THE PRESIDENT OF THE REPUBLIC OF THE GAMBIA STATE HO– USE BAN
RE: ON DEVIATIONS FROM THE RULE OF LAW
The setting up of different dates to inaugurate councils after the April 4th, 2013 Local Government elections reflects a lack of uniformity in the assumption of office by members of Councils who are elected on the same day and have equal tenure of office.
Good Laws are made by a state to ensure predictability of official conduct and avert ambiguity and absurdity in administrative practice.
It is therefore important to point out to you that ambiguity and absurdity is already evident in the assumption of office on different dates by councillors who are destined to leave office on the same date if they serve their full term. In short, the members of the Banjul City Council assumed office on the 24 April 2013. The members of the Kanifing Municipal Council assumed office on the 25 April 2013. The members of the Brikama Area Council are to assume office on 29 April 2013. The dates set for the first sitting of the Mansakonko Area Council, Kerewan Area Council, Kuntaur Area Council, Janjanbureh Area Council and Basse Area Council are different from that of Banjul, Kanifing and Brikama. What is responsible for this inconsistency and inconstancy?
Is it because of a defect in the law or a by-product of its disregard in practice by the government or both?
What then is the Nature of the law? Does it promote consistency or constancy in political succession at the Council level?
The Constitution establishes the Local Councils. Section 193 states that “Local government administration in the Gambia shall be based on a system of democratically elected councils with a high degree of local autonomy.”
Hence, this entrenched provision is saying that there should be no administration of councils by any other authority other than democratically elected representatives. This should have been made possible by enacting a provision under the Local Government Act that is similar to the one established by Section 99 of the Constitution for the National Assembly.
It reads: “Subject to the provisions of this section, the National Assembly shall stand dissolved on the day immediately preceding the day appointed in accordance with Section 97 for the first session of the next following national Assembly.“ Two things need to be learnt from Section 99. It encompasses both a relevant provision and an omission. The relevant provision is to ensure the continuity of elected representation up to the day preceding the assumption of office by newly elected representatives. Hence, the best practice of democratic succession of political office is for elected representatives to remain until a day preceding the assumption of office by newly elected members. This practice is what should have been incorporated in the Local Government Act. That however is not the case. The fact is being cited in passing for future references. The Second point deals with the omission.
Section 99 makes it abundantly clear that the incumbent National Assembly members will stay in office until a day preceding the date appointed under Section 97 for the first session of the next following National Assembly. Suffice it to say, even though Section 99 takes it as given that the date for the first sitting of the Assembly is prescribed under Section 97, a close reading of section 97 would reveal that it does not fix a date for the first sitting of the National Assembly and does not give any command to any authority to set the date within a prescribed framework that negates arbitrariness. When PDOIS won seats in the 2002 elections and appeared to have been waiting indefinitely for the first sitting to be convened we had to confront the relevant authorities which ended up in heated debate on the day of the inauguration of the Assembly . Putting the National Assembly at the mercy of the executive was exposed to be antithetical to the principle of the separation of powers. We emphasised that Section 97 should be amended to incorporate the concrete working day on which the first sitting of The National Assembly should take place after an election.
Despite the heated debate and recommendation no effort has emanated from the state to remedy the Lacuna. Hence if arbitrariness is to be removed from the succession process regarding political office, the law should not only ensure that elected representatives are replaced in office by elected representatives but should also limit the overstaying of incumbents by indicating the concrete working day when the first sitting of newly elected representatives should take place after an election. Is that how matters stand with regards to the Local Councils? The answer is in the negative.
It is relevant to make reference to the current provision dealing with political successions before and after Local Government Elections.
Section 9(a) of the Local Government Act as amended states:
“1. A Local Government Council shall stand dissolved ninety days before a local Government Election.
2. On the dissolution of a Council The President shall appoint, for each Local Government Area, an interim Management Team consisting of such persons as he or she may determine, to perform the functions and exercise the powers of a Council until the day preceding the first meeting of a council after a local government election.”
It is apparent here that the Local Government Act provides for the replacement of elected Representatives with appointed individuals prior to elections and has not indicated when the newly elected representatives would assume office after an election. The amendments simply states that the Interim Management Team will stand dissolved a day before the first meeting of a Council after a Local Government Election. This has given rise to an absurdity characterised by councils being managed by Interim Management Teams after new council members have been duly elected.
It is not clear whether the acknowledgement of the absurdity is what led the state to proceed to broadcast news of the dissolution of all councils on 23 April 2013 without regard to the statutory provision that an Interim Management Team should stand dissolved a day preceding the first meeting of the council after a local government election. In actual fact, the state would have acted in compliance with section 9(a) of the Local Government Act if all councils held their first meeting on the 24 April 2013. Hence only the first meeting of the Banjul City Council could be considered to have been held on the day that it should have been held, if it is assumed that the Interim Management Teams are dissolved on the 23 April 2013 as announced.
The facts reveal that KMC had its first meeting 2 days after the dissolution of the Councils. Brikama schedules its first meeting 6 days after the dissolution. The majority of Councils were without elected representatives or an Interim Management Team after the dissolution . Nothing could be more absurd than that.
Inconsistency and inconstancy in administrative practice and arbitrary rule are the byproducts of deviation from what is legally prescribed.
Governments are only credible if they recognise criticism and consider wise proposals to redress anomalies in law and practice. It must be said that the anomalies in practice that PDOIS has been pointing out are numerous. Let us table few of them to corroborate our assertion that there have been many serious deviations from the rule of law in the manner of administration of the country.
First and foremost, we have argued that executive orders and proclamations are being made and implemented without any regard to correct legal procedure. The first proof constitutes the recent announcement that the Interim Management Teams are dissolved.
The announcement indicates that the Ministry of Regional Administration and Lands dissolved them. Suffice it to say, the mandate to dissolve the Interim Management Team must be provided for by law and must be exercised as provided for by law. No law was cited in the dissolution of the Interim Management Teams.
We have conveyed to you and would like to repeat again that executive orders that do not originate from the Constitution or Acts and published in the Gazette are without legal foundation and amount to arbitrary rule. Authority must be lawfully exercised. Hence any executive directive in the form of a proclamation, rule, regulation, order, public notice or any other instrument must go through a legally prescribed process to become lawful exercise of authority.
It is not sufficient just to claim that a notice is issued by the state house that a day is a public holiday for a public holiday to be lawfully declared. This is not the position of the law. Any lawful order must first be made by relying on an Act or other Legal instrument that must be cited to give it legitimacy and legislative effect.
Suffice it to say, simple declaration over the media is not sufficient as far as the requirement of the Law is concerned. The law does not have any provision for overnight announcement of an executive order such as the proclamation of a Public holiday without any publication in the Gazette.
If an executive order is to be lawful, an Act or legal instrument must first give powers to the authority to make such an order. Secondly, the authority shall ensure the publication of the order in the gazette. It shall have the force of law on the date of publication or on the date stipulated in the publication for it come into effect.
This is clearly stipulated in the Interpretation Act. Government order means “an order made by or by command of the President or by any other person under powers conferred by Act of the National Assembly or any other legislative authority.”
Such an order is classified as subsidiary legislation under the interpretation Act. Subsidiary legislation means “……any proclamation, rule, regulation, order, Notice, by -law, or other instrument made under any Act or by or under any other lawful authority and having legislative effect.”
Section 11 of the Interpretation Act stipulates the process that an order goes through to become supplementary legislation with legislative effect. It states among other things that:
“(c) a subsidiary legislation shall not be inconsistent with the provisions of the Act;
Furthermore, it adds that “(d) subsidiary legislation shall be published in the Gazette and shall have the force of law upon the publication thereof or from the date named therein…”
It is therefore mandatory for executive orders to be published in the Gazette to have the force of law.
It is incontrovertible that to issue and implement executive orders without citing their sources in law and ensuring their publication in the Gazette for them to have legislative effect is to deviate from the principle of the rule of law.
The recent vacuum created by dissolving Interim Management Teams and thus deprive councils of elected members and management teams is an aberration and measures should be taken to amend the laws to avoid any recurrence.
We hope the lapses we have been pointing out in constitutional and democratic governance would be given more attention. In our view, governing a country, no matter who is at the helm, is not a one-sided affair. Our role is to filter the flaws of governance and propose redress. The duty of those at the helm is to abide by the compass of law and exemplary practice or risk crisis of integrity.
Any wise and reasonable government would bear in mind that constitutions, institutions and administrative practices are not established once and for all. Constitutions, institutions and normative practices in governance are refined over time through practice.
Constitutions that have basic democratic pillars are refined by the interpretation of democratic minded and just judges and amendments proposed by a well organised and enlightened citizenry that monitors lapses and demand for amendments.
As an opposition party we have a duty to scrutnise, criticise and restrain government from disregarding law and good practice in governance and plunge a country into the abyss of impunity and arbitrary rule. I am still to remind you that PDOIS as part of the Gambia Opposition For Electoral Reform (GOFER) which incorporated the group of six is waiting for your government to concede to Reverend Jackson’s mediation efforts. The hands of time can never be bound. We must move with it or be left behind. Gambian politics needs a new leash of life. The old way is leading us into a blind allay. The results of the Local Government elections reveal a vote of no confidence in the electoral system. Out of 187,757 registered voters in KMC only 36,755 voters participated. This is 19.6 percent of the registered voters. There is indeed need for political dialogue and electoral reform.The inevitable should not be delayed.
Your Government is now writing its history. The first Republic has already written its history. The Constitutional provisions you pioneer, the judicial precedence you endorse and applaud and the response you give to demands and proposals for better instruments and institutions will serve as an indictment or defence before the court of posterity and eternal justice.
We strongly recommend that a Human Rights and Good Governance Department be set up at the Ministry of Justice to begin to look at the lapses in governance and cooperate with the Law Reform Commission and the Human Rights Commission to be to look into all genuine concerns. As the saying goes, “it is better late than never”.
As far as we are concerned, we are not writing because we are under any illusion that we could compel you to do anything. We are writing to be counted among those people who refuse to sit and watch things deteriorate and then say we thought so. We want history to record that we have said everything that needed to be said, at the time it was needed and in the way and manner it was needed to be effective in helping to re-think and re-shape the destiny of the motherland. All the good examples are in place for any citizen to assimilate and be an asset instead of a liability to the country.
It is possible for all to enjoy liberty, dignity and prosperity. The leaders bear the greatest responsibility in making the nation float or sink. Each has the duty to engage destiny. History will pass its judgment.
Halifa Sallah
Secretary General, PDOIS
Editor’s note: With all due respect to Halifa, the question to Jammeh should be when does his administration NOT violate the constitution?