution is as controversial as the subject matter itself. Some scholars believe that formal entrenchment of human rights in the constitution would enhance their enjoyment and enforcement, others think otherwise. For instance, Professor Stanley de Smith and Rodney Brazier[3], opined that entrenchment of human rights obstruct governments from doing what they want to do. They are therefore said to be undemocratic because they obstruct fulfilment of the will of the people as expressed by their elected representatives. They lead to ‘’government by judges’’ if the constitution is rigid. The duo further argues that, justifiable guarantees and prohibitions induce delay and uncertainty because the executive will not be sure of what they are entitled to until the judges have told them. This, they claim, would engender a litigious spirit.[4]

On the other hand, Professor JAG Griffith doubts whether judges are qualified to protect human rights. According to him, judges are traditionally selected from a cohesive and limited socio-economic class. They are predominantly male middle or upper class and middle aged. Judges by virtue of their training, it is argued from this perspective, are not suited to the task of protecting the rights of the poor, socially and economically disadvantaged, or members of groups and association in society whose outlook and background is so different from that of the judges.[5]

While admitting the soundness and validity of some of the views expressed above, I respectfully submit that, it still seems better to entrench human rights including economic and social rights in the constitution as these justiciable guarantees and prohibitions will not only ensure certainty and predictability but would also enhance the promotion and protection of human rights by creating a constitutional benchmark upon which rights can be assessed.

The fundamental rights guaranteed in Chapter IV of the 1997 Constitution include, the right to life, rights to personal liberty, right to fair hearing, protection from slavery and forced labour, protection from inhuman treatment, right to freedom of thought, conscience and religion, right to freedom of expression and the press, right to peaceful assembly and association, right to freedom from discrimination just to name but a few. In addition to the copious provisions for fundamental human rights in the 1997 Constitution, it has also provided the machinery for their enforcement with the Judiciary being given a pride of place. However, it is important to highlight that the above chapter guarantees limited socio-economic rights.

The Judiciary and Enforcement of Fundamental Rights

Section 37 (1) of the 1997 Constitution specifically vests the Judiciary with the authority to enforce fundamental human rights. The section provides that any person who alleges that any of the provisions of section 18 to 33 or section 36 (5) of this Chapter (Chapter IV Protection of Fundamental Rights and Freedoms) has been, is being or is likely to be contravened in relation to himself or herself by any person he or she may apply to the High Court for redress. Aside from an application brought pursuant to section 37 (2), only a person having locus standi can institute an action for the enforcement of any of the provisions contained in Chapter IV.

The doctrine of locus standi under the 1997 Constitution and the hitherto stringent interpretation by the courts have greatly hindered the accessibility of the Gambian courts to the citizens and persons living in The Gambia by precluding them from bringing action to enforce the provisions mentioned above unless the alleged contravention is in relation to them. A person who is not interested in the subject matter has no locus standi to invoke the jurisdiction of the court.

Section 34 of the 2020 Draft Constitution has now liberalized the above rule of locus standi. The said section now permits the ‘’public spirited’ person (s) to institute court proceedings claiming that a fundamental right or freedom in Chapter VI has been denied, violated or infringed, or threatened with contravention. Similarly, by subsection (3) thereof, the Chief Justice is empowered to make rules with respect to the practice and procedure of the court. Thus, the widening of the traditional rule of locus standi and the introduction of public interest litigation by section 34 of the 2020 Draft Constitution is a significant phase in the enforcement of human rights.

Restriction of Human Rights

Like what obtains under the provisions of other human rights instruments to which The Gambia is a party to, the fundamental rights and freedoms guaranteed under the 1997 Constitution are not absolute. Under certain circumstances, some of these rights could be restricted or limited for the general interest of the society and hence the need for restriction clauses. Under the 1997 Constitution, these clauses are of two types. While some restriction clauses are attached to specific rights, section 35 (2) of the 1997 Constitution contains omnibus restriction clause. It provides that nothing contained in or done under the authority of an Act of parliament shall be held to be inconsistent with or in contravention of sections 19 (protection of right to personal liberty), section 23 (privacy), section 24 (provision to secure protection of the law and fair play other than (5) to (8) thereof) or section 25 (freedom of speech, conscience, assembly, association and movement) of this Constitution to the extent that it is reasonably justifiable in the circumstances arising or existing during a period of public emergency for the purpose of dealing with the situation.

Sections 18 allows restriction on the right to life. Similarly section 25 (4) placed restrictions on the right to freedom of speech, conscience, assembly and association so far as the law imposes reasonable restrictions on the exercise of these rights and freedoms thereby conferred, which are necessary in a democratic society and are required in the interests of the sovereignty and integrity of The Gambia, national security, public order, decency or morality, or in relation to contempt of court. However, the constitution does not define what is meant by the expressions ‘’ public order, decency, or morality and what is reasonably justifiable in a democratic society.’’

The Supreme Court of The Gambia had occasion to deal with these phrases in the case of Ousainou Darboe & 19 Ors v. Inspector General of Police & 2 Ors [6] where the applicants invoked the original jurisdiction of the Supreme Court seeking inter alia, a declaration that section 5 of the Public Order Act which requires a permit from the IGP before anyone can exercise the right to freedom of assembly and demonstrate peaceably without arms as unconstitutional and a violation of section 25 of the Constitution which guarantees the above rights.

In its judgment, the Supreme Court unanimously held that the restrictions imposed on the grounds set out in section 25 (4) of the Constitution read in conjunction with section 5 of the Public Order Act were reasonably justifiable in a democratic society. The Court per his lordship Chief Justice Hassan B. Jallow, went further to state as follows;

‘’The right to assembly, as with other individual or collective rights, is usually exercise within the public space. As a result, its exercise by anyone may conflict with the exercise of the same right by others or with the exercise or enjoyment of other rights by other persons or with the needs for the maintenance of public order and security. Hence the need for some regulation or restrictions on the exercise of the right… The requirement of a licence from the Inspector General of Police for the holding of a public procession... to prevent a breach of the peace are reasonable limitations on the right to assembly and to free expression’’.[7]

Be that as it may, the apex Court in my considered view did not satisfactorily set out the standards for a lawful restriction that is in accordance with international human rights law, as the decision failed to provide any evidentiary or factual foundation for the assessment that prior approval for the enjoyment of the right to assemble and demonstrate peaceably is not unconstitutional. Moreover, the grounds permitting restrictions under section 25 (4) of the Constitution cited by the Court does not support its conclusion, because the Constitution did not envisage outright denial of the exercise of these rights.

While I agree with the Supreme Court that restrictions are necessary in the interest of public order, and the competing interest to secure the rights of others, the restrictions imposed by the Constitution are broadly crafted and therefore any part of the constitution which protects and entrenches fundamental rights and freedoms should be given a generous and purposive construction, rather than vague interpretation as this may cause unreasonable restriction of rights. Thus, the purpose of the restrictions in section 25 (4) of the constitution are necessary, but the measures adopted to achieve the purpose through section 5 of the Public Order Act is arbitrary and unreasonable.

Equally, in the case of Gambia Press Union & 2 Ors v. Attorney General [8], the plaintiffs filed an action before the Supreme Court on 2nd September 2014 challenging the constitutionality of  sections 51, 52 A, 53, 54, 59 and 181 A of the Criminal Code all dealing with sedition and false publication and broadcasting. They argued that these sections of the Criminal Code are inconsistent with sections 4, 5, 17, 25 (1) (a) & (b) and 25 (4) of the 1997 Constitution. The court unanimously held that, sections 51 (b), (c), (d), (e), 52, 52A, 53, 54, 59 and 181 A of the Criminal Code are not unconstitutional. However, the court declared section 51 (a) of the Criminal Code invalid and unconstitutional.

Following the judgment of the court, the lawyer representing the GPU Hawa Sisay Sabally had this to say; ‘’law on defamation has been taken out and the laws relating to the internet such as false news and caricature of public officials has also been struck out’’[9]. The President of the GPU Emil Touray expressed mixed feelings in that, he was elated that the Supreme Court had declared ‘’criminal defamation and false publication unconstitutional’’, but was also sad that sedition against the president and false publication and broadcasting remained valid under the law.[10]

In the case of Ya Kumba Jaiteh v. Clerk of the National Assembly & 3 Ors [11] the plaintiff filed a suit against the defendants pursuant to the original jurisdiction of the Supreme Court seeking inter alia a declaration by the court that; ‘’the purported termination of the plaintiff’s membership of the National Assembly through an Executive decision was null and void’’. At the end of the hearing, the Supreme Court finds, holds and declares that the purported termination of the plaintiff’s membership of the National Assembly through an Executive decision from the office of the President was unconstitutional, invalid, null and void and of no effect.[12] Even though, I am not in agreement with the reasoning of the Supreme Court, their decision on this  matter, in my view, further strengthen the confidence reposed on the judiciary.

Similarly, the Court of Appeal in the case of M.A. Kharafi & Sons Limited v. The Attorney General [13], the court dismissed an application for stay of execution of the adverse findings of the ‘’Janneh Commission’’ made against M.A. Kharafi & Sons Limited. The court further held that, findings or recommendations of the Janneh Commission is not self-executory since it is not a judgment or order of a court.[14] However, in the case of T.K Motors v. The Attorney General, a different panel of the Court of Appeal granted an application for a stay of execution of adverse findings of the Janneh Commission made against T.K Motors.[15] In light of these different rulings from the same court, a further decision on this point from the Supreme Court will be crucial to the prospect of commissions of inquiries in The Gambia.

Conclusion

Despite the widespread acceptance of the importance of human rights in the ‘’New Gambia’’, there is still controversy about their nature and scope. The enforcement of human rights is not less controversial. The Judiciary is the organ of Government tasked with the enforcement of fundamental rights and freedoms. The Gambian Judiciary has seen many encouraging developments since the restoration of democracy and rule of law following the December 2016 Presidential election. The Chief Justice should ultimately take advantage of the provision of section 34 (3)  of the 2020 Draft Constitution to relaxed the procedural rules and make more liberal and highly simplified to commence an action for the enforcement of fundamental rights and freedoms. Besides that, cases involving alleged violations of fundamental rights should be expeditiously heard and unwarranted adjournments discouraged. Legal practitioners should also imbibe the culture of providing pro bono legal services to victims of human rights violations while legal aids scheme should be strengthened and widened beyond its present scope. The media, civil society organisations and other independent human rights institutions should continue to enlighten the public about their rights in order to discourage violations. Finally, members of the Judiciary should always bear in mind their role as the last hope of the common man.  

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About the Author 

This article is written by Mansour Jobe Esq. (LLB (Hons), BL, LLM). Mansour his Master of Laws (LLM) degree in Human Rights Law from the University of Nottingham in the UK and holds a Bachelor of Laws (LLB) from Igbinedion University in the Federal Republic of Nigeria. He completed his Bar Finals (BL) from the Gambia Law School in 2014 and eventually enrolled as a Barrister and Solicitor of the Supreme Court of The Gambia.

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[1] Dahl, Robert 1988. On Democracy Yale University Press. P48

[2] United Nations, available at https://www.un.org/en/sections/issues-depth/human-rights/ accessed on 10th August 2020

[3] De Smith, Stanley and Brazier, Rodney, 1994. Constitutional and Administrative Law. England. Pengiun 7th edn p 458.

[4] Ibid.

[5] Griffith, JAG 1997. The Politics of the Judiciary London. Fontana cited in Barnet, Hilaire 2000. Constitutional and Administrative Law. London Cavendish.

[6] Civil Suit No: SC 003/2016 (Unreported)

[7] Ibid pages 7-8

[8] Supreme Court Civil Suit No: 1/2014

[9] Standard Newspaper May 10, 2018 publication available at https://standard.gm/supreme-court-declares-sedition-constitutional-struck-out-defamation/ accessed on 11th August 2020.

[10] Ibid

[11] S.C No: 001/2019

[12] Ibid pages 35-36

[13] Civil Appeal No: GCA 046/2019

[14] Ibid page 21

[15] See the Standard Newspaper publication of 10th June 2020