By Yusef Taylor, @FlexDan_YT
The Gambia’s Sixth Legislature passed the reconsideration stage of the Anti-Corruption Bill yesterday 18th December 2023 after rejecting two proposals to amend the Bill. The first proposal was championed by the Deputy Speaker Hon Seedy S K Njie who moved for the interpretation of Undue Advantage under clause 2 to be removed and for the word to be deleted wherever it appears. The second recommendation from the Chair of the Finance and Public Accounts Committee (FPAC) moved for clause 75 (formerly 76) on the Prosecution of Offences to be amended to enhance the independence of the Commission to pursue prosecution.
After some lengthy discussions on the first motion and much less discussions on the second motion, it was agreed to maintain the Anti-Corruption Bill in its current form without any amendments. Next, the Bill will face its third reading when it will be passed or rejected.
Undue Advantage Retained – Clause 2
Undue Advantage saw a significant debate. Before Hon Njie moved his motion or proferred any explanations, Hon Alhagie Mbow of Upper Saloum argued that “if we have to delete this one it’s going to affect clause 20, clause 31, clause 32, clause 35, clause 36, clause 38, clause 41, clause 57 and it’s also going to affect clause 63 in fact it’s going to affect a lot about this Bill. So, I think it’s best we leave it the way it is. Even 75 as well”.
The Hon Chair for the session, Hon Njie who stepped in for the Speaker, Hon Fabakary Tombong Jatta took part in the debate to argue that the definition of undue advantage is “against our culture and religion as a whole. As a country as Muslims, Christians and Africans”. In his view maintaining this definition “is going to create more problems than even solving problems”.
Upon hearing this a member attempted to respond but Hon Njie enthused that “we’re making laws for posterity and our people. We are not making laws with the sole objective of wrecking society, of wrecking tradition, wrecking culture, [or] of wrecking religion. And this undue advantage seeks to do that. It’s against culture against our tradition against our religion”.
Several members argued that deleting the clause on undue advantage would defeat the essence of passing the Bill. Nominated member Hon Kebba Lang Fofana argued that “if we are talking about Anti-Corruption this is the genesis because undue advantage based on what I read from A to L is about giving an individual an edge over others because of offering something. In its various forms, that’s why we have them as subsections A going to L. So, if we delete this entire clause, we’re in effect paralysing the act that we intend to make”.
At this point, some members argued to amend the definition of undue advantage but after some interventions from members, this argument was withdrawn. Hon Mbow, a prominent member of the FPAC argued that “If you look at the Bill critically, I don’t think somebody will be charged for giving out a gift without probable cause. There are reasonable grounds for someone to be arrested, detained and charged. There must be some reason”.
“You cannot just come because Seedy Njie has a naming ceremony I go and give Seedy Njie some kind of gift and am charged for what? There must be some probable cause that there is something between you and me as a business or something. That’s what the Bill is trying to talk about. So, if there is no probable cause be rest assured there is nothing that will happen to anybody,” said Hon Mbow.
After his argument, the Hon member for Kantora and Majority Leader who recommended the amendment decided to withdraw his recommendation and for the definition to remain part of the Bill. Upon hearing this the Chair moved a motion for the definition of undue advantage to remain unchanged which was approved by the rest of the members.
Independence to Prosecute Offences – Clause 76
The Independence of the Commission was a major concern for the FPAC Chair, however, there was very little effort from other members to ensure that the Anti-Corruption Commission had the power to independently prosecute offences without the approval of the Attorney General.
Currently, the clause states that “every prosecution for an offence under this Act or any other law prohibiting bribery, corruption and other related offences shall be done with the consent of the Attorney-General”.
The recommendation from the FPAC Chair proposes to amend this clause to read “every prosecution for an offence under this Act or any other law prohibiting bribery, corruption and other related offences may be done in consultation with the Attorney-General”.
Independence of the Commission
Soon after the FPAC Chair’s motion the Majority Leader and member for Kantora argued that the Anti-Corruption Commission “are directly under the Attorney General why would you say in consultation. It should be mandatory they have with the consent of the Attorney General. It should be shall not may”. This argument contradicts clause 7 of the Anti-Corruption Bill which guarantees that the Commission shall not be under the direction of any person or authority in carrying out its functions which includes prosecution.
It’s important to note that the DPP works under the Office of the Attorney General as opposed to the Anti-Corruption Commission which is an independent Commission “to prohibit and prescribe punishments for corrupt practices and other related offences and for connected matters”. The two institutions are not the same, although for administrative issues the Commission may be under the Attorney General’s Office but that’s where it stops just like in the National Human Rights Commission.
After Hon Tunkara’s intervention, more arguments from members including FPAC members contradicting their own recommendation hammered the final nail in the coffin. The FPAC Chair was left isolated and his motion to amend the clause was not voted in favour.
FPAC’s Recommendation Contradicts the Constitution?
There has been an argument proffered by some quarters that the FPAC recommendation contradicts section 85 of the 1997 Constitution. However, it’s important to interrogate if section 85 of the 1997 Constitution actually contradicts the FPAC Chair’s recommendation.
Section 85 (a) of the 1997 Constitution states that the Director of Public Prosecution (DPP) shall have the power to prosecute subject to the approval of the Attorney General. In addition, section 85 (b) states that the DPP may “takeover and continue any criminal proceeding that has been instituted by any other person or authority”. The DPP also has the power according to section 85 (c) “to discontinue, at any stage before judgement is delivered, any criminal proceeding instituted or undertaken by himself or herself or any other person or authority”.
However, these powers are limited in the sense that section 85 (c) stipulates that the DPP shall not “takeover and continue any private prosecution without the consent of the private prosecutor and the court, or discontinue any private prosecution without the consent of the private prosecutor”.
Unfortunately, Parliament and the Minister for Justice truncated the meaning of section 85 in the Constitution to stop at 85 (b and c) which empowers the Executive via the Attorney General to take over and discontinue criminal prosecution while ignoring the rest of section 85 (c) which highlights that their powers are limited to the consent of any person or authority pursuing the prosecution.
Turning our attention to how this could impact the work of the Anti-Corruption Commission, it means that the Anti-Corruption Commission does not have the power to commence prosecution without the Attorney General’s consent but this is not what section 85 of the Constitution was referring to at all. Section 85 recognises private prosecution may take place but shall only be taken over or discontinued with the consent of the Anti-Corruption Commission.
Given the fact that the reconsideration stage has now been passed, this can only now be considered a missed opportunity to strengthen the independence of the Anti-Corruption Commission. It’s very likely that if persons close to the President and the Attorney General are found wanting of corruption, they will not be prosecuted.
Take for example the case of Hon Abba Sanyang the former Minister for Lands and Local Government. He was found wanting for corruption by the National Audit Office but was only sacked and did not face prosecution. The same occurred in the case of Dr Bamba Banja, the incarcerated Permanent Secretary of the Ministry of Fisheries. The Hon Minister was also indicted by the investigations of corruption under his Ministry but only his Deputy Permanent Secretary was prosecuted which did not sit well with many critics who say the government should have prosecuted the Minister as well.
In essence, the power to takeover and discontinue any criminal prosecution is not entirely at the discretion of the Attorney General and DPP as indicated by the Minister of Justice and some Parliamentarians. According to the 1997 Constitution, this power can only be exercised with the consent of the private prosecutor, person or authority.
More on the previous Parliamentary sitting on the Anti-Corruption Bill.