FOROYAA's REVIEW OF THE DRAFT CONSTITUTION OF THE SECOND REPUBLIC Book Two0100,0100,0100 On The Executive Branch Of Government (The Presidency) INTRODUCTION Book One of FOROYAA's publication on the draft Constitution dealt with its Preamble, the establishment of the Republic, the representative institutions and elections. The Preamble is the declaration of intention of the draft Constitution. It gives the reader a summary of what is to be expected in the Constitution. The reader would recall that a foundation is established in the Preamble chapter 1 concerning the Republic. The Preamble states categorically that "All power emanates from the sovereign will of the people." It indicates that "the Constitution guarantees participatory democracy." chapter 1, section 2 of the draft Constitution gives flesh to the spirit expressed in the Preamble of the Constitution concerning power emanating from the collective will of the people by asserting 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." This means that as a sovereign Republic, the sovereign people of The Gambia have the responsibility or duty to determine the economic, social, political and cultural life of the country. Now, one may ask: How are taxes to be collected? Who are to raise them? How are banks to operate? How is trade to be conducted? How are we to relate to each other? How do we solve our differences if you borrow money money and refuse to pay? We can go on. What is clear is that there must be laws to guide our economic, social, political and cultural life. Furthermore, we must be able to collect money from all in order to provide the public services required by all. one may now ask: Can all the people in The Gambia meet everyday to determine what public services to establish and how much to contribute per head to establish them? The answer is negative. This is why it is necessary to select people from among our ranks who shall be our representatives and who shall be charged with the responsibility of making laws which will govern our economic, political, social and cultural Iife as well as to provide the public services we need such as hospitals, schools, roads and other amenities. The representatives responsible for making laws constitute the legislative branch of the State. In the draft Constitution, it is to be called the National Assembly. Those responsible for the day to day management of services on the basis of rules or laws enacted by the legislative branch constitute the executive branch of the State which is headed by a President. The representatives responsible for the provision of services in cities and districts become part of the local government structure. In The Gambia, there has also been the institution of chieftaincy and alkaloship since the colonial days. We shall see whether the draft Constitution has anything to say about these institutions. Let us now proceed to examine the executive, legislative and other branches of representation from the national to the local levels. THE EXECUTIVE BRANCH OF THE STATE Chapter six of the draft Constitution establishes the executive branch of the State. The executive branch is responsible for the administration of the State. It provides for the office of President; defines who is or is not qualified for election as President, fixes the term of office of the President; indicates what should happen when the President is unable to exercise executive function; explains how the President's salary, pension and other allowances are to be fixed; shows how the President can be removed from office for infirmity of mind or body and for violation of the Constitution or other corrupt practices; indicates the mode of appointment and removal of the Vice President and secretaries of State; defines the role of the cabinet; shows how national security is to be safeguarded and foreign affairs conducted; explains how public offices are to be created; prerogatives of mercy exercised to pardon offenders; honours awarded and offenders prosecuted. We shall now proceed to examine what the draft Constitution has to say about the executive branch of the State. A summary of the essential points to remember shall be given at the end. PART 1 - THE PRESIDENT Establishment Of The Office Of President Section 61, subsection 1 states: "There shall be a President of The Gambia who shall be the Head of State and of Government and Commander-in-Chief of the Armed Forces." Section 61, subsection 2 states "The President shall uphold and defend this constitution as the supreme law of The Gambia." This means that the President is not to have absolute power, but must abide by the Constitution if the draft Constitution is approved. WHO IS QUALIFIED FOR ELECTION AS PRESIDENT? Section 62, subsection (1) of the draft Constitution states categorically that: "A person shall be qualified for election as President if - "(a) he or she is a citizen of The Gambia by birth or descent; "(b) he or she has attained the age of thirty years; "(c) he or she has been ordinarily resident in The Gambia for at least five years immediately preceding the election; "(d) he or she has completed senior secondary school education; and "(e) he or she is qualified to be elected as a member of the National Assembly." WHO IS NOT QUALIFIED FOR ELECTION AS PRESIDENT? Section 62, subsection (2) states: "A person who holds the citizenship or nationality of a country other than The Gambia, shall not be qualified for election as President." Section 62, subsection (3) states: "A person who, while holding public office in The Gambia has been "(a) compulsorily retired, terminated or dismissed from such office; or "(b) has been found guilty of any criminal offence by any court or tribunal established by law; or "(c) has been found liable for misconduct, negligence, corruption or improper behaviour by any commission or committee of inquiry established by law "shall not be qualified for election as President." TERM OF OFFICE Section 63 (1) states that: "Except as provided in subsection (4), the term of office of an elected President is five years." Section 63, subsection (2) states: "A person elected President shall assume office on the expiration of his or her predecessor's term of office and before assuming office shall take the prescribed oaths." VOTE OF NO CONFIDENCE The members of the National Assembly may pass a motion of no confidence to remove the President from office. Section 63, subsection (3) states: "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. " Section 63, subsection (4) states that: "Where a no confidence motion is passed in accordance with subsection (3), the Speaker shall request the Independent Electoral Commission to call a referendum within thirty days of the passing such motion." REMOVAL OF THE PRESIDENT FROM OFFICE FOR INCAPACITY The President may be removed from office for infirmity of body or mind. Section 66, subsection (1) states that: "Where the Speaker receives a notice in writing signed by not less than one half of all the members of the National Assembly alleging that the President is, by reason of infirmity of mind or body, incapable of discharging the functions of his office, and giving particulars of the alleged incapacity, the Speaker shall request the Chief Justice to constitute, on the recommendation of the head of the medical services of The Gambia, a Medical Board comprising at least five independent medical practitioners of appropriate standing." THE ROLE OF THE MEDICAL BOARD Section 66, subsection (2) reads: "The Board shall enquire into the matter and make a report to the Chief Justice stating the opinion of the Board whether or not the President is, by reason of infirmity of mind or body, incapable of discharging the functions of the office of President. The President, and if he or she so wishes, his or her own medical adviser may appear, and shall have the right to be heard, before the Board." THE ROLE OF THE CHIEF JUSTICE Section 66, subsection (3) reads: "Where the Board reports that the President is incapable of discharging the functions of his or her office by reason of infirmity of mind or body, the Chief Justice shall submit the report to the Speaker, who shall if the National Assembly is not sitting, summon the National Assembly to meet within seven days." THE ROLE OF THE NATIONAL ASSEMBLY Section 66, subsection (4) reads: "The members of the National Assembly shall deliberate on the report and vote on it and the President shall only be removed where two thirds of the members present and voting, vote for his removal." THE SUPREMACY OF THE REPORT OF THE BOARD Section 66, subsection (5) reads: "The report of the Board shall be final and conclusive and shall not be enquired into by any court." REMOVAL FROM OFFICE ON THE BASIS OF MISCONDUCT The President can be removed from office for abuse of office, violation of the oath of allegiance, or violation of the Constitution, dishonesty or misconduct. Section 67, subsection (1) (a) reads: "The President may be removed from office in accordance with this section on any of the following grounds - (a) abuse of office, wilful violation of the oath of allegiance or the President's oath of office, or wilful violation of any provision of this Constitution," Section -67, subsection (1) (b) reads: "The president may be removed from office in accordance with this section on any of the following grounds "(b) misconduct in that - "(i) he or she has conducted himself in a manner which brings or is likely to bring the office of President into contempt or disrepute; or "(ii) he or she has dishonestly done any act which is prejudicial or inimical to the economy of The Gambia or dishonestly omitted to act with similar consequences." THE,ROLE OF THE SPEAKER Section 67, subsection (2) reads: "Where the Speaker receives a notice in writing signed by not less than one half of all the members of the National Assembly of a motion for the removal of the President on any of the grounds set out in subsection (1), specifying particulars of the allegations (with any necessary documentation), and requesting that a tribunal be appointed to investigate the allegations, the Speaker shall - "(a) inform the President of the notice; "(b) request the Chief Justice to appoint a tribunal consisting of a Justice of the Supreme Court, as Chairman, and not less than four other persons selected by the Chief Justice, at least two of whom shall be persons who hold or have held high judicial office." THE ROLE OF THE TRIBUNAL Section 67, subsection (3) and subsection (4) reads respectively: "(3) The tribunal shall investigate the matter and shall report to the National Assembly through the Speaker whether or not it finds the allegations specified in the motion to have been substantiated. The President shall have the right to appear and be legally represented before the tribunal." THE ROLE OF THE NATIONAL ASSEMBLY Section 67, subsection (5) reads: "Where the tribunal reports to the National Assembly that it finds that the particulars of any such allegation have been substantiated, the National Assembly may, on a motion supported by the votes of not less than two thirds of all the members, resolve that the President has been guilty of such abuse of office, violation of oath, violation of the Constitution, or misconduct or misbehaviour as to render him or her unfit to continue to hold the office of President; and where the National Assembly so resolves. the President shall immediately cease to hold office." WHERE THE ALLEGATIONS ARE NOT SUBSTANTIATED Section 67, subsection (4) reads: "If the tribunal reports to the National Assembly that it finds that the particulars of any allegation against the President contained in the motion have not been substantiated, no further proceedings shall be taken under this section in respect of that allegation." THE SALARY AND PENSION OR RETIREMENT BENEFITS OF THE PRESIDENT Section 68, subsection (1) reads.. "The President shall receive such salary and allowances as may be prescribed by an Act of the National Assembly, and such salary and allowances shall not be altered to his or her disadvantage during his or her tenure of office." Section 68, subsection (2) states: "The President shall be entitled to such pension and retirement benefits as may be prescribed by an Act of the National Assembly and such pension and other benefits shall not be altered to his or her disadvantage after he or she has relinquished office: "Provided that no such pension or other retirement benefits shall be granted to a President who ceases to hold office in accordance with section 67." SALARY, ALLOWANCES AND PENSION OF PRESIDENT EXEMPTED FROM TAXATION Section 68, subsection (3) reads "The salary and allowances, and pension and retirement benefits, as prescribed by an Act of the National Assembly, shall be exempted from taxation, but the President shall be subject to taxation on all other chargeable income." PROHIBITION FROM ENGAGING IN TRADE Section 68, subsection (4) (a) reads: "The President shall not - "(a) while he or she continues in office as President, 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 indirectly carry on any trade, business or other undertaking; "Provided that the President may undertake and carry on any agricultural business including farming, horticulture, livestock rearing and artisanal fishing;" AVOIDANCE OF CONFLICT BETWEEN OFFICIAL CONCERNS AN 1 1 PRIVATE INTEREST Section 68, subsection (4) (b) reads: "The President shall not - "undertake any activity inconsistent with his or her official position expose himself or herself to any situation which carries with it the risk of conflict developing between his or her official concerns and his or her private interests;" BAR ON SELF ENRICHMENT FROM OFFICIAL POSITION Section 68, subsection (4) (c) reads: "The President shall not - "use his or her position as such or use information entrusted to or received by him or her in an official position directly or indirectly to enrich himself or herself or any other person." WHAT TO DO WITH BUSINESS PRIOR TO ASSUMING OFFICE Section 68, subsection (5) reads: "Where the President was engaged in any trade, business or other undertaking before assuming the office of President, he or she shall, if he or she wishes to continue such trade, business or other undertaking, do so under a trusteeship." THE PRESIDENT EXEMPTED FROM CIVIL AND CRIMINAL PROCEEDINGS Section 69, subsection (1) reads: "Except as provided in subsection (2), no civil or criminal proceedings shall be instituted or continued against any person while holding or performing,the functions of the office of President in respect of anything done or omitted to be done by him or her whether in an official or a private capacity." Section 69, subsection (2) reads: "Nothing in subsection (1) applies to an action for a declaration under section 5 (enforcement of the Constitution), and any proceedings under that section against the President or a person performing the functions of that office shall be brought against him or her by his or her official title or style, and he or she shall appear, and be represented by, the Attorney General." In this respect, The President can only be a subject of court proceedings while in office if a person alleges that his or her action has violated the provisions of the Constitution. Once the court upholds the allegations, the President could be removed from office under section 67 of the draft Constitution. IS AN EX-PRESIDENT ANSWERABLE TO ACTIONS DONE WHILE IN OFFICE? Section 69, subsection (3) states: "After a President has vacated the office of President - "(a) no court may entertain any action against him or her in any civil proceedings in respect of any act done in his or her official capacity as President;" "(b) a criminal court shall only have jurisdiction to entertain proceedings against him or her in respect of acts or omissions alleged to have been perpetrated by him or her while holding office as President if the National Assembly has resolved on a motion supported by not less than two-thirds of all members that such proceedings are justified in the public interest " Part 2 of Chapter 6 deals with the office of Vice President, the Secretaries of State and the Cabinet, It indicates that the Vice President and Secretaries of State are appointed and can be removed from office by the President. The President had these powers under the 1970 Constitution. The new element, however, is that the members of the National Assembly can also pass what is called a vote of censure to remove a Vice President or Secretary of State from office for misconduct or dishonesty. The Vice President, like the President, can be removed from office for violation of the Constitution. Let us proceed to examine the contents of Part 2. THE VICE PRESIDENT, THE SECRETARIES OF STATE AND THE CABINET Appointment Of Vice President Section 70, subsection 1 reads: "There shall be a Vice President of The Gambia who shall be principal assistant of the President in the discharge of his or her executive functions and shall exercise such other functions as may be conferred to him or her by this Constitution or assigned to him or her by the President." Section 70, subsection (3) states: "The Vice President shall be appointed by the President." QUALIFICATION Section 70, subsection (2) reads: "A person shall be qualified to be appointed as Vice President if he or she has the qualifications required for the election of President under section 62." REMOVAL FROM OFFICE Section 66 of the draft Constitution would enable the National Assembly to remove the President from office for infirmity of or body. Section 67 would enable the National Assembly to remove the President from office for violation of the Constitution or misconduct. Section 70, subsection (4) also establishes the same grounds for removal of the Vice President from office. It reads "The provisions of sections 66 and 67 (which relate to removal for incapacity or misconduct) shall apply with the necessary variations to the office of Vice President as they apply to the office of President." VACANCY OF THE OFFICE OF VICE PRESIDENT Any person occupying public office can die or be removed from office. In that case the office becomes vacant. A Constitution should explain how that office is to be filled by someone else. Section 70, subsection (5) reads: "The office of Vice President shall become vacant: "(a) on the termination of his appointment by the President; "(b) on the Vice President assuming the office of President for the unexpired term of his predecessor; "(c) on the Vice President's death or resignation; "(d) on his or her ceasing to hold office under the provisions of section 66 or 67." Section 70, subsection (6) reads: "Wherever there is a vacancy in the office of Vice President in the circumstances mentioned in paragraph (b), (c) or (d) of subsection (5), the President shall, appoint as Vice President a person qualified to be appointed to that office." THE NATIONAL ASSEMBLY CAN REMOVE THE VICE PRESIDENT FROM OFFICE Section 70, subsection (8) reads: "Without prejudice to the right to revoke an appointment for any cause, the President shall revoke the appointment of the Vice President if the National Assembly adopts a vote of censure against the Vice President under section 75." ON THE SECRETARIES OF STATE Number of Secretaries Of State Section 71, subsection (1) reads: "Unless an Act of the National Assembly otherwise provides, there shall not be more than fifteen Secretaries of State, including the Attorney General." QUALIFICATION TO BE APPOINTED SECRETARY OF STATE Section 71, subsection (2) reads: "A person shall not be qualified to be appointed, or hold the office of a Secretary of State, if, he or she is a member of the National Assembly or if he or she holds the citizenship or nationality of any country other than The Gambia. In addition, a person shall not be qualified to be appointed Attorney General unless he or she is a legal practitioner of at least five years standing at the Gambia bar." TO BE CONTINUED ---------------------------------------------------------------------------- To unsubscribe/subscribe or view archives of postings, go to the Gambia-L Web interface at: http://maelstrom.stjohns.edu/archives/gambia-l.html ----------------------------------------------------------------------------