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.
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
[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)