Dec 31, 2015, 10:16 AM
THE PRESIDENT OF THE REPUBLIC OF THE GAMBIA
SUBJECT: THE CONSTITUTIONALITY OF THE MOTION ON THE ELECTIONS (AMENDMENT) BILL 2015 INTRODUCED BY THE HEAD OF THE CIVIL SERVICE
The dictates of National duty, as a major stakeholder in the political process and your role in the process of promulgating a law, has compelled us to address this memorandum to you.
We have two fundamental observations to raise, touching on both technicality and substance regarding the constitutionality of passing the Elections (Amendment) Bill 2015. The advice of constitutional experts should be earnestly sought to look into the constitutionality of the motion moved by Mr Nyabally.
In short, The Elections (Amendment) Bill 2015 is reported to have been passed.The Bill was introduced by the Head of the Civil Service. The same person is referred to as Minister for Presidential Affairs.The role of Head of the Civil Service and that of a Minister are unconnected with, isolated from and independent of each other. In short, they are incompatible.
Section 168 subsection (1) of the Constitution is quite clear.It states:
“The President, acting in accordance with the advice of the Public Service Commission, shall appoint a person holding an office in the public service on permanent terms to be the Head of the Civil Service. The Head of the Civil Service shall be the competent authority for the Civil Service.”
Hence, a Head of the Civil Service must be a person holding an office in the public service on permanent terms. No honest analyst could fail to acknowledge this fact. A whole government with paid advisers should not wallow in the dark.
Why is the position of Minister and Head of the Civil service incompatible?The answer is simple.
Section 166 Subsection (4) provides the answer:
“In this Constitution, an office in the public service does not include -
(a) the offices of President, Vice-President, Speaker or Deputy Speaker of the National Assembly, Minister or a member of the National Assembly;
(b) the offices of a member of any commission (other than a commission the members of which are hereby or by an Act of National Assembly declared to hold an office in the public service), or a member of the Advisory Committee on the exercise of the Prerogative of Mercy or the Advisory Committee on the conferment of honours.”
Hence a Head of the Civil Service cannot be a member of the National Assembly or a Minister without vacating one’s post.
In fact, Section 170 Subsections (1) and (2) of the Constitution adds:
“(1) A person holding an office in a public service shall not hold office in any political party.
(2) Any person who holds an office in a public service who wishes to contest an election for a political office shall, prior to nomination as a candidate, obtain one year’s leave of absence without pay, which leave shall not unreasonably be refused.”
There are clear lines of demarcation between functions of Head of the Civil service, National Assembly member and Minister.
Section 101 Subsection (1) states that,
“Subject to the provisions of this section, a Bill or motion may be introduced in the National Assembly by a member of the Cabinet or by a member of the National Assembly, and the National Assembly shall give consideration to Bills and motions so introduced.”
Since the Head of the Civil Service cannot be a Minister or member of Cabinet the Bill was introduced by the wrong person. In this respect it should be returned to the National Assembly and not enacted into law.
This is the first technicality. Allow us to move on to the second.
The Central Committee of PDOIS has received and did deliberate on the report that the Bill which was introduced into the National Assembly was different, in content, from the Bill which was published in the Gazette on 1st June 2015.
This would be in violation of Section 101 Subsection (3) of the Constitution. It reads:
“No Bill, other than a Bill referred to in subsection (5), shall be introduced into the National Assembly unless it has been published in the Gazette, and such publication has been made at least fourteen days before the date of its introduction:
“Provided that where the President certifies that the enactment of the Bill is required in the public interest as a matter of urgency, the Bill may be introduced notwithstanding it has not been published fourteen days beforehand, but the Speaker shall, on the introduction of the Bill, cause a vote to be taken in the National Assembly without debate on a motion to give consideration to the Bill notwithstanding that the said period of fourteen days has not expired.”
A Bill containing pen marks, reducing deposits, was never published in the Gazette before introduction into the National Assembly and was not introduced under a certificate of urgency.
Hence, the introduction of the Bill departed from established constitutional procedures. In this regard, it should not be enacted into law.
Law, Common Sense, National Interest and conscience all combine to indicate that the Bill is unsuitable for our times and circumstances and should be returned to the National Assembly. The most appropriate decision is to utilise the proposals from the opposition as the basis of building consensus on genuine electoral reform which would stand the test of time. We hope, after 20 years at the helm your government will not hinder the exercise of franchise by the sovereign Gambian people to make their right to self determination, which include the right to determine their manner of government without any obstacles, a reality.
Yours In the Service of the People
CC Chairman, IEC
Attorney General and Minister of Justice
Speaker, National Assembly