"In search of The Gambian character" by Cherno Njie

Cherno M. Njie

Cherno M. Njie,  Guest Blogger
Austin, Texas. 
October 27, 2018
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From where I sit, the acceptance of an anonymous donation of fifty-seven pickup trucks by members of the National Assembly, channeled through President Barrow, was a troubling sign of the lack of judgment of our elected officials, with few exceptions. It was also an early indication of the latent corruption in the executive branch. The recent furor over the payment of a ten thousand dalasis monthly stipend to some UDP members confirmed, if anything, that a compromised legislature – the branch of government closest to the people – cannot adequately protect our liberty and ensure democratic accountability.

That President Barrow and the legislators have been able to get away with this behavior thus far is a sad reflection of, as it stands, the Gambian character, or lack thereof. Excuse my moral scolding. But I must continue: has not the leader of the UDP and his supporters vociferously defended, excused and justified Barrow’s vehicle “donation?” Stunningly, those same partisans now decry Barrow’s cash payments. What, may I ask, is different ethically between the two incidents to provoke such varied reactions? Hypocrisy, goes the saying, is the tribute vice pays to virtue. To make matters worse, Honorable Darboe, in a fit of misguided loyalty, encouraged Barrow to jettison the coalition agreement’s three-year transition term. He acted dismissively, as if the authors of the accord were unaware of the five-year presidential term in the Constitution. The Vice-President doubled down and threatened to take legal action if President Barrow was held to a three- year term. Thus, the guardrails erected to ensure a disciplined and effective transition were greatly weakened.

When asked by the journalist Omar Wally how he could reconcile his recent proclamation of a food emergency for the country with the profligate travel expenditure of President Barrow, the Vice-President responded that he would need to inquire if the private jet was leased by Barrow himself or the government. While I understand the political jockeying by the two UDP protagonists, and the Vice-President’s momentary tactical disadvantage, these are uncharacteristic political and moral lapses of immense proportions and reason enough that the truth and the national interests – which should be focused on reform and renewal -- must not become a casualty of this internecine tussle. To say that I was deeply disappointed is to admit that I held the Vice-President to much higher ethical standards than the President. He has sacrificed much professionally and personally in a long and honorable struggle for freedom. But his actions have consequences.

Is it any wonder that an emboldened President Barrow, buoyed by his political “godfather’s” blessing, would now want to ride roughshod over anyone who dares to contest his nomination as the UDP candidate in the next presidential election? Unfazed by public outcry for answers, he stayed mum over the large sum of money remitted to the account of the First Lady’s Foundation. And this is only what we have public knowledge of. The belated attempt by the Minister of Information to explain the source of these funds is a fairy tale, only one less credible than the Saudi Arabian fairy tale on the disappearance of the journalist, Jamal Khashoggi. At least that tale has a Prince. It is tempting to regard Barrow’s behavior as UDP’s just reward, but that would be shortsighted. For this goes further than intra-party politics, and strikes at the heart of our nascent democracy, with implications for national institutions and our fragile political culture. A President disinclined to follow his own party’s rules, and whose ethical lapses are boundless, cannot be expected to be scrupulous in abiding by the Constitution and the nation’s laws. We all now have a stake in restraining this naked power grab run amok.

With our zeal for the New Gambia, we seemed to have forgotten what it was that got us here in the first place. To watch the daily parade of Gambia’s leaders and political elite appear before the Janneh Commission is to witness a procession of alibis and abdications. Surely, these are not all bad people. Yet I cannot help but feel that something has gone awry in our public comportment; something inside has dissolved, succumbed to cynicism and a habit we have developed for indulging helplessness. There is scant moral fortitude. Only look around. The nations that we admire, that we seek to emulate are not perfect, but never are they built upon cultural decay and maintained through moral faint-heartedness. A nation that holds Imam Baba Leigh in equal esteem with the Imams of the Supreme Islamic Council – who gave succor and legitimacy to Jammeh – or regards them as interchangeable, lacks moral depth or self-reflection. A well-functioning society, besides the law, employs moral reproach to sustain, encourage, and elevate what is good in all of us over what is corrupting. When, on the other hand, unsavory fixers of the Jammeh regime sit at the right hand of Barrow, the President may speak with little moral authority.

In case you think these lapses of character are a recent phenomenon, I would remind you that President Jawara, after three decades in power, was persuaded from resigning (if he meant to do so), by PPP stalwarts based on the quaint idea that he was indispensable to the nation. The graveyards, De Gaulle remarked, are full of indispensable people. The failure of leadership has been the rule at pivotal moments in our history, those moments precisely when we needed leaders who were high-minded. It appears, that in discharging the duties of high public office, we tend towards personal gain and the absence of moral courage -- the courage to do what is right for the country.

As a small, close-knit community, the theory goes, we are conditioned to “maslaha,” to want to get along and avoid tension. After all, how can one be disagreeable or judgmental with a fellow citizen if he is a friend, relative, acquaintance, or neighbor you may encounter or socialize with? If we accept the premise, it should too work the other way around. We should be restrained from the misuse of public resources, incentivized to further the national interest or inhibited in flaunting ill-gotten gains. But we know this is not the case. So, we practice a distorted situational ethics by excusing behaviors in some that we condemn in others. We remember an African proverb, that the gorgeous dress of a thief is not a garment of honor. In Gambia, such garments are worn with considerable flourish, eliciting not scorn, but adulation. There is an apt Wolof proverb for this :Nit ku amul jomm, amul dara (A person without honor does not have anything).

I have a long-held fantasy that one day, I will wake up to the news that a prominent public official has resigned on a matter of principle. Perhaps -- just perhaps -- that will begin a cultural shift towards a new ethos of public service infused with radical truthfulness. So, as we inaugurate the TRRC and CRC, let us reflect on what it means to be a Gambian. What values do we want to carry with us? A constitution is only as good as the cultural and societal values of the people it is meant to serve. It does not work in the opposite direction. As the American Justice Scalia once said: every banana republic has a Bill of Rights. To build the Gambia we want, we must be true to ourselves. There are no shortcuts. Character, Integrity, Principle, Courage: they all matter!

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'Stena Drillmax' arrives in offshore Banjul

FAR's Blocks A2 and A5

Stena Drillmax Offshore Banjul 

The Gambia''s Ministry of Petroleum and Energy issued a press release announcing the arrival of the UK-registered drillship 'Stena Drillmax' and onsite to commence the drilling of exploration well in Block A2.

An Australian Security Exchange listed oil and gas exploration and development company known in the industry as FAR is in venture partnership with Malaysia's PETRONAS to eventually develop Blocks A2 and A5 that cover 2,862 sq km located within the Mauritania - Senegal - Guinea Bissau (MSGB) Basin.  The area lies about 30 km offshore in 50 - 1,500m water depth identified by FAR to contain an estimated 1.1 billion barrels of crude.

According to the release, Stena Drillmax arrived on site on Monday, 22nd November and after standard pre-drill operations, the well was successfully spudded on the day, signalling the start of the drilling of the test well.

Mindfully of recent criticisms leveled against the government, the Ministry issued an assurance that periodic progress reports will be provided to the general public "as and when necessary and available."

In a separate release, the Petroleum Ministry stressed the fact that the current operation is an exploration exercise to determine whether commercially exploitable resources exists in the area or not. The exploration well will be "drilled through 1,000 meters of sea water depth to a planned depth of approximately 3,100 meters...an extremely expensive financial undertaken", the second press release concludes.

Consultants recommend retrenchment of 79 SSHFC staff is reason for staff protests and unruly behavior

Momodou Camara, President Barrow, MD Manjang 

Addressing a letter to the Director General of the State's Intelligence Service (SIS), inviting him to intervene in a civil/staff matter is the latest act of insubordination by one Kebba Touray, staff of SSHFC, that borders on a threat to the national security. 

This same group of staff organized a demonstration, on company time, and marched to State House demanding the dismissal of the Managing Director who had been in office for less than a year and a half. 

When they didn't get what they wanted, they decided to occupy the headquarters premises of the corporation, padlocked the gates to the offices thus denying public access to a public building, an illegal act committed in full view of Gambia's Chief of Defense Staff (CDS), the Director General of the State Intelligence Services and the Inspector General of Police.

The campaign to have Mr. Manajang's services terminated resulting in open defiance led to President Barrow's decision to appoint a Panel led by Mr. Lamin Samateh, a retired civil servant who, during his three decade of service, had served served as Permanent Secretary, Personnel Management Office and at the Health Ministry among other key positions.  Other members of the panel include prominent Gambians with distinguished service both within the national and international civil services. including the United Nations and the African Development Bank. 

In presenting the Report of the fact finding Panel, Mr. Samateh's statement hinted at several outcomes of their investigations, suggesting the exoneration of Mr. Manjang as Managing Director among other outcomes that would not appear to be favorable to a small band of disgruntled staff who have sustained a well coordinated campaign to sully the reputation of a Gambian who has proven to be a competent and honest professional with a sterling investment banking career.  When the state-owned and -controlled television ran a banner that the Panel has exonerated the Managing Director, it sent the campaigners into a frenzy.

The SSHFC-sanctioned consultancy conducted earlier had reached similar conclusion about Mr. Manajang's competence to lead the corporation when it its draft report to the Board of Directors said "The consultants and authors of this draft report, as a result of observations and discussions, believe that such leadership does exist within the SSHFC", in managing the impending redundancy.  Of course, the far-reaching restructuring the consultants were recommending requires a strong, competent and decisive leadership and they found it among some members of the Senior Management Team (SMT) at SSHFC.

Among the consultants' recommendations were the retrenchment of 79 staff of the corporation, reclassification of other job titles, retraining of remaining staff and, of course, a severance package of affected staff.  Management was presented with two options of either retaining affected staff until the end of their contract or terminating the contracts with an accompanying generous redundancy package that will include notice pay, separation pay and other inducements. 

The financial mismanagement of the corporation that lasted for two decades, except at intermittent intervals when Jammeh experienced some resistance from senior management, "needs a makeover", to borrow the phrase of the consultants.  "This will involve continuous training, focused IT system, separation of investment and the financial management system, organizational and process restructuring, cultural change, new compensation and a new approach to performance management."

The extent of the "makeover" would require not only a cohesive and competent management team to lead the charge but it would require a strong and determined stewardship at the apex of the organizational chart.  And according to the consultants who have had extensive interactions and discussions with Mr. Manjang and senior management, the current MD fits the bill - a view, by our assessment, shared by the fact finding Panel led by the former Permanent Secretary of the Personnel Management Office. 

These findings and conclusions by a team of consultants and a group of eminent Gambians with extensive national and international experience have validated the widely held view that he current Managing Director must be allowed to continue his mission unhindered to implement the reform program of the Social Security and Housing Finance Corporation.

Government must urgently endorse the Panel's recommendation and allow Mr. Mohammed Manjang, staff and his Board of Directors to resume work so that they can, together start putting in place the reforms necessary to protect the interest of their clients - pensioners, prospective pensioners and the employers who are contributing to the corporation. 

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SSHFC senior staff: A very select and privileged class

In this post, we are going to cut through the chase and go straight to the numbers for readers to appreciate the magnitude of the challenges the Managing Director of Social Security and Housing Finance Corporation faced when he was appointed in March of 2017.  For previous blog posts on the subject, you can them here, here and here.

Staff of the SSHFC enjoy the following privileges in the forms of Building, Car and Personal loans.  Former staff members, although no longer with the corporation, still owe outstanding loans in one or a combination of the three types of loans cited. 

As at May 2018, the outstanding balances on the following loans are as follows: 1. Building D87 million at 3% interest  2. Car D20.8 million at 5%   3. Personal  D6.7 million.

Former staff members have an outstanding loans totalling D10 million for one or a combination of the three types of loans, an amount has not been serviced in the last several years.   The SSHFC Staff Club owes the corporation an outstanding amount of D2.9 million for organizing dances and shows like Youssou Ndour etc.

The total outstanding loans the staff owes SSHFC is D117.4 million as at May 2018.

The car loan scheme is subsidized for senior level staff, the cost of which is shared 50/50 with corporation after every 5 years.  Unfortunately, this privilege was generally abused in the following fashion.  Instead of accessing the facility every 5 years as intended, senior staff were accessing it every 3 years and by buying cheaper cars than they claim in their application.

For example, a staff member will take a D400,000 car loan to which the corporation adds D400,000 for an D800,000 car but the staff will instead buy a D300,000 car and pocket the D500,000 knowing full well that in about three years another loan request will be made.

On the building loan, a condition is placed on buying fire, allied perils and life insurance but they were not taking any cover.  Obviously, these problems were beginning to be addressed by the new MD which was being resisted by staff.

Another privilege that was subject to abuse and which was being addressed is what is called "free  deduction months".  These are months when no loan deduction is made such as Christmas, Tabaski, Ramadan etc. amounting to 5 to 6 months a year. 

The impact of this free deduction months is it inevitably extends the repayment period by up to 10 years which means 10 extra years of low interest accruing to the borrower and 10 years of lost interest to the corporation that is extending the privilege at subsidized interest rate.

The decibel levels are high because Director General Manjang had embarked on a reform program that would have affected the above privileges in addition to the staff restructuring - an absolute necessity - as recommended by the consultant. 

We expect Mr. Manjang to resume duties soon so that he can start addressing the mounting problems of the corporation he inherited from the Jammeh administration. 

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How Ocean Bay Hotel and Resorts and Sun Beach Hotel continue to cost SSHFC millions in revenue

Nicolae Bogdan Buzaianu

Nicolae Bogdan Buzaianu is a naturalized Swiss of Romanian origin who has been described as one of Yaya Jammeh's least-known but highly consequential business partners and a central figure in partnering with the former-dictator to plunder the country's wealth.

He is also owner of Westwood , a company found to be in cahoots with Jammeh in the illegal exploitation of Senegalese redwood timber for export, causing environmental havoc as well as threatening the diplomatic relations between neighbors. 

Prior to venturing into The Gambia, the Swiss-Romanian was alleged to have been involved in a 7 million dollar gold-smuggling ring that was unearthed.  A sizeable amount of gold was seized by the Zambian drug squad in 2007.

The late Zambia  President Michael Sata implicated Mr. Buzaianu which led his to threaten to sue the government of Zambia for $100 million which he never carried out.  He, instead, returned to Switzerland before trying out Gambia as a business destination.

Records show that both the Ocean Bay Hotel and Resorts and Sun Beach Hotel were leased to the BP Investment Group FZE (BPI), a company believed to belong to the Swiss-Romania,

Ocean Bay Hotels and Resorts (OBHR) was leased for an initial term of 10 years from 1st December, 2013 and Sun Beach Hotel was leased for 15 years 10 months from 9th August, 2016.

OBHR monthly rental:  The monthly rental for OBHR was 13,000 (thirteen thousand) Euros payable quarterly in advance for the first five years increasing to Euro 14,000 per month for the second five years.  The lease agreement also stipulated that any and all investments made by BPI in the physical structure of the OBHR during the term of the lease shall be deducted from the monthly rent up to a maximum of 6,000 Euros.

Sun Beach Monthly rental: The monthly rental of Sun Beach is the sum of $10,000 from 1st November, 2016 to 31st December, 2021 increasing to $12,000 from 1st January, 2022 to 31st December, 2026 and to $15,000 for the remaining duration.

BPI was to take Sun Beach on an "as is" basis and be responsible for all renovation and remodelling at its own expense and spend not less than 2 million Euros in accordance with its own renovation schedule/plans.  BPI failed to honor this commitment.

In March, 2017 under the new Managing Director, SSHFC decided to review the investments and decided that the consideration was scandalous, extortionately low and detrimental to SSHFC investment returns.

The returns on investments (ROI) for Ocean Bay Hotel and Resorts never reached 1%.  The rage was from 0.8% - 0.9% per annum.  BPI since inception of the OBHR lease 31st March, 2017 were paying a monthly rental of 7,000 Euros which means they were deduction automatically 6,000 Euros for  purported renovations/ remodeling without prior consent of SSHFC.

ROI for Sun Beach was 2.55% annually.  The poor returns on investments together with the fact that BPI was at the time owing SSHFC several months rent arrears nd woefully falling short of meeting its other obligations such as payment of utility bills, led the SSHFC management under Mr. Manjang to terminate the leases.

In August of 2017, the corporation instructed its solicitors to issue notices of termination which was challenged by BPI in the High Court to prevent SSHFC from reentering the hotels.  In May 2018, the case in the High Court was struck due to non-diligent prosecution. 

The Social Security and Housing Finance Corporation is prepared and ready to re-enter the hotels, according to sources, but the Commission of Inquiry into the illicit wealth of Yaya Jammeh has placed them under receivership.  The corporation has tried unsuccessfully to discharge their order.  Meanwhile, SSHFC has an offer of 1.2 million Euros annually for the two hotels which they cannot pursue further because of the current status of the hotels.

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SSHFC serves as a social safety net to over 400,000 Gambians and their dependents.

Sidi Sanneh 

Politics, by its very nature, is corrupting.  This is so because the liberal use of misinformation and outright falsehoods has become an acceptable sin of the trade.

Misrepresenting the truth, or more bluntly, an outright lie in politics is, therefore, tolerable, to some degree, and to the extent that the truth is stretched beyond the breaking point.

However, to the extent possible, deliberate misrepresentation of facts by politicians and non-politicians alike that will impact public policy negatively is unacceptable and intolerable.

The establishment of the Social Security and Housing Finance Corporation is one of the crown jewels of Sir Dawda Jawara's presidency, representing a profound public policy statement that became under threat during the dictatorship of Yaya Jammeh.

We have written numerous blog posts about the corporation because of the critical role it can play in providing the necessary safety net as well as generate investment income to contribute toward the government development efforts.  However, as we see in previous posts that you can find here, here and here that potential has been withered to the point of bankruptcy.

Although the corporation has not been rendered insolvent, it has been affected significantly and has, in the process, let down the many Gambian retirees and their dependents because of the corporation's inability to meet its fiduciary responsibility of meeting the pension payments in a timely fashion to so many Gambian retirees.

In fact, the 400,000 Gambains and their dependents have become the unwilling casualties of the recent crisis - a self-inflicting one at that - by a handful of staff who, we now know, were concerned that careers at SSHFC was threatened after the "Institutional Assessment and Human Resource Audit" consultancy, the outcome of which included recommendations that were to include retrenchment and other rationalization management actions.

These pending management actions resulting from the consultancy obviously made some members of staff nervous of the likelihood of being affected by a rationalization exercise that led to the demonstrations and other strike actions that were found to be illegal by the Panel.

Throughout the crisis, the disgruntled staff and their supporters have been citing the 200-odd staffers (a figure that has yet to be verified) that have been denied their right to demonstrate.  This claim is not only frivolous but galling because the staff who protested up to the State House and blocking public access to a public building - all on company time ( i.e office hours ) - were breaking every rule in the book as well as the law.

Now that the Panel's report is out and some of the major recommendations appear to be not in favor of the disgruntled staff, those who illegally demonstrated and blocked public access and their supporters are now suggesting that the large size of the striking staff warrants that they stay and the Managing Director to be dismissed or transferred, among other unreasonable demands.

In fact, the release of the Panel's report has resulted in the disgruntled staff upping the ante by addressing a letter to the Director General of the State Intelligence Service urging him to use his "honorable office and position [emphasis ours] to avert any potential escalation of the tension that may threaten the peace and security of this...institution and our country as a whole."  The unsigned letter written by one Kebba Touray and published online was pulled down reportedly at the instruction of the author.  Why?  It's anybody's guess.

Whatever their motivation, their insistence on elevating a purely managerial/business matter into a national security issue by a handful of disgruntled staff and their supporters is a matter of grave concern because their behavior is a mark of an unhinged group whose bizarre behavior must be checked and, those found to have broken the law, disciplined as recommended by the SSHFC Panel.

Kebba Touray's letter justifies our concern at the presence of the Chief of Defense Staff, the Director General of the State Intelligence Service and the Inspector General of Police at SSHFC headquarters to plead with striking staff members who were blocking public access and thus breaking the law.  By their mere presence at what amounted to an industrial dispute, these service chiefs were inadvertently elevating a civil into a military/security matter.  The Barrow administration is not a military administration.  We must therefore keep the military and the security services out of law enforcement and civil matters.   

That said, and in moving forward, we must be cognizant of the fact that the primary mission of the corporation is not to pamper the staff but to deliver on the social contract it entered into with its client.  The corporation primary obligation is to the pensioners and not to corporate staff, a message that must be clearly and firmly delivered to every employee of the corporation - from the Managing Director to the office cleaner.

Since the striking employees and their supporters have been touting their number - about 200+ - despite the fact that less than a dozen took part in the demonstrations, we need to also show the number of people whose lives are also impacted in a much more profound manner: -

The Pension Fund comprising of largely parastatals has an active employer membership of about 58 and 13,600 employee membership, meaning that 58 businesses (private and parastatal entities), a very significant number, by Gambian standards, are contributing towards the retirement benefits of 5% of the 2 million Gambians.

The Provident Fund, comprising of mainly private sector companies, has just over 5,100 active employer membership with 123,000 employees.

The Industrial Injuries Compensation Fund is made up of Parastatals, Private Sector and Security Services with an active employee membership of 153,000.  This figure represents a consolidation of the membership of the Pension and Provident Funds plus the Security Forces.  In addition to these number, there are roughly 3,000 active pensioners, bringing the total sum of direct beneficiaries and their dependents to : 153,000 + 3,000 =156,000 x 3 = 468,000

If we assume that there are 3 dependents for every employee members, given that the employees are relatively young, 468,000 or roughly half a million Gambian lives are profoundly affected  and inextricably linked to the financial well-being of SSHFC which, in turn, is dependent on how the corporation is managed.  The number of a handful of disgruntled striking staffers pails when compared to over 400,000 Gambians and their dependents whose lives could be affected by staff disruptions or mismanagement of the resources of the Social Security and Housing Finance Corporation.

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The plundering of Social Security Funds and suggested mitigating measures needed in response

Hon. Samba Jallow, MP Niamina Dankunku

We are republishing this and similar blog posts on Social Security and Housing Finance Corporation as we look forward to a final resolution of the crisis and the resumption of duties of the Managing Director of the corporation. 

This blog post was first published on 5th October, 2017 
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The extent of the damage done to the social security scheme at the Social Security and Housing Finance Corporation may not be known for sometime to come.

And perhaps not until the Commission of Inquiry into the illicit wealth of Yaya Jammeh has completed its work and a thorough assessment of the financial damage inflicted on the corporation by the former Gambian dictator who is currently in involuntary exile in Equatorial Guinea.

Based on what the Commission has revealed thus far, it is safe to say that the Barrow government needs to take immediate defensive measures to protect what's felt of a once financially viable corporation that was established to secure the financial well being of private sector employees during their retirement years.

The social safety net that took years to build as insurance for older workers during retirement has been destroyed by a handful of Gambians, led by Jammeh and his business partners who used the financial contributions of private sector workers into the Pension Fund, Provident Fund and the Industrial Injuries Compensation Fund.

The extent of the damage done to the Housing Finance Fund, the third Fund of the SSHFC is still unclear as the Commission continues its probe.  Pay special attention to the Kanilai Housing Scheme.

Commenting on my Facebook page, Hon. Samba Jallow, the NRP Member of the National Assembly for Niamina Dankunku finally connected the dots, as did many Gambians, when he said, "Sidi Sanneh, this is why when pensioners apply for their pensions and are asked to stay three months before payments is matured."

He expressed the serious nature of the pensioners' predicament and solicited my views on what can be done to mitigate "a very serious" challenge for our country and a serious threat to the welfare of current and future Gambian pensioners.

There are a few defensive measures that could be taken even before the conclusion of the Commission's work to protect what's left of the financial integrity of the Social Security and Housing Finance Corporation :-

1.  Appoint an apolitical Management Team with proven managerial experience to replace the current team.  A new Board should also be appointed immediately.

2.  Restore the Ministry of Finance and Economic Affairs as the line Ministry to replace the Office of The President.

3.  Divest SSHFC of all of its 33% shareholdings in Trust Bank and any other commercial bank with the proceeds going towards replenishing the appropriate Funds of the corporation.  The same should apply to other SOEs with similar shareholdings in commercial banks.  Government should be out of the commercial banking business after divesting from the GCDB and closing its Agricultural Development Bank.

4.  Immediate action taken - legal or otherwise - to recover all outstanding loans due to SSHFC

5.   Bar Management from operating outside the Social Security and Housing Finance Act

6.  An oversight Committee needs to be established to ensure that SSHFC Management and Board are strictly adhering to the above until such time, and preferably at the end of the Commission of Inquiry's mandate and the submission of its Final Report and recommendations before remedial measures are taken to prevent this from ever happening again.

At the end of it all, the moral character of the person is as important as his competence and professionalism matters in such positions of responsibility.

Andrew Sylva comes to mind, who as Managing Director of SSHFC worked under Yaya Jammeh but refused to honor presidential directives that would have meant the inappropriate and illegal use of the finances of the corporation.  Mr. Sylva told his fiduciary responsibilities seriously and was dismissed as a result.  Jammeh initially refused him his pension dues only to reverse himself later.

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The Managing Director of SSHFC must be allowed to continue its reform agenda

Mr. M. Manjang,  MD, SSHFC

In the midst of several scandals swirling around the Barrow administration there was one bright spot, namely the Social Security and Housing Finance Corporation, where initial reform measures undertaking was beginning to show signs of a financial turn-around under the effective leadership of Mohammed Manjang. 

Unfortunately, the momentum that was building was interrupted by a handful of disgruntled staff who were clearly unhappy with the new management's cost-controlling measures including efforts by management to recover outstanding staff loans. 

The audited accounts of 2017, show a net operating profit of D83.5 million compared to 2016's loss of D26 million.  The cost management strategy that was put in place and rigorously implemented was also beginning to yield the desired effect resulting in costs being brought down by D88 million.  Prior to being sent on involuntary leave, the Managing Director revealed that "every single Fund was profitable in 2017 compared to 2016 when only the Pensions and Injuries Fund were profitable."

The panel appointed by President Barrow to investigate the causes of the disruptions at SSHFC concluded that the staff demonstrations, including the blocking of access to corporate headquarters were not in accordance to the law.  In citing the Labor Act,  the panel said the protesting staff contravened the law and recommended that disciplinary action be taken against them. 

In confirming that the MD found the financial and management distress, the panel did not attribute staff resistance to the cost-cutting measures being implemented but rather on management's decision to implement the recommendations of a consultant following an institutional assessment and staff audit which demanded a rationalization exercise that would necessarily involve retrenchment and redeployment among other measures.  Once this became known to the rest of the staff, they became agitated and thus the demonstrations. 

The panel shares the view with many Gambians that SSHFC needs reform desperately, especially after decades of bad governance.   In this regard, the panel recommends the implementation of the consultant's recommendations contained in the report entitled " Institutional Assessment and Human Resource Audit" conducted by Senghore Associates.

It is now time for the Barrow government put the crisis behind them by immediately reinstating the Managing Director and allowing the new Board Chairman and his rest of his Board colleagues to exercise their legally mandated duties, with minimal interference, under the SSHFC Act.           

The $750,000 scandal explained ... or was it?

Ebrima Sillah, Information Minister

We wrote recently that the extra-budgetary activities of President Barrow, perfected by Yaya Jammeh, pose not only a moral hazard but it is also a threat to the well established and universally applicable norms of the budget process.  This observation was made in connection with the D10,000 monthly stipend offered to some members of the National Assembly which some have alleged to have been a bribe to win their support in the president's attempt to win the presidential nomination of his political party.

The Gambia's Information Minister, Ebrima Sillah, was the first government official to address the $752,544.42 bank transfer that was deposited in the First Lady's foundation that carries her name - Fatoumata Barrow Foundation (FaBB).  The amount was electronically transferred from the industrial and Commercial Bank of China to the GTBank in Banjul via Hong Kong.  Although this transfer took place last December, it was not until August this year that it became known to the public that led to a barrage of questions from journalists. political pundits and opposition party operatives. 

The questions linger to date which led to the surprising attempt by the Information Minister to provide answers resulting, in our view, to more questions, casting doubt to the veracity of his account of events.  According to Mr. Sillah, when the president was about to travel to China last December, the officials realized five days before the trip that there was no money in the budget to charter the aircraft.  So they, presumably meaning the President's Office staff, decided to seek financial assistance from "friendly partners", one of which turns out to be a Chinese company angling for a contract with the government, to pay for the cost of chartering an aircraft from a Portuguese company to ferry the presidential delegation to Beijing.

Asked as to why the amount amount was lodged into a private Foundation created and led by the wife of the president and not in a government account, the minister explained that the Secretary General advised that the funds would not have been available in time to pay for the trip.  Therefore, the best option was to deposit the amount into the Foundation's account at the GTBank. 

The minister insisted that the "First Lady she was not even aware of it...she was never consulted" before the amount was deposited into an account.  Although she was a signatory to the account, the minister added, she never managed the account.  But when it became imperative to redirect the money to the aircraft leasing company, the First Lady had to step in to ensure that the transfer was effected.

Fatou Ceesay, FaBB Foundation 

Acknowledging the unorthodox - but not necessarily the shadiness of the - approach, financing the Head of State's mission to China that requires the involvement of a Chinese company poses a challenge to the Barrow government.  When asked the apparent conflict of interest and the ethical dilemma the financial transaction posed, the minister apologized profusely for the error in judgment for the government to chose this route of financing and admitted severally that the matter could have been handled better.  He further promised that, in future, the Barrow government he described as a "listening government", will not repeat the same mistakes again.

When the scandal first broke last August, eight months after the transfer from China was made,  Ambassador-at-Large Ms. Fatou Ceesay, a member of the Board of the Fatoumatta Barrow Foundation and an influential member of the Barrow circle, promised that an investigation will be conducted.  However, she immediately follow it with the warning that the Board was under no obligation to share the results of the investigations because the Foundation was a private entity and thus was not subject to public scrutiny.  What has changed?

Gambians are now being fed information that is presumably coming from State House, unless told otherwise.  When we contacted him to find out whether the customary government press release was imminent given the importance of the issue, the Information Minister, who was en route to the airport to join his flight home, told us that the answers he gave to the United Democratic Party's Bantaba TV interview program "were honest, based on what I know about the matter." 

If the minister's responses were based on investigations conducted by the State House, when will we get to hear from FaBB Board member Fatou Ceesay on the outcome of their own investigations, if different from the version shared by the Information Minister.  We look forward to hearing from her or a representative of the Board of Directors. 

In moving forward, however, the financial entanglement of the Foundation with State House is one more reason the private entity argument must be put to rest based on information shared by the Information Minister.  As we conclude this blog post, we'd like to leave our readers with the following question which we will pursue in subsequent installments: If the Fatoumatta Foundations is a private entity by law, why would a private entity provide its privately- held and -operated account for the purposes of funnelling funds from a state-owned public Chinese company to finance the foreign travels of the Head of State - a public official? 

The fact that the Finance Ministry appears to have been circumvented in these scandals suggests a far greater problem than meets the eye.

                                                                      ######

Note:  In subsequent blog posts we will be looking into the implications of the extra-budgetary activities of the State House and the challenges they pose in managing our public finances and the need to change our attitudes 

        

The Gambia: Constitutional Review Commission - Issues Paper

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Cherno Jallow QC, Chairman CRC 

It is great pleasure to share The Gambia's Constitutional Review Committee's Issues Document outlining some of the issues to guide the drafting of a new Constitution.

Persons may chose to respond to all or parts of the issues outlined in the Issues Paper.  Persons are also free to raise issues not covered in the Issues Paper.

Responses may be addressed in writing and addressed to the CRC at its headquarters at the Futurelec Building, Bertil Harding Highway, Kotu, KSMD.  Responses can also be sent via email at: crcgambia@gmail.com  Those residing in the Administrative Areas can submit responses to their respective CRC Coordinators in each Admin. Area.

All responses MUST reach the CRC Secretariat no later than the close of business day, 30th November, 2018. 

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CONSTITUTIONAL REVIEW COMMISSION OF THE REPUBLIC OF THE GAMBIA

POSSIBLE AREAS FOR CONSTITUTIONAL REFORM

            INTRODUCTION:

As part of the process of review of the 1997 Constitution of the Republic of The Gambia, the Constitutional Review Commission (CRC) has been mandated to draft a new Constitution and to prepare a report in relation to the new Constitution. The execution of this mandate requires the CRC to consult with Gambians and other stakeholders to seek their opinions on what they aspire to see included in a new Constitution for The Gambia. In that context, the CRC considers it relevant that, in order to aid meaningful dialogue on constitutional reform, it should identify issues to draw the attention of Gambians and other stakeholders on as a mechanism of initiating and gauging public opinion on those issues. That is the primary purpose of this document (referred to herein as the “Issues Document”); it raises issues to guide the drafting of the new Constitution.

Persons may choose to consider and respond to all the issues (formulated in the form of questions) identified below under the various headings. They may also choose to consider and respond only to specific areas of interest. All responses should be as clear as possible so that the opinions expressed are properly considered by the CRC.  

Responses may be provided in writing and addressed to the CRC at its headquarters at the Futurelec Building, Bertil Harding Highway, Kotu, KSMD. They may also be submitted by email to crcgambia@gmail.com Persons residing in the Administrative Regions who wish to submit written responses may do so through the CRC Coordinators stationed at the Regional offices or by email. Responses may also be made orally during the CRC face-to-face public consultations. Gambians in the Diaspora who wish to consider and respond to the issues may do so by either mailing their responses to the CRC at its headquarters or sending them by email to the CRC’s email address cited above. There will also be the opportunity to share their opinions face-to-face with the CRC Commissioners in the countries and regions the Commissioners expect to visit during the public consultation phase of their assignment.

It should be noted that some of the issues raised are of a technical nature (in square brackets and colour coded green) and may require a proper reference to the specific provisions of the 1997 Constitution in order to provide an appropriate response. Others relate to and have wider treaty implications. All of these and other matters will be duly considered by the CRC, but they are outlined here to provide an opportunity for persons who may wish to express opinion in relation to them. The CRC will place the 1997 Constitution online for reference purposes as soon as its website (currently under construction) is up and running.

Respondents are not in any way restricted to the issues outlined in this Issues Document. They may raise new issues not addressed in the Issues Document. They may strengthen some of the issues in different form and provide responses they consider appropriate. The ultimate objective in publishing the Issues Document is to initiate dialogue on constitutional issues that may assist the CRC in drafting a new Constitution for The Gambia.

Some of the issues raised relate to matters that are dealt with under current relevant statutes. The issues should, in that context, be considered on the basis of whether or not they should be elevated to constitutional levels.

As already noted above, a downloadable copy of the Issues Document will be available on the CRC website (currently under construction). Respondents may provide their responses online or in writing submitted to the CRC. However, each response must relate to a specific question/issue which must be outlined in order to enable the CRC to relate it appropriately.

All responses to the Issues Document and other matters relating to reform of the 1997 Constitution MUST reach the CRC Secretariat no later than the close of business on 30^th November, 2018.   

ISSUES

1.         Citizenship

(i)             It is expected that existing rights and entitlements to Gambian citizenship will be preserved. These are the rights and entitlements that have been acquired prior to the coming into force of the new Constitution. Do you have any issue with this? If so, please outline your reason(s).

(ii)           Should a person who wishes to acquire Gambian citizenship be required to renounce any other citizenship he/she may have, when a Gambian can hold dual nationality?

(iii)         Is the prescribed period of 7 years ordinary residence in The Gambia by a foreign person married to a Gambian before such foreign person can acquire Gambian citizenship reasonable?

(iv)          If the answer to paragraph (iii) is in the negative (No), what should be the lesser prescribed period?

(v)            Naturalization: the law requires 15 years ordinary residence in The Gambia before a foreign person can apply for citizenship by naturalization. Is this period too long, short or just right? If the period is not just right, what period would be reasonable?

(vi)          Should a child one of whose grandparents was born in The Gambia be entitled to Gambian citizenship as of right?

(vii)        Should a registered or naturalized Gambian exercising rights in a foreign country accorded to citizens of that country be deprived of his/her Gambian citizenship (the position under the 1997 Constitution)?

(viii)       There are a number of non-Gambians who migrated to The Gambia and have lived in and had children born and raised in and went through the school system in The Gambia. Neither the parents nor the children have been naturalized or registered as citizens of The Gambia. Should this class of children be considered in the review process with a view to addressing their status in the draft Constitution (such as by granting them citizenship under and by virtue of the new Constitution)? What about their parents?

(ix)          If this latter class of non-Gambians is to be accorded constitutional recognition to Gambian citizenship, should there be a cut-off period (date) for the application of such recognition (meaning that persons falling outside of that period (date) will have to formally apply to be registered or naturalized if they wish to become Gambian citizens)?

(x)            If that latter class is not to be accorded constitutional recognition to Gambian citizenship, is the current statutory arrangement for registration/naturalization sufficient to adequately deal with the number of “illegal” immigrants in The Gambia and how should we ensure that the country’s long term residents with the non-Gambian status comply with the laws to fully integrate into Gambian society?

(xi)          [Are there human rights implications for denial of constitutional recognition of citizenship to these category of persons? If so, what are they and how can they be properly dealt with?]

(xii)        Persons found within the country whose parents are unknown: should they be presumed to be citizens of The Gambia?

(xiii)       What are The Gambia’s international obligations with regard to citizenship and is the country currently in full compliance with those obligations? If not, how should the country comply?

(xiv)       [The issue of refugees who have resided in The Gambia for a stated period: should they be permitted to apply to naturalize or register as citizens of The Gambia? Consider applicable international instruments (UN 1951 Refugee Convention and AU 1969 Convention Governing the Specific Aspects of Refugee Problems in Africa).]

(xv)         [Is section 14 of the Constitution correct in so far as it makes reference to a former “citizen of The Gambia”?]

(xvi)       [The issue of right to nationality: is this a citizenship issue proper or is it merely a rights issue to be dealt with under the Fundamental Rights and Freedoms Chapter?]   

(xvii)      Citizenship of non-Gambian adopted children: the current Constitution is silent on this subject, although technically such children may be registered or naturalized as citizens of The Gambia upon application. Should the new Constitution specifically consider adopted children to qualify as citizens or simply to be eligible to apply to be registered or naturalized as citizens of The Gambia?

(xviii)    [Should the subject of honourary citizenship be dealt with or provided   under the Constitution instead of being left to an Act of Parliament?]

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2.         Fundamental Rights and Freedoms

(i)             Do the fundamental rights and freedoms provisions in the 1997 Constitution adequately embody the rights and freedoms enshrined in international treaties to which The Gambia is a party?

(ii)           If the answer to paragraph (i) is in the negative (No), which treaty provisions have been left out or are not adequately covered?

(iii)         In relation to the right to protection of right to life, the current Constitution appears to recognise the imposition of the death penalty by a court of competent jurisdiction. Should this continue to be a feature of the Constitution or should there be specific provision that abolishes the death penalty?

(iv)          Should the Constitution provide a framework to enable the National Assembly to enact legislation permitting prisoners to be paroled as a rehabilitative measure to achieve better ‘prisoner’ integration back into public life upon being discharged?

(v)            The current Constitution protects children under the age of 16 years from economic exploitation, hazardous employment or interference with their education and health (in compliance with established international standards). Should that age be raised (to say under 18 years)?

(vi)          [Should there be a default provision that specifically allows the courts to rely on international treaties to which The Gambia is a party in interpreting the fundamental rights and freedoms contained in the Constitution?]

(vii)        Are the protections accorded to the rights and freedoms of the press and other information media sufficient to guarantee their independence while preserving the rights and freedoms of others?

(viii)       If the answer to paragraph (vii) is in the negative (No), what is deficient and how would you propose to deal with the deficiency?

(ix)          Where a public broadcasting station is established, should it be subject to State censorship or be under the direction and control of any authority (such as the Executive, for example)?

(x)            If a public broadcasting station is not to be subjected to State censorship or be under the direction or control of any authority, how should it be made accountable?

(xi)          Should specific provision be made in the new Constitution outlining the right to health care service and decent housing, in a similar manner as the current Constitution provides in relation to education?

(xii)        Should the right to free education extend beyond providing basic secondary education?

(xiii)       Are the current constitutional provisions relating to the rights of ‘marginalised groups’ of Gambian society, in particular the youth and physically challenged persons, considered to be adequate?

(xiv)       If the answer to paragraph (xiii) is in the negative (No), what additional measures would you recommend for inclusion in the new Constitution?

(xv)         Are women sufficiently empowered, protected and accorded equality to exercise and enjoy their full rights as citizens?

(xvi)       If the answer to paragraph (xv) is in the negative (No), what would you recommend as necessary measures to ensure the exercise and enjoyment of those rights?    

(xvii)      Should specific provision be made in the Constitution on the right to clean air and a clean environment?

(xviii)    If the answer to paragraph (viii) is in the affirmative (Yes), what should the right to clean air and a clean environment entail?

(xix)        Are there any other fundamental rights and freedoms provisions in the current Constitution that are not clear or adequate in protecting the rights and freedoms of citizens and other persons residing in The Gambia?

(xx)         If the answer to paragraph (xi) is in the affirmative (Yes), which rights and freedoms require reform?

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3.         Elections – Independent Electoral Commission 

            Independent Electoral Commission

(i)             Should the role of the Independent Electoral Commission include boundary delineation/delimitation?

(ii)           If the answer to paragraph (i) is in the affirmative (Yes), should the name of the Commission be changed to “Independent Electoral and Boundaries Commission” or some other name (identify or suggest a name)? OR

(iii)         Should a separate Constituency (and District/Ward) Boundaries Commission be established)?

(iv)          Should members of the Commission be appointed by the President, acting on the advice of the Judicial Service Commission (JSC), instead of after consultation with the JSC and the Public Service Commission (as is the case under the current Constitution)? [Explanation: When the President acts on the advice of the JSC, he or she is effectively obliged to accept the advice of the JSC and effect the appointments; on the other hand, if the President is empowered to appoint after consulting with the JSC and PSC, he need only consult them before effecting appointments. This latter process has variously been interpreted. One interpretation is that the President and the JSC must work together to achieve a consensus; the other interpretation is that the President is not bound by whatever advice the JSC and/or PSC might give and can therefore take his/her own decision after consulting.]

(v)            Who should have responsibility for nominating members of the Commission for consideration for appointment?

(vi)          Should qualifications for Commission membership be identified and specified (only disqualifications are set out in the current Constitution)?

(vii)        If qualifications should be identified and specified, what should those qualifications be (bearing in mind the importance of integrity and independence)?

(viii)       Security of tenure – should the President have the power to remove a commissioner or should this be aligned to the procedure available for the removal of judges?

(ix)          Should the Commission Chairman’s removal be aligned to the procedure used for removal of the Chief Justice?

(x)            Should the qualifications of the Commission’s Chairman be specified in the Constitution? If so, what should those qualifications be?

(xi)          Currently the Constitution provides a term limit of 7 years for Commission members which is renewable for another term of 7 years. Should this be maintained or be revised? If it is to be revised, what period or periods should be stipulated?

(xii)        Should members of the Commission (including the Chairman) be required to publicly declare their assets as a condition for appointment to the office of member of IEC?

(xiii)       Should members of the Commission (including the Chairman) be similarly required to publicly declare their assets within a specified period (for example 3 or 4 months) upon demitting office?

(xiv)       If members of the Commission are to be required to make declarations, should those declarations be made to the Commission or some independent body (please specify if some other independent body – for example, the Anti-corruption Commission)?

Prisoners

(xv)         Should prisoners be allowed to vote?

(xvi)       If the answer to paragraph (xv) is in the negative (No), what would be a reasonable justification for excluding prisoners from voting?

Diaspora Gambians

(xvii)      Gambians in the Diaspora are citizens of The Gambia and therefore have a right to vote. Should there be specific provision in the Constitution that obligates the Government to make necessary arrangements to provide opportunity for Gambians in the Diaspora to cast their votes in elections?

(xviii)    If the answer to paragraph (xvii) is in the affirmative (Yes), should this be restricted to Presidential elections only, or Presidential and Parliamentary elections only? And should it be extended to local government elections?

Elections

(xix)       Should there be introduced a continuing voter registration system (thus eliminating the current arrangement on general registration and supplementary registration)?

(xx)         Should the closing period for the registration of voters in advance of an election be specified in the Constitution? If so, what period should be prescribed?

(xxi)       Should a system of advance voting be introduced to enable the elderly, infirm, election officers and security officers to be placed on election duty on election day, to cast their vote?

(xxii)      If the system of advance voting is to be introduced, is this sufficiently relevant to be prescribed in the Constitution or should it be dealt with under the election laws? 

(xxiii)    Should The Gambia adopt the ballot system (paper form) or continue with the token system in the conduct of elections?

(xxiv)     In either case under paragraph (xxiii), should this be specified in the Constitution or be left to be determined under the election laws?

(xxv)      Should there be a restriction on Parliament’s or other authority’s power to amend, revise or in any other way change the laws or any provision thereof on elections within a specified period before elections are due? If so, what should the period be?

(xxvi)     Should there be specific provision prohibiting the postponement of Presidential elections? Should this be extended to Parliamentary elections?

(xxvii)   If the postponement of elections is to be prohibited, how should we deal with the issue of public emergencies when they arise at a time that affect or are likely to affect the conduct of elections (for instance, should the Supreme Court be the only authority empowered to sanction the postponement of elections to a specified date on the ground that the exercise of an emergency power to warrant the postponement of the elections is justified in all the circumstances)?

(xxviii) The current Constitution provides that the Commission “shall be part of the public service”. Should this continue or should the Commission (consistent with its name) be an institution independent of the public service (even though it is to be funded by monies voted by the National Assembly)?

(xxix)     Should the President be given the power to determine the date when the general election of members of the National Assembly shall take place (as currently provided in section 96 (2) of the Constitution)?

(xxx)      If the answer to paragraph (xxix) is in the negative (No), should the date for the holding of such general elections be determined and fixed in the Constitution? Or should it be specified in the election laws?

(xxxi)     If the answer to paragraph (xxx) is in the affirmative (Yes) and considering a situation where the holding of general elections on the fixed date becomes impossible or ill-advised, who should be given the power to reschedule the general elections? And what checks (if any) should be applied to the granting of such a power?

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5.              Political Parties

(i)             Should certain basic requirements for forming and maintaining a political party be prescribed in the Constitution (as opposed to being in the election laws)?

(ii)           If so, what should those basic requirements be (for example, having national character, upholding and promoting national unity, respecting objects and principles of the Constitution, upholding and promoting democratic values, etc.)?

(iii)         Should the Constitution prescribe minimum standards (such as air time, accounts and audit, establishment and management of political party funds, etc.) which an Act of Parliament relative to political parties must contain/address?

(iv)          Should there be restrictions on private funding of political parties and/or elections? If so, should this be restricted to external funding?

(v)            In terms of funding of a political party by Gambians or Gambian entities, should there be a requirement for disclosure by a political party of the source of funding?

(vi)          If the answer to paragraph (v) is in the affirmative (Yes), should the disclosure be required only if it exceeds a specified threshold (in money and/or in money’s value)? If so, what should that specified threshold be?

(vii)        Should political parties be required to provide the IEC, within a specified period of the end of the political parties’ financial year (say 6 months), with copies of their audited financial statements for the preceding year?

(viii)       If the answer to paragraph (vii) is in the affirmative (Yes), should the IEC be empowered to grant an extension or extensions for the submission of audited financial statements to take exceptional circumstances into account? If so, should an extension period or periods be capped to a specified period (say no more than 6 or 9 months in aggregate)?

(ix)          Where a political party fails to provide its audited financial statement within the prescribed period (and, if granted an extension, within the period of extension), should provision be made for the automatic deregistration (by operation of law) of the political party? If so, should the automatic deregistration be permanent?

(x)            Should provision be made requiring political parties to disclose to the IEC any financial irregularity discovered? If so, should the IEC be empowered to order an independent audit of the finances of the political party concerned?

(xi)          In circumstances where the IEC refuses to register or deregisters/cancels the registration of a political party on the grounds established under the Elections Act (that is, violation of election laws, including failure to notify change of name, emblem, motto, etc.), should the aggrieved political party be permitted to pursue its appeal beyond the Court of Appeal to the Supreme Court (currently the Court of Appeal is the final Court that decides on refusal to register or deregistration/cancellation of registration of a political party)?

(xii)        [What issues in paragraphs (i) – (xi) do you think should be dealt with or retained in an Act of Parliament, with the Constitution merely providing the framework?]

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6.         Local Government

General

(i)             Are the current local government structures established under the 1997 Constitution adequate for purposes of ensuring effective governance?

(ii)           If the answer to paragraph (i) is in the negative (No), what measures would you recommend to ensure an efficient and effective local government structure that delivers well for the benefit of the people of The Gambia?

(iii)         Are the powers devolved to the local government bodies (Area Councils, Municipalities, etc.) sufficient to ensure proper administration and the development of the various regions in The Gambia?

(iv)          If the answer to paragraph (iii) is in the negative (No), what would you identify as the deficiencies and how would you suggest to address the deficiencies?

Seyfos and Alkalos

(v)            Should Seyfos (Chiefs) continue to be appointed by the President in consultation with the Local Government Minister (current position) or be directly elected by their districts or be selected according to traditional lines of inheritance?

(vi)          If they are to be elected, should such election be apolitical and on the basis of independence of candidates (no political party affiliation whatsoever)?

(vii)        What should be the term of office of an elected Seyfo or should the term be for the lifetime of the elected Seyfo?

(viii)       Should the power to create Seyfo districts vest in the National Assembly on the recommendation of the Local Government Minister after consulting with a relevant regional Governor (current position)? OR

(ix)          Should the power to create Seyfo districts vest in the Independent Electoral Commission (or other body with responsibility for boundary demarcation), whether exercised directly or as a recommendation to the National Assembly?

(x)            Should the appointment of Alkalos vest in the Local Government Minister acting in consultation with regional Governors and Seyfos or Chairperson of KMC (current position) or should it be elective or selected on the basis of traditional lines of inheritance? OR

(xi)          Should the appointment of Alkalos be based on village consensus as a first step, failing which (as a second step) the village should elect their Alkalo (to be conducted by the IEC)?

(xii)        What protections (if any) should be accorded to the Offices of Seyfo and Alkalo (such as security of tenure where the position is apolitical)?

(xiii)       If the positions of Seyfo and Alkalo are to be apolitical (meaning no political affiliation), should the new Constitution make provision specifically prohibiting Seyfos and Alkalos from engaging in partisan politics?

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7.         The Executive & Service Commissions

(a)   System of Government

General (see also paragraph (g) (i) below)

(i)             What system of government is preferred:

(a)  A Presidential system, where the President is elected directly by the people and his/her Cabinet members are selected outside of the National Assembly?

(b)  A Parliamentary system, where the President is chosen on the basis of the majority of elected members of the National Assembly who support him/her?

(c)   A Hybrid system, where the President is elected directly by the people but his/her Cabinet members are selected from amongst the members of the National Assembly

(1)

(b)   Office of President

Qualifications

(i)        Should the current status quo contained in the 1997 Constitution regarding educational qualification be maintained?

(ii)           If the answer to paragraph (i) is in the negative (No), what educational qualifications should be specified for eligibility to run for the Office of President?

(iii)         Depending on the response to paragraph (i) above, how is it proposed to address current scenarios in which incumbents and heads of political parties do not meet the educational qualifications outlined in relation to paragraph ((ii)?

(iv)          Should the current position in the Constitution whereby there is no upper age limit for the Presidency be maintained? OR

(v)            Should age limit – minimum & maximum – be prescribed for the Office of President (the current Constitution prescribes a minimum age limit of 35 to be eligible to run for the Office of President)?

(vi)          If the answer to paragraph (v) is in the affirmative (Yes), what would be considered appropriate age limits (both minimum and maximum)?

(vii)        Should there be qualifications additional to those in the current Constitution with respect to the Office of President? If so, what additional qualifications would you suggest?

Disqualifications

(viii)       Should holding dual nationality disqualify a Gambian from running for the Office of President?

(ix)          Should failure of not being ordinarily resident in The Gambia for a prescribed period (currently 5 years) be a disqualification?

(x)            If the response to paragraph (ix) is in the affirmative (Yes), is the current prescribed period of 5 years ordinary residence appropriate or too high? If it is inappropriate or too high, what period would be considered reasonable?

(xi)          Should compulsory retirement, or termination or dismissal from public office (not related to criminality), be a disqualification for election to the Office of President (these are disqualifications under the current Constitution)?

(xii)        Should an adverse finding by a commission of inquiry, which has not translated into prosecution and conviction by a court of competent jurisdiction, be a disqualification for election to the Office of President (this is a disqualification under the current Constitution)?

(xiii)       Are there other justifiable disqualifications that can or should be added to those in the current Constitution? If so, please specify.

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(c)   Election and term limit of President

Term Limit and Assumption of Office of President

(i)             Should a term limit be prescribed for the Office of President (the current Constitution does not prescribe a term limit)?

(ii)           If a term limit is to be prescribed, what should the term limit be?

(iii)         Should term limits be applied only to consecutive terms?

(iv)          President X completes one term in office, but fails to win the next election to attain a consecutive two terms limit. Should President X be able to contest another election and serve for a consecutive term if elected to office?

(v)            [If the current President were to decide to contest the next Presidential race after the expiry of the current term, how and when should his term limit be prescribed to commence (that is, should the current term being served be counted towards his eligible terms or should his term be reckoned to commence from the next term after the new Constitution has come into force)?]

(vi)          President X is elected as President at age 72. The Constitution, for example, prescribes an upper age limit of 75. Should President X be permitted to continue in office to complete his/her term?

(vii)        Should the President’s term in office expire at the same time as that of Parliament (especially where candidates for Ministerial positions have to be subjected to confirmation by the National Assembly)?  

(viii)       When should a President-elect assume office (the current prescribed period is 60 days after his/her election)?

Declaration of Assets

(ix)          Should a person be required under the Constitution to declare his/her assets to the Independent Electoral Commission (or the Anti-corruption Commission) before being eligible for nomination for election to the Office of   President?

(x)            Should the President be required to declare his/her assets to the same Commission within a specified period after demitting office?

(xi)          If the answer to paragraph (ix) is in the affirmative (Yes), what should be the specified period?

Succession to the Office of President

(xii)        Where the Speaker assumes the Office of President as a result of a vacancy in that Office and in the permanent absence of the Vice President (for whatever reason), should the assumption of office by the Speaker be for the residue of the term of the former President or for a prescribed period to enable fresh election to the Office (taking into account the fact that the Speaker is not elected by the public)?

(xiii)       If, in relation to paragraph (xi), the Speaker is to serve for a prescribed period in a caretaker capacity, what should that period be?

(xiv)       In the unlikely scenario where the Speaker is not available or is unable (for whatever reason) to assume the Office of President, what arrangement should be introduced to ensure succession to the Office of President?

Election to the Office of President

(xv)         First-past-the-post versus 50+1 %: in a Presidential election, should a candidate be declared winner after securing a majority of the votes cast and counted or should a candidate be declared winner only after attaining 51% of the total votes cast and counted?

(xvi)       Use of ballot papers versus Use of tokens: should The Gambia continue with the use of marbles/tokens in casting votes or should this be amended to paper ballots?  

Removal of President from Office

(xvii)      Where the National Assembly passes a no-confidence motion to remove a President from office, should that no-confidence motion be final or should it be subjected to endorsement or rejection at a referendum (as is provided in the current Constitution)?

(xviii)    Where a medical board is appointed to inquire into the health of the President and recommends that the President is incapable of discharging the functions of his/her office, should that recommendation be sufficient for the President to cease to hold office or should the recommendation be subject to a vote of the National Assembly to secure a two-third majority of parliamentarians present and voting (as currently provided in the 1997 Constitution)?

(xix)       Where a tribunal is appointed to investigate the alleged misconduct   or other alleged misbehaviour of the President and finds that the allegation has been substantiated, should that finding be sufficient for the President to cease to hold office or should the removal of the President in relation to the finding be subject to a vote of the National Assembly to secure a two-third majority of all parliamentarians (as currently provided in the 1997 Constitution)?

Benefits

(xx)         Should there be constitutional provision permitting the President to retire (at the end of his/her term in office) on his/her salary as a measure of maintaining the integrity of the Office of President and the holder thereof and preventing self-perpetuation in office?  

(20)

(d)   Proceedings against serving and ex-President

(i)             Should the President be immune from criminal prosecution for conduct relative to his/her period of service as President?

(ii)           If the answer to paragraph (i) is in the affirmative (Yes), should that immunity extend to the period after the President has demitted office?

(iii)         If not, should any restriction be placed to such prosecution, as is the case under section 69 (3) (b) of the current Constitution?

(iv)          If the President is to be immune generally, should he/she nevertheless be made liable, whilst in office, for any act of obstruction of justice?

(v)            If the President is found liable for obstruction of justice, should conviction lead to automatic vacation of office or subject him/her to formal impeachment by the National Assembly?

(5)

(e)   Prohibitions

(i)             Should the President, while serving as such, be prohibited from accepting gifts personal to him/her or if the value of a gift to be received by him/her equals to or is more than a specified amount in dalasis?

(ii)           If the answer to paragraph (i) is in the negative (No), should the President be required to declare the gift he/she receives? OR

(iii)         Should the President be able to receive a personal gift, but with the approval of the National Assembly if the gift exceeds a specified amount or its value in dalasis?

(iv)          Should the President be prevented from forming or tacitly supporting, or in any other way being associated with, a charitable/civic body whilst in office or establishing or associating with a body which has the potential to cause a conflict with his/her role as President?

(v)            If the answer to paragraph (iv) is in the affirmative (Yes), should that prohibition be extended to the President’s immediate family members (spouse and children) or should it be extended more widely? If the prohibition is to be extended more widely, what would be the reasonable justification(s) for doing so?

(vi)          Are there other reasonable restrictions that should be applied in relation to the holder of the Office of President? 

(6)

(f)   Office of Secretary General (see also sub-paragraph (j) (vi) below)

(i)             Should the Office of Secretary General be specifically established under the Constitution and made Head of the Civil Service with responsibility for ensuring a professional Civil Service?

(ii)           If the answer to paragraph (i) is in the affirmative (Yes), should the appointment of the Secretary General be apolitical and the appointee to that Office be governed by Civil Service Rules?

(2)

(g)   Vice President and Ministerial portfolios

(i)             Should the Vice President (VP) and Ministers of Government be elected members of the National Assembly – Westminster System versus the Presidential System; or should there be a hybrid and, if so, what should that hybrid be?

(ii)           Should the VP be on the Presidential ticket when a person is contesting to be elected President?

(iii)         If the VP is not to be on the Presidential ticket, should the nominee for VP position be subject to confirmation hearing by a select committee of, and approval by, the National Assembly?

(iv)          Should dual nationality be a disqualification for appointment to the office of Minister of Government?

(v)            Is the post qualification experience of 5 years to qualify for appointment as Attorney General sufficient and, if not, what period should be prescribed?

(vi)          Should qualifications be identified and specified for appointment to the Office of Minister (only disqualifications are outlined in the current Constitution)?

(vii)        If qualifications should be identified and specified for appointment to the Office of Minister, what should those qualifications be?

(viii)       Considering the representativeness of Cabinet, should the new Constitution make specific provision regarding the composition of Cabinet in a manner that ensures that marginalised groups (such as women, youths and physically challenged persons) are accorded Cabinet portfolios and/or properly represented in Cabinet?

(ix)          If the answer to paragraph (viii) is in the affirmative (Yes), what would you suggest as a proper composition for Cabinet?

(x)            Should it be a condition for assumption of office that the VP and Ministers of Government must declare their assets (either publicly or privately with a specified public functionary – such as the Anti-corruption Commission)?

(xi)          Should it also be a condition that the VP and Ministers of Government must declare their assets within a specified period after demitting office?

(xii)        If the answer to paragraph (ix) is in the affirmative (Yes), what should that specified period be?

(xiii)       Should the Constitution specify the maximum number of Ministers of Government that can be appointed (the current Constitution does not have any after a constitutional amendment removed the maximum of 15)?

(xiv)       Should there be positions of Deputy Ministers with each Ministry having only one Deputy who (amongst other things) assists the Minister and oversees the Ministry in the absence of the Minister?

(xv)         Should Deputy Ministers have the same qualifications as Ministers in order to be appointed as such?

(xvi)       Should provision be made for the position of Cabinet Secretary in the Constitution?

(xvii)      [Should collective Cabinet responsibility include the President (the current Constitution excludes the President)?]

(17)

(h)  Foreign affairs/International treaties

(i)        [Should the Constitution prescribe the manner in which an international treaty/agreement (as opposed to a bilateral agreement) forms part of Gambian law or becomes binding and therefore enforceable?] OR

(ii)       [Should this be left to be dealt with by an Act of the National Assembly?]

(iii)         Should the new Constitution make specific provision prohibiting the President and/or the executive branch of government from withdrawing The Gambia from an international treaty or from membership of an international organisation without the approval of the National Assembly?

(iv)           Should the new Constitution prescribe any other matter relative to Gambia’s foreign affairs and/or international treaties The Gambia is a member of?

(4)

(i)    Honours and Awards

(i)        Should the President’s power to confer honours and awards be prescribed in the Constitution (current provision) or should it be left to be dealt with by an Act of the National Assembly?

(ii)       Should the committee established under the current Constitution to advise the President on the exercise of his/her powers in conferring honours be similarly dealt with through an Act of the National Assembly?

(2)

(j)   Prerogative of Mercy Committee

(i)        Should the President be empowered to substitute a less severe penalty than that imposed by the courts? OR

(ii)       Should the President’s power to exercise mercy be restricted to granting a pardon, respite and remission of sentence only?

(iii)      Is the current composition of the Committee considered to be adequate and certain?

(iv)          If not, should the membership be better defined with specified qualifications?

(v)            Should there be a term limit for membership of the Committee?

(vi)          If the answer to paragraph (iv) is in the affirmative (Yes), what should that term limit be? 

(6)

(k)  Public Service

The Public Service

(i)          Should the President’s role in relation to public enterprises be

      restricted to the appointment of boards and removal of members of

      the boards?

(ii)           Is there a need to better define the distinction (if any) between offices

in the Civil Service (mainstream government) and offices in the Public Service (inclusive of parastatals and other public bodies)?

(iii)         What powers should be exercisable by the President in relation to the Civil Service and the Public Service?

(iv)          What checks and balances should be introduced to ensure the efficient and effective functioning of the Civil Service and the Public Service?

Public Service Commission

(v)            Should the Public Service Commission (PSC) be restricted to dealing with mainstream Civil Service appointments and related matters only?

(vi)          Should the position of Secretary General as Head of the Civil Service be apolitical based on confirmation by the National Assembly and appointment by the President?

(vii)        Should all Permanent Secretaries’ appointments as administrative heads of Ministries of Government be subject to approval by the President?

(viii)       [Should details regarding the PSC, save composition and terms and conditions of service of members, be dealt with in an Act of the National Assembly, instead of in the Constitution?]

(ix)          Should members of the PSC serve only for a specified term limit? If so, what should that term limit be (the 1997 Constitution provides a term limit of 2 years which may be renewed each time the term expires)?

(x)            What security of tenure (if any) should be accorded to members of the PSC to ensure the diligent and independent performance of their duties (for example, should they have the same security of tenure as members of the Independent Electoral Commission, Human Rights Commission and Anti-corruption Commission)?

(xi)           Should the office of PSC members be full time (as currently provided in the Constitution) or should it be part time?

(xii)        If it is to be part time, is the current Personnel Management Office adequately or can it be adequately restructured and resourced to deal with all administrative matters relative to the employment, termination of employment and general conditions of service of public officers?

(xiii)       Should the qualifications of membership of the PSC be better defined on academic and experience grounds, in addition to the current general terms of “high integrity and good character” provided in section 172 (2) of the 1997 Constitution?

(xiv)       Are the disqualifications for PSC membership as currently provided in section 172 (3) of the Constitution sufficient?

(14)

(l)    Teaching Service Commission??

(i)             Considering the size of the teaching profession in The Gambia, is it time that a teaching service commission (TSC) is established to properly and professionally steer the profession and improve school education?

(ii)           If the answer to paragraph (i) is in the affirmative (Yes), should details regarding the TSC, save composition and terms and conditions of service of members, be dealt with in an Act of the National Assembly, instead of in the Constitution?

(iii)         [Should the provisions relative to the Office of PSC have equal application in relation to the Office of TSC? If not, what provisions should not apply?]

(3)

(m)Health Services Commission??

(i)             Considering the size of the health service profession in The Gambia, is it time that a health service commission (HSC) is established to properly and professionally steer the profession and improve the delivery of health service?

(ii)           If the answer to paragraph (i) is in the affirmative (Yes), should details regarding the HSC, save composition and terms and conditions of service of members, be dealt with in an Act of the National Assembly, instead of in the Constitution?

(iii)         [Should the provisions relative to the Office of PSC have equal application in relation to the Office of HSC? If not, what provisions should not apply?]

(3)

(n)  National Security Council

(i)           Is the current composition of the National Security Council right

      and sufficient?

(ii)           If the answer to paragraph (i) is in the negative (No), who else

should be included or who should be excluded?

(iii)         Are there any further issues relating to the National Security Council that the new Constitution should embrace? If so, what are those issues?

(3)

(o)   National Security Service Commission (covering Police, Military, SIS, Prison, NDEA & Fire and Rescue)??

(i)             Should there be a separate but combined national security service commission properly resourced by professionals to assist with appointments and related matters concerning the security services comprising the Armed Forces, Police, Prison, State Security Service, National Drug Enforcement Agency, and Fire and Rescue Service?

(ii)           If the answer to paragraph (i) is in the affirmative (Yes), who should be identified as members of such national security service commission?

(iii)         Considering the nature, function and discipline of the Armed Forces, should the Armed Forces be dealt with separately outside any joint security service commission?

(iv)          If the answer to paragraph (iii) is in the affirmative (Yes), what are the justifiable reasons for such a separation?

(v)            What should be prescribed as the qualifications and disqualifications of members of a joint security service commission?

(vi)          Should constitutional provisions be restricted to merely establishing the various service institutions, leaving details (excluding membership and functions of the combined Security Service Commission) thereof to be dealt with by Acts of Parliament?

(6)

(p)   Office of Attorney General as Chief Legal Adviser to Government (Cross check Paragraph 10 (xxxiv) below)

(i)             Should the current system whereby the Office of Attorney General and Minister of Justice constitutes a single office be maintained? OR

(ii)           Should the Office of Attorney General be divorced from the position of Minister of Justice to which political appointment may be made?

(iii)      If the answer to paragraph (ii) is in the affirmative (Yes), should the Office of Attorney General be a permanent civil service post and ranked top of the ladder (above or same level as Secretary General)?

(iv)      If the answer to paragraph (ii) is in the affirmative (Yes), should the Minister of Justice have legal qualifications?

(v)        What functions should the Minister of Justice be able to perform?

(vii)        What should be the qualifications and experience for appointment as Attorney General (note that it’s currently 5 years of legal practice)?

(viii)       Security of tenure – should the Office of Attorney General receive the same level of security of tenure as that of judges?

(ix)          If the independent Office of Attorney General is to be established, should provision be made in the new Constitution for the Attorney General to serve as an ex officio member of Cabinet?

(x)            [Should the position of Solicitor General and Legal Secretary be established under the Constitution (for consistency with the constitutional references to Permanent Secretary and Judicial Secretary)?]

(xi)          [If the answer to paragraph (x) is in the affirmative (Yes), what qualifications and disqualifications should be outlined for the position of Solicitor General and Legal Secretary?]

(11)

(q)   Independent Office of Director of Public Prosecutions (Cross check Paragraph 10 (xxxiv) below)

(i)             Should an independent Office of Director of Public Prosecutions be established?

(ii)           What should be the qualifications and experience for appointment as Director of Public Prosecutions?

(iii)         Security of tenure – should the Office of Director of Public Prosecutions receive the same level of security of tenure as that of judges?

(iv)          Should the Director of Public Prosecutions be a Gambian or is there a case for this being made flexible whereby a non-Gambian can be appointed to that Office?

(4)

8.         Legislature – National Assembly

(i)             [There is a need to specifically establish the National Assembly within the Constitution.]

(ii)           Composition of the National Assembly: it’s currently made up of 53 elected members and 5 other members nominated by the President. Should the National Assembly comprise purely of elected members or should space still be allowed for nominated membership?

(iii)         If nominated membership of the National Assembly is to be maintained, should that power still vest in the President or is there another mechanism that should be employed?

(iv)          If another mechanism for nominated membership is to be employed, what is that mechanism and how is it envisaged to work in a democratic fashion?

Qualification for Membership

(v)            Should residence in a constituency or district for a specified period continue to be a valid qualification for election or should being a Gambian be a sufficient qualification?

(vi)          If residence is to be maintained as a valid qualification criteria, is the current period of residency requirement of 1 year reasonable or high? If it is high, what period is considered appropriate?

(vii)        Should the Constitution be specific on academic qualification as a criterion for eligibility as a candidate to contest election to the National Assembly (current requirement is ability to speak English with a degree of proficiency)?

(viii)       If the answer to paragraph (vii) is in the affirmative, what should the academic qualification be?

(ix)          Should there be other qualifications and, if so, what should those be?

Disqualification for Membership

(x)            Should dual nationality be a bar to being elected as a Member of the National Assembly?

(xi)          Should an independent Member or elected Member lose his/her membership of the National Assembly on account of joining a political party (as an Independent) or a different political party?

(xii)        Should a Member of the National Assembly elected on a political party basis who is subsequently expelled from the political party be permitted to join another political party or to declare himself/herself as an independent Member of the National Assembly?

(xiii)       Should Members of the National Assembly be empowered to expel from the National Assembly one of their members if found to be in contempt of the House (current provision) or should this power reside with the Speaker? OR

(xiv)       Should they simply be empowered to suspend a Member for a specified period (considering that the Member is elected by the people of his/her constituency)?

(xv)         Should there be an upper age limit for membership of the National Assembly?

(xvi)       Should there be other qualifications and/or disqualifications and, if so, what should those be?

Recall of Members of the National Assembly

(xvii)      Should the Constitution make specific provisions empowering the electorates of a constituency to recall their elected representative, instead of leaving the matter to be dealt with by an Act of the National Assembly?

(xviii)    If the answer to paragraph (xvii) is in the affirmative (Yes), what events should trigger the recall of an elected Member of the National Assembly?

Election of Speaker and Deputy Speaker

(xix)       Should the Speaker of the National Assembly be elected from amongst the elected Members or should the Speaker be an elected private citizen irrespective of political party affiliation? OR

(xx)         If the Speaker is to be an elected private citizen, should there be a requirement that the Speaker is a non-political party affiliate (that is, not belonging to any political party)?

(xxi)       Should the Deputy Speaker of the National Assembly be elected from amongst the elected Members or should the Deputy Speaker be an elected private citizen irrespective of political party affiliation?

General Election of Members

(xxii)      Should general elections for National Assembly membership be held at the same time as the election of President or should the current system (as currently provided in the 1997 Constitution),   whereby general elections are held at different times from that of President, be maintained?

(xxiii)    Should the President be empowered (as is the current position under section 96 of the 1997 Constitution) to declare general election to membership of the National Assembly to be held at a time different from what is provided in the Constitution in the public interest, or should this power vest in a different public functionary (the Supreme Court, for instance, to allow for a better determination of what constitutes the ‘public interest’)?

Representation of Marginalised Groups (Women, Youth and Physically Challenged Persons)

(xxiv)     Should marginalised groups – women, youths and physically challenged persons – be provided with separate and specific opportunities to attain appropriate representation in the National Assembly?

(xxv)      If the answer to paragraph (xxiv) is in the affirmative (Yes), what specific opportunities would you recommend?

(xxvi)     If the answer to paragraph (xxiv) is in the affirmative (Yes) and as an example, should a specific number of seats be prescribed to enable only persons of the marginalised group to contest at large on the basis of proportional representation?

(xxvii)   If the answer to paragraph (xxvi) is in the affirmative (Yes), what number of seats should be prescribed? OR

(xxviii) As an alternative, should the new Constitution make provision requiring all political parties to field a percentage of candidates (of the total number they are fielding) from the marginalised group (ensuring a balance in the representation of the group)?

(xxix)     If the answer to paragraph (xxviii) is in the affirmative (Yes), what percentage should political parties be required to field?  

Term of the National Assembly

(xxx)      [In relation to the power of the President to appoint a place (and date) for convening the first session of the National Assembly, should the Constitution prescribe a period within which the first session has to be convened after the holding of general elections?]

(xxxi)     [If the answer to paragraph (xxvii) is in the affirmative (Yes), what period should be prescribed?]

(xxxii)   Should more pronounced roles be accorded to the Leaders in the National Assembly representing the Majority and the Minority?

(xxxiii) If the answer to paragraph (xxx) is in the affirmative, what should those roles be?

Language of the National Assembly

(xxxiv)  Should the Constitution make provision to enable Members of the National Assembly to participate in the proceedings of the National Assembly in any of the local languages (the current Constitution leaves this to be done by an Act of the National Assembly and has never been acted upon)?

Miscellaneous

(xxxv)    Are the powers of the National Assembly adequate for its roles in representing the people and having proper and efficient oversight responsibilities?

(35)

9.         Legislature – Second Chamber of the National Assembly??

(i)             Should consideration be given to establishing a Second Chamber of the National Assembly for effective balance in the enactment of legislation and conduct of other affairs of the Legislature and of the country and thus ensuring a balanced check on the Executive?

(ii)           If the answer to paragraph (xxxiii) is in the affirmative (Yes), what should be the composition of the Second Chamber and how should it be referred to as?

(iii)         Should representation in the Second Chamber of the National Assembly be based on equality of numbers from each Administrative Area (for example, 3-4 from each Administrative Area)?

(iv)          Should representation be based on proportional representation (according to the population size of each Administrative Area)?

(v)            What should be the qualifications of persons to be elected to membership of the Second Chamber of the National Assembly (for example, tertiary education)?

(vi)          What should be the disqualifications that should be applied for election to membership of the Second Chamber of the National Assembly?

(vii)        Should there be a minimum age restriction to be able to be nominated to contest election into the Second Chamber of the National Assembly?

(viii)       Should there be a maximum age limit for membership of the Second Chamber of the National Assembly?

(ix)          What should be the functions of the Second Chamber vis-à-vis the National Assembly (for example confirmation of Ministerial and specific senior public service appointments, independent origination of legislation, confirmation of legislation from the first legislative chamber, impeachment of the President, censor of Ministers and heads of statutory bodies, etc.)?

(x)            Are there any other matters in relation to National Assembly membership that should be considered as part of the constitutional review process?

(10)

10.       Judiciary

                        Special Criminal Court

(i)             Should the Special Criminal Court continue to be a specific feature within the Constitution?

(ii)           If the Special Criminal Court is to remain as a feature of the Constitution, should the members of the Special Criminal Court be appointed by the President in consultation with the Judicial Service Commission or acting on the advice or recommendation of the Commission?

Court Martial

(iii)         The current Constitution does not establish a court martial as one of the courts in The Gambia, but reference is made to a court martial in relation to a decision of that court being appealable to the Court of Appeal. Should specific reference be made to a court martial to be established by an Act of the National Assembly to be conferred with specific functions and powers, with reserve powers to the Chief Justice? If so, what powers should be reserved to the Chief Justice?

District Tribunals

(iv)          The District Tribunals form part of the court system in so far as the performance of their judicial function is concerned; however, their members are appointed by the Executive arm of Government. Is this an anomaly, particularly in the context of judicial independence?

(v)            If the answer to paragraph (v) is in the affirmative (Yes), should members of District Tribunals (other than the President who is normally the Chief of the district) be appointed by the Chief Justice acting on the advice of the Judicial Service Commission?

(vi)          In view of the establishment of Cadis’ Courts, should District Tribunals continue to have jurisdiction to hear Sharia-related matters?

Cadi Court & Cadi Appeals Selection Committee

(vii)        Is there a need for the continued existence of the Cadi Appeals Selection Committee or should members thereof be co-opted into the Judicial Service Commission either ‘permanently’ or whenever a matter is to be decided in relation to the Cadi Court or a Cadi is to be appointed/removed/disciplined?

(viii)       In any case, is the current composition of the Cadi Appeals Selection Committee considered to be professionally representative and balanced? If not, what should the composition look like?

(ix)          Currently appeals from a Cadi’s decision are heard by the Cadi Appeals Panel where the appeal terminates. Should provision be made to enable a further appeal to the Supreme Court?

(x)            Should the power granted to the High Court pursuant to section 133 be reformulated so that the power does not extend to decisions of a Cadi Court and a Court Martial, appeal from which should go directly to the Court of Appeal?

(xi)          Is the five years post-qualification experience for appointment as Chairman of the Cadi Appeals Panel not too short (same for appointment of Court of Appeal and High Court judges)?

Election Petitions

(xii)        Should the Supreme Court be given power to hear all election petitions or should the current status quo whereby the Supreme Court hears only petitions arising from Presidential and Parliamentary elections be maintained?

(xiii)       If the current status quo on dealing with election petitions is to be maintained, should the Chief Justice still be required to sit and hear as a Judge of the High Court all election petitions arising from local government elections? If not, how is it preferred that this subject be dealt with?

Power to commit for contempt

(xiv)       Should the power to commit for contempt be constitutionally reserved for the superior courts only (as the current Constitution appears to provide)? 

Appeals

(xv)         Should an appeal to the Supreme Court from a Court of Appeal decision requiring leave be restricted to the Court of Appeal or should there be provision enabling an application for leave to be made to the Supreme Court – either as an option or after a Court of Appeal decision on such an application?

(xvi)       There is currently provision effectively making an appeal from a High Court as of right. However, in relation to any other court, leave has to be sought from the Court of Appeal. Should this distinction be allowed to continue?

(xvii)      Should provision be made in the Constitution specifically making an appeal from a criminal matter as of right (as opposed to making reference to the court of origin of the case to determine whether leave is required)?

(xviii)    Should provision be made in the Constitution enabling an appeal from a decision of a Court Martial to be appealed as of right to the Court of Appeal?

(xix)       Consideration: Should the right to appeal generally be as of right, without being circumscribed by a requirement to obtain leave?

(xx)         In relation to section 24 (9) of the current Constitution which permits a person to elect to be tried by a jury, should this provision be removed in the light of the fact that no election had ever been made for jury trial?***

(xxi)       Should an appeal at the instance of the AG (DPP) bar the Supreme Court from reversing an acquittal by a court of first instance or reversing a Court of Appeal judgment allowing an appeal against conviction (proviso to section 128 (4))?

Chief Justice and other Judges – Appointment, Qualification, Disqualification, tenure, etc.

(xxii)      Should the appointment of the Chief Justice by the President be in consultation with the Judicial Service Commission (current) or be in accordance with the advice of the Commission?

(xxiii)    Should the Constitution maintain a provision (section 139 (1)) allowing the appointment of a non-Gambian as Chief Justice? If not, should specific provision be made that only a Gambian citizen (other than an honourary citizen) should be appointed as Chief Justice?

(xxiv)     Who should nominate the Chief Justice? How should the Chief Justice be appointed to ensure that a qualified independent judge assumes the office of Chief Justice (for example, through confirmation by the National Assembly)?

(xxv)      Considering the qualifications set out in section 139 of the current Constitution for appointment as a Supreme Court, Court of Appeal and High Court, judge, is there a case for amending any of the qualifications set out thereunder? If so, what qualifications should be amended and why?

(xxvi)     Should the Constitution specifically outline disqualifications for a person being appointed as a judge? If so, what should those disqualifications be?

(xxvii)   Should the appointment of other judges of the superior court be made by the President acting on the advice of the Judicial Service Commission or on the recommendation of the Judicial Service Commission (as provided in the current Constitution)?

(xxviii) Is the five years post-qualification experience for appointment as Court of Appeal or High Court judge not too short (same for Chairman of Cadi Appeals Panel)?

(xxix)     Should judges be required to vacate office after a specified age (currently 75) or should they be permitted to continue serving so long as they are medically fit if so certified?

(xxx)      Should judges be permitted to retire on their salary (to constitute their pension), as is the case in some countries, as a measure of preserving the integrity of judges and judicial service whereby retired judges may not be justified in seeking other employment?

(xxxi)     Should the President continue to exercise the power of terminating the appointment of a judge after consultation with the Judicial Service Commission or should termination be on the recommendation of the Commission after an adverse finding by an independently constituted tribunal of a specified number of judges (with possibly a lay person)?

(xxxii)   In any case, should the National Assembly have any say with regard to the termination of appointment of a judge (separation of powers) as is currently provided in the Constitution?

(xxxiii) Should the proceedings of a tribunal duly constituted to investigate and determine the culpability or otherwise of a judge be held in camera (current) or public?

Judicial Service Commission

(xxxiv)  Should the mandate of the Judicial Service Commission be expanded to include the appointment, removal and discipline of persons in positions that require legal qualifications (being the body with the requisite skills to make such determinations)? This will extend to all legal staff positions in the AGC&MOJ, Legal Aid, Law Reform Commission, etc.

(xxxv)    If the answer to paragraph (xxxiv) is in the affirmative (Yes), should the name be changed to Judicial and Legal Service Commission or other name?

(xxxvi)  Is the composition of the Judicial Service Commission as currently provided in the Constitution sufficient and balanced?

(xxxvii)                  If the answer to question (xxxvi) is in the negative (No), what should the composition look like?

(xxxviii)                 The current Constitution provides for the renewal of appointment of members of the Judicial Service Commission after the end of tenure of their office (3 years). Should there be a cap on the number of terms a person can serve as member of the Judicial Service Commission?

(xxxix)  Should the National Assembly be involved in confirming the appointments and removal of Judicial Service Commission members by the President (as is currently the case)?

Miscellaneous

(xl)          [Should the Constitution continue to embody provision setting periods within which judicial decisions must be rendered (section 124), considering that in practice (especially with the Supreme Court sitting in sessions) various factors could make timely delivery of decisions impractical (notwithstanding the safeguard regarding the validity of judicial decisions in section 124 (3))?]

(xli)        [With the Supreme Court now fully established, there’s need to amend the language of section 125 (1) of the Constitution?]

(xlii)       [In relation to the specific jurisdiction of the Court of Appeal, should specific provision be made extending the jurisdiction to include adverse findings by a commission of inquiry (notwithstanding that section 204 permits one to appeal to the Court of Appeal against an adverse finding)?]

(xliii)     Should the qualifications for appointment as Judicial Secretary be specified in the Constitution and, if so, what should make up those qualifications?

(xliv)      [Would you agree that provisions of the Constitution that relate to judicial procedure should be dealt with through Rules of Court to allow for greater flexibility to effect necessary reforms from time to time?]

(44)

11.       Public Finance

      Taxes and Budget Estimates

(i)             In relation to the waiver of taxes, where an enactment empowers a public functionary to impose or waive taxes by way of an Order, Regulations or otherwise, should provision be made that such Order, Regulations or other subsidiary legislation be subject to the approval of the National Assembly?

(ii)           Is 14 days (as provided in the current Constitution) not too short for the National Assembly to properly and effectively consider the annual estimates laid before it?

(iii)         If 14 days is too short, what should be the appropriate period (if any) to allow proper and effective   debate?

(iv)          Is 7 days (as provided in the current Constitution) not too short to require the National Assembly to consider and pass an Appropriation Bill, after the Bill has been introduced?

(v)            If 7 days is too short, what time frame (if any) should be prescribed?

(vi)          Should the Government be allowed to grant loans from public funds (as currently provided in the Constitution)?

Office of Auditor General and Audit

(vii)        Are current security of tenure provisions for the Auditor General sufficient – is there a case for the same security of tenure as is available with regard to judges?

(viii)       Are there additional measures required to ensure greater transparency in audit exercise and publication of audit reports?

(ix)          The National Assembly is required to debate audit reports – are the current provisions adequate and clear on such an obligation?

(x)            Should the qualifications/disqualifications and experience of the Auditor General be specified in the Constitution in defined (rather than general) terms?

(xi)          Should the appointment of the Auditor General by the President not be in accordance with the advice of the Public Service Commission, instead of after the President consulting the Commission? What appropriate checks and balances should be put in place?

(xii)        Should the salary/allowance guarantees accorded to superior court judges whereby such salary/allowance cannot be altered without consent of the office holder be extended to other offices (such as Auditor General, Ombudsman, Director of Public Prosecutions, Attorney General, Chief of Defence Staff, Inspector General of Police, Director General State Intelligence Service, Chairman IEC and Chairman HRC)?

(xiii)       Should the National Assembly be empowered in the Constitution to enact legislation to protect persons in the public service, including those within the private sector, who report financial wrongdoings?

(xiv)       What other measures are necessary and justified to prevent the abuse and misuse of public funds that should be considered in the new Constitution?

Central Bank of The Gambia

(xv)         Should the Board of the Central Bank of The Gambia be appointed by the President in consultation with the Public Service Commission (as is currently provided in the Constitution) or should the President effect the appointment acting on the advice of the Public Service Commission or other independent institution?

(xvi)       In any case, should the appointment of the Governor of the Central Bank be subject to National Assembly approval?

(xvii)      Should the Constitution make specific provision with regard to the qualifications and disqualifications of the Governor of the Central Bank?

(xviii)    Should the Constitution make specific provision with regard to the qualifications and disqualifications of the other directors of the Board of the Central Bank?

(xix)       Should the security of tenure of the Governor of the Central Bank be specified in the Constitution to be akin to the security of tenure outlined for judges, for instance?

(xx)         Should the other members of the Board of the Central Bank be similarly protected for their term in office akin to other superior court judges?

(xxi)       The current Constitution appears to permit a director of the Board of the Central Bank (other than the Governor) to conduct business with the Central Bank provided that the director declares his/her interest and abstains from participating in the meeting at which the interest is a subject of discussion. Does this provision accord with good governance, considering the potential for conflict of interest?

(xxii)      If the answer to paragraph (vii) is in the negative (No), what would you suggest as a measure of good governance that should be adopted?

(22)

12.             Land and the Environment  

Land Commission

(i)             Should the Constitution be more explicit in establishing the Land Commission (section 192 merely states that there “shall be established a Land Commission whose composition, functions and powers shall be prescribed by an Act of the National Assembly”)?

(ii)           Should this Chapter of the Constitution be more expansive to include identifying the composition, functions and powers of the Commission?

(iii)         If the answer to paragraph (ii) is in the affirmative (Yes), how should the Commission be composed and what should constitute its functions and powers?

(iv)          What security of tenure should be accorded to members of the Land Commission to ensure their independence?

(v)            Should the role of the Land Commission be expanded to include oversight with respect to integrated land, natural resources and environment preservation to ensure systemic and responsible management and protection?

Land, Environment and Natural Resources

(vi)          Should specific provision be made in relation to land ownership in The Gambia as between citizens and non-citizens?

(vii)        If the answer to paragraph (v) is in the affirmative (Yes), what would you like to see in relation to land ownership in The Gambia?

(viii)       What measures should be considered as a mechanism for the adequate protection, conservation, management and sustainable use of The Gambia’s natural resources?

(ix)          What specific provisions would you recommend as adequate measures to protect and preserve The Gambia’s environment and ensure clean air?

(x)            What other measures do you consider to be sufficiently important to warrant inclusion in the new Constitution in relation to the Land Commission, land ownership and use, and the protection and preservation of The Gambia’s environment and natural resources?

(10)

13.             Ombudsman, Anti-corruption Commission and Human Rights Commission

(i)             Should the Office of Ombudsman be established under the Constitution and thus accorded constitutional status, instead of having it established through an Act of Parliament (as is currently the case)?

(ii)           Should the appointment of the Ombudsman be prescribed in the Constitution?

(iii)         If the answer to paragraph (ii) is in the affirmative, should the qualifications and disqualifications of the Ombudsman be prescribed in the Constitution?  If so, what should those qualifications and disqualifications be?

(iv)          Should the Human Rights Commission function with a panel of qualified and competent individuals whose appointment is prescribed in the Constitution?

(v)            If the answer to paragraph (iv) is in the affirmative (Yes), what should be the number of panelists that should be appointed and what qualifications and disqualifications should be prescribed in their case?

(vi)          The 1997 Constitution empowers the President to appoint the Ombudsman and his or her deputies in consultation with the Public Service Commission, subject to confirmation by the National Assembly. Does this provide an adequate check and balance to ensure the independence of the Office of Ombudsman? Please provide reasons for your answer?

(vii)        While the National Assembly can reject the President’s first nominee for the Office of Ombudsman, it cannot reject the President’s second nominee. Is this a reasonable constraint on the National Assembly’s power to confirm a suitable candidate for the Office of Ombudsman?

(viii)       If the answer to paragraph (vii) is in the negative (No), what would you suggest may be a fair balance to ensure that the Office of Ombudsman is occupied by a suitably qualified person? 

(ix)          Should there be a term limit for occupying the Office of Ombudsman, panel member of the Human Rights Commission and Chief Executive of the Anti-corruption Commission (for example, maximum of two five year terms)?

(x)            Should the functions of the Ombudsman, Human Rights Commission and Anti-corruption Commission be prescribed fully in the Constitution (by, for example, transposing the additional functions contained in the Ombudsman Act and Human Rights Commission Act [and any new Anti-corruption Act] into the Constitution)?

(xi)          Should the function of the Ombudsman extend to investigating corruption and human rights issues (as currently provided) or should this authority be reposed in an independent Anti-corruption Commission and Human Rights Commission respectively?

(xii)        If the answer to paragraph (xi) is in the affirmative (Yes), should the Anti-corruption Commission and Human Rights Commission be established under the Constitution and provided with all the necessary constitutional protections to function efficiently and effectively?

(xiii)       Should the Office of the Ombudsman have jurisdiction in relation to the security service?

(xiv)       Furthermore, should the function of the Ombudsman be restricted to matters of maladministration in Government?

(xv)         Should the exercise of powers by the Ombudsman be restricted to undertaking investigations and making recommendations to the relevant Government authorities to address?

(xvi)       Should the Human Rights Commission be accorded quasi-judicial powers? If so, what should those powers be?        

(16)

14.             National Youth Service

(i)             In the light of the manner in which the National Youth Service Scheme operates compared to how it was envisaged under the 1997 Constitution, should National Youth Service be a feature of the new Constitution?

(ii)           If National Youth Service should be a feature of the new Constitution, should it be made compulsory (as currently provided)?

(iii)         Should there be evidence of service in the national youth scheme as a condition of employment in the public service (as currently provided)?

                             

(3)

15.             National Council for Civic Education

(i)             Should the National Council for Civic Education (NCCE) be specifically established in the Constitution?

(ii)           Is the NCCE adequately empowered under the current Constitution to perform its functions in an efficient and effective manner?

(iii)         If the answer to paragraph (ii) is in the negative (No), what measures would you suggest should be adopted to ensure that the NCCE plays a more effective functional role in creating awareness of constitutional matters amongst the wider Gambian society, thus ensuring citizens’ ownership and defence of the Constitution?

(iv)          Are there any additional measures that are considered relevant and necessary in relation to the NCCE for inclusion in the new Constitution?

(4)

           16.              Public Enterprises

(i)             Should the President be the authority to appoint the chief executive of a public enterprise (as is currently the case under section 175 (3) of the 1997 Constitution, but after consultation with the Board of Directors)? OR

(ii)           Should such an appointment power be reserved for the Board of Directors only?

(iii)         If appointment of the chief executive of a public enterprise is to be carried out by the Board of Directors, should specific provision be made requiring a vacancy in the Office of a Chief Executive to be advertised publicly to secure the service of a suitably qualified candidate?

(iv)          Should the Public Service Commission have any jurisdiction to provide a public enterprise with guidelines on personnel matters (as is the case under the current Constitution) or should this be left to the public enterprise to determine?

(v)            Should chief executive officers of public enterprises be subject to confirmation by the National Assembly (through a Select Committee, for example) before they can be appointed to assume office?

(vi)          If the response to paragraph (v) above is in the affirmative (Yes) and considering that the Board of Directors of the public enterprise is appointed by the President, should the Constitution provide security of tenure for chief executive officers of such public enterprises?

(vii)        As a measure of good governance, should public enterprises be required, in addition to preparing and providing an annual report to the National Assembly, to publish their audited accounts in the Gazette and on their website on an annual basis, providing a breakdown on income and expenditure?

(viii)       Should specific provision be made in the Constitution that the Chief Executive of a public enterprise shall automatically stand dismissed if there is a failure, within a specified period (say 6 months) of the end of each financial year, to provide the National Assembly with the annual report, or to publish the accounts, of the public enterprise, unless the failure to do so is determined to lie with the Board of Directors?

(ix)          Should specific provision be made in the Constitution that the Board of Directors of a public enterprise shall automatically stand dismissed if there is a failure, within a specified period (say 6 months) of the end of each financial year, to provide the National Assembly with the annual report, or to publish the accounts, of the public enterprise, unless the failure to do so is determined to lie with the Chief Executive not providing the Board with the audited accounts?

(x)            Are there other measures by which public enterprises can be held accountable to ensure good governance and the good administration of public property?

(10)

17.             Reasons for Adverse Decisions

(i)             As part of the process of promoting good governance and good government, should the new Constitution make specific provision requiring persons and authorities with the power to take adverse decisions against public officers to formally state their reason or reasons for the adverse decision to the person against whom such decision is made?

(1)

TOTAL ISSUES FORMULATED = 369

18.             Preamble [To be determined during the drafting of the new Constitution]

19.             Sovereignty [To be determined during the drafting of the new Constitution]

                 

20.             Entrenchment [To be determined upon the drafting of the new Constitution]

21.             Transitional Provisions   [To be determined upon the drafting of the new

                                                             Constitution]