By Foday Samateh
Allow a moment of confession. A second legislative chamber is a crazy idea. That was what I said to myself when the idea first sprang to mind. But instead of disappearing and never to be remembered, it formed into an elemental edifice of the democratic institutions we require for the coming third republic.The reasons for a
legislative chamber are born of our living experience. During the presidencies of Jawara, Yahya Jammeh and (so far) Adama Barrow, the legislative branch has invariably reduced itself to a rubber-stamping department of the executive branch. Its constitutional functions to pass laws and approve government spending, among other responsibilities, have been for the most part performed for formalities to grant presidents their wishes. While the first republic was a mix of executive and legislative powers (the president’s cabinet were also members of parliament) loosely akin to the British political system, and the second republic a half-hearted shift to the American-style separation of powers, this distinction bears no discernible difference in the legislative branch. Almost all legislative bills of the two republics have been sponsored and written by the executive branch, and their passage almost always a foregone conclusion.
On the oversight front, when was the last time the legislative branch empaneled a parliamentary enquiry into the executive branch or any of its ministries or parastatals? The current commission of inquiry, like those during the military rule, is an executive branch investigation into the previous administration. The driving political motive behind these commissions of inquiry cannot be overlooked. Just like Yahya Jammeh was bent on proving that Jawara had presided over “rampant corruption,” Adama Barrow is returning the favor of exposing Yahya Jammeh for amassing a fortune through rank corruption.
The legislative branch has mostly been missing when needed or messing things when not needed. The last act of the last National Assembly, for example, was passing an unconstitutional state of emergency at the behest of Yahya Jammeh as a ploy to annul the presidential election he had lost. Somewhat comparably, the first major act of this National Assembly was passing a scandalous constitutional amendment at the behest of Adama Barrow so he could appoint as vice president someone who had been exposed to have lied about her qualification for that office. The Assembly’s outrage over the recent killings in Faraba is commendable but it must not be mistaken for the herald of a new dawn in the legislative branch asserting itself on matters implicating the executive branch. One swallow, as the saying goes, does not make a summer.
Notwithstanding the political motives of the commissions of enquiry set up by Yahya Jammeh and Adama Barrow, the hearings confirmed what has been known all along. That is: the State House, the civil service and the broader executive branch are collectively a sprawling scene of corruption, mismanagement, and incompetence. This is the verdict of fifty years of republican rule under three presidencies. Yahya Jammeh was the self-proclaimed Mr. Broom to sweep clean every nook and cranny of the system. Two decades later, he left behind more piles of dirt and dust. Adama Barrow is the self-declared Mr. Overhaul Everything. A year and a half in, he’s yet to reform a single part of the bloated, inefficient, money-wasting bureaucracy much less combine some ministries, slim down some and get rid of others entirely.
The above is a cry for change in how our government is run. Of all the three branches, the executive is by nature the biggest source of the ills of the administrative state. It needs major reforms. Now on our third presidency, however, there should be no more illusions that the executive will reform itself. Not in any meaningful way. People running for president will make all the sweet noises to please our ears and raise our hopes. As soon as they enter the State House, they would lay claim to more power, not less; renege on promises to rein in the easy wielding of absolute authority; and ignore the calls of good counsel to make their administration accountable and transparent.
Once in a while a reformer may make it into office to do the right thing on their own volition. But the moment such an individual leaves the state of affairs to the discretion of the next guy, things will likely go back to the status quo ante. Therefore, lasting reforms and continuous oversight that are required must come from elsewhere.
The judicial branch plays a vital but passive role when it comes to holding the executive branch to account. It cannot act on its own initiative. Lawsuits have to be brought for courts to rule on the lawfulness or justness of the actions of the executive branch. Momentous rulings of sweeping ramifications will generally be few and far between. Most of the time, decisions of the courts will be limited in scope and incremental in effect.
The one branch that has the mandate and freewill to impose reforms and provide oversight across the executive branch is the legislative. But a half-century of republican government testifies to an incontestable fact: for the legislative branch to discharge its constitutional oversight responsibilities to make the executive branch accountable and faithful to the rule of law, it needs substantial reform itself.
In theory, the legislative, the executive and the judicial branches are co-equal. Some might even argue that the legislative branch enjoys more power as the first among equals. Our experience, though, begs to differ. The theory and the argument are mere academic pronouncements in view of our political history as a nation state. The institutional power dynamics is crystal clear — the legislative branch has been serving as a subservient appendage to the executive irrespective of who’s president. It cannot simply be that all three presidents have had legislative majorities. While that basic fact must be acknowledged, it cannot be accepted entirely. If it is, there’s no hope, then, since future presidents are also likely to enjoy legislative majorities more often than not.
The real cause and effect of the power imbalance between the two branches is the imperial presidency. The president, for instance, has the unilateral power to decide who is vice president and who are cabinet ministers, permanent secretaries, judges on the courts, managing directors of government agencies and public corporations, ambassadors, regional governors, central bank board of directors, accountant general, auditor general, heads of the security services and so forth. He can hire whoever he wants and fire whoever he wants at anytime he wants. In that single and seemingly innocuous power over the administrative state, the president is, in too many ways to count, a king in all but name.
Though the legislative branch — the constitutional institution charged with the power of oversight and scrutiny — can remove these appointees from office through censure, it cannot prevent the appointments, however unqualified the appointees prove to be. The power ratio of the legislative and executive branches must be rebalanced into a constitutional equation by reforming the former to stand the chance of reforming the latter for our democracy to be in practice what it claims to be in theory. For the reforms to be meaningful and transformational, we need something that will serve the dual purpose of an institutional reinforcement and rival to the National Assembly in its relation to the executive branch. In other words, it is time for an Upper Chamber.
Whether the bicameral chambers will be jointly called the National Assembly, or the lower chamber will retain the title and the upper chamber will be named, say, the Senate, is an immaterial choice of style. What matters is the substance of the good work the two legislative houses will be doing. The combined force of the two will confer symbolic and real institutional stature and eminence on the legislative branch to stare down the executive branch as true co-equals.
Another necessity for two houses is that the executive branch will continue to grow inevitably, if not exponentially. The bureaucracies will keep getting bigger in size and increasing in number as the rising population requires more government and public services on a widening range of issues. To provide the necessary and proper oversight, the legislative branch needs capacity proportional to the task. The people’s representatives have a duty to know that ministries and public entities like hospitals, telecommunications and information technology companies, electricity providers, ports authority, nongovernmental organizations, and private enterprises are doing right by the public. What better way to put these entities and enterprises on notice that not just one but two houses have them in their sights?
The case for two houses is bolstered by another glaring fact. Already, the National Assembly is lagging far behind living up to the investigative, regulatory and oversight obligations the Constitution assigns to it. Has it, for instance, in over twenty years now once received or asked for an annual report of the Ombudsman (our equivalent of the US inspectors general) or the Auditor General’s report? Has it inquired to ascertain that revenue sources like the ports authority and revenue collecting agencies like GRA are doing everything by the book? Has it ever looked into how much the foreign travels of government officials, including per diems, cost the tax payers annually, and how many of these travels and the size of delegations are really necessary?
Another reason for a bicameral legislature is this: even as the two houses work in conjunction to make laws on various priorities and initiatives, each chamber will be carrying out their respective assigned responsibilities. Call it legislative division of labor. More work will get done on less time. For example, the lower chamber can be responsible for originating all budgetary and appropriation bills and oversee the administration of the local governments. The upper chamber, on the other hand, can be responsible for confirming all (but few) presidential appointments. Whether we begin the third republic with one or two chambers, presidential appointments must be subject to the approval of the legislative branch. This will ensure that presidential appointees, at the very least, meet the constitutional requirements for the office in which they are to serve. It will also be a great oversight deterrence against presidential appointments that smack of cronyism, nepotism, and tribalism. Most significant of all, legislative confirmation requirement will restrain the president’s imperial sway over the entire executive and judicial branches.
It cannot be stressed enough that a confirmation process justifies the need for an upper chamber. Imagine a single chamber having to make all necessary and proper laws, pass the budget, provide appropriate oversight across a full spectrum of government agencies, public corporations and nongovernmental organizations; its members sparing time to meet their constituents and address multitudinous requests for help, and still having adequate time to confirm the appointment of the vice president, cabinet ministers, permanent secretaries, managing directors, judges, public service commissioners, central bank board of directors, auditor general, heads of the military, police and intelligence, ambassadors and so on. Imagine the one thousand or so appointments in the life of a presidency going through the rigor of a confirmation hearing to defend why they deserve the privilege to serve the public in a given office. Imagine the time required to look into the appointees’ credentials and background, and the time needed to prepare and conduct the hearings. Can a greater reason be required for a second legislative chamber?
Having explored the merits of the combined and complementary forces of the two legislative chambers as a joint competing power center with their co-equal executive branch, let’s consider the advantages of intra-institutional dynamics of the two houses as rivals for relevance and recognition in the service of the public good. A unicameral legislature can afford to sit on its arms on so many matters of national import as it has been the case for half a century of our republic. The opposite will more likely be the case in a bicameral legislature. From making laws to launching parliamentary enquiries to holding open hearings on issues of public concern, the two houses will be elbowing past each other for national attention.
Here is another crucial factor. Since both houses must end up passing identical pieces of legislation for the president’s signature, one house will be a check on the other’s impulse to vote a bad law. By the same token, one house can prevent the other from repealing a good law that’s already on the books. And to bring up one more example, the president or cabinet ministers seeking new legislations or reforms to existing legislations will have to convince not one but two houses. Passing legislations will become harder as the process will demand debates in two chambers rather than yielding to the passions of the moment in one. All these are generally wise things in a democracy.
A final point about the necessity and wisdom of two legislative houses. Currently, the National Assembly can remove the president in two ways. One, by a vote of no confidence. Two, by voting on the report of a medical board the chief justice appointed at the behest of the Assembly itself in the case of the president’s alleged infirmity of mind or body for the office; or by voting on the report of a tribunal the chief justice appointed at the behest of the Assembly itself in the case of the president’s alleged corruption, criminal conduct, or willful violation of the law. In theory, both options seem reasonable remedies to protect the country from a fecklessly, medically or morally incompetent president.
In reality, however, the first option carries high risk of peremptory partisan spite without offering the president any recourse to defend his mandate. It’s too parliamentary for a presidential system. The second option is fraught with potentials for abuse and shenanigans by too many parties, including the chief justice, the president, the members of the National Assembly and the members of the medical board or the tribunal to connive in producing a predetermined report for one side’s benefit. In the case of the vice president and cabinet ministers, the National Assembly can remove them from office by a vote of censure. The wisdom of having two houses is to give one the power to impeach and the other the power to convict after it accords the official in question the right to a fair and open trial. The same should apply to judges, too.
As a matter of fact, a close reading of the Constitution’s impeachment clauses, and the appointment clauses of judges and officials of other independent agencies like the electoral commission leaves little doubt that the Constitution is acutely cognizant of the indispensable function of an upper chamber. It surely chooses not to require the president to seek the consent of a single legislative chamber on every critical matter. That is appropriately judicious. And it doesn’t want to leave the president to his own devices, either. That is equally insightful.
But alas, instead of establishing an upper chamber to carry out those functions independent of the lower chamber, the Constitution improvidently delegates these critical matters to bodies who lack the institutional power and independence for such responsibilities. For example, in appointing judges, the president must consult with the judicial service commission — a body he has a say in appointing. In the case of appointing members of the independent electoral commission, the president must consult with the judicial service commission and the public service commission — a body he appoints unilaterally. These consultations, it must be pointed out, are mere advice, not checks on presidential decisions. The president doesn’t only cast the influence of superiority over these bodies, he isn’t bound by law to accept their advice, nor should he be. Such advice and consent should be given by an independent institution whose power and stature are on parity with the president’s. The institution which, besides the National Assembly, has the authority and mandate to vote down a presidential decision or nomination can only be the legislative upper chamber.
The provisions to appoint a medical board and a tribunal for the removal of the president from office suffer from the same constitutional defects. Rather than refer the lower chamber’s motion to remove the president from office to the upper chamber that carries the same level of power and independence, the Constitution assigns the chief justice to appoint a medical board or a tribunal to determine if the president is medically or morally fit to remain in office. In addition to the fact that the chief justice is appointed by the president without the legislative branch’s approval, which must end, and the integrity and moral courage of members of the medical board or the tribunal are impossible to verify beyond all reasonable doubt, the power disparities of the parties involved in the ultimate decision affecting the country defies logic. The decision of the people’s representatives must not be subject to validation by a small unelected body appointed by a presidential appointee, even one holding the title of chief justice. To assign all matters of the president that require checks and balances on the National Assembly’s powers, the Constitution must refer them to the right and the only right place. It must do what it fails to do: establish an upper chamber to both reinforce and restrain the National Assembly.
Before proceeding to ideate the composition of the proposed upper house, I must briefly address the likely opposition to this essay’s proposition as Americanizing our democracy. Actually, our democracy is already more American and less Greek than we will like to admit. What’s more, bicameral chambers aren’t unique to the United States. Other advanced democracies like the UK, Canada, Australia, Germany, France and Japan, all have two legislative chambers. Nigeria has two houses, too.
For our purposes, the British House of Lords and its Canadian counterpart must be avoided as inspirations, because their members are unelected. The upper houses of Germany and France also offer little emulative value given their lack of popular elective mandates. The Australian, Japanese and Nigerian upper houses are to varying degrees modeled on the US Senate, and therefore offer good lessons and guidance. Nigeria especially, since, unlike Australia and Japan, it’s a presidential democracy. Some opponents of bicameralism may still contest that Nigeria can afford to adopt the American system since both are federal, while The Gambia, a unitary state, cannot. The distinction is considered but not conceded. Australia, also a federal system, is a bicameral parliamentary democracy. And Japan, a unitary state, is a bicameral constitutional monarchy. Despite their important differences, they both had the US upper chamber in mind when establishing their own. In the case of Japan, the US essentially dictated the outlines of the so-called peace Constitution during the American occupation right after WWII.
The American bicameralism, it must be remembered, wasn’t some inspired ingenuity for a unique situation. It was conceived more out of colossal failure than great imagination. Just like The Gambia is undertaking a constitutional review to reform our democracy, America also had a do-over in 1789 after the dismal fiasco of the ill-fated Confederacy founded on the ill-conceived Articles of Confederation. The Americans finally saw the need for a head of state for the continental government, something the Articles never provided for. Neither a king nor a figurehead, the new elective office with executive powers was given the title President — a first for the world. Prior to this historic moment, leaders all over the world went by all sorts of designations but president. Americanizing our democracy? It already is, if improperly. This advocate for reform only wants the final crucial institution brought into the equation.
The framers of the US Constitution, out of fear that presidents might use their office for self-enrichment and other corrupt ends, decided on a robust Congress to make laws as well as check the powers of the presidents. And further mindful of the potential pitfalls of a single legislative house that might arrogate too much power to itself to hold the other two branches hostages to its will; or be too weak to fulfill its oversight responsibilities, the framers found it prudent to establish two houses — the House of Representatives and the Senate. The two houses would share law-making powers but perform distinct functions in other areas.
While the constitutional convention looked to the Greeks for democracy, the Romans for the Senate, and Europe of their own time for other governing precepts, they borrowed the idea of two houses from home. At the time of the convention, some states in the emerging federal union such as New York and Massachusetts already had two legislative houses dating back to their colonial period. Those bicameral legislative houses were partly modeled on the two houses of the British Parliament.
Once the two houses of the US Congress came into being as improved versions of what prevailed in these states, the states in turn reformed their legislatures after the US congress. Other states that had only a single legislative house amended their state constitutions to have two houses as well. And once territories in the Union attained statehood, they also established two legislative houses. Today, all fifty states but Nebraska have two legislative houses. Just like the two houses of the US Congress share power and provide checks and balances against each other as well as the federal executive and judicial branches (the president and the federal courts), the two legislative houses of the forty-nine states both reinforce and restrain each other as they do the same to their respective state executive and judicial branches (the governors and the state courts).
All these further show that democracy in The Gambia will be better institutionalized with two legislative chambers. How the upper chamber, which usually has fewer members than the lower chamber, is allotted seats becomes the practical question. Unlike the lower house whose constituency boundaries are re-drawn at regular intervals based on census date, the upper house is usually composed of fixed territories rather than demographics. And how lucky we are on that score in The Gambia. The geographic territories that comprise the country preceded the republic. For example: we can allot four members for URR (Kantora, Wuli, Sandu and Fulladu East); six members for CRR (Fulladu West, Niamina, Niani, Nianija, Saloum and Sami); three members for NBR (Baddibu, Jokadu and Nuimi); two members for LRR (Kiang and Jarra); five members for WCR (Foni, Kombo East, Kombo Central, Kombo South and Kombo North given their high population densities); four members for KMC (for the same population reasons); and one member for Banjul. That gives us 25 members. This allotting of seats is one suggestion. Wiser minds may devise better methods.
Whatever mechanism wins the day, the upper chamber, and the lower chamber for that matter, must have no unelected members. No more nominated members in any legislative body at the national or regional level. The practice is a colonial vestige that’s antithetical to representative democracy. In the National Assembly, for instance, it gives undue influence to the president through his nominated members, undermines the separation of powers, and distorts the votes of the elected members. Every member of the Assembly, including the Speaker, and of any legislative body in the country, must be elected by the people.
Finally, a call to everyone who agrees that two legislative houses are the best assurance of a democracy of proper and necessary checks and balances. Let us all do all we can to make our view a reality in the Constitution for the third republic.