Regarding the Draft Constitution, Part II

Hon. Justice Cherno Sulayman Jallow Chairman CRC

By Foday Samateh

The National Assembly is a true winner in the draft Constitution. Here is why.

In the 1997 Constitution (the current Constitution), the President appoints five nominated members to the Assembly, two of which serve as the Speaker and the Deputy Speaker. The President also appoints the Clerk of the National Assembly to serve as the administrative manager of the Legislative branch. And the President decides the date and setting of the first sitting of a new Assembly, plays the starring role at the occasion, and opens the legislative year. So much for separation of powers. Monarchy has never been so disguised as democracy.

The President’s involvements in the Legislative branch will be history. More than that, the National Assembly will have the power to weigh in on most of the President’s key appointments. The President cannot appoint the Vice President, Cabinet Ministers, Permanent Secretaries, Judges of the Court of Appeals and the Supreme Court, Inspector General of Police, the Auditor General, the Boards of Directors of State Owned Enterprises without the National Assembly confirming the appointments. This alone is a historic milestone in the constitutional development of The Gambia.

Alas, not all key Presidential appointments that should be subject to confirmation are covered in the draft Constitution. In Part I of this commentary on the Constitution, I argued that other constitutional offices such as High Court Judges, heads of all Security Services including the Military, State Intelligence, Immigration, Fire, and Customs should as well require the National Assembly’s approval.

There are still some crucial Presidential appointments that are not mentioned in the Constitution but should also require confirmation. For example, the Commissioner-General of The Gambia Revenue Authority. If the Cabinet Secretary and the President’s Chief of Staff need to be confirmed, why not the official who collects the nation’s taxes. If the Auditor General requires confirmation, why not the Accountant General? The simple constitutional fix to this gaping loophole is a simple provision under the powers of the National Assembly to designate any heads of existing and future statutory bodies the Assembly eyes for confirmation. Without such a constitutional provision, if the Assembly chooses to make any designation of the sort, the President may disregard it on the contention that the Constitution doesn’t require the President to secure the Assembly’s approval in that instance. Unless one side backs down, the institutional wrangling will go on until the Supreme Court resolves it. The Constitution should spare the country an easily predictable kerfuffle.

One of many heartening things in the draft Constitution is the National Assembly will have its own Service Commission. The Constitution didn’t have to provide for this. The authority to create such a body has long been in the Assembly’s constitutional and inherent powers to self-govern as a separate and an independent branch of the government. The fault, to paraphrase Cassius, is not in the Constitution, but in the National Assembly itself that it remains the underling.

The draft Constitution requiring the Service Commission will be the start of reforming the Assembly into a real institution as the people’s elected representatives. With their own staff, the Assembly doesn’t have to wait for the Executive branch to send  bills for them to simply vote on as legislations. And when the Executive branch sends bills, the Assembly will have their own lawyers to go through them instead of counting on the Attorney General’s chambers, which either authors or advises on bills that originate out of the Executive branch. About time. In the event of institutional clashes or turf wars, it’s no brainer to say where the Attorney General’s loyalty lies.

Going forward, with the advantages of having a National Assembly Service, the Assembly will write their own bills and amend the Executive branch’s bills to their own liking. For the first time, The Gambia’s lawmakers will actually be making laws. They will no longer be legislators in name only. It’s not just the legal front that will experience a sea change. The Assembly Service will be equally invaluable in other key functions including oversight, investigations and confirmation of appointments.

Of all the areas of government, nothing is likely to draw the attention of the Assembly Service as much as finance. The days of the Minister of Finance as the sole authority on public spending, taxes, and all other budgetary matters will not last too long. The Assembly Service is bound to have their own number crunchers, economists, mathematicians, and policy wonks to go toe-to-toe with the best brains at the Ministry of Finance. The time may not be too far off when we no longer hear the annual chorus of Assembly members, especially those in the opposition, praising the Minister’s budget as “non-controversial”  simply because they don’t have the stuff to call these budgets what they have even — terrible.

Well-prepped by their own institutional nerds, the Assembly members will come to the floor not to praise Caesar, but to bury him. They will be busting with a politician’s ego to lay into the Minister’s priorities and savage the budget. Facts be damned, especially when they get in the way of well-rehearsed one-liners, quips and the desire to  land a news cycle. The day may come when the President’s budget will be submitted to the Assembly as a mere constitutional formality. The Assembly will flip through it to find reasons to reject it and come up with their own. They will do so since they will now have, in addition to their constitutional mandate to appropriate all government funds, the Assembly Service to help allocate funds and run numbers.

Other areas of government will experience similar changes in the shifting relation between the Executive and the Legislative branches. The Foreign Minister, for instance, would come to the Assembly not so much to testify on the status of The Gambia’s international relations. The Minister will come to be “lectured” by self-absorbed members on how the world works. The Assembly Service will prove their worth by initiating and inciting institutional conflicts between the Executive and the Legislative branches. And the media will be in the thick of it stoking controversies or scandals that show the slightest sign of abating.

The transformation of how the institutions of the government interact will by no means come to pass overnight. But it’s inevitable. Gravity can only be defied or resisted for so long. Its laws will always apply. So goes for democracy based on separation of powers  and checks and balances. Just ask the Americans.

As stated at the beginning, the National Assembly immensely benefits from the reining in of the imperial presidency. Still, the draft Constitution leaves the Assembly in a weak position in one key section and completely disempowers it in another. (A third problem, the composition of representation, will be put off for Part IV.)

The draft Constitution is right to drop removing the President by a no-confidence vote in the current Constitution. Such a method suitable for parliamentary system is inappropriate for a presidential system. The Assembly shouldn’t remove the President elected by the people, unlike a Prime Minister, just because the President hurts their feelings. But the draft Constitution basically imported the current Constitution’s flawed process of removing the President on medical grounds or through impeachment rather than put in place new and credible methods that keep the people’s representatives in control of the process.

The simple fact is, from the inception of the second republic, our system of separation of powers and checks and balances calls for two legislative chambers (as I argued last year in an essay A Case for Two Legislative Chambers.) One chamber would impeach the President and Judges, and the other would try them to either convict or acquit. One chamber would focus on confirmation of presidential appointments, and the other would be responsible for the budget and overseeing the Local Governments. Both chambers would pass identical legislations before anything reaches the President’s desk to protect the country from the consequences of a plaint or corrupt single chamber wishing to appease or connive with an authoritarian or venal President. A single chamber enjoying a supermajority of one party or coalition to override the President’s veto would be prevented from holding the President hostage or rendering the President powerless to dictate how the country is run. And either chamber would conduct their own separate or independent investigations and oversights of the Executive branch and its cottage industry of agencies and commissions. Also, the two chambers would individually be a check on each other; but jointly, they would be a check on the ever-sprawling Executive branch.

Some critics of the essay contended that two chambers are redundant and therefore unnecessary since a single chamber can do all the work of a legislature. Other critics maintained that the country can’t afford the funds for two legislative chambers. The draft Constitution, like the critics of the essay, sides with the status quo. I was ready to give up on the idea. Then I remember at the beginning of Much Ado About Nothing, Benedict and Beatrice vow never to marry, especially to each other. By the end of the Shakespearean romantic comedy, Benedict and Beatrice not only marry, but to each other. So, I’m still hoping the draft Constitution may come around to seeing things as envisaged in the essay.

When it comes to removing the President from office, the Constitution is right to be concerned about leaving the single-chamber National Assembly to its own devices. But the central role given to the Chief Justice as sort of a check on the Assembly and the prescribed tasks the Chief Justice is to perform to determine if the Assembly’s case to remove the President is justified are too wanting for the extraordinary circumstances.

When the Assembly votes on a simple majority of all the members to remove the President from office for alleged mental or physical incapacity, the Chief Justice, acting on the advice of the head of the health services in the country, appoints a board of five medical practitioners (that may include the President’s personal physician or another physician of the President’s choice) to look into the matter. If the board disagrees with the Assembly, the President presumably stays in office since the draft Constitution, unlike the current Constitution, is silent on what happens next. If the board agrees with the Assembly, the Chief Justice declares the Office of the President vacant. According to Section 105 (9): “The report of the medical board shall be conclusive and final and shall not be inquired into by any court.”

In the case of alleged corruption, abuse of power, or violation of the Constitution or the oath of office, when the Assembly votes on a simple majority of all the members to impeach the President, the Chief Justice appoints a tribunal of five (comprising a Supreme Court Judge, three high or former high judicial officers and one legal practitioner) to enquire into the allegation. If the tribunal finds no basis for the allegation, no further proceeding takes place against the President. If the tribunal substantiates the allegation, the Assembly votes on a two-third supermajority of all the members to remove the President from office.

Whether the reason to remove is medical or criminal, the Assembly — the elected body that represents the entire country and answerable to their respective consequents — is grounded in two crucial stages of the process. They have no vote on who the Chief Justice selects to the medical board or the tribunal. And they have no recourse to review the conclusion of the board or the tribunal to determine that the conclusion was credible beyond the reasonable doubt. How is this, at the minimum, a reliable course of action to address one of the most consequential decisions for the country?

We should simply believe that Chief Justice — whoever the person happens to be at the time — will be unquestionably a neutral party between the Assembly and the President and will therefore be fair-minded for being the Chief Justice? If that were the case, why doesn’t the Constitution trust the Chief Justice to sit alone on the Supreme Court, but calls for four to twelve other Judges to join the Chief Justice on the highest and final Court in the land? What is the guarantee that the Chief Justice will be undoubtedly disinterested in the outcome of a move to remove the President from office? That the Chief Justice will have no motive or incentive to favor one side over the other? Not side with the President, when the Assembly refuses the Chief Justice’s requests to increase the salaries of Judges or build new courthouses? Not when the Chief Justice is a friend or fan of the President? Not side with the Assembly, when the Chief Justice finds the President repugnant or finds the President’s policies detrimental to the country or the President’s attitude toward the Judiciary hostile? Can we invest so much faith and confidence in one person, any person, who holds the title of Chief Justice, to make decisions which that person is not trusted with making in their primary job as a Judge?

The Chief Justice’s primary duty is to preside in cases. In no trial does the Chief Justice or any Judge selects the jury, witnesses, or picks those who collect the plaintiff’s evidence or a body to enquire into the plaintiff’s charges to determine if they have any merits. In the Chief Justice’s administrative role as the head of the Judiciary, the Chief Justice can assign Judges to cases, but the opinions of those Judges are open to appeal.

In the case of removing the President, on the other hand, the Assembly — the plaintiff so to speak — is limited to voting to set the process in motion. The Chief Justice steps in to select a medical board or tribunal. In the case of the board, the Chief Justice is bound to “act on” the advice of the head of the health services. Will that health official, most likely an appointee of the President, be a zealous supporter or an incorrigible hater of the President? The board or the tribunal is at liberty to reach any conclusion, but the Assembly is not at liberty to even question that conclusion when the board or tribunal concludes that their findings do not support the Assembly’s allegation. Nor is the President at liberty to challenge the board’s conclusion that the President is mentally or physically unfit for office. Why? Because medical practitioners are so infallible and ethically unbiased that they are incapable of breaking the Hippocratic Oath? In the case of the tribunal, judicial officers and legal practitioners are so incorruptible and conscientious they are saintly sticklers for incontrovertible evidence, facts and the command of the law?

There is something peculiar and undemocratic about the process of removing the President from office laid out in the Constitution. Why should a constitutional confrontation or dispute between the two elected branches of the government be settled by the unquestionable say-so of some unelected bunch through a mechanism that lacks the rigor of the due process for both the plaintiff and the defendant just because the individuals that comprise the bunch happen to possess medical and legal licenses? The most charitable thing to say about it is this is nothing but a glorified arbitration between the two most influential constitutional institutions of the government by selected individuals whose neutrality can only be supposed at face value. The medical and legal training qualify these individuals as expert witnesses to render medical and legal opinions that may be right or wrong, fair or unfair, honest or dishonest. But the Constitution asks the country to deem their conclusion sufficient to remove or not to remove the President from office.

The Constitution shouldn’t only be called out for taking a constitutional and political matter out of the hands of constitutional and political institutions and giving it to the professionals on the unstated but spurious reason that the “professionals” know best. The Constitution should also be charged with double standard on how it lays out the impeachment procedure. In the case of the President’s alleged medical unfitness, if the board disagrees with the Assembly, the matter ends there and the President remains in office. If the board agrees with the Assembly, the President hands over power to the Vice President. But in the case of the President’s alleged lawbreaking, the conclusive decision is followed in only one instance. If the tribunal disagrees with the Assembly, the matter ends there and the President stays in office. But if the tribunal agrees with the Assembly, the President doesn’t step down right away. The Assembly votes again, only this time with the higher threshold of two-third majority of all the members before the President steps down.

The Assembly’s simple-majority vote to remove the President for medical infirmity stands if the medical board agrees the President is medically incompetent. But the Assembly must still muster a supermajority vote after the tribunal agrees the President engaged in a corruption, committed a crime or violated the Constitution or the oath of office. How is the President’s medical infirmity a more serious problem for the country than the President’s moral turpitude?

Worst of all, casting the Chief Justice as a central figure in the removal process  will inevitably drag the Judiciary into partisan political controversy that may haunt the credibility of the Courts for years. In the absence of two chambers for one to impeach and the other to try the President, the Constitution should image a new process that keeps the single chamber in control of the removal process and responsible for any political fallout, but also accord the President the right to fight to stay in office.

For instance, whether for alleged medical infirmity or alleged lawbreaking, the Assembly should vote on a simple majority of all the members to appoint a special National Assembly Select Committee to launch an enquiry into the matter. If the Committee finds grounds for removal and the President wishes to challenge the finding rather than step down, the Committee should hold a public hearing with the Chief Justice presiding over the proceedings that entitle the President to all the rights of defense. At the end of the hearing, the entire Assembly votes on a two-third or three-quarter majority to remove the President from office.

As illustratively bad as the National Assembly’s weak position in removing the President from office is, it’s not the Legislative branch’s biggest loss in the draft Constitution. That honor must go to the Assembly’s total exclusion from playing any role in the removal of Judges. This is probably the most regressive change in the draft Constitution that betrays favoritism for the Judicial branch. That discussion will have to wait for Part III. The reason is so obvious. Before I say anything more about lawyers, I need to, as Lady Macbeth eggs Macbeth on, “screw [my] courage to the sticking place.”


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