by Madi Jobarteh
Constitution Series 3
Creating an Over Powerful President at the Expense of Good Governance
The Barrow Papers have established a governance system never seen in the Gambia since colonial times. Worse than both the 1970 and 1997 constitutions, the Barrow Papers have dumped all appointments to all key and strategic public institutions into the hands of one person, i.e., the President without any oversight.
It is important to note that parliamentary oversight does not take away the powers of a president. Rather parliamentary oversight only makes a president to be responsible and act in the public interest and uphold ethical and professional standards when he appoints individuals to handle public office.
A review of the type, function and purpose of these public institutions which cut across the public and civil service, security agencies and independent bodies clearly indicate that the intention of the Barrow Papers is to create dictatorship and not build and strengthen democracy.
For example, Section 72 concerns the Independent Boundaries and Electoral Commission (IBEC) whose commissioners are appointed by the President in consultation with the JSC and PSC. The standard practice in democracies around the world such as Ghana, electoral commissioners are nominated or removed by the President subject to the confirmation of the parliament to guarantee their independence and fairness. This is what the 2020 Draft Constitution also provided. But where the President is also a candidate in the political game, if he has the powers to unilaterally appoint the referees of the game, would he not pick those who will favour him?
In Section 105 of the Barrow Papers, absolute power is given to the President to appoint ministers without any parliamentary confirmation as suggested in the 2020 Draft Constitution. Barrow Papers went even further to lower the bar for qualification for minsters (Section 106) to only attain “senior secondary school level and can speak and write the English language well.”
Ministers oversee not only ministries but also departments and agencies which protect human rights and provide goods and services. Therefore, ministers should be quite competent individuals who know their job well and will perform and serve the country without fear or favour!
Section 121 of the Barrow Papers is about the Director of Public Prosecutions (DPP) and control of prosecutions. Here again, the President has been given absolute power to appoint the DPP. The 2020 Draft Constitution provides that the DPP should be appointed by the President on the recommended of the Public Service Commission subjected to confirmation of the National Assembly.
The independence and security of tenure of the DPP is crucial to guarantee citizens access justice. The DPP should not be politicized lest they impose trumped up charges on innocent citizens as was the case in the Jammeh days.
Independent institutions are crucial bodies necessary to protect human rights, ensure public institutions are transparent and effective to perform their functions to fulfill the needs of society. Therefore, the members of independent bodies should not be under the control of any person or authority. Under Section 197, the Barrow Papers empower to President to unilaterally appoint members of the National Human Rights Commission, Anti-Corruption Commission, Ombudsperson, Auditor-General and the Central Bank of The Gambia. This is a recipe for politicizing, undermining and weakening the functions, effectiveness and independence of these bodies hence undermine human rights and good governance.
Similarly, between Sections 240 and 243 of the Barrow Papers, the President is given same absolute powers to appoint and remove people in the public service such as permanent secretaries, heads of public services such as the Public Service Commission and the Local Government Service Commission, and Secretary General and Head of Civil Service.
Further, under Schedule 4 of the Barrow Papers, the President has absolute power to pick five people as nominated members in the National Assembly without any oversight by anyone.
To further cement this absolutism, Section 133 of the Barrow Papers further empower the President to also remove these nominated members. The 2020 Draft Constitution abolished Nominated Members.
It is an open secret that in the Gambia public enterprises are generally corrupt, inefficient and highly politicized. This is precisely because of excessive Executive control thanks to the 1997 Constitution which gives absolute power to the President to appoint and dismiss boards and MDs of SOEs as he likes. Because of this, corrupt leaders such as Yaya Jammeh were able to interfere and loot SOEs without mercy.
Sadly, Barrow Papers, under Section 254 want to maintain the same bad culture of appointing the board members and MDs of SOEs which can only lead to entrenching corruption and inefficiency thereby perpetuating poor service delivery as currently characteristic of public enterprises.
The standard practice in democracies that have professional and stable armed and security services is that there is effective civilian control, especially by the parliament. In such societies, the top echelons of the military are nominated and then confirmed by the parliament. But in Section 259, the President is empowered to appoint the CDS, Deputy CDS, and commanders of the Army, Navy, Air Force and Republican National Guards all by himself.
Similarly, Section 263 of the Barrow Papers give the President power to appoint and remove the IGP on his own without any oversight. In this same regard, the President has absolute power to appoint the members of the Internal Security Service Council under Section 264.
The agencies listed under this council are the Gambia Police Service, the Gambia Fire and Rescue Service, the Gambia Prison Service, the Gambia Immigration Service, and the Drug Law Enforcement Agency of the Gambia. It is obvious that if the President could exercise such unchecked powers, then the tendency for these security chiefs to act at the pleasure of the President is high which poses severe threats to human rights and democracy.
The National Council for Civic Education is a body that deserves to be independent so that they can provide unfettered civic education to citizens to know their constitutional rights and duties. Without effective civic awareness, it will be difficult to obtain active citizen engagement which is indispensable in building democracy and ensuring good governance.
Hence every protection should be provided to ensure that NCCE is left independent. But where the Barrow Papers are giving absolute power to the President under Section 274 to appoint and remove members of the body without any checks by parliament then the dream of an active, informed and participatory citizenry will be difficult to attain.
Check out ‘Constitution Series 4: Lowering Democratic and Human Rights Standards’.
For The Gambia, Our Homeland
