By: Kalipha MM Mbye*
The recent judgment passed by the Supreme Court of The Gambia, herein referred to as ‘the court’, on a matter between two civil society organisations and Parliament, has stimulated a great debate in the public space on Separation of Powers and the Rule of Law in The Gambia. It should be a good case of interest for scholars who are interested in Parliamentary independence and democracy, particularly in The Gambia where the subject has little or no attention and literature.
The two civil society organisations invoked the original jurisdiction of the Supreme Court seeking, inter alia, a declaration that the amendment done by the National Assembly (Parliament) by including a budget line item of D54.4m is in contravention of sections 151, 152, and 155 of the Constitution and a violation of section 47 of the Public Finance Act, 2014.
The court, in a unanimous decision, held that the inclusion of D54.4m by Parliament in the Estimates contravened the provisions of sections 152 and 155 of the Constitution as well as violated section 47 of the Public Finance Act; thereby stroke out the said sum from the Appropriation Act, 2021.
The court, however, in its judgment sees ‘…NOTHING inconsistent with or in contravention of the Constitution on setting up loan scheme for the members and staff of the National Assembly…’ This simply means, as per the court, the allocation of funds for loan scheme for members and staff of the National Assembly is/was legally, ethically, and morally correct but, flawed the procedure or process. The initiative and objective of the scheme was not to enrich any member or staff of the National Assembly.
Now, let us to get into the issue how we respectfully disagree with the court in faulting the procedure or process of Parliament allocating fund in a purported creation of a new budget line item in the Estimates by Parliament. Why the word ‘purported’ new budget line is used would be answered later.
The Annual Estimates and the Annual Appropriation Bill
In an attempt to interpret the word ‘approve’ in section 152(1A), the Supreme Court failed to interpret the preceding word ‘consideration’ and I do not know why but its interpretation could have had significant bearing on the case.
Similarly, the court misconstrued a Bill under 101, which has no bearing on the suit, with the Annual Estimates of Revenue and Expenditure which is the main issue for determination under section 152.
The court failure to give meaning to the word ‘consideration’ in section 152 suggests a deliberate move to deny Parliament that flexibility intended by the drafters, knowing fully well that interpreting the word may led them to inquire into the Standing Orders of Parliament which they lack jurisdiction as per section 108, unless it is contrary to the Constitution. It must be emphasised that the Constitution in this case is silent on how the Estimates should be considered but the Standing Orders of Parliament did detail out the consideration stage of the Estimates extensively.
In addition, I do agree with the court’s assertation that: ‘Central to the safeguards for the protection of the Consolidated Fund and other public funds is the balanced apportionment and separation of powers and responsibilities of the Executive and Legislature in respect of the control and administration of these funds. The Executive has the responsibility of preparing detailed proposals of the Budget and also of lending public funds and entering into financial agreements such as loans and guarantees. The Legislature, on the other hand, exercises financial scrutiny and oversight on these matters through its powers of amendment and approval as per sections 101, 151, 152, and 155 of the Constitution and sections 14 and 47 of the Public Finance Act, 2014.’ However, again, the court acknowledged the power of Parliament to amend and approve but failed to recognise or give meaning to the power of ‘consideration’.
Blackwell, A. (2008) in Essential Law Dictionary, defined ‘consideration’ to mean: ‘The payment or reward essential to the formation of a contract and that persuades a person to enter the contract; something of value given in exchange for a performance or a promise.’ For the purposes of this context, a consideration could be defined to mean negotiations and exchanges between the Minister of Finance and Parliament that persuaded the former to create the budget line item in Parliament. I would have preferred to see the court’s interpretation of the word in both parliamentary context and that of the law.
The procedure of considering the Estimates is regulated in detail by the Standing Orders, since both the Constitution and the Public Finance Act are silent about it, and this is what Standing Order 91(3) says:
‘(3) In considering the Estimates, the Committee of Supply shall take into consideration the reported findings and recommendations of the Assembly Committees and the Finance and Public Accounts Committee’s consolidated report on the Assembly committees’ consideration of the draft budget, and shall ensure that –
(a) an increase in expenditure in a proposed Estimate is balanced by a reduction in expenditure in the same or another proposed Estimate; or
(b) a proposed reduction in expenditure is used to reduce a deficit in the Budget.’
This means that the only thing Parliament is restrained of, even by its own Standing Orders, is to increase the overall Estimates without the Minister’s consent. It is evident that the Estimates was never increased by Parliament, rather the deficit was reduced.
Assuming, without conceding, that section 101 of the Constitution, especially paragraph (4), is relevant for the case, that provision is not a matter for court to interpret in such a way it did but a procedural power for the Speaker of the National Assembly to exercise in his or her own opinion.
Section 101(4) reads:
‘Without prejudice to the power of the National Assembly to make any amendment (whether by the increase or reduction of any tax or charges, or the amount of any payment or withdrawal, or otherwise), the National Assembly shall not give consideration to a Bill that in the opinion of the person presiding makes provision for any of the following purposes –
(i) for the imposition of taxation or the alteration of taxation;
(ii) for the imposition of any charges on the Consolidated Revenue Fund or any other public fund of The Gambia or the alteration of any such charge;
(iii) for the payment, issue or withdrawal from the Consolidated Revenue Fund or any other public fund of The Gambia of moneys not charged thereon or any increase in the amount of such payment, issue or withdrawal; or
(iv) for the composition or remission of any debt due to the Government, unless the Bill is introduced into the National Assembly by the President.’
Still on section 101(4) of the Constitution, why did the court refused to take cognisant of the word ‘otherwise’ in the said construction of the provision even though it has emphasised that provision in rejecting the submission of the counsel for the 2nd, 3rd and 4th defendants? The word ‘otherwise’ here in Parliament’s power of amendment may include the power to do anything associated with amendment to the document before it.
Assuming further that section 101 is relevant to the case, I do not agree with the court rejection of the defendant’s submission that the power of Parliament to amend the Estimates extend to creating new budget lines or fresh expenditure in the Estimates. The court further went to hold the view that Parliament cannot, on its own or permitted by sections 152 and 101(4) of the Constitution, to create a new or fresh charge in the Consolidate Fund under the Estimates.
Interestingly, the court could not alert its mind that an allocation in the Estimates is not necessarily a direct charge on the Consolidated Fund, but it is only the Appropriation Bill when approved that puts charge on the Consolidated Fund. This is illuminated by sections 151 and 152(3) of the Constitution.
Section 151(1)(a) and(b) of the Constitution states: ‘No money shall be withdrawn from the Consolidated Fund except – (a) to meet expenditure charged on that fund by this Constitution or an Act of the National Assembly; or (b) where the issue of that money has been authorised by an Appropriation Act, a Supplementary Appropriation Act or in accordance with subsection (4) of this section.’
Furthermore, for purposes of clarity, section 152(3) of the Constitution states: ‘When estimates of expenditure have been approved by the National Assembly, an Appropriation Bill shall be introduced in the National Assembly for the issue from the Consolidated Fund of the sums necessary to meet that expenditure (other than expenditure charged on the Consolidated Fund), under separate votes for the several services required and for the purposes specified therein.’
Section 101 of the Constitution talks about the introduction of Bills and motion in the National Assembly and has nothing to do with the consideration of the Estimates. The most relevant section dealing with the Estimates is section 152 of the Constitution. The Appropriation Bill cannot be introduced without first dealing with the Annual Estimates as clearly asserted by section 152(3) of the Constitution above.
This means that there is no way that the Appropriation Bill could be dealt without the Annual Estimates disposed first, and then the Minister of Finance prepares his or her Appropriation Bill for introduction in Parliament.
I do agree with the court that the Legislature cannot introduce money Bills as per the Constitutional framework, but it has not barred them the power to amend, change or modify that Bill once tabled before for consideration. While this is a settled Parliamentary convention in all commonwealth jurisdictions, it has been further codified in the Standing Orders of the Parliament of The Gambia under Order 79. However, and I repeat, it is important to note that the Appropriation Bill was never, and had never been, introduced by Parliament but the Minister of Finance.
Consequently therefore, the court should have also alerted its mind to the fact that the National Assembly did NOT ‘…introduced ANY Bill that provides for withdrawal from the consolidated fund for any transaction, which creates or is likely to create long-term commitments without the prior consent of the Minister of Finance.’ Rather, the Appropriation Bill was introduced by the Minister of Finance, days after the approval of the Annual Estimates of Revenue and Expenditure.
Independence of certain Constitutional Independent Institutions
The court had also failed to dwell on the intention of the drafters or the fundamental principle of the Constitution granting certain independent institutions, of similar status with Parliament, such as the Judicature, NAO and IEC, explicit protection from Executive interference in their budget preparatory process but not to Parliament. This is because, in my view, the drafters knew that Parliament ultimately have the final say in the budget, and if their Budget to the Executive is not accommodated in the submitted version then they could implicitly redress that at their consideration stage.
The court was not vigilant to the fundamental principles behind the following Constitutional provisions accorded to such institutions of equal status with Parliament, if not more important. Sections 44, 144(1) and 159(4) of the Constitution respectively states:
‘The Independent Electoral Commission shall submit its annual estimates of expenditure to the President for presentation to the National Assembly in accordance with this Constitution. The President shall cause the estimates to be placed before the National Assembly without amendment, but may attach to them his or her own comments and observations.’
‘The Chief Justice shall submit the annual estimates of expenditure for the Judicature to the President for presentation to the National Assembly in accordance with this Constitution. The President shall cause the estimates to be placed before the National Assembly without amendment, but may attach to them his or her own comments and observations.’
‘The Auditor-General shall submit the annual estimates of expenditure for the National Audit Office for the following year to the President for presentation to the National Assembly in accordance with this Constitution. The President shall cause the estimates to be placed before the National Assembly without amendment, but may attach to them his or her own comments and observations.’
Ideally, the mind of the drafters for this common provision is to guarantee these important institutions their financial independence and free from Executive interference in their budget preparatory process, unlike Parliament who has the final say in the budget when their demands are not met by the Executive.
Since the alleged violation of the provisions of section 151, 152 and 155 of the Constitution and section 47 of the Public Finance Act is ambiguous and not literally clear, I believe the court should have drew its mind to the fundamental reasons of Parliamentary independence and swim in the ocean of the doctrine of separation of powers to give effect to the meaning of the independence of the Legislature just like that of the Judicature.
The Public Finance Act its interpretation
The Court’s reliance on the Public Finance Act requiring the prior consent of the MoFEA and the need for an agreement before a loan scheme or any other kind of loan is established is fatal. This is because the court is implying that provision which is intended to regulate conventional loan between the State and a State, national or multinational corporations, national or international organisations/entities is also applicable to a mere institutional service loan. Otherwise, the Civil Service loan scheme itself would be rendered illegal because there was no such agreement tabled before the National Assembly for approval, rather the fund was just allocated in the Estimates and thereafter responsible institution, the Personnel Management Office (PMO), came up with the implementing structure or governing regulation likewise the NAO staff loan scheme.
Furthermore, it is agreeable that section 47(1) of the Public Finance Act, subject to sub-paragraphs (2), (3) and (4), did gave the Minister of Finance the sole authority to lend State funds. However, it would have been good for the court to dwell on the intention of this legislation and that of section 155 of the Constitution. Basically, section 155 of the Constitution and the said legislation seeks to regulate or govern the lending of State funds outside the ordinary institutional State structure like public enterprises, private institutions, international organisations, or other Nation-States. This provision does not necessarily apply to administrative and institutional loan structures or schemes, otherwise even the Civil Service loan Schemes and that of the NAO, which they have just secured from the same budget approval process under review, would be rendered unlawful. This is because none of their structures/agreements had ever been subject to Parliamentary approval as it would have been required by section 155 of the Constitution and section 47(4) of the Public Finance Act if the interpretation of the court is anything to go by. Therefore, in my view, sections 14 and 47 of the Public Finance Act is irrelevant for the case. It is not the State that is lending as envisaged by the Public Finance Act but the institution loaning within itself – it is an internal and administrative loan scheme.
Lord Denning stated his view in Magor and St Mellons Rural District Council v Newport Corporation (1952):
‘We do not sit here to pull the language of Parliament to pieces and amend nonsense of it…we sit here to find out the indention of Parliament and carry it out, and we do this better by filling in the gaps and making sense of the enactment than by opening it up to destructive analysis.’
Based on the above quotation by Lord Denning, it is my considered view that the court could have adopted the purposive approach to give effect to the true purpose of the Public Finance Act – State-to-State lending or State to other private or international corporations.
The main issue of the suit and the locus standi of the plaintiffs were an alleged violation of the Constitution. Why did the court engage itself in fishing expedition? It was supposed to be the court’s responsibility to interpret the provisions of the Constitution especially section 152 in its entirety, together with the mind of the drafters and intention of Parliament rather than extending a generous interpretation of section 101 of the Constitution as if a provision in the fundamental rights chapter is in dispute, leaving out section 152(1A) without greater analysis.
In answering the purported element of a new budget line created by Parliament, I wish the court could have extended its fishing expedition to the side of the defendants to unveil the fact that the said budget line which the court in fact quoted as budget line number 2111280 of which the D54.4m was allocated was created by the Minister of Finance, of course at the request of Parliament. Without conceding that Parliament cannot create its own budget line, it should have been the Minister of Finance’s responsibility to object to the request and if need be, request the court’s declaration that the request made by Parliament was unlawful for him to execute. There is no evidence suggesting that Parliament created the budget line, but the available evidence relied on by the court is that the motion was made by a member of Parliament requesting for the Minister to create the budget line. A Parliamentary motion is defined in Standing Order 1(1) to mean “the means of initiating an Assembly debate, in which a course of action is proposed and/or an Assembly decision sought on a relevant issue.” Furthermore, the Standing Orders provides that a motion may be tabled by Ministers, Committee Chairs on behalf of Committees and by Members.
Therefore, the Minister as a defendant in the suit, has not deposed anything that he is against the creation or he was under duress, if I may say, to act on the request of Parliament. The Minister could have invoked his privilege to move a motion to challenge or nullify that member’s motion.
Yes, Gambia’s Parliament and authority is not typically that of the British, but it has drawn great inspiration from it. For example, in the British House of Commons, Ways and Means resolutions are needed to authorise the creation, extension or increase of taxes or other charges. Thus, I could have safely categorised the member’s motion requesting the Finance Minister to create such a budget line under this parliamentary convention through the power of Parliament to ‘give consideration’ to the Estimates by virtue of section 152(1A) of the Constitution.
The loan scheme
On the issue of the legality or otherwise of the loan scheme, the court has satisfactorily dealt with the merit of the scheme, that it is not inconsistent with the law for such to be accorded to the Legislature as an institution within governance structure of the State. I therefore need not to belabour the point but just to reiterate the issue in the court’s own words: ‘Just like the revolving loan scheme set up for the Civil Service, I see nothing inconsistent with or in contravention of the Constitution on setting up a similar loan scheme for members and staff of the National Assembly…’
Notwithstanding, the court went further to put a caveat to this, that the establishment of the loan scheme ought to go through proper process such as an enabling legislation or regulation to allow for the setting up of governing and administrative structures, including necessary rules or policy to safeguard the public funds before a seed money is made in the Estimates. This, to me, reveals that the court failed to even interrogate, as a whole, the Finance Act it relied.
Section 28(3) of the said Act designated the Clerk of the National Assembly as the vote controller of the National Assembly and paragraph (5) of same section charged the vote controller the legal obligation ‘to properly and efficiently manage the utilisation of public funds under his or her custody and shall:
(a) comply with all the regulations, instructions and directions issued in respect of such funds; and
(b) maintain proper systems for effective internal control.’
Primarily to the above, section 111(3) of the Constitution has mandated the Clerk of the National Assembly as the administrative head of the National Assembly Service under the supervision of an Authority comprising five National Assembly members including the Speaker.
Combined reading of section 111 of the Constitution with section 28 of the Public Finance Act implies that there are enough administrative structures to safeguard the public funds as well as the established fact that no fund could be released without the necessary governing rules. In fact, the existing internal governance structure of the State, such as the functions of internal audit department prescribed in section 68 of the Public Finance Act, would not have allowed any public fund spent without safeguard measures or legitimate reasons in place. The court ought to have drawn its attention to the fact that there is a difference between allocation and disbursement of funds. The appropriation of funds in the Estimates and the Appropriation Act are all mere allocation of funds but the actual disbursement of funds are regulated and controlled by the Ministry of Finance under the Public Finance Act and the attendant Financial Instructions.
In conclusion, I wish to reiterate that, the court’s inference of giving the Executive the exclusive power to be creating budget line item for the Legislature unlike the Judicature, is same as subject the Legislature at the mercy of the Executive which is, of course, against the fundamental principle of separation of powers and an affront to Parliamentary independence. The court failed to appreciate the fact that the ordinary administrative requirement of budget bilateral are purely meant for institutions and agencies, directly or indirectly, under the Executive but not for Constitutional Independent Institutions like the Judicature, Legislature, NAO, and IEC. Subjecting Parliament to budget bilateral or Executive control is identical of equating the former to an Executive agency or institution.
One of the principles of the doctrine of separation of powers is parliamentary sovereignty, though not absolute in The Gambia. Under most Constitutional frameworks and governance structures like The Gambia, the Constitution is supreme, and this is indisputable. However, under same Constitution, Parliament is not an ordinary institution and any action of it that is under review by the Judicature must not be interpreted generously against its underlying existence, unless it is matter affecting the fundamental rights provisions.
Has the court considered the consequential effects of its holding that Parliament cannot create a new budget without the prior consent of the President/Minister of Finance? As reiterated earlier, the court knows best the cornerstone of Judicial and Parliamentary Independence in a democracy is Executive-free interference and adequate resources. Certainly, the independence of the Judiciary as well as that of Parliament cannot be guaranteed in the absence of adequate resources. There is no doubt with the court’s ruling in the instant matter, the Judicature has legitimised Executive interference in Parliament. For instance, if Parliament during the budget preparatory process proposes to create an oversight or any other budget line item that it sees fit in effectively operate and to have funds allocated to that like but Government/MoFEA rejects such a proposal, who would rescue Parliament or check on the Executive to ensure the former gets the said budget line created since the court has already stated that Parliament cannot create its budget line unless agreed by the Executive?
The Commonwealth Parliamentary Association (CPA) had argued that governments, generally, do not like Parliamentary oversight/accountability and they could do anything within their powers and privileges to stifle such.
It is always good to take special note that Parliament is not an ordinary institution, in fact not an institution but an organ of State, that should be considered or treated as other institutions operating under the pleasure of Government (the Executive). This is one of the fundamental reasons why the drafters of 1997 Constitution expressly safeguarded the Judiciary, NAO and IEC from such Executive budgetary control and granted them the expressed easy ride to prepare their budget untouched by Government, but Parliament may touch. Contrarily, Parliament was not given such an express provision because the drafters knew that Parliament is ultimately in control of the budget and in spirit could decide on their fate.
*Kalipha MM Mbye is Head of Table Office at the National Assembly of The Gambia. He holds an LLB degree (Bachelor of Laws) from the University of The Gambia. At the time of writing this opinion, he was pursuing his LLM degree (Master of Laws) in International Law at the University of Bradford, UK. He has his interests in parliamentary democracy, constitutional law, public international law, and the rule of law.
Disclaimer: The opinion expressed in this article is entirely that of the author’s and do not represent the views of any inst