FOROYAA's REVIEW OF THE DRAFT CONSTITUTION OF THE SECOND REPUBLIC

Book Two

On The Executive Branch Of Government (The Presidency)

..................CONTINUED...............

"Secretaries of State shall be appointed by the President and shall before
assuming the functions of their office, take and subscribe the prescribed
oaths,"


BASIS OF APPOINTMENT OF VICE PRESIDENT AND SECRETARIES OF STATE
Section 72, subsection (1) reads:

"The Vice President and Secretaries of State shall be responsible for such
departments of state or other business of the Government as the President may
assign to them.  In making such assignments, the President shall nave regard to
the desirability of ensuring that such responsibilities are entrusted to
competent persons with relevant qualifications or experience."

THE ROLE OF THE ATTORNEY GENERAL
Section 72, subsection (2) reads:

"The Attorney general shall be the principal legal adviser to he Government and
shall have the right to audience in all courts in The Gambia."

SALARIES AND ALLOWANCES OF VICE PRESIDENT AND SECRETARIES OF STATE
Section 72, subsection (3) reads:

"The Vice President and Secretaries of State shall be entitled to such
remuneration, allowances and other incidents of office as may be prescribed by
an Act of the National Assembly."

CAN THE VICE PRESIDENT AND SECRETARIES OF STATE
GAGE IN BUSINESS?
Section '72, subsection 4 (a) reads:

"The Vice President and Secretaries of State shall not-
"(a) while they continue in office, hold any other office of profit or
emolument whether public or private,occupy any other position carrying the
right to remuneration for the rendering of services, or directly or carry on
any trade, business or other undertakings;
"Provided that the Vice President and the Secretaries of State may undertake
and carry on agricultural business including farming, horticulture, livestock
rearing and artisanal fishing;"

SHOULD PERSONAL ACTIVITIES CONTRADICT OFFICIAL
FUNCTION

Section 72, subsection 4 (b) reads:
"The Vice President and Secretaries of State shall not "(b) undertake any
activity inconsistent with their official position or expose themselves to any
situation which carries with it risk of a conflict developing between their
official interests and their private interests;"

Furthermore, Section 72, subsection 4 (c) reads:
The Vice President and Secretaries of State shall not -
"(c) use their position as such or use information entrusted to or received by
them in their official position directly or indirectly to enrich themselves or
any other person."

WHERE THE VICE PRESIDENT OR SECRETARIES OF STATE WERE ENGAGED IN TRADE PRIOR TO
THEIR APPOINTMENT?
Section 72, subsection (5) reads:
"Where the Vice President or Secretaries of State were engaged in any trade,
business or other undertaking before assuming their offices, they shall, if
they wish to continue such trade, business or other undertaking do so under a
trusteeship."


CABINET

The President alone cannot collect taxes and run the whole society single
handedly.  This is why he or she has assistants in the persons of the Vice
President, the Secretaries of State and the Attorney General. These assistants
often meet to establish government policies.
Section 73, subsection (1) establishes a Cabinet.  It reads:
"There shall be a Cabinet which shall consist of the President, the Vice
President and the Secretaries of State."

FUNCTION OF CABINET

Section 73, subsection (3) reads:
"The Cabinet shall be responsible for advising the President with respect to
the policies of the Government and shall have such other functions as may be
conferred by any other law,"


THE DOCTRINE OF COLLECTIVE RESPONSIBILITY

Since the members of the Cabinet are responsible for policies of government, a
member of the Cabinet who fails to resign when he or she disagrees with a
decision is held responsible for the decision along with the rest of the
members.
Section 74 reads:

The Vice President and Secretaries of Stale shall be collectively responsible
to the National Assembly for any advice given to the President in cabinet, and
the Vice President and each Secretary of State shall be accountable to the
President and the National Assembly for the administration of the departments
and other business of Government committed to his or her charge."


GROUNDS FOR VOTE OF CENSURE

The National Assembly has to have grounds to pass a vote of censure against
Secretaries of State to remove them from office.
Section 75, Subsection (1) reads..

"The National Assembly may, by resolution supported by the votes of two thirds
of all the members pass, a vote of censure against a Secretary of State on the
grounds of -

"(a) his or her inability, arising from any cause, to perform the functions of
his or her office;

"(b) abuse of office or violation of any provision of this Constitution;
"(c) his or her misconduct in office."


HOW TO INITIATE A VOTE OF CENSURE
Section 75, subsection (2) reads:
"A vote of censure shall be initiated by a petition, signed by not less than
one third of all the members of the National Assembly to the President through
the Speaker stating the grounds on which they are dissatisfied with the conduct
or performance of the Secretary of State."


WHAT SHOULD HAPPEN AFTER A PETITION IS SIGNED?
Section 75, subsection (3) reads:
"The President shall cause a copy of the petition to be given to the Secretary
of State immediately he or she receives it."

Section 75, subsection (4) reads:
The motion for the resolution of censure shall not be debated until the expiry of fourteen days fro
m the day the petition was sent to the President."


RIGHT OF THE SECRETARY OF STATE DURING DEBATE IN A
VOTE OF CENSURE
Section 75, subsection (5) reads:
The Secretary of State concerned has the right to attend and be heard the
debate on the motion."


WHAT IS MEANT BY MISCONDUCT OF OFFICE? section 75, subsection (6) reads:
"In this section, "misconduct in office" means that the person concerned has -
a) conducted himself or herself in a manner which brings or is likely to bring
his or her office into contempt or disrepute;
b) dishonestly done any act which is prejudicial or inimical to the economy of
The Gambia or dishonestly omitted to act with similar consequences."

Now, Part 3 of Chapter 6 deals with executive powers.  The executive of
government deals with the day to day work of running the country through
ministries, government departments, public corporations and so on forth.
The laws which are made have to be executed. Foreign envoys have to be
received, treaties signed, ambassadors appointed and so on and so forth. Who is
to be responsible for all that?  Is it to be the Cabinet or the President? Is
the draft Constitution offering a Cabinet centred executive where the President
is just a chairperson or a President centred executive where President takes
all the decisions?


EXECUTIVE POWERS
Section 76, subsection (1) reads:
The executive power of The Gambia is vested in the President and, to this
Constitution, shall be exercised by him or her either directly or though the
Vice President, Secretaries of State or officers responsible
to him or her"

Section 76, subsection 2 reads:
"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 76, subsection 3 reads..
"The President shall be responsible for making due provision for the execution
of Acts of the National Assembly."


ON CONDUCT OF INTERNATIONAL AFFAIRS
Section 79, subsection (1) states:
"The President shall be responsible for -
"(a) the conduct of relations with other states and international
organizations;
"(b) the reception of envoys accredited to The Gambia and the appointment of
the principal representatives of The Gambia abroad:
"(c) the negotiation and, subject to ratification by the National Assembly, the
conclusion of treaties and other international agreements;
"(d) subject to the prior approval of the National Assembly, the declaration of
war and the making of peace."

Hence, it is clear that in certain areas such as establishing public offices,
the conducting of relations with other states, reception of envoys and
appointment of ambassadors, the President is to have the power to decide.
In the area of concluding treaties and other international agreements as well
as in declaring war, the National Assembly has the authority to ratify the
instruments.
According to Section 79, subsection (3),
"The National Assembly may, by resolution, establish procedures for the
ratification of treaties and other international agreements."


REFERENDUM NEEDED FOR CONFEDERATION AND FEDERATIONS
Section 79, subsection (2) reads..
"The Gambia shall not -
"(a) enter into any engagement with any other country which causes it
sovereignty without the matter first being put to a referendum and such
majority as may be prescribed by an Act of the National."
"(b) become a member of any international organization unless the National
Assembly is satisfied that it is in the interest of The Gambia and membership
does not derogate from its sovereignty."


THE ESTABLISHMENT OF GOVERNMENT OFFICES AND THEIR
MANAGEMENT
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."

Section 81 states:
"(1) Where the Vice President or a Secretary of State has been charged with
responsibility for any department of the Government, he or she shall exercise
general direction and control over that department; and subject to such
direction and control, the department shall be under the supervision of a
permanent secretary whose office shall be an office in the public service:
"(2) The Principal advisers on professional and technical matters in all
departments of the Government shall be professionally qualified persons."


THE RELATION BETWEEN THE NATIONAL ASSEMBLY AND THE PRESIDENCY
Section 77 of the draft Constitution states:
"(1) The President shall at least once in each year attend a sitting of
National Assembly and address a session on the condition of The Gambia, the
policies of the Government and the administration of the State.
"(2) National Assembly may request the President to attend a National Assembly
for the discussion of a matter of national importance.
"(3) The President shall answer in the National Assembly for maters 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.
"(4) The Vice President or a Secretary of State shall, when requested by the
National Assembly, report to the National Assembly on any matter concerning a
department or other business of Government committed to his or her charge, and
shall be entitled to attend and speak in the National Assembly whenever any
Bill or other matter concerning such department or business is being debated."


ON THE NATIONAL SECURITY COUNCIL
Section 78 states:
"(1) There shall be a national Security Council which shall consist of-
"(a) the President;
"(b) the Vice President;
"(c) the Secretaries of State responsible for defence and internal affairs;
"(d) the Chief of Defence Staff and two other members of the Armed Forces
appointed by the President;
"(e) the Inspector general of Police;
"(f) the Director General of the national Intelligence Agency; and
"(g) the intelligence adviser to the President.

"(2) The national Security Council shall be responsible for advising the
President on all matters relating to the security of The Gambia and the
integration of domestic and foreign policies relating to its security; and,
under the direction of the President, shall take appropriate measures to
safeguard the internal and external security of The Gambia and to provide for
the cooperation of the departments and agencies of the Government in that
regard."

ON GRANTING PARDON FOR OF OFFENCES
Section 82 states:
"(1) The President may, after consulting the, committee established by
subsection (2) -
"(a) grant to any person convicted of any offence a pardon either free or
subject to lawful conditions;
"(b) grant to any person a respite, either indefinite or for a specified
period, of the execution of any punishment imposed on that person for any
offence;
"(c) substitute a less severe form of punishment for any punishment imposed on
any person for any offence;
"(d) remit the whole,or any part of any punishment imposed on any person for
such an offence or any penalty otherwise due to the Republic on account of any
offence.

"(2) There shall be a Committee on the exercise of the prerogative of mercy
consisting of the Attorney general and three other persons appointed the
President subject to confirmation by the National Assembly."


ON THE AWARD OF HONOURS
Section 83 of the draft Constitution states:
"(1) The President may, after consulting the Committee established subsection
(2), confer honours and awards, including honorary honours awards to friends of
The Gambia.
"(2) There shall be a Committee to advise the President on the exercise of his
or her powers under this section which shall consist of not more than five, and
not less than three, persons appointed by the National Assembly."

Who are to prove before courts that a person accused of a crime has actually
committed it and is guilty?  This is the prosecution.

Part 4 of Chapter 6 deals with the prosecution for offences.  An office is
established for prosecution headed by a Director of Public Prosecutions.


ON THE DIRECTOR OF PUBLIC PROSECUTIONS
Section 84 states:
"(1) There shall be a Director of Public Prosecutions whose office shall be an
office in the public service.
"(2) The Director of Public Prosecutions shall be appointed by the President.
"(3) A person shall not be qualified to hold or act in the office of Director
of Public Prosecutions unless he or she is qualified for appointment as a judge
of the High Court.
"(4) Subject to the other provisions of this section, a person holding the
office of the Director of Public Prosecutions shall vacate his or her office
when he or she attains the compulsory retirement age.
"(5) A person holding the office of Director of Public prosecutions may be
removed from office only for inability (whether by reason of infirmity of mind
or body or any other cause) to perform the functions of his or her office, or
for misbehaviour or incompetence."

THE FUNCTIONS OF THE DIRECTOR OF PUBLIC PROSECUTIONS
Section 85 reads:
The Director of Public Prosecutions shall have power in any case in which he or
she considers it desirable to do so, an subject to approval of the Attorney
general -
"(a) to initiate and undertake criminal proceedings against any person before
any court for an offence against the laws of The Gambia;
"(b) to take over and continue any such criminal proceedings that have been
instituted by any other person or authority;
"(c) to discontinue at any stage before judgement is delivered any criminal
proceedings instituted or undertaken by himself or herself or any person or
authority:
"Provided that the Director of Public Prosecutions shall not-
"(i) take over and continue any private prosecution without the consent of the
private prosecutor and the court; or
"(ii) discontinue any private prosecution without the consent of the private
prosecutor."


ASSISTANTS FOR THE DIRECTOR OF PUBLIC PROSECUTIONS Section 85, subsection (3)
states:
"The powers conferred on the Director of Public Prosecutions under this section
may be exercised by him or her in person under his or her direction and
control."


THE RELATION BETWEEN THE ATTORNEY GENERAL AND THE
DIRECTOR OF PUBLIC PROSECUTIONS

Section 85, subsection (4) of the draft Constitution states:
"In the exercise of his or her functions under this section, the Director of
Public prosecutions shall be subject to the direction or control of the
Attorney General."

Can other people other than the Director of Public persecutions or those
authorized by him or her institute prosecution?
The draft Constitution makes room for private prosecution.
Section 85. subsection (5) reads:


"In this section, "private prosecution" means a Prosecution instituted by any
person or authority other than -
"(i) the Director of Public Prosecutions or any person acting under his or her
direction or control;
"(ii) a police officer in the exercise of the functions of his or her office."
or
"(iii) an officer in the public service in the exercise of the functions of his
or her office."

Section 86 reads:
"An Act of the National Assembly may make provision for private prosecutions."


ANALYSIS
It is the role of the executive to run the day to day affairs of a State.
Government ministers and departments are established to provide public
services.  These institutions rely on public funds to carry out their
activities.  They require policies to guide their activities.  The executive
manages these funds, supervises the operation of ministries and departments and
provides general policy guide-lines for their operation.

There are different conceptions on where power resides in an executive.  There
is the executive presidency where executive power resides in the President.  He
or she creates government offices, appoints and dismisses
ministers who are now to be called Secretaries of State, signs treaties and so
on and so forth.

Under the 1970 Constitution, the President had such powers.  He or she could
appoint nominated members and make them ministers.  He or she was not obliged
to follow the advice of cabinet.  The ministers could not be removed by members
of the House of Representatives.  He or she could also appoint ministers from
among the members of the House of Representatives and remove them from office
according to his or her volition or preference.  The 1970 Constitution produced
an executive presidency where executive power resided in the President.

CABINET CENTRED EXECUTIVE
In a Cabinet centred executive, executive power resides in cabinet.
The President merely serves as Chairperson of a body of policy makers known as
the cabinet. They become collectively responsible for making executive
decisions.

Furthermore, a National assembly may select members of the cabinet from among
their rank and allow them to be chosen by the President subject to consultation
and approval by the national Assembly. They are also subject to be removed from
office for mental or physical infirmity, violation of the Constitution or
misconduct.


THE DRAFT CONSTITUTION
The draft constitution provides an executive where power resides in the
President. He or she appoints ministers or Secretaries of State from outside
the National Assembly. In this respect, those who want to be Secretaries of
State are likely not to wish to be members of the National Assembly. This makes
the National Assembly independent of influence from the executive.

It also empowers the national assembly to remove a Secretary of State for mis
conduct, violation of the Constitution or inability to perform his or her
duties. this is also an improvement on the 1970 Constitution.

Now, many functions such as the conferring of honors, the appointment of
committee members for exercising prerogative of mercy are all to be done in
consultation with the national assembly.

In the area of foreign policy, the President, under the draft Constitution,
shall negotiate treaties but they can only be concluded if the National
Assembly ratifies them.

The national assembly, shall also be empowered, if the draft Constitution is
approved, to make laws to guide how the executive is to establish public
offices and employ public servants.

In short, the draft Constitution does contain more limitations of the exercise
of the powers of the presidency than what existed under the 1970 Constitution.
It does not, however, do away with the executive presidency itself and this
makes the decision of cabinet to be binding on all members of the cabinet
including the President. In principle, this is the only way the doctrine of
collective responsibility of cabinet can be judiciously applied.

ON THE SHORTCOMINGS
The position that a person who qualifies to be president of The Gambia must be
citizen by birth or descent is discriminatory.

The Position of some people is that somebody who has naturalized will not be as
loyal to the country as someone who is a citizen by birth.  What must be borne
in mind, however, is that a President does not elect himself or herself.  It is
the people who elect Presidents.  Hence, whatever consideration people think
legitimate in electing a President is entirely their prerogative.  This is the
first point.

 Secondly, section 62 establishes that a person who is guilty of a crime while
holding public office is not qualified to stand as a presidential candidate.
It is necessary to bear in mind that offences do vary.  Some offences like
traffic offences do exist which are sometimes beyond the control of the
individual.  In this case, the offences should be linked to corruption or
professional misconduct.

Thirdly, it is reiterated in section 62 that a person shall not be qualified to
hold public office if the person has been compulsorily retired, terminated or
dismissed from such office.

This should be linked to corruption.  For example, under the present General
Orders, a person can be compulsorily retired, terminated or dismissed for
making political speeches or join in demonstrations.

G.O 03104 reads:
"Every officer is entitled to his own political views, and may, if qualified,
vote at elections.  He may become a member of a political party or
organization, but may not accept any office, whether paid or unpaid, permanent
or temporary, in any political party or organization, nor may he make speeches,
join in demonstrations or in any other way indicate publicly his support for
any political party, organization, person or policy, nor shall he be required
to do so in the course of his duties."

It is, therefore, best for the retirement, dismissal or termination to be
linked to corruption.

What the draft Constitution can do by way of improvement to the 1970
Constitution is to further ensure that positions like that of Director of
Public Prosecutions, Ambassadors, Secretaries of State, Attorney General are
done in consultation with the National Assembly.  We will deal with such an
issue in the appropriate place


END OF BOOK TWO

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