Regarding the Draft Constitution, Part V

Justice Cherno Sulayman Jallow Chairman CRC

By Foday Samateh

On the System of  Local Government, the draft Constitution in Section 202 (1) states: “A local government shall be based on a council which shall be the highest political authority, for local governance, within its area of jurisdiction and which shall have legislative and executive powers to be exercised in accordance with this Constitution and an Act of the National Assembly.” This definitional section does immense justice to the concept of devolution of powers. It accords to the Local Government of each region two forms of sovereignty.

First, to the extent that the Constitution and an Act of the National Assembly allow, each Local Government can manage the affairs of their own respective regions without seeking the approval of the National Government in Banjul.

Second, each Local Government is independent of the other Local Governments. The decisions of one is not binding on the others outside of inter-regional obligations.

In light of the fact that The Gambia is a unitary state, the decentralization of power from the National Government to the Local Governments is limited to the Executive and Legislative branches. It doesn’t and cannot extend to the Judicial branch. There will be no dual judicial systems. The courts throughout the country, particularly the criminal ones, will be uniform under the supervisory and appellate authority of the Supreme Court. The same goes for law enforcement, the Armed Forces and other national security services. On those scores, the draft Constitution satisfies the tenets and essence of devolution of powers. Even as it empowers the Local Governments, it does not undermine the National Government. It strikes perfectly the right balance.

Since the Local Governments are vested with Executive and Legislative powers, it is a given that each will pass rules and regulations on purely local matters and such measures will be applicable to only their respective regions. Different Local Governments may choose to enact different standards on the same issue like taxation to raise revenues. There will be instances where some Local Governments may pass rules and regulations on certain matters while others choose to not do so. Therefore, the Act of the National Assembly establishing the Local Governments may provide for each region to set up their own administrative courts or tribunals for the purpose of enforcing their rules and regulations locally alongside the judicial system that operates nationally. Should that happen down the road, as it is most likely to happen, the draft Constitution’s proportional allocation of powers between the National Government and the Local Governments will still work harmoniously.

What the draft Constitution fumbles is the internal power arrangement within the Local Governments. The establishment clause of regional administrations flouts one of the cardinal principles for decentralized Local Governments. Section 202 (1) asserts: “A local government shall be based on a council…which shall have legislative and executive powers…” Whereas Section 202 (2) (a) stipulates: “Local Governments shall be based on democratic principles and the separation of powers.” (Emphases are mine.) With each council having both legislative and executive powers, where then is the separation of powers in the Local Governments? Concentrated powers cannot be considered separated powers.

The problem here is the draft Constitution, instead of fully reforming the Local Governments, decides to settle for the half-measures of the status quo. It fails to replicate at the local level the power dynamic of the Executive and the Legislative branches at the national level. The Councils should be the regional legislative assemblies of their respective Local Governments. The Mayor of Banjul and the chief administrator of all the other six regions from Kanifing to Basse should become Governors elected by the people  to serve as the executive. Then we can say the Local Governments are based on separation of executive and legislative powers.

The reason only Banjul should maintain a Mayor and all other regions should be headed by Governors is rather obvious. The time may not be too far off when cities and towns like Bakau, Serekunda, Brikama, Gunjur, Farafenni, Mansakonko, Bansang, and Basse will have to have their own mayors under the authority of their various Local Governments.

The reasons to elect Governors are also rather obvious. One, the draft Constitution in Section 202 (1) states in no uncertain term: “A local government…shall be the highest political authority, for local governance, within its area of jurisdiction…” What then would be the function of unelected Governors the President appoints? The draft Constitution is in fact silent on the question of Governors. It neither explicitly takes away nor explicitly recognizes the President’s power to appoint them. Implicitly, any proper reading of Section 202 (1) will conclude that the President’s power of appointing Governors is hereby done away with. But knowing the political value of such appointments, the President will not give up that unsanctioned power unless the Constitution expressly says so.

The draft Constitution’s relying on Mayors and Chairpersons of Area Councils as the executives of the Local Governments is a cue to the President that the status quo is preserved. The reason we have Chairpersons for the Area Councils is that in the last so-called reform of the Local Governments, the powers be in Banjul at the time chose to observe devolution of power in theory but breach it in practice. The President wouldn’t do the sensible, democratic thing to let the people elect the Governors. hence, the Chairpersons that have no real executive authority. This is the time to do the right thing. The Constitution cannot claim that the Local Governments are the highest political authorities in their regions, but allow the President to fill the most important political office in the regions by appointment. Power to the people should mean what it says — power to the people.

Unelected regional Governors, it should be remembered, are now what used to be resident divisional Commissioners in the First Republic, and before that, traveling Commissioners during colonial rule. It is long since time we end this vestige of indirect rule, this colonial indignity to the non-metropolitan populations — the provinces — known by the misnomer of the day as “the protectorate.” Some protection, indeed. If the President has no bureaucratic representative in Banjul or KMC, and shouldn’t, why should the President still have such representatives in the rest of the country when the people can easily elect an executive for themselves? The draft Constitution should change Chairperson to Governor to put the people in charge of their own local affairs, and prevent future power grab on the part of Presidents. This element of the imperial Presidency needs to also end.

Doing so wouldn’t only make the Local Governments the highest political authorities for local governance in their jurisdiction. But also, it would give functional meaning to the principles of decentralized government as envisioned by the draft Constitution in Section 201, particularly Subsections: (a) “to promote democratic and accountable exercise of power;” (c) “to give powers of self-governance to the people to be exercised through their respective Local Government Authorities;” (d) “to recognise the rights of communities to manage their own affairs and to further their development;” (h) “to facilitate the decentralisation of State organs, their functions and services to the administrative areas of The Gambia;” and (i) “to enhance checks and balances and the separation of powers.”

Another thing that should be reconsidered in the draft Constitution is the Minister responsible for Local Government. This ministerial position has always been a feature of the President’s Cabinet as far back as probably since independence. There might be reason to have such a position when government functions and power were by law and practice centralized in Banjul. The governing realities of 1965 are in many ways quite different than today’s and the idea of decentralization has for years now become all the rage. As such, in the changed and changing governance landscape, the Minister for Local Government is rendered anachronistic. Especially by Section 204 (2): “No person or authority shall interfere with or compromise a Local Government Authority’s exercise of its powers, or ability or right to perform its functions, under this Constitution or an Act of the National Assembly.” If this section is to have any force, then what would be the purpose of the Minister of Local Government? To appoint Alkalos? A Minister of the State serving at the pleasure of the President to be responsible for appointing the most local officials of the Local Governments? How does that cohere with the concept of decentralization of power?

It is not the Constitution’s duty to identity the Ministers the President should have for a Cabinet, except where it is absolutely necessary as in the case of the Minister responsible for Finance and the Attorney General. The draft Constitution has done an exceptionally superb job in that. It is also true that it is not the Constitution’s duty to abolish any existing Minister, but the draft Constitution shouldn’t make one permanent by giving it constitutional functions when the need for it isn’t so indispensable. The Constitution should grant the President and the National Assembly the discretion to establish and maintain Ministers on a need basis. It shouldn’t compel them to preserve one when the position has served its usefulness.

In this age of elected Local Governments, we no longer need Minister for Local Governments. The Local Governments are now answerable to the people who elect them, not to the Minister who is in turn answerable to the President. At best, the Minister, like unelected Governors, will only create unnecessary bureaucracy. Whatever the Local Governments need from the National Government they can engage directly the relevant Departments or Ministries like Education, Health, Finance, Environment, Communications, Infrastructure, and what have you. The Local Governments don’t need a Minister to run interference on their behalf with other Ministers or even the President and the National Assembly. They can do so on their own. At worst, the Minister responsible for Local Government, like unelected Governors, is a political apparatchik for the President. Not good for the letter and spirit of decentralized government.

Finally, the composition of Local Governments. Section 202 (2) states in paragraph (c) “no more than two-thirds of the members of representative bodies in each Local Government Authority shall be of the same gender;” and paragraph (d) “a minimum of ten percent of the members of representative bodies in the Local Government Area shall be youths.” The Part IV of this commentary on the draft Constitution has already spoken in opposition to the prescribed gender composition of representation in the National Assembly. Therefore, the focus here will be on the youths even though the arguments will apply to gender as well.

Section 206 (2) states: “A councilor shall be elected by universal adult suffrage of all eligible voters in a Ward.” If every representative member of a Local Government is to be elected in a free and fair election how can the outcome of the election be determined such that at least ten percent of the winners are youths, and not more than two-thirds are male or female? When neither happens, what then? Do-over elections until the prescribed constitutional ratios are met? Wouldn’t that subvert the democratic will of the voters? So why does the draft Constitution attach conditions to what should be true reflections of the free will of the people in a franchise?

The draft Constitution defines youth as a person of 35 years and under. This is hardly necessary since there is hardly any practical purpose for it as far as the Constitution is concerned. But just for the sake of going by the draft Constitution’s own standard, how can the youths be categorized as marginalized? Anyone of 18 years and older, male for female, has the right to vote in elections. Anyone of 21 years and older, male or female, has the right to run for National Assembly. Anyone of 30 years and older, male or female, has the right to run for President. There is no provision in the draft Constitution or any other law in The Gambia that restricts the democratic rights of any citizen who, male or female, is up to 30 years on account of age or gender. The youths are a great percent of the population and they have the vote. Women are at least half the population and they have the vote. What the two do with that vote is entirely up to them. Yet the draft Constitution categorizes them as “marginalized” and confers on them affirmative action in the name of exclusive democratic rights? The open-ended span of these special rights presumes that the youths and woman will remain permanent marginalized classes.

The Constitution owes every citizen equal rights and equal treatments. What it cannot guarantee is the outcome when those rights are exercised. And when it tries to do so, it exceeds its function and purpose as the supreme law of the land to become some sort of a social justice manifesto that doles out preferential treatments. That’s identity politics. Political parties will do plenty of identity politics and other forms of pandering. The Constitution should stay clear of such things. By all means.


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