Regarding the Draft Constitution, Part I

By Foday Samateh

Almost all Constitutions share one thing in common. They claim to give the people all the rights and freedoms. What distinguish one Constitution from another are the powers they give to those in power.

As long as the sun rises in the east and sets in the west, there will be governments that violate their Constitutions. And there will be even more governments that abuse their power. But the experience of the world also shows too many governments do shocking and outrageous deeds not by acting outside the law, but within the powers, discretions and privileges Constitutions grant them. Hence, the practical meaning of the rights and freedoms a Constitution gives the people predicates greatly on the powers the Constitution bestows on the institutions of the state. Any unchecked or unaccountable power of the state is a threat to people’s rights and freedoms. The Gambia’s 1997 Constitution (the current Constitution) is a case in point. Despite having an exhaustive bill of fundamental rights and freedoms, it sanctified, among other glaring flaws, an imperial presidency.

The draft Constitution, for all its own flaws, has clipped the fangs and wings of the imperial presidency. It does so in several cardinal ways. Among them, first, it reinforces separation of powers by eliminating for the most part the President’s overarching influence to effectively control the other two branches of the government. The President will no longer appoint anyone in any capacity to the National Assembly. Nor will the President even perform the ceremonial function of announcing and headlining the first sitting of a new National Assembly. On at least these aspects of things, Gambia, we’ve gone American.

Second, while the President can ask, nicely, through the Speaker for an opportunity to address the National Assembly besides the annual State of the Nation Address, the National Assembly reserves the right to summon the President to address the Assembly and the nation on any matter of national importance.

Third, most presidential appointments from the Vice President to Ministers, Permanent Secretaries, Boards of Directors of State Owned Enterprises, Independent Commissions, the Auditor General, the Ombudsperson, the Inspector General of Police and Judges of the Supreme Court and the Court of Appeal will be subject to National Assembly confirmation. And the President’s unilateral power to fire these confirmed appointments with or without cause is mostly confined to Cabinet and other Executive branch officials under the President’s administrative direction. Those, too, are great emulations of the Yankees.

Fourth, declaring national holidays other than the two designated in the Constitution and how they ought to be observed or celebrated are now the preserve of the National Assembly. No more the likes of July 22nd and the President’s birthday as national holidays to fund personality cult celebrations at the nation’s expense.

Fifth, presidential candidates must make asset declaration to the Anti-Corruption Commission before their nomination. Three months after taking office and three months after leaving office, the President, as well as the President’s spouse, must disclose all their assets, liabilities and business interests to the Anti-corruption Commission. And for good measure, no more corrupting and propaganda outfits like charitable foundations and youth movements for the President and the President’s spouse. Poor things. The monarchs are now reduced to mere mortals.

These and similar reforms in the draft Constitution are monumental! They deserved sewuriba or bukarabou festivals all across The Gambia.

That said, as fantastic as these reforms are, there are loopholes that need to be plugged. If we know anything it is that, though a loophole may be tiny like an eye of the needle, our Presidents are experts at passing camels through them.

The Constitution should add more presidential appointments to the confirmation roster. All Judges, not just the Supreme Court Judges and the Court of Appeal Judges should require National Assembly approval. There is a reason the High Court is counted among the Superior Courts. The Supreme Court is the most consequential as the highest and final court in the land and the interpreter of the Constitution. But the High Court hears more cases than the two higher courts. It also retains the jurisdiction to interpret the fundamental rights and freedoms in the Constitution. Since more people who appear before Judges will win or lose cases at the High Court than at the Court of Appeal and the Supreme Court, High Court Judges need to be confirmed as well by the National Assembly.

If Permanent Secretaries need to be confirmed, and they do, the same should apply to ambassadors, too.

If the Inspector General of Police requires confirmation, and the appointee sure does, the same should apply to all heads of the security services, including, the Chief of the Defense Staff of the Armed Forces, the Armed Forces Chief of Staff, the Commanders of the various military branches, the ranking officials of State Intelligence, Immigration, Fire and Customs. All presidential appointments in the security services, like presidential appointments to other institutions, should be term limited also.

It is inevitable that vacancies will occur in constitutional offices and the president will have to make acting appointments before the National Assembly confirms full-term replacements. The Constitution should be categorical on two things. One, no person who doesn’t meet the constitutional requirement for an office should be appointed as acting to that office. Two, no such acting appointment, unless stated elsewhere in the Constitution as in the case of the Chief Justice, should exceed ninety days. Absent those injunctions, the President may feel unbounded to appoint unqualified stooges as actings for as long as possible.

Here is the mother of all loopholes in the draft Constitution. In the most unambiguous words, the draft Constitution foresightedly states that no money shall be withdrawn from the Consolidated Revenues Fund or any other funds of the government unless the amount was first appropriated by the National Assembly. However, Section 249 authorizes the President to withdraw money for up to four months to finance the government at the preceding year’s spending level if the National Assembly fails to pass an annual Appropriation bill by the beginning of a fiscal year. This needs to be scrapped before it goes on to be the biggest blunder in the whole Constitution.

Suppose the National Assembly decides to cut the President’s budget but lacks the necessary votes to override the President’s veto, the President can hold the Assembly ransom knowing the President is free to withdraw money from the Consolidated Revenues Fund for four months — a third of the preceding year’s budget for a third of the year! The Constitution cannot entrust power and merely hope that a trustee of that power will use it responsibly. When it comes to power, experience proves time and again, people rarely act on the best angels of their nature.

Section 249 should instead state that if the National Assembly fails to pass an annual Appropriation bill by the beginning of a fiscal year, it may pass short-term spending resolutions to keep funding essential government services until it passes the bill. In that case, since the President cannot spend any money the National Assembly doesn’t appropriate and the National Assembly falls short of the veto-prove votes, both sides will be under public and institutional pressures to seek a compromise on the budget to fund the government. If there ever is any need for separation of powers based on checks and balances, this is it. To require otherwise is to flout the principles and functions of checks and balances and undermine the purpose of separation of powers.

The President shouldn’t appoint the Judicial Secretary. Nor should any appointees of the President other than Judges serve in any capacity in the Judiciary. More on this topic in Part III of this commentary on the draft Constitution.

One other thing. The Vice President, when not appointed to fill a vacancy, should be on the ballot as running mate. Even if that isn’t the case, the Vice President should serve the remainder of the President’s term, not just ninety days, in the event of a vacancy in the Presidency. The five-year term of the President and the five-year term of the National Assembly are scheduled to run concurrently. Holding both elections on the same day saves the taxpayers loads of money.

If presidential elections take place before the five-year term ends, that will decouple the presidential and the National Assembly cycles as the situation currently is. Elections are great and necessary, but they are also very expensive for the country and political parties. Especially now that we have a winner of more than half the votes cast system, every presidential election can potentially go to a second round. Even a third round is possible if three candidates qualify for the second round. Imagine the country holding four rounds of presidential election in a single year or in six months? The money that will be saved by holding presidential and National Assembly elections on the same day will do a world of good in areas like health, education or infrastructure. All other institutions of the government performing their duties, the country has little to fear from the Vice President stepping in to finish the term of the President as we are further assured that the interim President’s appointed Vice President will be subject to National Assembly confirmation.

The draft Constitution is mostly right to go nuclear on the imperial presidency. In two respects, though, it is wrong and grievously injurious to the President. It doubles down on the flaws of the current Constitution’s demand that the President act on the advice of the Judicial Service Commission (JSC) in appointing Judges, and act on the advice of the Public Service Commission (PSC) in appointing Boards of Directors to State Owned Enterprises (SOEs) and other Executive branch officials like Permanent Secretaries. The pleasant sounding word “advice” is a euphemistic conceit. The operative phrase in the relevant provisions are “act on.” Essentially, the JSC will be picking Judges and the PSC will be picking Boards of Directors and Permanent Secretaries. The JSC handing the President a list of names to choose Judges from as a constitutional requirement creates two fundamental problems involving separation of powers and power hierarchy (both of which will be expounded on in part III of this commentary)

The PSC, though relatively independent, serves under the President in the Executive branch and therefore shouldn’t tell the President who to appoint to Boards of Directors or as Permanent Secretaries. Any requirement that upsets the power structure and dynamic is untenable. The President should have absolute discretion to consult with the JSC or PSC, but not be constitutionally obligated to “act on” their advice or even to consult with them. A superior power or authority shouldn’t take marching orders from a subordinate body. How innocuously the order is couched is beside the point. The President should enjoy the latitude to which the office is entitled to sound the opinion of anyone the President wishes to hear from in making appointments on the condition that appointees are subject to confirmation by the National Assembly — the only institution besides the Courts that rivals the President’s power.

The other unfair thing to the President, and by extension to the country as a whole, is the appointment of Chief Executive Officers (CEOs) of State Owned Enterprises (SOEs). Section 278 of the draft Constitution states: “The Chief Executive Officer of a State Owned Enterprise shall be appointed by the Board of Directors…subject to the approval of the National Assembly.” The intent here is all well and good. That’s why at first glance the provision is appealing as an antidote to presidential interference in the function of vital state enterprises. But upon closer scrutiny as to how this seemingly perfect solution will work in practice, the implications and ramifications cannot justify this proposed reform.

The President is the only official in the country who is elected by the entire nation. These SOEs are public, not private, enterprises.

On a daily basis, the public needs the services the SOEs provide far more than any other services the government provides outside of national security and law and order. Anytime NAWEC, for instance, fails to deliver electricity or water, it feels like the end of civilization itself. The public rightly aim their fury at the President as much as at the offending enterprise. A man or woman on the street may not know how electricity is produced, but they very well know it’s the President’s duty to put someone in charge to keep the lights on and refrigerators humming.

It is a matter of fact that candidates for President promise to improve the services the SOEs provide. So far, the record is dismal. But no President, however ambitious and determined to offer the leadership the country has been crying out for, can conceivably succeed if SOEs fail to serve the public’s needs. If the Constitution prevents a President to look around the country for a shortlist of potential CEOs to interview and pick those who share the President’s reform or expansion agenda of the services the SOEs provide, because that task is now assigned to Boards of Directors, the Constitution will be denying the President one of the most presidential of presidential responsibilities.

The draft Constitution has done a fantastic job reining in the imperial presidency regarding appointments. But it must not commit the error that’s too common among reformers: over-correction. The President runs for office to seek the public’s mandate to provide, among other things, better services for the country through State Owned Enterprises. Though the President should never dictate how these SOEs are run, the President should have the duty and authority to appoint the CEOs who the President believes will run the enterprises most effectively. The President shouldn’t certainly have the power to remove the CEOs unless their term, which should be specified, expires. But to give unelected bureaucrats who are in no way accountable to the public the responsibility of hiring CEOs of State Owned Enterprises will be tantamount to emasculating the President of any influence over the delivery of vital services to the public. Such an approach to governing should not be countenanced in a representative democracy.

Ends