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Separation of powers

Greek philosopher Aristotle, in his work Politics, stated “There are three elements
in each constitution in respect of which every serious law giver must look for what
is advantageous to it; if these are well arranged, the constitution is bound to be well
arranged, and the differences in constitutions are bound to correspond to the
differences between each of these three elements. The three are, first the
deliberative, which discusses everything of common importance; second, the
officials ……; and third, the judicial element.”

The great French legal philosopher Montesquieu in The Spirit of the Laws
remarked “When legislative power is united with executive power in a single
person or in a single body of the magistracy, there is no liberty, because one can
fear that the same monarch or senate that makes tyrannical laws will execute them
tyrannically.”

“Nor is there liberty if the power of judging is not separate from legislative
power and from executive power. If it were joined to legislative power, the
power over the life and liberty of the citizen would be arbitrary, for the judge
would be the legislator. If it were joined to executive powers, the judge could
have the force of an oppressor.”

“All would be lost if the same man or the same body of principal men, either
of nobles, or of the people, exercised these three powers: that of making the
laws, that of executing public resolutions, and that of judging the crimes or
the disputes of individuals.”

The rationale for this well-established principle of the separation of powers is to


safeguard and prevent abuse of power. This takes us back to the issue of the head
of the executive branch being vested the power to determine the head of the
legislative branch. Theoretically, the idea of the President nominating five
individuals to the Assembly makes a certain sense. Our NA, like any other
Parliament, is partisan and MPs, for the most part, toe the party line or face the
wrath of their party whips. The rationale of the President being given the power to
nominate five individuals to the Assembly, is to curb that tribal politics in
Parliament and at the same time enhance the expertise of the House.

The rationale is not for the President to nominate those he believes will further his
personal or executive agenda, but qualified and capable Gambians who will serve
the interests of the country and its people. Such individuals may be retired IGP,
retired CDS, retired Archbishop or retired Iman Ratib, successful businessman,
retired doctor, retired Headmaster or deliberately, to allocate all the five seats to
women or youth as an affirmative action to increase their representation at the top
of the pyramid of law making process. The idea is thus to maintain some form of
equilibrium in the Assembly. They are expected to be independent and neutral and
their overriding agenda is to serve the best interests of our country and nothing
else. That is the idea and rationality of vesting in the President the power to
nominate. Article 97(1)(c) of the Constitution of Kenya also provides for
nominated members; twelve members nominated by the parliamentary political
parties according to their proportion of members in the House. This provision of
the Kenyan Constitution expressly states that nomination is to represent special
interests including persons with disabilities and workers.

Section 112(b) of the constitution, on the responsibilities of the members of the


National Assembly stipulates that:

“all members shall regard themselves as servants of the people of The


Gambia, desist from any conduct by which they seek improperly to enrich
themselves or alienate themselves from the people, and shall discharge their
duties and functions in the interest of the nation as a whole and in doing so
shall be influenced by the dictates of the conscience and the national
interest.”

Practically, in the Gambian context, largely because of the lack of political


maturity and our culturally subservient nature to officialdom, and unfortunately the
mediocrity of the types of Assembly we have (I wish to say here that the current
House has some really impressive members and who are well intentioned), our
own circumstances and context differ and the purpose of nomination by the
President is nothing but self-serving and completely needless. In our context,
simply because the President nominates someone into the House, the subconscious
conclusion is that the primary allegiance is to the President and not the Gambian
people. I hope therefore, in light of the recent debate and taking into account the
conflicting interests of nominated members if we take into account the history of
members nominated by Jammeh, the people in their consultations with the CRC,
will express their disapproval and have this provision excused from our supreme
law.

It is not in dispute that section 92 does not expressly articulate the removal of
nominated members from the House. Was this omission by design or default? Can
it be argued that constitution did not contemplate the removal of nominated
members, save for the usual justifications such as bringing the Assembly into
disrepute, criminal or moral culpability to the extent that it is reasonable to adjudge
that a certain MP no longer has the moral authority or standing to continue to
occupy a seat in the Assembly of the “Nobles”? If that were the case, I cannot
think of anything more legal and lawful than the Assembly itself, passing a statute
to determine how a nominated member may lose his or her seat in the House and
the procedural requirements of any such law. This will be akin to the power vested
in the Assembly under section 92 in relation to the recall of elected members.
Perhaps, it may be that, derived from the rationality of the purpose of having
nominated members, the constitution did not envisage the removal of nominated
members because they represent not individual constituencies but the entire nation
as their constituency. Even if we suppose that just like their elected cohort,
nominated members may also be removed from the Assembly, nonetheless, in the
absence of any express constitutional provision authorising such an action, then
only the Assembly can pass laws governing this and how it will operate
procedurally. Then the Supreme Court to have the power to determine its
constitutionality. Certainly, it is not and should not be the concern of the President
how any MP is to be removed from the House. The fact that the President believes
that simply because he nominated, he has the legal authority to remove a person be
nominated, reveals the fundamental flaws in the whole exercise. The President
erroneously believes that as the nominating authority, in the absence of definite
constitutional guidance on the subject, he has the legal authority to remove a
nominated member from the Assembly.

In the absence of any express constitutional provision vesting in the President the
power to remove, his power is limited to nomination and not more. Once a
nominated candidate takes an Oath of office, he or she becomes a bona fide
member of the Assembly and anything to do with his or her removal should then
become an issue for determination by the Assembly itself and not the President. If
the President were to be legally able to yield such power, it will not be far-fetched
and irrational to foresee a situation where in every Parliamentary term, the
President can nominate and dismiss as many NAMs as he pleases if the nominated
members vote against his bills or become mavericks in the House. Can you
imagine such a situation? That will not only be politically damaging and
disruptive, it will undermine and weaken the very foundations and principles of the
separation of powers and parliament’s sovereignty, never mind our democracy.

The sovereignty of Parliament is common in most common law jurisdictions and


beyond. Section 63(3) of the Constitution states that “A person elected as President
may at any time during his term of office be removed from office if a no
confidence motion is passed in the National Assembly supported by two thirds of
the members of the National Assembly.” This is not unique. Article 95(5)(a) and
(b) of the Kenyan Constitution gives the Kenya National Assembly power to
review the conduct in office of the President, Deputy-President and other State
officers and also the power to initiate the process of removing them from office; as
well as the exercise of oversight of state organs. All over the world, it is generally
the House that prescribes the grounds and process of removing members and such
a power is not vested in the President.

The Speaker of the House is a nominated member just like Ya Kumba Jaiteh.
Section 93(3)(b) of the Constitution provides that the Speaker and the Deputy
Speaker shall vacate their respective offices “if he or she is removed from that
office by a resolution of the National Assembly supported by the votes of not less
than two-thirds of all the members of the National Assembly.” I argue that in the
absence of an express constitutional provision regarding the vacation of the other
nominated members, it is reasonable and logical to take a cue from this section’s
procedure and conclude that the vacation of all nominated members should be
initiated and determined by the House and not at the temperament of the President.
There certainly has to be a strong safeguard against executive encroachment on the
Parliamentary terrain.

According to section 76(2), “In addition to the powers conferred on him or her by
this Constitution, the President shall have such powers and responsibilities as may
be conferred on him or her by or under an Act of the National Assembly.”

Section 77(2), regarding the executive power and the National Assembly, provides
that “The National Assembly may request the President to attend a sitting of the
National Assembly for the discussion of a matter of national importance”.

Section 77(4) states “The Vice-President shall answer in the National Assembly for
matters affecting the President, and the President shall be entitled to send a
message to the National Assembly to be read on his or her behalf by the Vice-
President.”

By section 63(3), the National Assembly has the constitutional power to remove a
President at any time by two thirds majority vote in the House. The fact that the
constitution gives this power to the National Assembly reinforces the supremacy or
at least the sovereignty of the House in our political matters. There is nothing,
anywhere in the constitution that gives the President any power to remove an MP,
be it elected or nominated. It is also clear from section 76(2) that apart from the
Constitution, Parliament is the source of the President’s powers and responsibilities
through laws that it may pass relating to executive powers. The President’s powers
are either derived explicitly or to a lesser extent implied from the Constitution, and
Acts of Parliament. It will be self-defeating and contradictory for the President to
be given the power to nominate and remove MPs from the same Parliament that
the President derives his powers.

Similarly, section 77(2) also gives the Assembly power to request the President to
attend proceedings in the House in any deliberations of national importance. This
provision states that the Assembly may, at its own discretion, invite the President if
it deems it necessary. This lends to the argument that the constitution gives
Parliament powers to exercise an oversight role over the Executive. There is no
provision anywhere giving the President power to invite MPs to answer questions.
That role is only limited to Parliament. The Assembly may summon the President,
through the Vice-President, to answer questions before the House under section
74(4) and there is a mandatory and not discretionary duty on the Vice-President to
answer any such questions or issues raised on matters relating to the President.
This is the role of Parliament in the exercise of its political and legal accountability
of the executive. All things being equal and for all intents and purposes, the
constitution did not envisage the executive, the President for that matter, to have
legal power and control over the Assembly because that will be a very dangerous
precedent. To argue therefore that the President has the power to remove an MP
from the House lacks any serious legal and political reasoning and judgment. That
will be inconsistent with the letter and spirit of the constitution.

The executive is central within the constitution. The fundamental role of the
executive is making and implementing policy and that is important.
Notwithstanding, the executive must be accountable insofar as the the exercise of
its powers. This brings us back to the separation of powers. Conventionally,
government, i.e the executive, is generally held accountable by legal means
through the courts and political means by Parliament. The courts rely on well-
developed principles of law to ensure good governance within the ambit of the law,
e.g affected individuals may file claims against government for declarations or
seek certiorari, mandamus, habeas corpus or judicial review proceedings etc.
Parliament on the other hand, in carrying out political accountability, may require
Ministers and senior government officials to appear before the House and justify
their actions. This mechanism, although a clear paradox, raise the issue of the
relationship and power dynamics between legal and political interpretations of
constitutionalism.
This allows the separation of powers to function without concentrating so much
power in the hands of one organ of government. If there were only legal
accountability, the Judiciary will be entrusted with unequal power and it may
therefore abuse its power. That is the reason why Parliament is entrusted with
power to hold the executive politically accountable. It will be irrational and
illogical to conclude therefore that the President has both the legal and political
power to remove a nominated member from the House. I am not naïve. I admit
there is no absolute separation of powers in any democratic system. However, in
the Gambian context, much like elsewhere, if the President were to have powers to
remove MPs, that will be giving the executive unparalleled power. English
Philosopher John Locke warned “it may be too great temptation to human frailty
…. for the same person to have power of making laws, to have also in their hands
the power to execute them, whereby they may exempt themselves from obedience
to the laws they make, suit the law both in its making and execution, to make their
own private advantage.” The concept of responsible government means powers of
government are scrutinised by a mixture of forty-eight democratically elected and
five constitutionally nominated Parliament to whom every member of government,
including the President, is individually and collectively responsible.

Some legal commentators argue that section 231 of the constitution gives the
President power to revoke nomination. Section 231(1) provides:

“Where any power is conferred by this constitution to make any


proclamation, order, regulation, rule or pass any resolution or give any
direction or make any declaration or designation, it shall be deemed to
include the power, exercisable in like manner and subject to like condition, if
any, to amend or revoke the same.” ………

Section 231(2): “Where any power is conferred by this constitution on any person
or authority to do so or enforce the doing of any act of thing, all such ….

Section 231(5): “Without prejudice to the provisions of section 167, but subject to
the other provisions of this constitution, the power to make any appointments to a
public office includes the power to dismiss any person so appointed.”

Section 231(5) is primarily concerned with the appointment and dismissal of public
officials. It will be useful to know what section 167(a) states and it is as follows:

“power to appoint any person to hold or act in any office in the Public Service
shall include the power to confirm appointments, to exercise disciplinary
control over and to remove persons holding or acting in such offices and to
re-appoint or reinstate any person appointed in exercise of the power in
question unless such power is expressly or by necessary implication vested in
some other person or authority;

Section 167(b) provides that “power to remove an officer in the public service
shall include power to require such officer to retire from the Public Service.”
Effectively, both section 231(5) and section 167(a) and (b) are specifically limited
to the appointment and removal of public officials, those who work in the Public
Service. The next logical issue to address is whether NAMs are public officials and
work in the Public Service.

Chapter XI of the constitution deals solely with the Public Service: Officers in the
Public Service and section 166(1) in respect of Public Service states:

“Subject to an Act of the National Assembly, the Public Service of The


Gambia shall comprise the civil service as established immediately before
this Constitution comes into force and the offices declared elsewhere in this
Constitution to be offices in the Public Service.”

Section 166(3) states: “For the avoidance of doubt, it is hereby declared that an
office in the public service includes the office of judge of a superior court, and of
any other court the emoluments of which are payable out of the public fund of The
Gambia, and the office of a principal representative of The Gambia abroad”

Section 166(4): “In this Constitution, an office in the public service does not
include-

(a) The offices of the President, Vice-President, Speaker or Deputy Speaker


of the National Assembly, Secretary of State or a member of the National
Assembly.”

It is as clear as blue skies that for the purposes of section 231(5) and section 167(a)
and (b), a member of the National Assembly is not one who works for the Public
Service or considered to be an official of the Public Service. Therefore, the
appointment of any individual in the Public Service or the exercise of disciplinary
control over such persons and to remove officials holding or acting in the Public
Service does not affect NAMs in any way because they are not categorised to be
working in the Public Service or considered Public Service officials. Consequently,
NAMs are not caught by sections 231 and 167. Further, if NAMs were considered
to be officials under the Public Service, this would have been expressly stated in
section 166(3) but the fact that it is explicitly spelt out in section 166(4)(a) means
that the constitution does not even remotely suggest for a moment that NAMs may
be nominated and dismissed at the whims and caprices of the President.

Section 80 states that “Subject to this Constitution and any Act of the National
Assembly the President may constitute any public office for The Gambia and make
appointments to such office and terminate such appointments.” The caveat here is
firstly, provided he acts within and as prescribed by the Constitution; and secondly,
any statute passed by the National Assembly giving the President necessary power,
may hire and fire officials deemed to be public officials and working in the Public
Service pursuant to sections 231(5), 167(a) and (b). The Constitution is very clear
on those deemed to be occupying public office. I would also like to point out that
appointment is different from nomination. Generally, the appointing authority
retains a residue of power to terminate appointment of the appointee. This is
because appointment is concerned with giving; appointment into a political office
or senior government position. Nomination concerns naming a person for a vacant
post or office. It presupposes that once the nominee has been confirmed, the
nominating authority no longer possesses any power to circumvent the post-
confirmation process. This is the reason why the forty-eight elected and five
nominated members must take their Oaths before the Speaker before formally
assuming their seats and tenure as MPs as required by section 88(2) of the
constitution.

Role of Supreme Court

What is the role of the Supreme Court in this constitutional and political
conundrum? It appears, from the face of it, that there is an impasse. This is the
more reason why this is a test case to an extent and the outcome will have serious
ramifications on the trajectory of our democracy or the lack of it. The Supreme
Court has serious questions to ask and the answers are not only found in the
constitution but in political conventions and normative practices elsewhere. If the
Supreme Court were to hold that the attempted removal of Ya Kumba Jaiteh is
unconstitutional, this will send a clear message to the President that he may not act
as he wishes and that there are proper structures to check and balance the exercise
of his executive powers. The outcome will be far reaching. On the other hand,
should the Supreme Court decide that the attempted removal is constitutional,
which I doubt in my own opinion, then the next logical consideration is whether it
is politically expedient for the President to remove a nominated MP at his own
behest without Parliament’s involvement? So the considerations here should touch
on the issue of legality and legitimacy.
In this context, legality is concerned with the lawfulness of the attempted removal
within the scope of the law. Legitimacy, which I believe trump legality, is
concerned with the moral rights and political authority, in the spheres of our
political dispensation so far as the exercise of executive power. I still believe that
the main issues here are both legal and political and both are mutually interlinked
and indivisible. If the Supreme Court were to hold that the attempted removal, and
it is not a revocation of the nomination as that ship has sailed, the nomination stage
lapsed immediately after she took her Oath before the Speaker in the House, is
valid, the message to the President will be that he has a wide margin in terms of
pushing the limits of his powers. This is dangerous. Power corrupts and
uncontrolled or absolute power is a danger to any democracy and rule of law, most
especially our democracy at its infant stage, having snatched ourselves from the
wicked jaws of a brutal dictator just over two years ago.

On the issue of legality and legitimacy, I shall argue why I believe that legitimacy
overrides legality. As controversial as it may sound, I still maintain that the attack
on State House on December 30th 2014 to remove Yahya Jammeh was legitimate
for the following reasons. Yes, the Jammeh government was clothed with legality
because there were elections which he won, the fairness of which is another debate.
However, the sovereignty of a nation lies in its people. There is an obligation on
the state to respect the human rights of people within its borders. If a government
then abuses the rights of its people systematically, then its loses its sovereignty and
legitimacy to govern and therefore any attempt to remove its political leadership by
coerce means is legitimate even if it is illegal. This is a new doctrine that Kofi
Annan advocated. In 1999, during the Balkan crisis, while the Serbs were
committing ethnic cleansing against the Kosovars, China and Russia in the
Security Council vetoed the authorisation of the use of force under Article 42
(Chapter VII of the United Nations Charter). NATO, led by the U.S and U.K,
intervened to avert a humanitarian catastrophe.

There was no dispute that the NATO intervention without express Security Council
approval was illegal under international law. However, instead of wide
condemnation, the intervention was hailed as legitimate by international lawyers
and academics because the purpose of the intervention was to stop ethnic cleansing
and thus, morality (legitimacy) overrode legality especially if legality was used as
a pretext under the guise of territorial sovereignty under international law to
commit crimes against humanity and ethnic cleansing of Kosovars. Therefore,
since the Jammeh regime was brutal and destroyed all institutions of the state and
abused the human rights of the citizens at a massive scale, his government lost all
legitimacy and it was morally acceptable to remove him by use of force to restore
human rights. The analogy is, legitimacy can prevail over legality.

Similarly, authority, I argue, is intrinsically associated with respect, which in turn


creates legitimacy that results in power. It means therefore, that authority leads to
respect which leads to legitimacy and that ultimately leads to power. Government
must possess authority derived from the people in order for it to govern
legitimately. In contrast, power is the capacity to do things that one wants and for
people to do those things even if they disagree or don’t want to. So while the
President may use his power(s) to do what he wants, even if these are against the
interests of the people, Parliament has the authority, derived from the sovereign
will of the people who elected them, to resist the abuse of power through its
oversight and political accountability roles. And the courts through legal
accountability. It is therefore important to ask if the actions of the President are
legitimate. Should the President be allowed to remove a NAM simply because he
or she criticises or insults the President? There is nothing wrong with insulting the
President. He or she is our servant. Once he or she decides to put himself/herself
forward for election, by his/her own choice, then we the electorate should have
every right to criticise without boundary. It is nonsense to put our political leaders
on pedestals, like they are “Gods” or sacred supernatural beings.

For far too long, as a child, I used to hear that you don’t insult “mansa.” Actually,
the real “mansa” is us who vote them in, the power resides in us the “people”. It is
complete rubbish how we worship our elected officials in this country. I don’t
know whether these are some of the colonial traits that we inherited but it needs to
stop. If the President were to have the power to sack a nominated NAM on basis
that he or she criticised, insulted or is a thorn to the President, then are we saying
that once you are nominated, you are deprived of the right to critique the President
or vote against his bills in the House? Ya Kumba Jaiteh is one of the most hard
working and useful MPs. She is one of those MPs that puts the nation’s interest
first in the House, hence the more astonishing why the President should even
contemplate removing her. Perhaps she is just a ‘casualty’ in a bigger cold war at
the helm. May be the President is sending a coded message, and one which is less
to do with Ya Kumba but more to do with the fractured relationship between the
one-time novice and his political mentor.

Section 5(1)(a) of the Supreme Court Act gives the latter exclusive original
jurisdiction for the interpretation or enforcement of any provision of the
Constitution with the exceptions of sections 18-33 or 36(5) which relate to
fundamental human rights and freedoms of which the High Court has original
jurisdiction.

Section 5(1)(c) of the Supreme Court Act gives the Court the power to determine
whether an MP was validly elected to or vacated his or her seat in the National
Assembly.

In Sallah v Clerk of the National Assembly (2002-2008) GLR Vol. 1, the


Supreme Court stated:

“Every court, including this Supreme Court, is accountable to the people of


the country for whom it provides services and on whose behalf the courts
exist and operate. We administer justice to ensure the realization of the
aspirations of the people…..”.

This assertion by the Supreme Court is in tandem with section 1(2) of the
Constitution which states that “The sovereignty of The Gambia resides in the
people of The Gambia from whom all organs of government derive their authority
and in whose name and for whose welfare and prosperity the powers of
government are to be exercised in accordance with this Constitution.” It means
therefore that all the three organs of government “borrow” their power from the
people and on whose behalf they exercise those powers. While the Constitution is
supreme in terms of laws that govern us as enshrined in section 4, Parliament is
sovereign because NAMs are representative of the people and the sovereignty of
our country resides in the people.

The Supreme Court has a momentous task. They have to decide, in dutifully
fulfilling the ideals and aspirations of the people, whether it is justice that the
President should have the power to remove a nominated member from the House. I
would have thought that wise counsel would have seen the President seek
clarification on the issue from the Supreme Court first before attempting to remove
a nominated member from the House. It shows bullishness and a lack of respect for
both the House and the Supreme Court. The fact that the letter to Ya Kumba Jaiteh
was not even on an official O.P letterhead implies how the President and his
counsel of “wise men” judged the attempted removal as nothing more than trivial.
Who dares question the President’s order? This is not a trivial issue and it should
not be treated as such. Had the President notified the Speaker or the Clerk of the
National Assembly of his lack of faith in a nominated member, and for any
attempted removal to emanate from the House itself through notification by means
of a petition by the MPs themselves, one could perhaps forgive him for at least
allowing the House to decide the issue openly in the House.

Again, the President, despite strong public criticisms regarding the appointment of
the former Vice-President Fatoumata Jallow Tambajang about her age, paid no
attention almost as if he was oblivious to peoples’ discontent. The President thus
has propensity to defy the people and the constitution. As far as I can remember,
that issue was not brought before the Courts. May be this added another ‘feather to
his bow.’ It reveals why we were complicit then and if we allow the same thing to
happen again, we as a people, will let ourselves down and expedite the creation of
another autocratic leadership. Did the Gambian people aspire that the President
should have such powers in the absence of an express provision in the constitution
in section 92?

There are serious political issues to consider and the decision will either shape the
longevity of our democracy or accelerate its slow death. It also means that the
primary duty of the Court will be justice as per the aspirations of the people.
Justice is not an abstract concept. It’s relative and ought to be tangible. I hope the
Supreme Court will not just gloss over the issue superficially but engage with the
tough and difficult issues substantively and address them accordingly. The Court
has the power to rein in on the executive and they should not hesitate to do so
should they come to a conclusion that the actions of the President were ultra vires.
Yahya Jammeh sent the Judiciary into abyss because it did not do enough to
sufficiently insulate itself from his excursions. It should never allow that to happen
again. Like the saying goes, the courts are the last bastion of democracy and hope.
That trust in the Judiciary and the Supreme Court should not be lost on them.