NEWS
Transparency International Report on The Gambia - (PART III)




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October 24, 2005
Civil Rights Violation and Accountability Chapter IV of the Constitution9
provides for protection of fundamental rights and freedoms. It therefore
does not lie within the power or discretion of the Government not to grant
or respect those guaranteed rights. Section 37 enables any person who
alleges that any of the provisions of the Chapter "has been, is being or
is likely to be contravened in relation to himself or herself," to apply
to the High Court for redress.

The High Court is given jurisdiction to hear applications under this
Chapte r and make such orders, issue such writ, and give such directions,
as it may consider appropriate for the purposes of enforcing or securing
the enforcement of such rights.10 The High Court may decline to exercise
its powers if satisfied that adequate means of redress is available under
any other law.11 The State is also liable in tort by virtue of section 4
of the State Proceedings Act.12

The State is prohibited by Section 100 (2) (c) of the Constitution to pass
a law that would retroactively take away an existing right. The case of
OUSMAN SABALLY vs INSPECTOR GENERAL OF POLICE, SECRETARY OF STATE FOR THE
INTERIOR AND RELIGIOUS AFFAIRS, THE ATTORNEY GENERAL, CIVIL SUIT NO.
115/200013 is relevant for our discussion. In that case plaintiff issued a
writ of summons in the High Court seeking inter alia damages from the
defendants for assault and injuries occasioned to him by state security
personnel. The defendants denied the claim. The claim arose from the
events of 10th and 11th April 2000 when there were public disturbances in
some parts of The Gambia.

The trial commenced before Justice Timothy Kabalata (a brilliant and
honest Zambian judge sent to The Gambia on technical assistance at the
time). On 1st March 2001 with the plaintiff being subjected to rigorous
cross-examination by counsel for defendants. Plaintiff's first witness
also testified and thereafter the suit was adjourned many times for
continuation at the instance of the State.

Whilst the suit was still pending. An "Act to Amend the Indemnity Act and
for matters connected therewith" was tabled before the National Assembly
by the Secretary of State for the Interior and Religious Affairs (a
defendant in the suit). It was enacted by the National Assembly and
assented to by the President of the Republic of The Gambia on 2nd May
2001. It became Act No. 5 of 2001. Section 1 of the amending Act (Act No.
5 of 2001) provides that the Act "shall be deemed to have come into force
on 1st January 2000."

Act No. 5 of 2001 indemnifies public officers and state agents against all
claims in respect of actions undertaken during any period of public
emergency, public disturbance or riotous situation. It goes further to
oust the jurisdiction of the courts in favour of a Claims
National Integrity Systems 2004
The Gambia 17
Commission to be established to receive and hear claims and make
recommendations to the President for compensation or otherwise. The
defendants by a motion on notice applied to the court to strike out
plaintiff's suit on the ground that there is no cause of action against
the defendants by virtue of Act No. 5 of 2001.

Counsel for plaintiff argued before Kabalata J, that Act. No. 5 of 2001
retroactively purports to take away a vested right of the plaintiff to
pursue his pending civil suit. It was therefore unconstitutional and in
excess of the powers of the legislative authority.

Counsel for the defendants submitted that Act No. 5 of 2001 was valid and
constitutional and within the competence of legislative authority. Justice
Kabalata accordingly held that since the issue of the interpretation of
the Constitution has arisen, it must be referred to the Supreme Court for
determination. The matter was then referred by way of reference to the
Supreme Court in accordance with Section 127 (1) (b) and (2) of the
Constitution. It became Civil Reference No. 2/2001. The reference question
formulated by Kabalata J, was "Whether the Indemnity (Amendment) Act No. 5
of 2001 was made in excess of the powers conferred by the Constitution or
any other law upon the National Assembly or any other person or
authority."14

The Supreme Court unanimously held on 5th December, 2001 as follows: "The
Court accordingly holds that the application of Act No. 5 of 2001 to
terminate the legal proceedings instituted by the plaintiff and pending at
the time of the enactment, will constitute a contravention of Section 100
(2) (c) of the Constitution and exceeds the competence of the legislative
authority to the extent that the plaintiff would be deprived retroactively
of his vested right to continue such proceedings. Accordingly the court
hereby directs the High Court to dismiss the Motion filed by the
defendants on 14th May, 2001 and to proceed, notwithstanding the
provisions of Act No. 5 of 2001, with the hearing of the case…" The State
filed for a review of this judgment which on a majority decision of 6 to 1
was dismissed by the Supreme Court in its judgment of 18th June, 2002.

Shortly after this judgment the State through the Solicitor General
terminated the services of the only Gambian judge of the Supreme Court
(Justice Hassan Jallow), effectively dismantled the structures of the
Supreme Court which since this case has only one known judge in the person
of the Chief Justice. The Court exists in the Constitution but is not
functioning due to lack of judges.

In the case of ABDUL AZIZ JENG vs THE COMMANDER GAMBIA NATIONAL ARMY, THE
ARMY CHIEF OF STAFF, THE ATTORNEY GENERAL, CIVIL SUIT NO. 4/2001.15
The plaintiff, who is a former army officer, sued the defendants for
wrongful arrest and detention without trial for almost three years. The
plaintiff, prior to the case, had requested after his release from
detention to be re-instated in the army and paid some compensation. This
was refused. He therefore sued the defendants. At the trial, military
personnel armed to the teeth invaded the High Court wearing red berets
with instructions to arrest the plaintiff. Some were seated in the
courtroom. Trial judge, Belgore J, on the application of the plaintiff's
counsel to make an order prohibiting defendants, their agents or servants
from arresting or interfering with the liberty of the plaintiff pending
the hearing and determination of the suit, granted the order. However, as
soon as the plaintiff left the court premises with his counsel and family
members, they were followed by security personnel, some of whom mounted a
roadblock searching for the plaintiff. The plaintiff has since fled The
Gambia and is believed to be seeking asylum abroad. The case has been
adjourned sine die. These two cases are among many that demonstrate that
the Executive mischievously disregards the rule of law and pays lip
service to human rights promotion and protection.

Judicial Review of administrative action is available under the inherent
jurisdiction of the High Court. The Public Service Commission regulations
and other service rules allow public servants to seek administrative
redress through mechanisms existing in various departments and
institutions. There are also periodic circulars and gazettes on directives
from the Office of the President.16 There is also the office of the
Ombudsman,17 which handles administrative complaints. The office claims to
have handled 400 complaints since 1999 and that all recommendations made
on each were implemented by the Government. However, the constitutional
requirement that the Ombudsman should send his reports to the President
and the National Assembly twice yearly is yet to be done. No reports have
so
National Integrity Systems 2004
The Gambia 18
far emanated from that office although the Ombudsman has in an interview
promised to submit reports very soon.

There is no statutory requirement for a Secretary of State to declare his
assets to any authority. The Elections Decree, 1996 is the only law which
requires candidates for elective offices to declare their assets to the
Independent Electoral Commission. The Independent Electoral Commission
would display the asset declarations in their offices for public scrutiny,
but that would only be for a short time and thereafter, they are not
published. Secretaries of State are appointed by the President; they do
not contest elections. However during the transition period (during
military rule) and post-transition, Ministers were required to declare
their assets to the Head of State. This was a mere administrative
formality.

Section 72 (4)(b) of the Constitution prohibits the Vice President and
Secretaries of State from undertaking any activity inconsistent with their
official positions or which is likely to expose them to any situation
which carries with it risk of a conflict developing between their private
and official interests. Section 72(4)(c) goes further to prohibit the Vice
President and Secretaries of State from using information acquired in
their official capacity to enrich themselves or any person.

There is a further administrative requirement contained in a directive18
from the Office of the President which requires Secretaries of State to
avoid entering into transactions whereby their private pecuniary interests
might come into conflict with their public duties.19 The only rule which
is in the form of a directive from the Office of the President20 requires
a Secretary of State to avoid all transactions such as the acceptance of
gifts of substantial value from members of the public which might
conceivably infringe the stated principles governing the conduct of
Secretaries of State.

There are no restrictions on post-ministerial or post-public service
employment. There is however an open display of reluctance by the
Government to sponsor or recommend the candidature of a person whose
services have been dispensed with and who they consider to be a member of
the opposition or have other grievances against that person. These rules
however do not apply to the President.

Legislature
The National Assembly is the principal law-making organ21 of the State.
Its main role under the Constitution is to represent the people and keep a
check on the Executive by constantly scrutinizing its plans, policies,
performance and above all its finances.22 The National Assembly consists
of 48 elected members and five nominated members. The Speaker and Deputy
Speaker are both nominated.23 The nominated members are chosen by the
President.

There is also the National Assembly Service,24 which is the administrative
arm of the National Assembly. The staff of this institution are public
servants appointed by the National Assembly after consultation with the
Public Service Commission. The clerk of the National Assembly is the
administrative head of the National Assembly Service.

One of the functions of the National Assembly Service is to provide
members of the National Assembly with facilities for drafting Bills and
obtaining reasonable information from relevant Government Departments.25
However, the National Assembly does not have its own Parliamentary counsel
or draftsperson. All Bills are drafted at the Drafting Department of the
Attorney Ge neral's Chambers and Department of State for Justice. The
National Assembly's power to make legislation is limited and made subject
to the Constitution. The Supreme Court has the power to declare any law
passed by the National Assembly null and void to the extent to which that
law is inconsistent with any provision of the Constitution or is made in
excess of powers conferred by the Constitution or any other law26 Members
of the cabinet are not members of the National Assembly. Legislation
passed by the National Assembly is assented to by the President before it
can be gazetted.

National Integrity Systems 2004
The Gambia 19
The enacting formula for all legislation under the present Constitution
reads, "ENACTED by the President and the National Assembly"27 The
prescribed formula makes the President and National Assembly jointly
responsible for every piece of legislation, thereby giving the President a
dual role.

The other functions of the National Assembly which act as a check on the
Executive and makes it accountable to the National Assembly are:

· Through questions put to Secretaries of State on management of their
respective departments, which is done by summoning Secretaries of State to
appear before the National Assembly to answer questions already sent to
them by any member of the National Assembly;
· Through motions, Bills, and resolutions submitted by Secretaries of
State to the National Assembly;
· Review of reports on activities of the Government;
· Review of proposals for the raising of revenue by the Government;
· Examination of accounts and expenditure of the Government and other public
bodies funded by public money and the reports of the Auditor General
thereon approves the National Budget.

Furthermore the National Assembly can impeach the President, and remove a
Secretary of State through a vote of censure. In practice, the National
Assembly effectively carries out whatever the Executive wants and has so
far failed to act as check on the Executive. Government is not known to
have submitted any reports on its activities to the National Assembly for
scrutiny.

The Committees of the National Assembly to be appointed under Section 109
of the Constitution are:

· Public Appointments Standing Committee;
· Finance and Public Accounts Standing Committee;
· Standing Committee on Privileges;
· Standing Committee on Defence;
· Such other standing or other Committees as it considers necessary for
the exercise of its functions.

The present National Assembly has only three opposition members. The
majority are from the APRC party which is the party of the current
President. The Speaker and Deputy Speaker are nominated members appointed
by the President.

However, for the fact that the main opposition party boycotted the last
parliamentary elections, the ruling party, knowing fully well that most of
its candidates would be elected unopposed, mostly chose people who were
willing to toe the line of the Executive in the National Assembly.

The opposition having been greatly out-numbered has been able to make its
voice heard only through contributions to debates and question and answer
time. They have not initiated private member's Bills, and only tabled a
few motions.

Structure and Role of the Finance and Public Accounts Committee The
Finance and Public Accounts Committee of the National Assembly is
appointed under Section 109 of the Constitution of the Republic of The
Gambia 1997. Its membership is made up of members of the National
Assembly. The number of members to form the committee is not prescribed.
In practice however, the Speaker chairs the Committee assisted by members
selected from all political parties represented in the National Assembly.

National Integrity Systems 2004
The Gambia 20
It is charged with the responsibility of scrutinizing financial statements
and accounts sent to it by the Government. It sits on ad hoc basis and its
composition does not remain static.

The Auditor General's Report of December, 1998 was considered by a panel
of nine members of the National Assembly who were appointed to sit as the
Finance and Public Accounts Committee. The position of this Committee on
the report is dealt with later in the study.

TO BE CONTINUED IN PART III...



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