By Yusef Taylor, FlexDan_YT
Members of The Gambia’s Sixth Legislature have passed the consideration stage of the much-anticipated Anti-Corruption Bill (ACB) 2019 on Thursday 14th September 2023. The Bill, if passed will see the establishment of a permanent Anti-Corruption Commission aimed at curbing corruption. After concluding the clause-by-clause review and the consideration stage, the Speaker of the House who was Deputy Speaker Hon Seedy S K Njie, brought the session to a close and declared that the ACB will be read for the third time on Wednesday 20th September 2023.
In the current state the Anti-Corruption Commission if established could be likened to a department working under the Attorney General and Ministry for Justice. If Parliament were to proceed with the Bill in its current form the Commission could be rendered a toothless bulldog.
Provision 76 (1) which is on Prosecution of Offences 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”.
Our research unearthed a Report of the ACB Review Retreat from the 13th to 14th of February 2020 which was compiled by pro-fiscal transparency Civil Society Organization Gambia Participates. According to the document Gambia Participates held a two-day workshop to provide feedback to the Finance and Public Accounts Committee (FPAC).
According to the Report, “this section limits the independence of the Commission and it contradicts section 4 (9), section 6(h) of the Anti-Corruption Bill. The provision weakens the independence of the commission as any prosecution for an offence under the act must be given consent by the Attorney General. The Attorney General is the Minister of Justice who is a political appointee. If there is any prosecution that is to be made against the AG himself, or any other person close to the Attorney General, the AG has the discretion to either prosecute or close the case”.
It must be recalled that the ACB was tabled in Parliament back in December 2019 meaning that it will be almost 4 years in Parliament this December 2023. Gambia Participates has held a series of workshops with Parliamentarians which included one during the term of the Fifth Legislature and another one with members of the Sixth Legislature on 14th July 2023. This is how the whole thing unravelled after all the hard work from Civil Society and two different Parliaments.
Parliament Passes Consideration Stage of ACB
The Chair of the Committee of the All for the day was the Deputy Speaker of the House Hon Seedy S K Njie. After calling up provision 76, Chair Hon Njie invited the Chair of the Finance and Public Accounts Committee (FPAC), Hon Alhagie S Darbo to take the floor who argued for provision 76 (1) to be amended as follows “where we have shall to be replaced with may and where we have with the consent of the Attorney General to be replaced with in consultation with the Attorney General”.
The Chair of the Committee then took part in the debate, countering the FPAC recommendation when he said, “I’m not sure what the law says because in criminal cases it’s the state that prosecute. So, and then the Attorney General and the Gambia Police, section 80 something am not sure. So, it has to be consent in certain cases, Attorney General”.
The Minister for Justice, Hon Dawda A Jallow was quickly given the floor and he explained that: “section 85 of the Constitution which the Attorney General through the Office of the Department for Public Prosecution has full control of all prosecution irrespective of what type of prosecution it is”. He said there are other white-collar crimes like abuse of office and corruption for which the AG needs to give fiat and clearance before trial.
After the Chair read out section 85 (1) he gave Hon Sulayman Saho for Central Baddibou the floor who noted that “care must be taken” because if “the Attorney General himself is the subject under investigation”. The Chair responded by saying “in any government before the Attorney General is being prosecuted, he must have been removed from his position as Attorney General and then a new Attorney General Appointed”. Hon Yahya Menteng Sanyang for Latrikunda argued similarly to Hon Saho and the Chair eventually gave Hon Alhagie Mbow of Upper Saloum the floor. He tried to argue that section 85 also references private prosecution, however, his argument was overruled by the Chair.
In essence the Justice Minister and the Chair of the Committee of the All managed to convince the plenary to keep the clause in its current form by arguing that provision 85 (1) gives his Ministry the authority to intervene in any case and close it down. The Justice Minister argued that the drafters wanted to stay in conformance with this provision. The Hon Member for Serrekunda West, Hon Madi Ceesay then hit the final nail in the coffin when he argued for the clause to be maintained, allowing the Chair the opportunity to call for a vote if the clause should stand part of the Bill and this was voted in favour.
The Sierra Leone Experience
Hon Dawada A Jallow’s argument appears logical, however, his office being given the power to intervene does not mean that the Commission must seek consent from the Ministry for Justice before they proceed with prosecution. The track record in West Africa proves that Commissions which need to seek consent from the Ministry for Justice don’t perform.
The Gambia Participates Report notes that “Sierra Leone for example, the establishment of the Anti-Corruption Commission in 2000 was mandated to “prevent, eradicate and repress corruption and investigate allegation” but it does not mandate the commission to prosecute as the Attorney General and the Minister of Justice must take a decision on the prosecution of cases from the Commission. Realizing the weakness of the Commission, Sierra Leone in 2008 amplified the powers of the Anti-Corruption Commission which could now prosecute without the consent of the Attorney General and the Minister of Justice”.
This warning is an ominous sign of what is to come if the ACB is passed in its current form. In fact, the Gambia Participates Report recommends that “in order to strengthen the independence of the Anti-Corruption Commission, it has been widely suggested that the bill establishes within the Commission a Legal Unit which will be responsible for the prosecution of cases without going through the Attorney General and the Minister for Justice”.
Even if the Minister has the best interest of the country at heart what if the Minister is the subject of the case, how would he give consent to investigate himself or someone close to him? These are all questions that the Commission will have to grapple with if this clause is maintained. It must be recalled that The Gambia currently has a 2012 Anti-Corruption Act, however, it has been rendered ineffective. If nothing is done and the Anti-Corruption Bill is passed in its current form it will be rendered another toothless bulldog.