Njundu Drammeh

(JollofNews) – Our 1997 Constitution modelled for us a Presidential System of government and a certain separation of powers of the three arms of government. I guess the intention of the drafters, the separation of powers, is to limit excesses, abuse of power, and curtailing of tyranny.

“Power corrupts, absolute power corrupts absolutely” Lord Acton averred… However, this great intention was averted or corrupted and the powers of the three arms of Government were, to all intents and purposes, usurped by Executive in who they were concentrated and unified…. The Executive became the judge, jury, executioner, decider of life and death and all…. I, however, think that our current Constitution itself provides room for this abuse of power by the Executive and its encroachment into the premises or preserves of the other two branches of Government. It created what it tried to avoid or control, Executive tyranny.

Our Constitution, in my view, did not create all the necessary mechanisms or provisions for effective, robust “checks and balances” that are the strengths of a great Presidential System of Government. It, to my mind, surrendered too much power to the Executive and circumscribed the powers of the National Assembly or rather “gives the National Assembly powers with the right hand and takes them away with the left hand”.

It is my humble view that to ensure greater accountability and reduce abuse of power, the Constitution should be amended to ensure the National Assembly is actively involved, through betting and confirmation, in certain political appointments that the President makes albeit unilaterally (even if currently legal under the Constitution).

The National Assembly does not seem to be involved in the appointment of Commission members of the IEC. They are “appointed by the President in consultation with the Judicial Service Commission and the Public Service Commission” (S.42.3)… It is also not involved in their removal. (S.42.6)….. Interestingly our IEC is part of the public service (S42.1). It is my take that the main arbiters of elections in our country should be absolutely independent with legally guaranteed secured tenure of office. We witnessed an era when Chairpersons of the IEC were removed without any just caused and replaced with regime “Allah fearing” persons.. Since elections are the main avenues through which citizens exercise control over politicians and since the National Assembly comprises mainly the elected representatives of the people, it is just democratic that they have a say in who becomes and how IEC commission members are appointed…. Above all, the surest way of having a buy-in in the Commission is to give political parties, through their representatives, a say in the appointments of Commission members.

If the National Assembly has the power to remove the President through a vote of no confidence supported by two thirds of its members (S. 63.3) or through misconduct (S.67), can pass a vote of censure against the Vice President or a Secretary of State(S. 75) and can make the VP or a Secretary of state appear before it in the Assembly to report on any matter concerning a department or other business of government (S.77.4), why should it not have the powers to vet and endorse a Cabinet minister then? The people, through their representatives, should have a say in who is nominated for a higher political office. It is not just enough to fulfil the criteria, one’s past and credibility are important to consider.

The President appoints Gambia’s envoys to foreign lands (S. 79.1.b) but apparently the National Assembly does not seem have any say In who is made an envoy. Ambassadors are representatives of the President and the Gambia. Embassies are extension of our national territory, The Gambia. And since sovereignty lies with the people, it is again democratic, in my mind, that the people’s representatives have a say in who represents The Gambia abroad as her envoy or principal representative.

After all the National Assembly has to ratify treaties and international agreements concluded by the President(S.79.1.c), gives prior approval to any declaration of war or making of peace by the President (S.79.1.d) or be satisfied, before we become a member of any international organisation, that it is in our interest to become a member (S.79.2.b)….. The Constitution cannot give such powers to the National Assembly and yet excludes it from having a say in who becomes a principal representative of the Gambia abroad. In my humble opinion this goes against the spirit of checks and balances…… The Executive is, in my humble, given excessive powers in this regard.

The National Assembly does not seem to have any role or much say in the appointment of the Chief Justices and other judges of the superior courts, at least in practice. The Chief Justice “shall be appointed by the President after consultation with the Judicial Service Commission” (S.138.1) and “all other judges of the superior courts except the judges of the Special Criminal Court shall be appointed by the President on the recommendation of the Judicial Service Commission” (S.138.2)…

The Constitution denies the National Assembly to have its own member sir sit on the JSC but rather it nominates a member outside of it to sit on the JSC (S. 145.3 and S.145.1.f). This beats my imagination and I wonder what the rationale of the drafters were regarding this exclusion… Yet, according to the Constitution, a judge cannot be removed from office without the active involvement of the National Assembly and its approval of the tribunal’s report, by not less than two thirds of all its members (S. 141.5-9). Interesting that only the National Assembly can approve the termination of a judge’s term yet the very Constitution which gives it such a power does not regard it fit to vet and endorse such appointments.

While I am told by my lawyer friends that the one who has the power to appoint also has the power to dismiss, I think that such power, if unchecked, ultimately lead to abuse as we saw in the Jammeh regime. If we are to truly have a true Presidential System of government based on separation of powers and effective checks and balances, then we ought to strengthen these in our Constitution. A moth eaten one or one which is but a resemblance will not do us much good. To check tyranny and abuse of power, we must ensure no organ of our Government have excessive or excess powers which weaken the other organs. In my opinion, our current constitution has given too much powers to the Executive. This, i think, is not good for our democracy.

The current Government has indicated it would do a thorough legal review and reform. I am sure it would strengthen our checks and balances and also strengthen the National Assembly to be able to serve as effective bulwark of our democracy. I am hopeful.

By Njundu Drammeh