LAW MAKERS BROKE THE LAW IN GAMBIA
On November 26, 2020, following the tabling of the Executive Budget Proposal by the Minister of Finance before the National Assembly, the nominated member of Parliament Hon. Ya Kumba moved a motion to vote for the inclusion of D54.4 million for a Loan Scheme. This scheme was intended for members and staff of the legislature to build their personal houses in the 2021 Budget. A slim majority of 17:16 parliamentarians voted for the Minister of Finance to take the draft budget back and include the loan scheme.
This move by parliamentarians shocked the nation, as Gambians expressed disappointment that their elected officials, whose primary mandate is to serve the best interest of the people, were prioritizing self-interest. Even though the Minister of Finance and Economic Affairs warned against such acts due to legal ramifications and the country's economic status, the 17 members of parliament defended their interest and demanded its inclusion in the budget.
This act was considered a gross violation of the 1997 Constitution, the Public Finance Act 2014, and the Standing Orders which guide the procedures and behavior of parliamentarians. It is against this background that Gambia Participates, a civil society organization known for anti-corruption and fiscal transparency advocacy, mounted a legal action against the National Assembly at the Supreme Court, in partnership with the Center for Research and Policy Development. The two civil society groups called for the Supreme Court to declare the action of the National Assembly unconstitutional and in violation of Sections 152 and 155 of the 1997 Constitution and Section 47 of the Public Finance Act, and to remove the amount of D54.4 million from the budget of the National Assembly. Activista The Gambia and Transparency International Secretariat (TIS) filed an amicus brief in the case, presenting international best practices on budget drafting, oversight, and the limitations on the powers of the legislature.
Supreme Court Judgement
The Supreme Court, after a marathon sitting, finally delivered a sound verdict on May 4, 2020. The Court in its ruling declared one of the followings:
That the inclusion of a sum of D54.4 million by the National Assembly in the estimates of the Revenue and Expenditure for 2021 contravened the provisions of Sections 152 and 155 of the Constitution and violated Section 47 of the Public Finance Act 2014.
The court also ordered the removal of the sum of D54.4 million from the 2021 Appropriation Act, reducing the total allocation to the National Assembly from D246,406,737 to D192,406,737. The Supreme Court further ruled that "in the event that the disbursement has already been done, any and all the sums so disbursed should be recovered and/or retrieved forthwith.”
History Making Judgement
This legal suit has marked a turning point on the integrity of civil society organizations, who are often regarded as toothless bulldogs. This is the first time in the history of civil society in The Gambia that a legal action has been mounted against the National Assembly and resulted in a ruling in favor of civil society. The landmark judgement has equally rejuvenated the trust of the citizenry in the Judiciary for having decided a case of such gravity against the National Assembly Members and staff.
The judgment of the Supreme Court declaring the action of the national assembly and ruling in our favor as civil society is a hope for the future of our democracy and separation of powers. It is a disgrace that our “lawmakers” violated the laws of the country for their financial interest. Morally, Gambians in this difficult moment of Covid-19 pandemic expect their law makers to legislate budget that will help the country to recover from economy crisis.
-- Marr Nyang, the Executive Director of Gambia Participates
Conflict of Interests
The current parliamentarians were voted into office in 2017, a few months after the end of the 22-year kleptocratic regime of Yaya Jammeh. There were high hopes from Gambians that this Parliament would help the country through its transitional justice process and legislate reforms that would strengthen both the parliament and other democratic institutions. Constitutional reform was central to their mandate, as many of them campaigned on this promise. However, the same parliament rejected a citizen-centric and progressive constitution in its entirety on party lines and individual interest, thus blocking the opportunity for the citizens to decide for themselves through referendum. Some of the Parliamentarians complained that the draft constitution would cut their remaining four months’ salary if voted into referendum, while other MPs complained that the draft constitution overpowered the legislature.
In the face of these economic uncertainties, doubts exist in the minds of the citizenry as to their faith in the next year and the mode of repayment of this loan should they finally leave office. Parliamentarians concord to vote for a loan of D54.4 million with a majority decision of 17/16, with a significant number of other parliamentarians remaining indifferent and retaining their votes on the motion.
Consequently, this came as a disappointment to the entire Gambian citizenry, who frowned upon such an act considering the current financial challenges the country battles with and the fact that many budget requests were denied by parliament during budget sessions, only for them to appropriate themselves millions of dalasi, flouting their principles and ethics as key decision makers. Gambia Participates and Center for Research and Policy Development stood up to challenge this act before the Supreme Court of The Gambia, invoking its original jurisdiction to interpret the relevant provisions of the Constitution relied upon, and eventually declared the loan scheme unconstitutional and therefore a nullity. The Supreme Court struck out the sum of D54.4 million from the entire sum of funds allocated to the National Assembly, declaring it unconstitutional for default of following the laid down due process.