NEWS
Transparency International Report on The Gambia - (PART II)




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October 22, 2005
National Integrity Systems 2004
The Gambia 14
The National Integrity System
Executive
As in the 1970 Constitution, the 1997 Constitution also vests executive
power with the President. He is the Head of State and Government as well
as Commander-in-Chief of the Armed Forces. He is required to uphold and
defend the Constitution as the Supreme Law, guarantee and safeguard the
territorial integrity of The Gambia. He could be removed from Office if he
contravenes any provision of the Constitution. The President is required
to have "a dignified and responsible life and be the standard bearer for
decency, honesty, transparency and accountability in the conduct of public
life".6 It is for these reasons that section 67 of the Constitution
defines what amounts to misconduct of the President which constitutes a
ground for his removal from Office. The President is directly elected by
the people for a period of five years. There is no limit to the number of
terms a person can serve as President in The Gambia. The President is the
leader of the APRC and is elected on his party's ticket.

The powers of the President are wide, active in all aspects of the
executive arm of government. He appoints the Cabinet, he chooses the five
nominated members of the National Assembly, appoints the Chief Justice and
other judges of the superior courts, the Director of Public Prosecutions,
the Auditor General, the members of the Public Service Commission, board
of directors of the Central Bank and all parastatals, the Ombudsman and
Deputy Ombudsman, the head of the civil service, Inspector General of
Police and his deputy, the Commissioner of Prisons, the Chief of Defence
Staff, the armed forces Chief of Staff, the commander of the army, the
navy and the air force, amongst others. This is power in excess and a
recipe for corruption, since over-concentration of power in the hand of
one individual undermines good governance, transparency and accountability
in public life and the doctrine of separation powers.

The Constitution gives the President control of the police and prison
services as well as the National Intelligence Agency. He has powers to
direct and control the foreign affairs of state. In practice, he has the
sole prerogative to constitute any public office and make appointments for
such office. Inherent in his power to appoint is the power to remove,
although in some instances like appointment and removal of judges there
are specified Constitutional procedures to be followed. The Constitution
does not give him power to appoint Permanent Secretaries and other senior
government officers, in practice he dictates who should be appointed to
any office and who should be dismissed, terminated or retired.

The Gambia is faced with an impotent Public Service Commission as well as
impotent Boards of Directors of parastatals who receive instructions
directly from the Office of the President for dismissals or terminations
of pubic servants. Even the Judicial Service Commission which is expected
to resist encroachment of judicial powers by the Executive has failed to
live up to its Constitutional duties. The Executive fires judges and
magistrates with impunity.

The President is immune from both criminal and civil suit whilst in office
which continues even after he leaves Office. This immunity however is
subject to some qualifications. He could be removed from Office if a
motion of no confidence of the National Assembly is tabled for his removal
and is supported by two-thirds majority of the Assembly.

Where this motion is successfully passed it would be subject to referendum
within thirty days for the public to endorse or reject the decision of the
National Assembly. This cumbersome procedure is criticized by many as a
deliberate act to allow a President who has lost favour with the National
Assembly to manipulate the public which is highly illiterate and poor, to
maintain his grip on power. The President may be removed on medical
grounds, which does not require a referendum.

National Integrity Systems 2004
The Gambia 15
An attempt by the UDP to table a motion before the National Assembly for
the President to be impeached on the grounds that he misconducted himself
in a matter referred to as the CRUDE OIL SAGA was aborted by the APRC
members through the use of their numerical strength in the National
Assembly. This crude oil scandal was a subject of litigation in the courts
in Britain between CHANTRILS COMMERCIAL S.A vs THE GOVERNMENT OF THE
GAMBIA involving the lifting of crude oil in Nigeria for the benefit of
Gambians. Judgment was entered against the Government of The Gambia. To
date nobody has accounted for the proceeds of the sale of millions of
barrels of crude oil given to Gambians by the Federal Government of
Nigeria.

The oil allocation is not an annual allocation to The Gambia but instead
it is usually from negotiations between the two governments as and when
the beneficiary nation makes a request to Nigeria for assistance.

It is to be noted that the Nigerian Government has over the years given to
some West African countries at a concessionary price to assist in their
balance of payment support, and other economic activities. The Gambia is
one country that has been benefiting from this concession the benefits of
which Gambians are yet to enjoy. The recent agreements signed by The
Gambia Government and the Nigerian Government institutions for the lifting
have been hushed up by The Gambia Government. No disclosure of such
agreements have been made to the public or the National Assembly. As
usual, the public only became aware when a scandal broke out and the
Nigerian media exposed it.

However, for a second time , the mother of all crude oil scandals has
emerged, this time involving proceeds of sale amounting to almost half a
billion dollars meant for Gambians but diverted for personal benefits of
some Gambians and Nigerians. This was disclosed by a Nigerian newspaper
This Day in their Wednesday 26th March 2003 edition of Diplomatic Matters
Vol. 9 No. 2894. The Gambians whose names were mentioned are persons very
close to President Yahya Jammeh, which compelled the Office of the
President to come out with a press release confirming the existence of the
deal but denied the allegations contained in that publication. The denial
basically was that monies were not diverted to private pockets as alleged.
What is surprising to the Gambian nation is that this particular gift from
the Nigerian government to the people of The Gambia did not feature in the
annual national budget, even though the government in the press release
said that the proceeds have been lodged with the Central Bank of The
Gambia. The Central Bank has neither denied nor admitted this fact.

Cabinet
Cabinet consists of the President, Vice-President and Secretaries of
State. The Vice- President and Secretaries of State are appointed by the
President. They are collectively responsible for any advice given to the
President in Cabinet, and individually accountable to the President and
the National Assembly for the administration of their Departments of State
and other businesses of Government committed to their charge.7 The Cabinet
is to comprise of not more than twenty Secretaries of State including the
Attorney General. However, there is presently a cabinet of 14 Secretaries
of State, including the Vice President, who is also minister for women's
affairs. Both the President and the National Assembly have powers to
remove a Secretary of State from office.

While Section 71 of the Constitution gives the President the power to hire
and fire cabinet ministers, there is no law compelling him to give reasons
for his actions. The National Assembly can only remove a Secretary of
State by passing a vote of censure. According to the 1997 Constitution,
there should be a complete separation of powers between the three arms of
government; the Executive, the Legislature and the Judiciary. Therefore,
cabinet ministers should not also be members of the Legislature at the
same time. However, while the Constitution gives the President powers to
appoint ministers from outside of parliament, but those ministers are
expected to be attending sittings of the National Assembly to answer to
questions pertaining to their ministries as well as lay and defend bills
emanating from the Executive concerning their ministries. The Legislature
also has the power to summon any minister before them to explain any
matter, and to even
National Integrity Systems 2004
The Gambia 16
recommend the removal of any member of the cabinet who in their opinion is
not performing his/her duties satisfactorily.

The National Assembly can pass a vote of censure against any Secretary of
State on grounds of misconduct, inability to carry out functions of his or
her Office and for violation of the Constitution.8 However, this check on
the Executive has never been used by the National Assembly.

The Cabinet of The Gambia changes character and composition every time
with termination of appointments of its members every so often that the
average citizen has lost track of the numbers so far terminated. No
reasons are given by the President. It is believed that 62 cabinet
ministers (secretaries of state) have had their services terminated from
1994 to date. The same is true with the public service, which has seen
five secretaries general and countless permanent secretaries and other
senior government officials terminated, dismissed or prematurely retired,
to the extent that it cannot be said with certainly at any given time the
number of people employed within the public service.

There is lack of security of tenure for public servants. The concept of
dismissal at pleasure which was the prerogative of the crown during the
colonial era has found its way back to The Gambia despite the existence of
the Constitution of 1997 which offers protection and security of tenure.
Sadly, in true Gambian spirit, the victims of wrongful dismissal or
termination or premature retirement have been very reluctant to approach
the courts for redress. Most prefer to leave everything to God.

TO BE CONTINUED IN PART III...



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