By Foday Samateh
Nothing exemplifies the imperial presidency and at the same time undermines the spirit of separation of powers in the 1997 Constitution (the current Constitution) as much as the President’s unchecked power to make key appointments across the executive and judicial branches. The President hires the Vice President, cabinet ministers, and almost all ranking officials in the public service without any oversight. The appointees could be just anybody. The only thing that really matters is the President likes them. No mechanism is in place to independently determine their qualification and moral competence for the job. And the President reserves the unilateral power to fire most of them at anytime.
The only exemptions to this absolute presidential power of hiring and firing seem to be the members of the Independent Electoral Commission (IEC), judges and the Ombudsman. The operative word here is seem. And seem, as Hamlet observes in the great play of the same name, isn’t always what it seems to be. Its deceptive appeal is presenting appearance as substance. In the case of the IEC, the President appoints the members “in consultation with the Judicial Service Commission and the Public Service Commission.” This seems the President must deliberate over appointments to the electoral commission with these two commissions. But the impression here is nothing more than a constitutional conceit.
The President appoints the Public Service Commission (PSC) and the majority of the Judicial Service Commission (JSC). Involving these two commissions in the President’s appointment authority is one of the many glaring flaws in the Constitution. Given the great disparity in the power dynamic between them and the President, it defies logic under any circumstance.
Let’s focus on the PSC for now and then the JSC for the appointment of judges. Though the PSC is an independent body, it operates under the executive branch. This is worth noting since the President is the head of the executive branch. And of course, executive power/authority flows from the President downward, not the other way around. The basis of the PSC’s independence is to protect it from undue influence on the part of the President or others who may be acting at the President’s behest. If the President is rightly restrained from telling the PSC how to do their job, it stands to reason that the PSC should also not be in the business of telling the President what decisions to take.
Besides, requiring the President to consult with the PSC (and the JSC) on the appointment of IEC implicates two practical, though contrasting, problems. Given the disproportionate power imbalance between these two commissions and the President, the commissions are far more likely to simply defer to the President’s wishes, which renders the consultation a constitutional smokescreen for unilateral presidential power. The alternative is the commissions would have an open and frank give-and-take with the President; or, if rather unlikely, they would bear true faith to their constitutional obligation on this matter and stand up to the President when the occasion calls for it. Either way, this arrangement is functionally tenuous, and therefore untenable. The PSC and the JSC as inferior powers cannot reasonably be tasked with holding the President, a superior power, accountable. The President should not be consulting with the commissions for the sake of getting them on board with the appointments.
On the other hand, a meaningful consultation in this case would entail the two commissions sharing decision-making authority with the President when it comes to appointing the IEC. In other words, theoretically at least, they can hold up or even veto the President’s decisions. That will be subjecting a superior power to defer to inferior ones. Such a course of events will undermine not just the authority of the President, but also the underlying power structure of the Constitution, the mandate of elected Office and democracy itself. The President should answer to only the Legislature and the Courts — the two institutions that enjoy comparable constitutional stature as the President. As such, the PSC and its corresponding commissions need to be kept out of presidential decisions.
The appointment of judges raises an even greater concern. The President appoints the Chief Justice “after consultation with the Judicial Service Commission.” “Consultation” in this context is strictly a formality. Even if the JSC advises the President to not appoint someone as the Chief Justice, the President doesn’t have to comply. This isn’t some selective or prejudiced reading of the relevant constitutional provision. The Constitution explicitly stipulates in section 231 (4): Where under any provision of this Constitution any person or authority is authorised or required to exercise any function after consultation with any other person or authority, the person or authority first referred to shall not be required to act in accordance with the advice of that person or authority. Since the President is only obligated to consult but not to heed any advice, there can be no denying that the President has a unilateral power to appoint the Chief Justice.
As for all other judges of the superior courts, the President appoints them “on the recommendation of the Judicial Service Commission.” Here, it’s safe to say, the President is required to appoint these judges from the JSC’s list of recommended candidates.
The apparently different procedures for appointing the Chief Justice and the other judges are, separately and jointly, flawed. If either procedure is justifiably adequate in itself, why can’t it be applied uniformly in both cases? If the President can be trusted to appoint the Chief Justice irrespective of the advice of the JSC, why can’t the President be trusted to do the same for the other superior court judges? And conversely, if the President is required to act on the JSC’s recommendation in appointing the other superior court judges, why is the President exempted from the same in appointing the Chief Justice?
Furthermore, the problems that are inherent in the JSC and PSC’s involvement in the appointment of IEC rear their ugly heads in the JSC’s involvement in the appointment of judges. First, the President appoints four of the six members of the JSC — namely, the Chief Justice, a judge of the superior court, the Solicitor General, and any other appointee of the President’s own choice. The Attorney General, who is appointed by the President, appoints the fifth member in consultation with the Gambia Bar Association. The only member of the JSC the President plays no role in appointing is the National Assembly’s appointee. It goes without saying the President’s appointees comprise the majority on the JSC. And it needs to be further pointed out that the President has the power to fire at least three key members by removing them from their respective offices through which they sit on the JSC. In the light of these factors, can there be any realistic expectation that they will provide robust oversight concerning the President’s other judicial appointments?
Second, while there is need for Judicial Service Commission for the judicial branch, as there is Public Service Commission for the executive branch, the JSC’s composition and its role in the appointment and removal of judges are gravely misconceived. They present too many problems for the independence of the judiciary. The JSC, unlike the PSC, isn’t a component of the executive branch. Therefore, the President should play no role in the appointment of the JSC, and officials serving in the executive branch shouldn’t serve on the commission. The Constitution foresaw the need for separation of powers on this matter but addressed it only halfway. It forbids members of the legislature from serving on the JSC. The same restriction should apply to officials of the executive branch as well. Oh, by the way, why should the President appoint the Judicial Secretary who is to serve as the principal assistant to the Chief Justice? To appreciate this constitutional absurdity or arbitrariness is to imagine the National Assembly or the Supreme Court appointing the President’s Cabinet Secretary. These presidential appointments to the third branch of the government are antithetical to separation of powers and the independence of the justiciary.
To reiterate an earlier point, the JSC, like the PSC, should have no say in presidential decisions. They should have no responsibility in the appointment of judges except when the President voluntarily asks for their advise or recommendation. The JSC should be limited to assisting the Chief Justice staff and administer the judicial branch. Telling the President who should be appointed judge or removed as a judge should no longer be their duty. The President as the head of the executive branch and the JSC as a sub-body in the judicial branch should have nothing to do with each other. In addition to the power imbalances that exist between the two, any level of involvement they have is fraught with conflicts of interest that could have deleterious effects on the justice system.
Third, judges are as crucial to a democratic system of government as the legislators and the President are. They are the judiciary’s college of cardinals, if you will, with the Chief Justice as the Pope. In their unique duty to interpret the law, they exercise the power of determining whether laws passed by the legislature, and the actions and decisions of the President are constitutional or not. They settle legal disputes between citizens, between citizens and the state, between private interests, between private interests and citizens, between private interests and public interests, between private interest and the state, between localities and the state, and between the executive and legislative branches, among other things. No case or controversy, from the most personal to the most public, escapes the reach of their consideration or the the effect of their judgment. And nothing is more understated or unacknowledged than the fact that, though the legislators pass the laws and the President executes the laws, the law actually is what the judges say it is. Individual, civic, political, and property rights are only as broad as the judges’ interpretation of the law. That’s why who is appointed a judge is as important as who is elected a legislator or President.
The Constitution is right to make the President, the only public official elected by the entire nation, the principal authority in the appointment of judges. But the Constitution is wrong to effectively make the President the sole authority in the appointment of the Chief Justice. This is absolute power. And all absolute powers are threats to the freedoms and liberties of citizens and to a republic. Just ask the Romans or the Germans. And for good measure, a Gambian old enough to remember the last regime.
The solution is not to double down on the folly of involving the Judicial Service Commission as in the appointment of other superior court judges. Yes, some countries have this system, but we shouldn’t be doing a host of things other countries do. As vital as the JSC is in the staffing and administration of judicial branch, it is still an ad hoc body operating under the authority and direction of the Chief Justice. It lacks the institutional standing to share decision-making authority with the President and should therefore be taken out of the equation of appointing judges. Moreover, the President shouldn’t huddle with an unelected bunch behind closed doors to appoint judges without the public knowing anything about those judges whose rulings will potentially affect so much of their personal and civic lives. The right constitutional and democratic institution to evaluate the President’s judicial appointments is the one whose members are elected as the people’s representatives. The President should nominate judges and the legislature confirms them. Only through the process of open confirmation hearing will the public learn who the judges are, what their values are, and what principles they will employ in dispensing justice.
In the appointment of the Ombudsman, the Constitution makes the right call initially. It requires the President’s nominee to be confirmed by the National Assembly. This is to ensure the President doesn’t have a unilateral power to make a crucial appointment; and more importantly, the power is checked by the only body with the constitutional and institutional standing to weigh in on presidential decisions outside of judicial proceedings. That body is the legislative branch, a co-equal to the executive branch. But alas, what the Constitution giveth, the Constitution taketh. It states that if the National Assembly rejects the President’s first choice, it must confirm the second choice. The only explanation for this illiberal injunction is that the drafters of the Constitution were bent on conferring as much power on the President as possible. Hence, the imperial presidency. In this case, for instance, the President can simply line up crony A and crony B as Ombudsman nominees. If the National Assembly votes down crony A, they will be compelled to confirm crony B. This defeats the purpose of legislative confirmation. What’s the point if the National Assembly is limited to a number of the President’s nominees that can be rejected as unworthy for a particular office?
One more instance of illogical inconsistency, if not peculiarity, in the Constitution concerning presidential appointments is the Auditor General. The President appoints the Auditor General “in consultation with the Public Service Commission,” but can fire the appointee without consulting with anyone, and can do so by claiming any reason as ambiguous as incompetence. Is there a better justification for legislative confirmation of presidential appointments to determine their competence before they assume office?
The observations above converge on one theme. All presidential appointments, save the staff in the Office of the President, should be subject to legislative confirmation. But not all presidential appointments are equal and they should therefore be confirmed based on different categories of job security and tenure of service.
The first category should be those the President can fire without cause. They include cabinet members, ambassadors, other administration officials, and security chiefs. If the Constitution requires the Vice President to be on the ballot, the President shouldn’t be able to fire the person or anyone who fills a vacancy in that office. If the Constitution doesn’t require the Vice President to be on the ballot, the President should retain the power to fire the person or anyone who fills a vacancy in that office. Permanent secretaries should be included in the administration officials the President can hire and fire. Given how instrumental the permanent secretaries are to the successful implementation of the administration’s policy agenda, the President should reserve the right to appoint them.
The second category should be those who are appointed to the independent agencies. They include members of the Independent Electoral Commission, the Public Service Commission, the chief executive officers (and boards of directors as the case may be) of public enterprises such as the Gambia Revenue Authority, the Ports Authority, Social Security and Housing Finance Corporation, the Central Bank, the Auditor General, the Ombudsman and so forth. All such appointments should be term-limited. To protect the independence of their agencies and their job security, they shouldn’t be fired before their term ends without cause. And the cause should be of only medical or criminal nature proven by an independent investigation. Either the President or the legislature should be given the power to commission such an investigation.
And the third category should be the judges. They should be confirmed for a term of 15 or 18 years with the option of voluntary retirement after ten years on the bench. Only the legislature should remove them from office for a cause involving medical or criminal nature. The President should have no role in the removal of judges.
While the President will lose the power to fire judges, the legislature is gaining none on that score. The Constitution already empowers the National Assembly to remove judges and other officials, including the President, from office. Aside from the problems that dog the stipulated processes by which the Assembly is to remove some officials from office, these powers are proper and necessary for the legislature to have. Their existence, however, exposes another glaring flaw in the Constitution. The National Assembly has the power to remove almost all the presidential appointees from office, but has no say in almost none of the appointments to make sure the individuals deserve the privilege of serving the public. Isn’t it both logical and imperative that the legislature has a say in the appointments in the first place?
The significance of legislative confirmation of presidential appointments can never be overstated. The great advantages include a necessary check on the President’s imperial power of choosing heads of cabinet ministries, diplomatic missions, independent commissions, administrative agencies, the police, the Armed Forces, the prisons, the intelligence service, public enterprises and so forth. The need for confirmation will compel the President to pick nominees who have the qualification for a particular office, and the character to boot. This will be the most effective antidote to the President using public offices for patronage to reward friends, cronies and sycophants with appointments. It will also restrain the President from firing, say a high-performing minister, for petty motives since there will be demand for answers before the replacement is confirmed. The era of no questions asked about suspicious firings will be over.
The other great advantage of legislative confirmation is the open hearing. The process begins with the President naming a nominee for a particular office. The nominee submits pertinent credentials, along with an exhaustive form about the nominee’s personal history, including finances and any criminal record, to the relevant National Assembly select committee. The committee looks into any disqualifying matter, and consider any false information knowingly submitted as perjury under the penalty of criminal prosecution. If the background check is satisfactory and there is a need for an open hearing, especially for a cabinet, superior court or public enterprise nominee, the committee schedules an open hearing. Then comes the day of judgment — the hearing. With the media bearing witness, the nominee faces the committee to field their questions. The questions will not just be about the nominee’s qualifications, but what the job entails, what problems exist there, and what values, skills and reforms the nominee will bring to it. A kind of televised job interview for the nation to watch.
Imagine a Finance Minister nominee analyzing the country’s economic and fiscal conditions, and laying out ways of reducing government expenses for more investments in productive services. Imagine a Health Minister nominee diagnosing the country’s healthcare system, and prescribing cures to its chronic plagues. Imagine a Central Bank nominee assessing monetary policy, and forecasting the country’s macro-economic outlook. Imagine a GRA nominee enumerating ways to maximize revenue collection and do away with corruption within the agency. Imagine a Ports Authority nominee specifying ways to expedite delivery of freights and stamp out bribery there. Imagine an Auditor General nominee breaking down ways to scrutinize the accounts of government departments and other public institutions and enterprises for any misappropriation of funds. Imagine an Ombudsman nominee outlining ways to investigate allegations of maladministration, mismanagement and corruption in the public service. Imagine an IEC Chairperson nominee setting out ways to ensure free, fair and transparent elections. Imagine an IGP nominee identifying ways of effective policing to combat crime, and measures to crack down on police corruption. Imagine an Attorney General nominee testifying on crime and public corruption as priority targets. Imagine a Chief Justice nominee stating a judge’s role in a legal dispute and the Chief Justice’s administrative and supervisory role as the head of the judiciary.
Based on the nominee’s performance at the hearing, the committee votes to send or not send the nomination to the floor. And finally, if the nominee wins the committee’s approval, the full National Assembly votes to confirm or reject their nomination.
Compare this open and rigorous process to the status quo. The President picks someone to be, for example, a minister or an ambassador. That’s the beginning and end of it. If the individual is to serve as a member of the IEC or a judge, the President has to only consult with the Public Service Commission and/or the Judicial Service Commission. The “consultation’ with these unelected commissions is done behind the scenes. The public knows little to nothing if the appointment is based on merit, favor or quid pro quo. As for the individual’s fitness for office, especially a relatively unknown’s competence and character, there is no immediate telling. And the jury may be out on that for a long time.
Which process is better for democracy and for the republic?
Ends