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

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

Introduction

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

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

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

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

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

Post Legislative Scrutiny in perspective

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

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

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

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

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

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

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

The status of oversight at the National Assembly of The Gambia

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

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

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

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

Some laws that could be reviewed

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Conclusion

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

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

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

---

---

REFERENCES

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

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

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

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

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

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

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

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

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

Ahlagie M. Dumbuya

About the author

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

Point of Order: The Parliament of The Gambia in Operation

Introduction

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

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

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

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

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

 Point of order

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

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

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

What form should a point of order take?

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

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

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

What happens when a point of order is raised?

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

Speaker’s duty on point of order

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

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

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

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

Multi points of order

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

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

The speaker’s ruling or decision

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

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

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

The precedent rule

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

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

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

Time to take a point of order 

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

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

Grounds

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

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

 Relation to other business

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

Debate on points of order

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

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

 Scope of debate

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

Burden of Proving a point of order

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

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

 Withdrawal of a point of order

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

Can a speaker’s ruling be appealed?

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

 Conclusion

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

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

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

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

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

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

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

---

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

---

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

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

---

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[xvii] Ibid

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

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

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

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

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

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

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

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

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

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

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

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

Parliamentary sovereignty: The Gambia’s perspective

Kalipha MM Mbye

Head of Table Office, National Assembly of The Gambia

Abstract

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

 Introduction

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

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

 Does the 1997 Constitution safeguard Parliamentary supremacy?

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

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

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

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

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

Parliamentary sovereignty in Gambian context

 Establishment

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

 Legislative powers

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

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

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

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

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

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

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

 Procedure of law making

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

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

 Powers over the Executive

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

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

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

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

Oversight powers

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

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

 Grey areas: Parliament v the Executive

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

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

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

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

 International relations

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

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

 Powers over the Judiciary

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

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

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

Immunity

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

Conclusion

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

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

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

---

About the Author:

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

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

---

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

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

[3] ibid

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

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

[6] ibid, s 87

[7] ibid, s 226(4)

[8] ibid, s 100(1)

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

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

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

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

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

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

[15] ibid, s 108(2)

[16] ibid, s 76(1)

[17] ibid, s 74

[18] Ibid, s 63, 66 and 67

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

[20] ibid, s 109(2)

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

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

[23]ibid, s 120(2)

[24] ibid, s 141(3)

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

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

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

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

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

Should the National Assembly of The Gambia oversee subsidiary legislation? A critique of Standing Order

The article was published in June 2020 in the Loophole, the online journal of the Commonwealth Association of Legislative Counsel  (CALC).

Abstract

This article addresses the issue of whether subsidiary legislation should be subject to parliamentary oversight through a procedure adopted by the National Assembly of The Gambia under Order 80 of the latest edition of its Standing Orders. The procedure involves the publication in the Gazette for a specified time and laying before the Assembly of subsidiary legislation. The main thrust of the article is that National Assembly scrutiny of subsidiary legislation is a worthy initiative, albeit one that could be fraught with problems.

The most obvious impediment is that the procedure established by the Standing Orders conflicts with the procedure prescribed by the Interpretation Act. This raises the question of whether Standing Orders can abrogate or override primary legislation. The article examines how certain jurisdictions based on the Westminster parliamentary system have established a general obligation to lay subsidiary legislation before their Parliaments and posits that the challenges of implementing Order 80 are surmountable through respecting the hierarchy of laws and recognising the importance of parliamentary development.

The article is online.

---

About the author:

Abubakarr Siddique Kabbah is the Principal Legal Draftsperson, Attorney General’s Chambers and Ministry of Justice of The Gambia. The views expressed in this article are solely his. They do not in any way reflect the views of the Attorney General’s Chambers and Ministry of Justice and he is responsible for any error or inaccuracy in the article.

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.

---

 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.    

Was the recent Supplementary Appropriation Estimate 2018 presented by the Minister of Finance in accordance with the dictates of the law and Constitution?

[Editor’s note: This is Part IV of our special series titled “Constitutional Review in The Gambia: Contemporary Discussions.” The introduction to the special series is available here, Part I is available here, Part II is available here. and Part III is available here.]

Background

The Minister of Finance and Economic Affairs tabled a Supplementary Estimate[i] on the 11th of December 2018 before the National Assembly, seeking approval for additional payments from the Consolidated Funds amounting to D1,128,337,519.7. It is important to note that the Supplementary Estimate was for the period 1st January to 31st December 2018 and was made in the last quarter of the year, literally less than two weeks before the end of the 2018 budget year. Secondly, the request was in addition to the already approved budget of D19.74 Billion Dalasi for the financial year 2018, which was already exhausted as at the time of the 11th hour request.

The National Assembly after extensive deliberations and debate rejected the Supplementary Estimate in its totality and did not get to consider the Supplementary Appropriations Bill. Many reasons were advanced by members of the National Assembly, ranging from the timing of the submission of the estimates, the quantum of estimates (too high), exorbitant amount identified for non-priority sectors and to some, it was unconstitutional.  

The focus of the article is to examine the legal framework that govern the procedures, requirements and governance of Budget Supplementary Appropriation with a view to determine the legality and propriety of the Supplementary Estimate of 2018.The author shall review the current constitutional provisions and the existing laws that govern Supplementary Appropriation, to inform the discourse on this topic. To this end, the author seeks to establish whether the proposed Supplementary Estimate and Bill submitted to the National Assembly was in conformity with the supreme law of the 1997 Constitution of the Gambia and other enabling legislation, which derive their legal authority from the constitution? .[ii]

Legal Framework

 The governance and legal framework of Public Finance Management is provided for in chapter IX of the 1997 Constitution, the Finance Act of 2014 and Government Budget Management and Accountability Act 2004. The 1997 Constitution provides the primary legal framework for the management of Public Finance in Gambia and the relevant sections germane to the subject of this article are found in sections 150 – 154 which shall be discussed in below in detail.

For the purposes of this article, it is important to note that by law all budgetary appropriations are through the Consolidated Fund by virtue of section 150 of the Constitution. [iii]  Section 150 allows for separate accounts to be created in specific circumstances only by an Act of Parliament.[iv]

The specific provision that the governs the Supplementary Appropriation is section 153 (1) and (2) which is reproduced below:

 Section 153

(1) Subject to section 154[v], if in respect of any financial year it is found that the amount appropriated under the Appropriation Act is insufficient or that a need has arisen for a purpose for which no amount has been appropriated by that Act a supplementary estimate showing the sums required shall be laid before the National Assembly before the expenditure has been incurred. [Emphasis mine]

(2) Where a supplementary estimate or estimates have been approved by the National Assembly, a supplementary appropriation Bill shall be introduced into the National Assembly for the appropriation of the sums so approved.

The first limb of section 153 (a) provides the basis upon which a Supplementary Estimate should be approved by the National Assembly. In summary, there are two scenarios -

1.      Budget Appropriation shortfall (insufficiency i.e. under budgeted) or

2.     An unforeseen contingency need arises

 It is very clear from the wording of the provision that the section 153 is to be invoked only if there is a short fall and/or a need that was not envisaged at the time of preparing the main budget estimate. The operative words in the provisions are “need” and “insufficiency.” It is my view that a close look at the budget items comprised in the 2018 Supplementary Estimate could not have passed the “needs” or “Insufficiency” Test as prescribed by the Constitution. The specific line items that constitute the Supplementary Estimate have been exhaustively debated by the national assembly members prior to the rejection of the Supplementary.[vi]

It is my contention that section 153 (a) envisages and necessitates the creation of a Contingency Fund by a statutory enactment before a Supplementary Estimate can be presented to cater for additional expenditure for the reasons stipulated in the section. The purpose of the Contingency Fund as implied in the name is to provide/cater for unplanned/unbudgeted contingency expenditures as long the amount sought does not exceed 1% of the budget approved for that year. The provision thus sets a cap of 1% of the approved estimate for the year, which in my view restricts the use of Supplementary Appropriations for marginal budget over runs. To the best of my knowledge and information, our National Assembly as required by Constitution did not create a Contingency Fund, which is a condition precedent for the application of section 153.

In a nutshell, the Hon Minister cannot apply for additional funds to be appropriated to the Consolidated Fund in the absence of the creation of a Contingency Fund, which in essence would have been the source of the additional funding within the cap set by the Constitution. The Supplementary Estimate presented for approval is for the sum of D1,128,337,519.77, which by any stretch of imagination exceeds 1% of the approved budget of 2018.[vii] In fact it represents close to 17% of the current 2018 budget.

In the final analysis, the 2018 Supplementary Estimates should not have been presented for approval, given that the amount sought was in excess of the constitutional limit set. Secondly, it appears that the Minister of Finance already approved expenditures prior to coming to seek for the approval of the National Assembly. This, in my view is in contravention of the spirit and substance of section 153. The ultimate power to approve expenditure is the National Assembly and the Constitution makes it very clear that no expenditure can be appropriated without prior approval of the National Assembly. Finally, the National Assembly can only approve the Supplementary Estimate within the limits set by the constitution. In order words, the National Assembly Public Finance Committee should have advised the Assembly that the amount presented in the Supplementary Estimates exceeds the 1% cap set by the Constitution.

Conclusion

A review of the Constitution, the applicable legislation confirms that the Minister of Finance’s 2018 Supplementary Estimate is not consistent with the dictates of the Constitution and the enabling Legislation viz. Government Budget Management and Accountability Act 2009 and the Public Finance Act 2014.  The author reiterates that the application of the enabling laws mentioned above and any power purported exercised by the Honourable Minister or his predecessor are subject to the Constitution, which is the supreme law of the land.

The Supplementary Estimate 2018 dubbed SAB2018 has exposed a fundamentally flawed budgetary process that needs to to be overhauled and reset. The old ways of budgeting in the good old days is not longer acceptable in this era of transparency and probity. The Minister of Finance is our gatekeeper of our public funds and we expect him to ensure financial /fiscal discipline is enforced to the letter without fear or favour.

Thus, there is need for the National Assembly to seek independent legal advise on such legal matters to ensure they discharge their functions within the confines of the Constitution.  The fact that the National Assembly Public Finance Committees considered the approval of the Estimate with a 45% reduction is cause for concern, as that would have flouted our constitution. It is timely for the National Assembly to appropriate sufficient resources to establish its support services in the area of legislative and legal support inter alia.

The buck stops at the Minister of Finance who has a duty to restrain Executive financial indiscipline and maintain spending within the approved budget. The Minister of Finance, by extension the Government should not use the Supplementary Appropriation Estimates as an overdraft facility and expect our National Assembly to simply rubber stamp the excess spending retroactively. 

In the interest of the betterment of our country and judicious management of our scarce financial resources, I humbly make my little contribution on this very important topic.

Suggested citation: Salieu Taal, Was the recent Supplementary Appropriation Estimate 2018 presented by the Minister of Finance in accordance with the dictates of the law and Constitution?, Law Hub Gambia Blog, 20 November 2018, at https://www.lawhubgambia.com/lawhug-net/is-supplementary-appropriation-constitutional.

For the Gambia Our Homeland

Salieu Taal

Initiator/Co-Founder #GambiaHasDecided

Managing Partner, Temple Legal Practitioners

---

[i] Supplementary Appropriation is governed by Section 153 of the 1997 Constitution which reads;

(1) Subject to section 154, if in respect of any financial year it is found that the amount appropriated under the Appropriation Act is insufficient or that a need has arisen for a purpose for which no amount has been appropriated by that Act a supplementary estimate showing the sums required shall be laid before the National Assembly before the expenditure has been incurred.

(2) Where a supplementary estimate or estimates have been approved by the National Assembly, a supplementary appropriation Bill shall be introduced into the National Assembly for the appropriation of the sums so approved.

[ii] Section 4 of the Constitution “ The Constitution is the supreme Law of the Gambia and any other law found to be inconsistent with any provision of this Constitution shall, to the extent of the inconsistency, be void.”

[iii] Section 150 of Constitution defines the Consolidated Fund

(1) There shall be a consolidated Fund into which shall be paid

(a)    all revenues or other money raised or received for the purpose of, or on behalf of, the Government

(b)    any other money raised or received in trust for or on behalf of the Government

[iv] This raises the issue of whether banks collection of taxes on behalf of GRA is within the law in the absence of specific legislation authorizing the collection of state revenue.

[v] Section 154 of 1997 Constitution

(1) An act of National Assembly may make provision for the establishment of a Contingencies Fund and for authorising the President to make advances from that fund if he or she is satisfied that there has arisen an unforeseen and urgent need for expenditure for which no other provision exists:

Provided that the President shall not authorize any expenditure from the contingencies Fund in excess of one percent of the estimates approved by the National Assembly for the current year before he or she has caused a supplementary estimate in respect of such excess expenditure to be presented to the National Assembly.

(2) Where any advance is made from the Contingencies Fund, a supplementary estimate shall be presented, and a Supplementary Appropriation Bill shall be introduced for the purpose of replacing the amount so advanced within ninety days of the advance being made.

[vi] See. Intervention of Sidia Jatta, PDOIS NAM, Sana Jawara etc Hansard Records

[vii] Budget Estimate for 2018 approved was D19 (Billion Dalasi)

Constitutional Developments in The Gambia: Readying for a New Constitution

Constitution building in the Gambia dates back to the colonial period particularly when the country became a full-fledged colony between 1894 and 1902. In order to ensure effective control over the Gambia the British had to develop various constitutions through which they built institutions to enforce their authority over the lands and people of the Gambia.

Two of the foremost institutions through which the colonialists governed the country were the Legislative Council and the Executive Council. The Legislative Council for the Gambia met for the first time in 1843. Since then various constitutions were created to expand and determine its mode of membership, i.e. either by selection, nomination or election. Usually membership was concentred on Europeans until 1883 when a Gambian, J.D. Richards was appointed into the body. But by 1947 a new constitution was created that allowed for the election of an African representative from the colony for which EF Small was elected for Banjul.  

The Legislative Council was eventually abolished in 1960 to be replaced by a House of Representatives following the 1959 constitutional conference and the subsequent creation of a new constitution by Governor Edward Windley. That constitution established the House of Representatives consisting of 34 members, 19 of whom were directly elected. It also gave the right to the people of the protectorate for the first time to directly elect their representatives. It was this constitution that actually opened the floodgates for the journey towards Gambian Independence.

The constitutional development process continued in 1961 when another conference was held in Banjul from 4 – 11 May 1961. This led to the London constitutional conference which was held in the same year on July 24. It was these conferences that gave birth to the 1962 Constitution which set the stage for elections that year and constituted the House of Representatives thus; 25 seats for Protectorate, 7 seats for Colony and 4 Chiefs. Consequently the 1962 elections resulted in PPP winning 18 seats, UP 13 seats and DCA with 1 seat. The 1962 Constitution also created an Executive Council headed by the Governor, a prime minister, an attorney general and 8 other ministers.

The significance of the 1962 constitution was that it created 32-member representatives and set the motion for the Gambia to attain internal self-rule. Therefore when the PPP won the majority seats, the Governor appointed Jawara as Premier and asked him to form his cabinet. In October 1963 the colonialists gave the country full internal self-rule status and Jawara then became Prime Minister.

In the following year, 1964 the most significant constitutional conference was held in London where the subject matter was the independence of the Gambia.  This conference led to the enactment of the Gambia Independence Act in December 1964 by the British Parliament with the title, ‘An Act to make provision for, and in connection with, the attainment by The Gambia of fully responsible status within the Commonwealth’.

The London conference agreed that the Gambia would become independent on 18 February 1965 on the basis that it will seek membership of the Commonwealth and that the Queen of England would also become the Queen of the Gambia. On the appointed date, at a huge colourful ceremony in Banjul the Union Jack was lowered and the Gambian flag was hoisted. Jawara was formally confirmed as Prime Minster and Sir John Paul was appointed as Governor-General. In 1966, Paul was replaced by Sir Farimang Singhateh as the Governor General.

From the foregoing it is clear that the Gambia was indeed not an Independent country by 1965 but a British dominion with internal self-government status. Hence the journey towards independence continued with two referendums on the question of being a republic. The first referendum was held in November 1965 but the ‘Yes Vote’ fell short of the two-thirds majority by only 758 votes. The second referendum was held in April 1970 where the two-thirds majority was met and the Gambia was declared an independent republic on 24 April 1970.

The result of that referendum meant that another constitutional process had to emerge leading to the creation of the 1970 Republican Constitution. However by then this constitution was already passed by the House of Representatives on 18 December 1969 but then assented to by the Queen of England on 24 April 1970. That constitution unified the office of Head of State into an Executive Presidency and abolished the office of the Governor General, as head of state and representative of the Queen of England. Jawara became the first President of the Republic and Sir Farimang Singhateh ceased to be Governor General.

Since 1970 the Gambia did not encounter any major constitutional issues until 1994 when the military overthrew the PPP government and suspended parts of the 1970 Constitution. Following a transitional process lasting two years a new constitution was drafted and subjected to a referendum in August 1996 that came into force in January 1997.

There exist fundamental differences between the 1970 and 1997 constitutions. For example while Section 1 of the 1970 Constitution stated that the Gambia was a sovereign republic yet it did not establish on who resided that sovereignty. In the 1997 Constitution, section 1 subsection 2 clearly states that the sovereignty of the Gambia resides in the people of the Gambia and the legitimacy of the state is derived from the people. The 1970 Constitution did not have a preamble which is contained in the 1997 Constitution. While both constitutions have stipulated the fundamental rights and freedoms of Gambians, yet the 1997 constitution was more extensive and explicit under the Chapter Four.  Furthermore the 1970 Constitution did not provide for the establishment of most state institutions as is the case in the 1997 Constitution. In fact the 1970 Constitution was enacted as an act of parliament and not subjected to a referendum as was the case with the 1997 Constitution. However the 1997 Constitution also leaves much to be desired especially given the uncountable amendments it has been subjected to over the period to satisfy the whims and caprices of former president Yaya Jammeh.

In building a new constitution for the Third Republic, major lessons must be learnt from both Independence constitutions to ensure that fundamental republican and democratic values, standards, institutions and processes are clearly provided and protected to ensure good governance. This includes presidential term limits, limitation of the powers of the president, expansion of the rights of citizens and strengthening the oversight functions of the parliament.  

A constitution of any society does not only provide a legal basis for the existence of that body but also establishes the rights and obligations of the members individually as well as the body itself as a whole. A constitution further defines and sets the aims and objectives of that body as well as the values, standards, rules, processes and institutions of that society. Hence a constitution therefore is also a performance assessment and an accountability tool that determines the health and strength of any body and its members. For that matter a constitution is usually set in a kind of language and structure that makes it long-lasting, difficult to change and sustainable in order to cater for the present and the future needs of society at the same time.

----------------------

This article draws from many sources including;

1.      Hughes, Arnold and Perfect, David. “Historical Dictionary of the Gambia”. The Scarecrow Press, Plymouth, fourth edition, 2008

2.      Hughes, Arnold and Perfect, David. “A Political History of the Gambia, 1816 – 1994”, Rochester, N.Y.: University of Rochester Press, 2006

3.      K. Jawara, Dawda. “Kairaba”, Haywards Heath, West Sussex, UK. 2009

4.      A.S. Jammeh, Ousman. “The Constitutional Law of the Gambia: 1965 – 2010”, AuthorHouse, 2011

5.      Saine, Abdoulaye S, Ceesay, Ebrima Jogomai and Sall, Ebrima. Eds. “State and Society in the Gambia Since Independence: 1965 – 2012”, Africa World Press, Trenton New Jersey, 2013

6.      Constitution of the Republic of the Gambia 1970

7.      Constitution of the Republic of the Gambia 1997