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.

Attempted removal of nominated NAM is constitutionally wrong - Both legally and politically

By all accounts, Yayha Jammeh was a dictator. He did not have respect for democracy. He seriously undermined important state institutions. The National Assembly, the citadel of law making, was at his mercy. The Judiciary was an unwitting accomplice. When Gambians voted to remove Jammeh from power two years ago, it was unprecedented. Gambians simply wanted change. Therefore, it is callous and an attempt to roll back the political gains we made in December 2016, when the President, Adama Barrow, ill-advised or acting without legal and political advice, attempted to remove Hon. Ya Kumba Jaiteh, a nominated member, from the National Assembly. This is relevant to our political discourse because it happened at a time when the we are trying to consolidate our young democracy. If we therefore, allow the President to violate provisions of the Constitution, or act outside the limits of his executive powers, then we will be setting a very dangerous precedent, the reversal of which may become insurmountable if the President becomes too emboldened. The more reason why it is important to restrain him now before it becomes too late to do so.

Many others and I ardently believe that the attempted removal of Ya Kumba Jaiteh by the President is unconstitutional and therefore ultra vires, outside the scope of his powers. However, some legal commentators on the other hand argue that his action is lawful. I wish to add to the debate and perhaps enrich the discourse and narrative regarding the issue of constitutionality, supremacy of the Constitution, sovereignty of Parliament and the separation of powers.

I shall argue that the attempted removal of a nominated NAM is not only legally and politically wrong, it is politically naïve considering our recent past. Firstly, I admit, I only recently found out that the Speaker of the Assembly is derived from the cohort of NAMs nominated by the President and not those elected by the people. This is a fundamental anomaly. Secondly, the idea that the President as the Head of the Executive, should personally choose the Speaker and ultimately determine who the Head of the Legislative branch should be, as well as believing that he has the legal power and political authority to nominate and remove a nominated member even after confirmation is patently absurd. It erodes and undermines the fundamental doctrine of the separation of powers.  

What is a Constitution? Professor Finer, in Five Constitutions (1979), defines it as:

“codes of rules which aspire to regulate the allocation of functions, powers and duties among the various agencies and officers of government, and define the relationships between them and the public.”    

Professor King defines writes that “A constitution is the set of the most important rules that regulate the relations among the different parts of the government of a given country and also the relations between the different parts of the government and the people of the country.”

With the exception of the United Kingdom, all other jurisdictions, like The Gambia, have these rules reduced in writing and codified into a single document. South Africa’s 1996 Constitution is hailed as one of the most progressive constitutions of the modern era.

The constitution is superior to Acts of Parliament or any other statutory or delegated legislation. Section 4 of the Constitution of The Gambia 1997 (Chapter II) explicitly provides that it is the “supreme law ….. and other law found to be inconsistent with any provision of this constitution shall, to the extent of the inconsistency, to be void.” This is not unusual in other constitutions. Section 2 of the 1996 South Africa Constitution states that “This Constitution is the supreme law of the Republic; law conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.” 

Section 91 of the 1997 constitution deals with the tenure of members of the Assembly. Section 91 (1) states that:

“A member of the National Assembly shall vacate his or her seat in the National Assembly –

(a)   On the dissolution of the National Assembly;

(b)  Subject to subsection (2), if any circumstances arises which, if he or she were not a member, would cause him or her to be disqualified for election as a member or nomination as a member;   

(c)   If he or she resigns his or her office as a member;

(d)  If he or she ceases to be a member of the political party of which he or she was a member at the time of his or her election;

Provided that nothing in this paragraph shall apply on a merger of political parties at the national level where such merger is authorised by the constitution of the parties concerned;

(e)   If, having been elected a member as an independent candidate, he or she join s political party;

Section 92 provides that “An Act of National Assembly may make provision for the recall of an elected member of the National Assembly …….”

It follows therefore that this provision does not even explicitly state how a NAM may be removed from the Assembly through the recall mechanism. It simply bestows on the Assembly power to do so, however, in ways and manner that the Assembly shall deem proper. The provision did not prescribe exactly how the Assembly should do this other than by means of recall supported by at least one-third of registered constituents.  In addition, section 92 states that the National Assembly “may make provision for recall,” which clearly means that the power to legislate in respect of the removal of an NAM through recall lies within the purview of the NA. That means, it is the National Assembly, in the exercise of its unfettered powers in respect of enacting laws, specifically deriving its powers from section 92(a)(b), that is tasked with prescribing the exact grounds for recall and powers and procedures that stem from a petition for recall. Section 92 does not say the National Assembly shall make provision for recall which would have been a mandatory and compulsory imposition on the NA to enact such law. The constitution thus, either deliberately or by default, but I lean towards a deliberate and intentional aspiration of the constitution that only the National Assembly should address the issue of recall and in ways and manner that it deems appropriate other than by petition by constituents.

I contend that the constitution implicitly recognises its own limitations in governing everything and therefore, allows the NA, in the spirit of sovereignty of Parliament, to be the master of its own destiny as the Chamber representing the people through democratic and parliamentary representation. This is because the constitution is acutely conscious of the importance of sovereignty of Parliament in a pluralist democracy and why it should be sacrosanct to preserve the integrity of Parliament and thus, interference with its members by means of removal unless in exceptional circumstances. It will be egregious to suggest that the constitution contemplated vesting such power as removing an MP in the President. It defeats the concept of the separation of powers and parliamentary sovereignty. Article 104(1) of the Kenyan Constitution 2010, this provision almost identical to ours, states that the electorate under Articles 97 and 98 have the right to recall their MPs, however, Article 104(2) states that it is Parliament that shall enact legislation to provide for the grounds on which a member may be recalled and the procedure to be followed. This is another manifestation of Parliament’s inherent power regarding the issue of the removal of MPs from the House.   

 Separation of powers

 Greek philosopher Aristotle, in his work Politics, stated “There are three elements in each constitution in respect of which every serious law giver must look for what is advantageous to it; if these are well arranged, the constitution is bound to be well arranged, and the differences in constitutions are bound to correspond to the differences between each of these three elements. The three are, first the deliberative, which discusses everything of common importance; second, the officials ……; and third, the judicial element.”

The great French legal philosopher Montesquieu in The Spirit of the Laws remarked “When legislative power is united with executive power in a single person or in a single body of the magistracy, there is no liberty, because one can fear that the same monarch or senate that makes tyrannical laws will execute them tyrannically.”

“Nor is there liberty if the power of judging is not separate from legislative power and from executive power. If it were joined to legislative power, the power over the life and liberty of the citizen would be arbitrary, for the judge would be the legislator. If it were joined to executive powers, the judge could have the force of an oppressor.”

“All would be lost if the same man or the same body of principal men, either of nobles, or of the people, exercised these three powers: that of making the laws, that of executing public resolutions, and that of judging the crimes or the disputes of individuals.”

 The rationale for this well-established principle of the separation of powers is to safeguard and prevent abuse of power. This takes us back to the issue of the head of the executive branch being vested the power to determine the head of the legislative branch. Theoretically, the idea of the President nominating five individuals to the Assembly makes a certain sense. Our NA, like any other Parliament, is partisan and MPs, for the most part, toe the party line or face the wrath of their party whips. The rationale of the President being given the power to nominate five individuals to the Assembly, is to curb that tribal politics in Parliament and at the same time enhance the expertise of the House.

The rationale is not for the President to nominate those he believes will further his personal or executive agenda, but qualified and capable Gambians who will serve the interests of the country and its people. Such individuals may be retired IGP, retired CDS, retired Archbishop or retired Iman Ratib, successful businessman, retired doctor, retired Headmaster or deliberately, to allocate all the five seats to women or youth as an affirmative action to increase their representation at the top of the pyramid of law making process. The idea is thus to maintain some form of equilibrium in the Assembly. They are expected to be independent and neutral and their overriding agenda is to serve the best interests of our country and nothing else. That is the idea and rationality of vesting in the President the power to nominate. Article 97(1)(c) of the Constitution of Kenya also provides for nominated members; twelve members nominated by the parliamentary political parties according to their proportion of members in the House. This provision of the Kenyan Constitution expressly states that nomination is to represent special interests including persons with disabilities and workers.     

Section 112(b) of the constitution, on the responsibilities of the members of the National Assembly stipulates that: 

“all members shall regard themselves as servants of the people of The Gambia, desist from any conduct by which they seek improperly to enrich themselves or alienate themselves from the people, and shall discharge their duties and functions in the interest of the nation as a whole and in doing so shall be influenced by the dictates of the conscience and the national interest.”

 Practically, in the Gambian context, largely because of the lack of political maturity and our culturally subservient nature to officialdom, and unfortunately the mediocrity of the types of Assembly we have (I wish to say here that the current House has some really impressive members and who are well intentioned), our own circumstances and context differ and the purpose of nomination by the President is nothing but self-serving and completely needless. In our context, simply because the President nominates someone into the House, the subconscious conclusion is that the primary allegiance is to the President and not the Gambian people. I hope therefore, in light of the recent debate and taking into account the conflicting interests of nominated members if we take into account the history of members nominated by Jammeh, the people in their consultations with the CRC, will express their disapproval and have this provision excused from our supreme law.

It is not in dispute that section 92 does not expressly articulate the removal of nominated members from the House. Was this omission by design or default? Can it be argued that constitution did not contemplate the removal of nominated members, save for the usual justifications such as bringing the Assembly into disrepute, criminal or moral culpability to the extent that it is reasonable to adjudge that a certain MP no longer has the moral authority or standing to continue to occupy a seat in the Assembly of the “Nobles”? If that were the case, I cannot think of anything more legal and lawful than the Assembly itself, passing a statute to determine how a nominated member may lose his or her seat in the House and the procedural requirements of any such law. This will be akin to the power vested in the Assembly under section 92 in relation to the recall of elected members. Perhaps, it may be that, derived from the rationality of the purpose of having nominated members, the constitution did not envisage the removal of nominated members because they represent not individual constituencies but the entire nation as their constituency. Even if we suppose that just like their elected cohort, nominated members may also be removed from the Assembly, nonetheless, in the absence of any express constitutional provision authorising such an action, then only the Assembly can pass laws governing this and how it will operate procedurally. Then the Supreme Court to have the power to determine its constitutionality. Certainly, it is not and should not be the concern of the President how any MP is to be removed from the House. The fact that the President believes that simply because he nominated, he has the legal authority to remove a person be nominated, reveals the fundamental flaws in the whole exercise. The President erroneously believes that as the nominating authority, in the absence of definite constitutional guidance on the subject, he has the legal authority to remove a nominated member from the Assembly.

In the absence of any express constitutional provision vesting in the President the power to remove, his power is limited to nomination and not more. Once a nominated candidate takes an Oath of office, he or she becomes a bona fide member of the Assembly and anything to do with his or her removal should then become an issue for determination by the Assembly itself and not the President. If the President were to be legally able to yield such power, it will not be far-fetched and irrational to foresee a situation where in every Parliamentary term, the President can nominate and dismiss as many NAMs as he pleases if the nominated members vote against his bills or become mavericks in the House. Can you imagine such a situation? That will not only be politically damaging and disruptive, it will undermine and weaken the very foundations and principles of the separation of powers and parliament’s sovereignty, never mind our democracy.  

The sovereignty of Parliament is common in most common law jurisdictions and beyond. Section 63(3) of the Constitution states that “A person elected as President may at any time during his term of office be removed from office if a no confidence motion is passed in the National Assembly supported by two thirds of the members of the National Assembly.” This is not unique. Article 95(5)(a) and (b) of the Kenyan Constitution gives the Kenya National Assembly power to review the conduct in office of the President, Deputy-President and other State officers and also the power to initiate the process of removing them from office; as well as the exercise of oversight of state organs. All over the world, it is generally the House that prescribes the grounds and process of removing members and such a power is not vested in the President.    

The Speaker of the House is a nominated member just like Ya Kumba Jaiteh. Section 93(3)(b) of the Constitution provides that the Speaker and the Deputy Speaker shall vacate their respective offices “if he or she is removed from that office by a resolution of the National Assembly supported by the votes of not less than two-thirds of all the members of the National Assembly.” I argue that in the absence of an express constitutional provision regarding the vacation of the other nominated members, it is reasonable and logical to take a cue from this section’s procedure and conclude that the vacation of all nominated members should be initiated and determined by the House and not at the temperament of the President. There certainly has to be a strong safeguard against executive encroachment on the Parliamentary terrain.      

According to section 76(2), “In addition to the powers conferred on him or her by this Constitution, the President shall have such powers and responsibilities as may be conferred on him or her by or under an Act of the National Assembly.” 

Section 77(2), regarding the executive power and the National Assembly, provides that “The National Assembly may request the President to attend a sitting of the National Assembly for the discussion of a matter of national importance”.

Section 77(4) states “The Vice-President shall answer in the National Assembly for matters affecting the President, and the President shall be entitled to send a message to the National Assembly to be read on his or her behalf by the Vice-President.”

By section 63(3), the National Assembly has the constitutional power to remove a President at any time by two thirds majority vote in the House. The fact that the constitution gives this power to the National Assembly reinforces the supremacy or at least the sovereignty of the House in our political matters. There is nothing, anywhere in the constitution that gives the President any power to remove an MP, be it elected or nominated. It is also clear from section 76(2) that apart from the Constitution, Parliament is the source of the President’s powers and responsibilities through laws that it may pass relating to executive powers. The President’s powers are either derived explicitly or to a lesser extent implied from the Constitution, and Acts of Parliament. It will be self-defeating and contradictory for the President to be given the power to nominate and remove MPs from the same Parliament that the President derives his powers.

Similarly, section 77(2) also gives the Assembly power to request the President to attend proceedings in the House in any deliberations of national importance. This provision states that the Assembly may, at its own discretion, invite the President if it deems it necessary. This lends to the argument that the constitution gives Parliament powers to exercise an oversight role over the Executive. There is no provision anywhere giving the President power to invite MPs to answer questions. That role is only limited to Parliament. The Assembly may summon the President, through the Vice-President, to answer questions before the House under section 74(4) and there is a mandatory and not discretionary duty on the Vice-President to answer any such questions or issues raised on matters relating to the President. This is the role of Parliament in the exercise of its political and legal accountability of the executive. All things being equal and for all intents and purposes, the constitution did not envisage the executive, the President for that matter, to have legal power and control over the Assembly because that will be a very dangerous precedent. To argue therefore that the President has the power to remove an MP from the House lacks any serious legal and political reasoning and judgment. That will be inconsistent with the letter and spirit of the constitution.     

The executive is central within the constitution. The fundamental role of the executive is making and implementing policy and that is important. Notwithstanding, the executive must be accountable insofar as the the exercise of its powers. This brings us back to the separation of powers. Conventionally, government, i.e the executive, is generally held accountable by legal means through the courts and political means by Parliament. The courts rely on well-developed principles of law to ensure good governance within the ambit of the law, e.g affected individuals may file claims against government for declarations or seek certiorari, mandamus, habeas corpus or judicial review proceedings etc. Parliament on the other hand, in carrying out political accountability, may require Ministers and senior government officials to appear before the House and justify their actions. This mechanism, although a clear paradox, raise the issue of the relationship and power dynamics between legal and political interpretations of constitutionalism.  

This allows the separation of powers to function without concentrating so much power in the hands of one organ of government. If there were only legal accountability, the Judiciary will be entrusted with unequal power and it may therefore abuse its power. That is the reason why Parliament is entrusted with power to hold the executive politically accountable. It will be irrational and illogical to conclude therefore that the President has both the legal and political power to remove a nominated member from the House. I am not naïve. I admit there is no absolute separation of powers in any democratic system. However, in the Gambian context, much like elsewhere, if the President were to have powers to remove MPs, that will be giving the executive unparalleled power. English Philosopher John Locke warned “it may be too great temptation to human frailty …. for the same person to have power of making laws, to have also in their hands the power to execute them, whereby they may exempt themselves from obedience to the laws they make, suit the law both in its making and execution, to make their own private advantage.” The concept of responsible government means powers of government are scrutinised by a mixture of forty-eight democratically elected and five constitutionally nominated Parliament to whom every member of government, including the President, is individually and collectively responsible.  

Some legal commentators argue that section 231 of the constitution gives the President power to revoke nomination. Section 231(1) provides:

“Where any power is conferred by this constitution to make any proclamation, order, regulation, rule or pass any resolution or give any direction or make any declaration or designation, it shall be deemed to include the power, exercisable in like manner and subject to like condition, if any, to amend or revoke the same.” ………

Section 231(2): “Where any power is conferred by this constitution on any person or authority to do so or enforce the doing of any act of thing, all such ….  

Section 231(5): “Without prejudice to the provisions of section 167, but subject to the other provisions of this constitution, the power to make any appointments to a public office includes the power to dismiss any person so appointed.”

Section 231(5) is primarily concerned with the appointment and dismissal of public officials. It will be useful to know what section 167(a) states and it is as follows: 

“power to appoint any person to hold or act in any office in the Public Service shall include the power to confirm appointments, to exercise disciplinary control over and to remove persons holding or acting in such offices and to re-appoint or reinstate any person appointed in exercise of the power in question unless such power is expressly or by necessary implication vested in some other person or authority;

 Section 167(b) provides that “power to remove an officer in the public service shall include power to require such officer to retire from the Public Service.” Effectively, both section 231(5) and section 167(a) and (b) are specifically limited to the appointment and removal of public officials, those who work in the Public Service. The next logical issue to address is whether NAMs are public officials and work in the Public Service.

Chapter XI of the constitution deals solely with the Public Service: Officers in the Public Service and section 166(1) in respect of Public Service states:

“Subject to an Act of the National Assembly, the Public Service of The Gambia shall comprise the civil service as established immediately before this Constitution comes into force and the offices declared elsewhere in this Constitution to be offices in the Public Service.”

 Section 166(3) states: “For the avoidance of doubt, it is hereby declared that an office in the public service includes the office of judge of a superior court, and of any other court the emoluments of which are payable out of the public fund of The Gambia, and the office of a principal representative of The Gambia abroad”

Section 166(4): “In this Constitution, an office in the public service does not include-

(a)   The offices of the President, Vice-President, Speaker or Deputy Speaker of the National Assembly, Secretary of State or a member of the National Assembly.”

It is as clear as blue skies that for the purposes of section 231(5) and section 167(a) and (b), a member of the National Assembly is not one who works for the Public Service or considered to be an official of the Public Service. Therefore, the appointment of any individual in the Public Service or the exercise of disciplinary control over such persons and to remove officials holding or acting in the Public Service does not affect NAMs in any way because they are not categorised to be working in the Public Service or considered Public Service officials. Consequently, NAMs are not caught by sections 231 and 167. Further, if NAMs were considered to be officials under the Public Service, this would have been expressly stated in section 166(3) but the fact that it is explicitly spelt out in section 166(4)(a) means that the constitution does not even remotely suggest for a moment that NAMs may be nominated and dismissed at the whims and caprices of the President.

Section 80 states that “Subject to this Constitution and any Act of the National Assembly the President may constitute any public office for The Gambia and make appointments to such office and terminate such appointments.” The caveat here is firstly, provided he acts within and as prescribed by the Constitution; and secondly, any statute passed by the National Assembly giving the President necessary power, may hire and fire officials deemed to be public officials and working in the Public Service pursuant to sections 231(5), 167(a) and (b). The Constitution is very clear on those deemed to be occupying public office. I would also like to point out that appointment is different from nomination. Generally, the appointing authority retains a residue of power to terminate appointment of the appointee. This is because appointment is concerned with giving; appointment into a political office or senior government position. Nomination concerns naming a person for a vacant post or office. It presupposes that once the nominee has been confirmed, the nominating authority no longer possesses any power to circumvent the post-confirmation process. This is the reason why the forty-eight elected and five nominated members must take their Oaths before the Speaker before formally assuming their seats and tenure as MPs as required by section 88(2) of the constitution.   

Role of Supreme Court

What is the role of the Supreme Court in this constitutional and political conundrum? It appears, from the face of it, that there is an impasse. This is the more reason why this is a test case to an extent and the outcome will have serious ramifications on the trajectory of our democracy or the lack of it. The Supreme Court has serious questions to ask and the answers are not only found in the constitution but in political conventions and normative practices elsewhere. If the Supreme Court were to hold that the attempted removal of Ya Kumba Jaiteh is unconstitutional, this will send a clear message to the President that he may not act as he wishes and that there are proper structures to check and balance the exercise of his executive powers. The outcome will be far reaching. On the other hand, should the Supreme Court decide that the attempted removal is constitutional, which I doubt in my own opinion, then the next logical consideration is whether it is politically expedient for the President to remove a nominated MP at his own behest without Parliament’s involvement? So the considerations here should touch on the issue of legality and legitimacy.

In this context, legality is concerned with the lawfulness of the attempted removal within the scope of the law. Legitimacy, which I believe trump legality, is concerned with the moral rights and political authority, in the spheres of our political dispensation so far as the exercise of executive power. I still believe that the main issues here are both legal and political and both are mutually interlinked and indivisible. If the Supreme Court were to hold that the attempted removal, and it is not a revocation of the nomination as that ship has sailed, the nomination stage lapsed immediately after she took her Oath before the Speaker in the House, is valid, the message to the President will be that he has a wide margin in terms of pushing the limits of his powers. This is dangerous. Power corrupts and uncontrolled or absolute power is a danger to any democracy and rule of law, most especially our democracy at its infant stage, having snatched ourselves from the wicked jaws of a brutal dictator just over two years ago.

On the issue of legality and legitimacy, I shall argue why I believe that legitimacy overrides legality. As controversial as it may sound, I still maintain that the attack on State House on December 30th 2014 to remove Yahya Jammeh was legitimate for the following reasons. Yes, the Jammeh government was clothed with legality because there were elections which he won, the fairness of which is another debate. However, the sovereignty of a nation lies in its people. There is an obligation on the state to respect the human rights of people within its borders. If a government then abuses the rights of its people systematically, then its loses its sovereignty and legitimacy to govern and therefore any attempt to remove its political leadership by coerce means is legitimate even if it is illegal. This is a new doctrine that Kofi Annan advocated. In 1999, during the Balkan crisis, while the Serbs were committing ethnic cleansing against the Kosovars, China and Russia in the Security Council vetoed the authorisation of the use of force under Article 42 (Chapter VII of the United Nations Charter). NATO, led by the U.S and U.K, intervened to avert a humanitarian catastrophe.

There was no dispute that the NATO intervention without express Security Council approval was illegal under international law. However, instead of wide condemnation, the intervention was hailed as legitimate by international lawyers and academics because the purpose of the intervention was to stop ethnic cleansing and thus, morality (legitimacy) overrode legality especially if legality was used as a pretext under the guise of territorial sovereignty under international law to commit crimes against humanity and ethnic cleansing of Kosovars. Therefore, since the Jammeh regime was brutal and destroyed all institutions of the state and abused the human rights of the citizens at a massive scale, his government lost all legitimacy and it was morally acceptable to remove him by use of force to restore human rights. The analogy is, legitimacy can prevail over legality.

Similarly, authority, I argue, is intrinsically associated with respect, which in turn creates legitimacy that results in power. It means therefore, that authority leads to respect which leads to legitimacy and that ultimately leads to power. Government must possess authority derived from the people in order for it to govern legitimately.  In contrast, power is the capacity to do things that one wants and for people to do those things even if they disagree or don’t want to. So while the President may use his power(s) to do what he wants, even if these are against the interests of the people, Parliament has the authority, derived from the sovereign will of the people who elected them, to resist the abuse of power through its oversight and political accountability roles. And the courts through legal accountability. It is therefore important to ask if the actions of the President are legitimate. Should the President be allowed to remove a NAM simply because he or she criticises or insults the President? There is nothing wrong with insulting the President. He or she is our servant. Once he or she decides to put himself/herself forward for election, by his/her own choice, then we the electorate should have every right to criticise without boundary. It is nonsense to put our political leaders on pedestals, like they are “Gods” or sacred supernatural beings.

For far too long, as a child, I used to hear that you don’t insult “mansa.” Actually, the real “mansa” is us who vote them in, the power resides in us the “people”. It is complete rubbish how we worship our elected officials in this country. I don’t know whether these are some of the colonial traits that we inherited but it needs to stop. If the President were to have the power to sack a nominated NAM on basis that he or she criticised, insulted or is a thorn to the President, then are we saying that once you are nominated, you are deprived of the right to critique the President or vote against his bills in the House? Ya Kumba Jaiteh is one of the most hard working and useful MPs. She is one of those MPs that puts the nation’s interest first in the House, hence the more astonishing why the President should even contemplate removing her. Perhaps she is just a ‘casualty’ in a bigger cold war at the helm. May be the President is sending a coded message, and one which is less to do with Ya Kumba but more to do with the fractured relationship between the one-time novice and his political mentor.      

Section 5(1)(a) of the Supreme Court Act gives the latter exclusive original jurisdiction for the interpretation or enforcement of any provision of the Constitution with the exceptions of sections 18-33 or 36(5) which relate to fundamental human rights and freedoms of which the High Court has original jurisdiction.

Section 5(1)(c) of the Supreme Court Act gives the Court the power to determine whether an MP was validly elected to or vacated his or her seat in the National Assembly.   

In Sallah v Clerk of the National Assembly (2002-2008) GLR Vol. 1, the Supreme Court stated:

“Every court, including this Supreme Court, is accountable to the people of the country for whom it provides services and on whose behalf the courts exist and operate. We administer justice to ensure the realization of the aspirations of the people…..”.

This assertion by the Supreme Court is in tandem with section 1(2) of the Constitution which states that “The sovereignty of The Gambia resides in the people of The Gambia from whom all organs of government derive their authority and in whose name and for whose welfare and prosperity the powers of government are to be exercised in accordance with this Constitution.” It means therefore that all the three organs of government “borrow” their power from the people and on whose behalf they exercise those powers. While the Constitution is supreme in terms of laws that govern us as enshrined in section 4, Parliament is sovereign because NAMs are representative of the people and the sovereignty of our country resides in the people.

The Supreme Court has a momentous task. They have to decide, in dutifully fulfilling the ideals and aspirations of the people, whether it is justice that the President should have the power to remove a nominated member from the House. I would have thought that wise counsel would have seen the President seek clarification on the issue from the Supreme Court first before attempting to remove a nominated member from the House. It shows bullishness and a lack of respect for both the House and the Supreme Court. The fact that the letter to Ya Kumba Jaiteh was not even on an official O.P letterhead implies how the President and his counsel of “wise men” judged the attempted removal as nothing more than trivial. Who dares question the President’s order? This is not a trivial issue and it should not be treated as such. Had the President notified the Speaker or the Clerk of the National Assembly of his lack of faith in a nominated member, and for any attempted removal to emanate from the House itself through notification by means of a petition by the MPs themselves, one could perhaps forgive him for at least allowing the House to decide the issue openly in the House.

Again, the President, despite strong public criticisms regarding the appointment of the former Vice-President Fatoumata Jallow Tambajang about her age, paid no attention almost as if he was oblivious to peoples’ discontent. The President thus has propensity to defy the people and the constitution. As far as I can remember, that issue was not brought before the Courts. May be this added another ‘feather to his bow.’ It reveals why we were complicit then and if we allow the same thing to happen again, we as a people, will let ourselves down and expedite the creation of another autocratic leadership. Did the Gambian people aspire that the President should have such powers in the absence of an express provision in the constitution in section 92?

There are serious political issues to consider and the decision will either shape the longevity of our democracy or accelerate its slow death. It also means that the primary duty of the Court will be justice as per the aspirations of the people. Justice is not an abstract concept. It’s relative and ought to be tangible. I hope the Supreme Court will not just gloss over the issue superficially but engage with the tough and difficult issues substantively and address them accordingly. The Court has the power to rein in on the executive and they should not hesitate to do so should they come to a conclusion that the actions of the President were ultra vires. Yahya Jammeh sent the Judiciary into abyss because it did not do enough to sufficiently insulate itself from his excursions. It should never allow that to happen again. Like the saying goes, the courts are the last bastion of democracy and hope. That trust in the Judiciary and the Supreme Court should not be lost on them.

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 Suggested citation: Abdoulie Fatty, Attempted removal of nominated NAM is constitutionally wrong - Both legally and politically, Law Hub Gambia Blog, 18 March 2019, at

Abdoulie Fatty is a lawyer at A. Fatty & Co. He previously served as Magistrate in Banjul. He studied in the U.K and was Called to the Bar of England and Wales. He has LLM in International Human Rights Law and Practice. He has strong interests in democratization, transitional justice, international law and human rights.    

The Gambia: The state of liberal democracy

Congratulations to Gaye Sowe, Executive Director – Institute for Human Rights and Development in Africa (IHRDA) and member of the Constitutional Review Commission; and Satang Nabaneh, Ph.D in Law Candidate/Founder and Editor, Law Hub Gambia. Their joint chapter on The Gambia was published as part of the I-CONnect-Clough Center 2017 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 second edition of the I·CONnect-Clough Center Global Review of Constitutional Law (ISBN: 978-0-692-15916-3). The 2017 Global Review assembles detailed but relatively brief reports on constitutional developments and cases in 61 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://ssrn.com/abstract=3215613

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Suggested citation

Sowe G and Nabaneh S ‘The Gambia: The state of liberal democracy’ in Albert R, Landau, D, Faraguna P, and Drugda Š: The I·CONnect-Clough Center 2017 Global Review of Constitutional Law (July 19, 2018) 97-101.

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Overview of the chapter "The Gambia: The state of liberal democracy"

2017 witnessed unprecedented political events in The Gambia that resulted in a transition from a dictatorship to a democracy. The single most important development was that “The Gambia became one of Africa’s newest democracies following 22 years of authoritarian rule by Jammeh, who vowed to rule The Gambia for a billion years. 

“This momentous change led to the dawn of a new political and democratic dispensation and a slow, but gradualist thrust to liberal democracy. ”

— Sowe & Nabaneh

This report looks at various constitutional amendments, promulgation of new laws, constitutional case law and politics including Gambianization of the judiciary and what big questions await The Gambia in 2018 or beyond.

Download The Gambia chapter and the full report here.