Post Legislative Scrutiny: A Tool for National Assembly to Evaluate Laws of The Gambia

Post Legislative Scrutiny: A Tool for National Assembly to Evaluate Laws of The Gambia

Introduction

One of the important roles of parliament is to make laws that meet the needs of the people. The process of lawmaking, otherwise called legislation, generally entails a series of parliamentary procedures that seek to review the needs of society with a view to responding to those needs appropriately and adequately in an efficient and resourceful manner.

Post legislative scrutiny or ex-post evaluation of legislation is generally recognised as a tool for evaluating and assessing enacted laws by parliament to inform itself of how these laws affect the lives and livelihoods of the citizens. Franklin De Vrieze describes PLS as a stand-alone activity that enables a parliament to self-monitor and evaluate and reflect on the merits of its own democratic output and internal technical ability. Often, and despite the best of intentions it might have, the focus of parliament at the time of legislation is to have the law enacted. It rarely pays attention to how well the law is being implemented over time and its resulting positive and negative effects. Thus, in PLS, parliament is availed the opportunity to directly evaluate and assess the efficiency, effectiveness, and impact of its laws on society. This helps parliament to understand whether a law or set of laws has served the purpose for which they were enacted or not, and if not, then parliament could decide to correct the anomaly.

The process of assessing the effectiveness of a law is multifaceted and is not automatic. The implementation of any law is largely tied to an inextricable network of factors that include funding, compliance, commitment, support and cooperation from institutions and citizens, as well as changes in the politics and economy of the country or society. Consequently, the London Declaration on PLS noted that the implementation of legislation depends on such factors as the clarity of the legislative texts; compatibility with other laws and the constitution; availability of human and financial resources to implement the law; full and unrestricted access to the legislation by enforcement authorities; and timely issuing of secondary or delegated legislation.

To this end, the ultimate objective of PLS is for parliament to oversee the implementation of the laws it has passed, take note of the areas that were successful and highlight those that require improvement. It also gives Parliament the opportunity to gather from the individual and collective experiences of the citizens regarding the implementation of the law and prepare itself for a review where required to ensure that laws always benefit citizens.

This paper is an attempt to popularise the concept of PLS for the National Assembly of The Gambia in particular and parliaments in general. It is anticipated that the National Assembly may consider using PLS as a tool of engagement and assessment of its passed laws. Using a comparative approach, this paper discusses the use of PLS in other jurisdictions, underscores some laws in The Gambia that could be subjected to PLS and makes some compelling conclusions.

Post Legislative Scrutiny in perspective

Social theorists often argue that the fundamentals of any law for a society is to shape and improve the lives of the people through what that law permits or prohibits. In other words, the need for a law is to constrain or empower, restrict or enhance. Therefore, while parliaments debate legislation, it should not be seen as the end of the process because a law may have unintended outcomes or simply have no effect at all.

PLS is often done through a committee of parliament that may either be set up for this purpose or assigned on an ad hoc basis. Parliamentary committees offer the most direct form of engagement. From jurisdiction to jurisdiction, the nature and terms of reference of a committee differs. In parliamentary jurisdictions like Indonesia and Belgium, there are committees set up for the specific task of ex-post evaluation of legislation. However, there are others, including in South Africa, that are set up on the basis of necessity and usually outsourced to investigate specific issues of ex-post evaluation of legislation. For the House of Commons and House of Lords of the UK, all the committees have the freedom and latitude to conduct PLS. In most parliamentary jurisdictions where ex-post evaluation of legislation is done, the law has to be in place for at least three to five years before PLS can be sanctioned.

In a WFD-funded review, De Vrieze and Hasson (2017) reveal that the Federal Parliament of Belgium created a parliamentary committee in 2007 for the specific mandate of ex-post evaluation of legislation. The responsibilities of the committee include: to receive petitions that highlight problems arising from the implementation of a specific law that has been in force for a minimum of three years; to conducting post-legislative review on the basis of recommendations made by the rulings of the Court of Arbitrage/Constitutional Court on the application of specific legislation; and to respond to issues raised in the annual report that is submitted by the General Prosecutor of the country to Parliament, highlighting problems related to the interpretation or enforcement of specific laws.

De Vrieze and Hasson note that in Indonesia, the House of Representatives established a Standing Committee on Legislation, referred to as Badan Legislasi (BALEG), that has a central role in the law-making process within the parliament, particularly in conducting Post-Legislative Scrutiny. They reveal that the Committee monitors whether the government enacts implementing regulations or not, monitors if the law is being challenged at the Constitutional Court, and evaluates the applicability of the laws by the implementing agencies and the impact of the laws on the people. BALEG refers the results of its Post-Legislative Scrutiny to relevant subject committees, which then take further actions to government ministries, agencies, or judiciary agencies within their jurisdictions.

In South Africa, since the Parliament does not have the internal capacity to do PLS, it has commissioned an external panel of senior experts to systematically examine the effects of laws passed by the National Assembly since non-racialised majority-rule was established in 1994. De Vrieze reveals that in the 2004 report of the UK House of Lords’ Constitution Committee, there was a recommendation for PLS to be a routine feature of parliamentary scrutiny. The Committee took a holistic view of the legislative process, encompassing not only the passage of a bill after introduction but pre-legislative scrutiny and post-legislative scrutiny.

It can be adduced that scrutinising the implementation of a law may take the form of a committee hearing where government representatives, along with other stakeholders such as civil society organisations that work on such specific issues, can be invited to report on the implementation of the law. And as a follow-up, committees can make specific recommendations to the House or the plenary. The rationale for these recommendations and their adoption is to lend greater credence and attention to some provisions of the law that are either not being implemented or only partially implemented. If parliament adopts these recommendations, the committee thereafter monitors their implementation. In some cases, discussions on the implementation of a law may lead to immediate legislative amendments that may propose corrective intervention or readjust the original provisions of the law to accommodate events that have transpired since the law was adopted.

According to Franklin De Vrieze, a parliament’s capacity and performance in PLS are, to a significant extent, determined by the presence of parliamentary procedures and structures that are specific to PLS and the extent to which the PLS inquiries generate written findings and recommendations (PLS reports), as well as monitoring and conducting follow-ups to those findings.

The status of oversight at the National Assembly of The Gambia

The National Assembly has twenty-three (23) committees. Fourteen (14) of these committees are standing committees whilst eight (8) are select committees. The Constitution empowers the Assembly to establish standing committees. However, the establishment of a select committee is dependent on the need for it. The Assembly can establish as many select committees as it considers necessary through a motion tabled by the Committee of Selection (Standing Order 95(3)). In accordance with Standing Order 95(5), special select committees may also be established to deal with any specific time-bound matters.

The National Assembly has not assigned an exclusive mandate to any committee to evaluate laws. However, all committees are directed to identify, monitor, and cooperate with all MDAs in matters relating to their terms of reference and to receive and review Bills, activity reports, domestic and foreign policies, agreements, strategic plans and other measures and decisions of the institutions under their purview.

The focus of National Assembly oversight or scrutiny by its committees is mostly limited to how the budget is being implemented as appropriate based on the annual estimates approved by the Assembly. Each of the committees of the Assembly works with its line ministries, departments, and agencies (MDAs) to monitor and measure the extent to which resources and services are being distributed and delivered and to determine the impact of this distribution and delivery on the lives of the common people.

The committees invite sectors and interface with them, receive reports from institutions that may outline the details of their activities, and make field visits to assess the performance and challenges of institutions vis-à-vis their terms of reference. For example, in 2022, when a massive oil spill occurred at Mandinary Oil Depot in the West Coast Region, the Committee on Environment visited the site to assess the veracity of the damage caused. The Committee on Health also visited some major hospitals and pharmacies and had a series of engagements with the concerned authorities when an Acute Kidney Injury outbreak was declared in the country that killed over four dozen children. These incidents have been noted as the result of the failure of institutions to implement and enforce the existing laws effectively. However, in each of these instances, the focus was never on how well the law was implemented. Instead, the focus was on establishing the factors that led up to those incidents. It may be argued that if the laws are being periodically reviewed to assess the extent to which they have been implemented and benefitted the people, such incidents may likely not occur.

Some laws that could be reviewed

The Constitution of the Republic of The Gambia vests the legislative power of the State (power to make and amend laws) in the National Assembly. The Constitution also empowers the National Assembly to delegate some of its lawmaking powers to an individual or other body. In The Gambia, any law made by a person or body by virtue of delegated law-making power is referred to as subsidiary legislation (also known as secondary legislation, subordinate legislation, or delegated legislation). Subsidiary legislation must generally be made within the framework of an Act of the National Assembly. In this regard, a case can be made for the Assembly to monitor the exercise of the lawmaking power it has delegated through a review of the implementation of subsidiary legislation.

It could be argued that some of the laws of The Gambia are obsolete or have no longer been implemented. Some of these laws include the Motor Traffic Act, 1948; Price Control Act, 1974; Injuries Compensation Act, 1990; The Gambia Fertilizer Fund Regulations, 1966; Old Metal Dealers Act, 1917; Skin Bleaching (Prohibition) Act, 1996; and the Anti-Littering Regulations, 2007. The ultimate intent of any law is to improve, deter or regulate human behavior and the way societal structures are managed. Where this cannot be achieved by any law, then there is no need for it.

The proposal for a thorough review of the Motor Traffic Act of The Gambia, for instance, is informed by the appalling rate and gravity of road traffic accidents in the country. It could be that this law does not suffice to deter the behaviours that lead to the occurrence of the serious accidents on the roads, or the provisions are not adequately implemented and enforced. In April 2022, the Point Newspaper reported that the World Life Expectancy ranked The Gambia fourth place among world’s worst countries where accidents are mostly registered. The report indicated that the total number of accident cases recorded in The Gambia by April 2022 reached 11,995, whilst the death toll accelerated to 365. It further noted that from January to April 2022 alone, The Gambia registered a whopping 1,825 cases of road accidents.

The proposal for a thorough review of the Price Control Act is informed by the apparent lack of price control in the market, which has contributed to the increase in prices of goods and commodities at a high, frequent, and unpredictable rate.

As to the Injuries Compensation Act, the proposal to review this Act is informed by the need to protect all persons, especially those working in the public sector who sustain injuries or die of injuries sustained at work and to allow the compensation scheme to accord with existing realities.

The proposal for a thorough review of the Skin Bleaching (Prohibition) Act is informed by the March 2021 claim of the executive Government of The Gambia that it lacks the required resources to implement and enforce the Act. A bill was subsequently tabled before the National Assembly to repeal the Act. However, the bill could not get the required votes to pass. The general claim of the Members that voted against the repeal was based on religious principles.

How can the National Assembly incorporate Post Legislative Scrutiny in its oversight functions?

There are three options available to the National Assembly should it decide to use PLS to monitor the implementation and improve the quality of its legislations. According to De Vrieze, the options available to parliament are as follows:

First, parliament could require ministries to provide regular reporting to parliament on the implementation of laws after three or five years of their enactment.

Based on this, the National Assembly could require government ministries, departments and agencies to regularly report to parliament on laws that are three to five years into their implementation just as they are already doing on their terms of reference. To do this, and for ease of reporting and assessment, committees, in collaboration with the Office of the Clerk and support partners such as the CSOs, may provide a template or a scorecard that MDAs would use as guide.

Second, parliament could outsource or commission research on the implementation of a law to external institutions, either autonomous official institutions (such as the Auditor General’s Office) or external independent institutions such as universities.

The National Assembly could equally outsource or commission research on the implementation of specific laws. In other words, the National Assembly can commission research by inviting research institutions in the country to evaluate the degree to which a certain law or collection of laws has been implemented. This would include outsourcing research to specific external and autonomous official institutions such as the National Audit Office, Judiciary of The Gambia, or independent institutions such as the University of The Gambia, especially where the workload required would overwhelm the capacity of the Assembly Service.

Third, the parliament could conduct its own inquiries on the implementation of selected laws by holding public hearings, collecting evidence, and conducting in-house research by staff of the Parliament, such as through a research unit or legislative unit.

To this end, the National Assembly could initiate and conduct its own inquiries on the implementation of selected laws by holding public hearings, collecting evidence, and conducting in-house research by staff of the Assembly Service, such as through the Research Unit. It could be argued that assigning such duties to the Assembly Service might be more cost effective. The Assembly could also establish a specific committee or committees for the sole purpose of conducting PLS or incorporate PLS as part of the terms of reference of all its committees.

What challenges would the Assembly likely face in adopting Post Legislative Scrutiny as a tool?

The National Assembly of The Gambia is a legislative parliament with most of its scrutiny and oversight activities centered around assessing the trickledown effect of national resources and services to the people.

Since the focus in “legislative parliaments” is mainly on debating and adopting legislation, and oversight is often limited to budget oversight, De Vrieze opined that introducing PLS in such parliaments will broaden its oversight functions, giving it a new agenda that would result in new workload for both staff and MPs.

Therefore, while the National Assembly is being encouraged to adopt PLS as a tool in its parliamentary business, it is equally encouraged to address critical human resource and capacity challenges of the National Assembly Service, factors that are central to the success of the tool.

Conclusion

PLS is a tool that encourages citizens’ participation and engagement with parliament. When enhanced, these engagements can serve to reduce ambiguity and public distrust as the citizenry would be more informed of the activities, powers, and limitations of the National Assembly.

PLS will help NAMs to better understand how the laws they pass affect the people. In this regard, the National Assembly could opt to evaluate the laws of The Gambia itself or commission independent research to look at some of the archaic laws in our statute books that no longer serve the relevance and purpose for which they were legislated. However, the Assembly must first review its Standing Orders to provide for PLS prior to introducing it. As it is, there is no provision in the Standing Orders of the National Assembly that advocates for post-evaluation of legislation.

SUGGESTED CITATION: Dumbuya Alhagie M., Post Legislative Scrutiny: A Tool for National Assembly to Evaluate Laws of The Gambia, Law Hub Gambia blog, August 9, 2023, www.lawhubgambia.com/lawhug-net/post-legislative-scrutiny.

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REFERENCES

·The London Declaration on Post Legislative Scrutiny. Westminster Foundation for Democracyhttps://parlamericas.org/uploads/documents/2018-12-19%20Declaration%20on%20PLS%20-%20EJLR_ENG.pdf  (accessed 19 January 2023).

· Franklin De Vrieze and Victoria Hasson. (2017). Post-Legislative Scrutiny: Comparative study of practices of Post-Legislative Scrutiny in selected parliaments and the rationale for its place in democracy assistance. (2017). Retrieved on January 12, 2023, from https://www.wfd.org/sites/default/files/2022-01/Comparative-Study-PLS-WEB.pdf   

·  Parliamentary Innovation. (16 June 2022). Seven questions on Post Legislative Scrutiny. Retrieved on January 12, 2023, from https://gpgovernance.net/seven-questions-on-post-legislative-scrutiny/ 

·Franklin De Vrieze. (23rd July 2018).  A Guide to Post-Legislative Scrutiny. WFD. Retrieved on January 27, 2023, from https://www.wfd.org/what-we-do/resources/guide-post-legislative-scrutiny 

· Franklin De Vrieze. (27th Sept. 2021). Parliamentary and legislative indicators for Post-Legislative Scrutiny. West Minster Foundation for Democracy. retrieved on January 31, 2023, from https://www.wfd.org/sites/default/files/2022-02/2021-09-27%20PLS%20indicators%20-%20Concept%20Note_.pdf 

·European Partnership for Democracy (EPD). Expert insight: Why Post-Legislative Scrutiny may be considered a public good. Retrieved on January 31, 2023, from https://epd.eu/2021/03/17/post-legislative-scrutiny-public-good-lord-norton-de-vrieze/  

· Revised Standing Orders of the National Assembly of The Gambia. (2019).

· Pa Modou Cham. (Apr 27, 2022). Gambia ranked 4th in world's road accident. Retrieved on February 6, 2023, from https://thepoint.gm/africa/gambia/headlines/gambia-ranked-4th-in-worlds-road-accident

· Modupeoluwa Adekanye. (March 23, 2021). Gambian Members of Parliament To Uphold Skin-Bleaching Ban. Retrieved on February 6, 2023, from https://guardian.ng/life/gambian-members-of-parliament-to-uphold-skin-bleaching-ban/

Ahlagie M. Dumbuya

About the author

Alhagie M. Dumbuya is the Director of Research and Library Services at the National Assembly of The Gambia

Point of Order: The Parliament of The Gambia in Operation

Introduction

One of the cornerstones of parliamentary procedure is that proceedings in the Assembly are conducted in a free and civil manner. To facilitate this recognised principle, the Assembly adopted rules of procedures [ii] for the maintenance of order and decorum for the conduct of members and to regulate its own proceedings. Considering the sacred nature of the institution of parliament, members are expected to show respect for one another, and the competing different viewpoints. Therefore, offensive or discourteous behaviour or language is intolerable.

The Sixth Legislature of the National Assembly (the parliament) of The Gambia was elected to office in April 2022; relatively new in office at the time of writing this article. The majority membership of this legislature is first-timers in parliamentary practice and procedure.

A few months into parliamentary proceedings and the apparent enthusiasm to employ and test every opportunity and tool at their disposal, the conduct of some members during proceedings reveals the normal inexperience associated with new membership to any organisation as well as the creative art of politicians seeking to be recognised in every gathering.

The fundamental rules and precepts of the routine important parliamentary tool of point of order cannot be ignored in any parliamentary proceedings. There is no device, which is most frequently used and abused than a point of order.

This paper, therefore, examines the practices and rules pertaining to point of order in the Assembly and the powers of the speaker, as the presiding officer to enforce order and decorum when breaches occur. It provides some understanding and clarifications on the principles, usage, and the rules of parliamentary point of order with specific emphasis on The Gambia’s context.

 Point of order

Generally, it is a fundamental parliamentary law that a member speaking must be heard in silence by others in every proceeding of the parliament and members are condemned to making unseemly disruptions while a member is on his or her feet speaking.[iii] Hence, a “point of order” is a privileged permissible interruption granted to a member to interrupt another member on an alleged breach of rules of procedure or a matter of procedure requiring the speaker’s elucidation.[iv] The rules require that a point of order may be raised if there is any alleged deviation from parliamentary rules, existing laws, or whether the proper procedure has been, or is being, followed in the Assembly.

Equally and in principle, a point of order, especially on a substantial matter, could be raised by a member or a chairperson of a committee seeking the guidance of the speaker on a matter of procedure affecting the Assembly in its operation or proceedings. Essentially, a member can use a point of order to seek guidance from the speaker in the chamber on a matter of parliamentary procedure.[v]

It is therefore pertinent to note that a point of order in its general parliamentary sense is an appeal to the presiding officer for clarification or judgment on a matter of procedure in the National Assembly. 

What form should a point of order take?

There may not be a specific form in which a point may be raised. However, it is a settled rule that a member can make a point of order relating to a particular breach, or matter of procedure during proceedings of the Assembly. In practice, a member is required to catch the speaker’s eye by raising his or her constituency tag or standing in one’s place shouting or indicating “Hon. Speaker, point of order!”

Substantial points of order, and ones not related to a specific proceeding but affect a procedural matter of the Assembly may be taken by the speaker.[vi] However, the speaker may decide not to make an immediate ruling on such kind of points of order but ask for time to reflect on the issue. In practice, and advisably a member wishing to make a substantial point of order should give prior notice to the speaker’s office. This is desirable as substantial points of order are usually intricate and may require some technical research.

It is a decried practice where members often abuse points of order or misconstrue it with “point of observation or clarification”[vii] to participate in a debate. This is many a time frowns upon by the speaker as against the rules of the Assembly. For a point of order to be legitimate, it must relate to a matter of procedure or allege a breach of it for the speaker to decide on the matter.

What happens when a point of order is raised?

It is a cardinal rule that any member who is on his or her feet speaking must resume his or her seat whenever a point of order is raised, and the member raising the point must equally submit his or her point to the speaker for determination.[viii] It is equally imperative that, except by leave of the speaker, no other member must rise until the speaker decides on a point of order and when a ruling is made on the point, the member who had the floor is entitled to proceed, subject to the decision.[ix] This is a very fundamental rule that ought to be observed by members of parliament at all times in the proceeding of the Assembly. 

Speaker’s duty on point of order

It is the duty of the speaker to decide on all matters of order and procedure in the chamber of the Assembly. The speaker as the presiding officer responsible, in the Assembly, for the observance of the rules of order and procedure, his or her decisions are not subject to appeal except on a substantive motion for which notice must be given.[x] Equally, the speaker has the duty to call any member to order if he or she considers any member’s action a violation of any provision of the rules or a breach of general parliamentary procedure and practice regardless of whether a point of order was raised or not.

The speaker has the responsibility to examine the issue(s) raised in a point of order to determine its propriety and may rule it out of order even where no point of order is raised from the floor. It is, however, not the duty of the speaker to decide any question which is not directly presented in the Assembly.

The speaker may likewise decline to rule on a substantive point of order to a later time or date for examination and ruling, and on very rare occasions submit a question of procedure to the Assembly for a decision. However, in making a ruling on a point of order, the speaker may hear arguments from members or even refer to parliamentary usages, customs, and conventions.

Members must alert themselves that the speaker has the mandate of ensuring that proceedings and behaviour of members are confined to the rules and practices of the Assembly, and to safeguard itself from excesses. While it is generally agreed and recognised principle that parliament is the master of its own proceedings and the speaker is its servant, the speaker has extensive powers to enforce the rules and maintain order for the smooth and orderly conduct of parliamentary business.[xi]

Multi points of order

Customarily, a point of order raised must be disposed of before another point of order may be made. This further epitomises the rule that once a point of order is raised all members must be seated to hear the speaker rule on the matter. This is an inviolable rule for the orderly operations of parliamentary proceedings. In exception, however, the speaker has the discretion to entertain multiple points of orders at the same time to make a ruling.[xii]

In practice, the speaker usually decides on a particular point of order before another point is raised for determination. Essentially, and as alluded to earlier, this does not preclude the presiding officer in his or her own judgment to take more than one point of order alleging a violation of a particular rule or a matter of procedure, or even a point upon a point of order for determination. It is appositely important to note that, where the speaker decides to entertain more than one point of order at a time, he or she may rule separately on each point of order in such manner or form as he or she may determine. This procedure enables the speaker to save the time of the Assembly by hearing all points of order and upholding any legitimate one of it without deciding on the others. Thus, where several points of order are made against an issue and the speaker sustains one, that would suffice for the other points on the same issue. Therefore, it could be safely concluded that it is a permissible practice that multi-points of order are allowed in rare cases but at the discretion of the speaker. 

The speaker’s ruling or decision

Where a point of order is sustained against a member on his or her feet, the member is required, to the extent of the ruling of the speaker, to discontinue his or her speech.[xiii] This rule is sacrosanct and binding, thus members must respect and not disregard it. The effect of a speaker’s ruling on a point of order may extend to Hansard, the verbatim record of the proceedings. For instance, if the ruling is not in favour of a word or phrase uttered by a member to be unparliamentary, the speaker may, in addition, ask that the language is expunged from the records.

While acknowledging the rules of decorum, courtesy, and respect in parliamentary proceedings as important, it is a cardinal principle not to interrupt the speaker. The speaker must always be heard in silence. Even under permissible interruptions, members are highly expected to be courteous or and respectful to the Assembly, the speaker, and other members. Thus, all members, and not only the speaker, must be on alert for any infractions of procedure or order. Of course, remedies are available in parliamentary law against disrespectful or disorderly behaviours in the Assembly. Remedies include being brought to order by the speaker, made to apologise or withdraw one’s statement, and where required suspended from the sitting.

Generally, membership in any Assembly comes with certain obligations, and some of these are enshrined in the rules of such parliament.[xiv] This is common to all parliaments or any formalised group of people. The most important of these are the obligations to abide by the rules of the Assembly and to abide by the lawful decisions in a parliamentary democracy. Notably, in a parliamentary setting, members are obliged not to oppose the ruling of the speaker except through an appropriate mechanism, such as a substantive motion to overturn or reconsider such decision. 

The precedent rule

It is trite that a decision of a higher court is binding on a lower court on a question of similar fact – stare decisis. Similarly, it is a parliamentary law that the speaker’s ruling serves as a precedent for ensuing matter of same issue or fact. In referring to precedent to resolve a point of order, the Assembly is applying a judicial doctrine, stare decisis, under which a judge is bound by an earlier decision of a higher court on similar facts and law. In practice, the Assembly is equally bound by the previous rulings of the speaker on matters of similar fact and rule.

 Notwithstanding this doctrine, the speaker may after further argument or examination reverse his or her own ruling on a point of order or even that of a former speaker, where present circumstances dictate such ruling to be overturned or modified. For example, it is arguable that speaker’s ruling No. 3 of 2020[xv] should be reviewed for modification regarding negatived ordinary bills at Second Reading stage.

In principle, while the speaker ordinarily avoids disregarding a previous decision on similar facts, such earlier decisions may be examined, modified, and even overruled where cogent reasons are present to do so.

Time to take a point of order 

Certainly, a member can use a point of order for guidance from the speaker in the Assembly on a matter of procedure or on an allegation of breach of procedure. Generally, there may not be any specific rule indicating the time at which a point of order may be raised. In practice, especially in the House of Commons, a point of order relating to a particular incident could be raised immediately after the incident.[xvi] Essentially, if there is any alleged breach of procedure, a point of order may be raised immediately thereof.

In the UK, a more substantial point of order or one not relating to a specific event in the chamber or to a member speaking is usually taken in the chamber after Question Time, and any urgent questions or oral statements.[xvii] Under the practice of Gambia’s Parliament, such substantial point of order unconnected to live happening in chamber may be taken immediately after the correction of records of votes and proceedings. It is advisable if a member wants to make a substantial point of order to give advance notice to the speaker’s office. This is so desirable especially when the matter is complex and requires some research.

Grounds

As discussed above, a point of order must ordinarily be based on an objection that the pending or an ongoing matter or proceeding is in violation of some rule, or a matter of procedure of the Assembly requires the speaker’s elucidation. Any point of order that falls short of meeting this requirement is inadmissible.

Therefore, for a point of order to be legitimate, it must satisfy the criteria of an alleged violation of the Assembly’s rule or must be a procedural matter that requires elucidation from the speaker. The speaker has the duty to ascertain or be convinced of the rule(s) being cited. While questions of order arising under the rules are determined by the speaker, he or she does not rule on questions of, hypothetical nature, constitutional interpretation, or legal effect of propositions, propriety, or expediency of a proposed course of action, and upcoming incidents. In the UK, speakers had refused entertaining points of order were allowing it would itself breach the rules of the Assembly.[xviii] In a similar but unrelated scenario in The Gambia, the speaker refused to entertain a point of order from a member[xix] where the member deviated procedure to be heard.

 Relation to other business

When a point of order is invoked against a specific matter or business, consideration of that business is suspended until the objection is cleared. In addition, where the objection is regarding a method of voting or thereabout on a matter, the speaker should rule on the point of order before proceeding to other questions. Clearly, a point of order may only be deferred when it is substantial or does not affect an ongoing procedural matter before the Assembly. A legitimate point of order takes precedence over all prepositions or business until it is disposed of. In other words, proceedings on a particular business shall not continue until a valid point of order is resolved.

Debate on points of order

Debate on a point of order is only permissible at the discretion of the speaker. It is generally unallowable to debate on a point of order. However, members seeking to be heard must address the chair and cannot engage in colloquies on a point of order. The discussion and time to be allowed for debate on a point of order is the sole discretion of the speaker. A member speaking on a point of order must not engage in a debate either but strictly to the point he or she wishes to bring to the attention of the speaker and Assembly.

Pertinently, it is a deprecated growing practice of interruptions by members when a member on his or her feet refuses to give way on a point of clarification or observation[xx], and members commonly rise on a point of order only to get their words heard in a debate. It is opined that such interruptions constitute fraudulent points of order and should be avoided.

 Scope of debate

It is a trite parliamentary rule that any permissible debate on a point of order must be relevant thereto. Debate is limited to the order in question and may not go to the merits of the proposition being considered. The speaker should not grant requests to make extensive remarks on points of order.

Burden of Proving a point of order

The member rising on a point of order has the burden of proving an allegation of breach of rule or procedure. Ordinarily, a member who alleged that a violation of the law occurs must give reason(s) for believing so and the speaker decides whether it is a valid or not. For example, under the Assembly’s practice and rules, a committee report on a bill must possess certain elements and thus where a point of order is raised against consideration of a committee report on a bill on the ground that the report thereon does not reflect the expectations in the existing rules[xxi], the proponent of the point of order has the burden of proving and must cite the specific provision of the rules. Importantly, in the absence of such citation, the point may not be entertained by the speaker.

Thus, a point of order having been raised, the burden of proving it falls on the proponent. However, it is pertinent to note where the authority under which a point of order is raised is common knowledge, the burden of proof is waived for the proponent.[xxii] Thus, it is important for a member to advance reason(s) for believing a breach of the rules occurred, is about to occur or there is a lacuna in the rules for the speaker to decide or otherwise.

 Withdrawal of a point of order

A point of order may be withdrawn at any time before the speaker rules on the matter. However, a point of order withdrawn may be revived by another member. Where a member decides to withdraw his or her point of order, the speaker must be notified in good time before a ruling is made. Where it is done after a ruling is made, it is now the discretion of the speaker to rescind its own ruling or otherwise.

Can a speaker’s ruling be appealed?

 In principle, a ruling of the speaker on a point of order may be contested through an appeal by a member. Indeed, the right of appeal from decisions of the Speaker on questions of order is provided for by the rules of the Assembly.[xxiii] The speaker has the duty to ensure the care for law and order in the Assembly. Based on this rule, speaker’s decisions on questions of order and procedure are not subject to appeal except on a substantive motion for which notice must be given.[xxiv] This signifies that the speaker’s decision on a point of order cannot be appealed forthwith but only later by the Assembly on a substantive motion.

 Conclusion

Fascinatingly, freedom of speech is one of the most important privileges enjoyed by National Assembly Members.[xxv] However, this freedom is constrained by rules of maintaining order and decorum in parliamentary proceedings. Thus, the right to speak is tempered by the written rules of the Assembly which are generally limited on what may be said, when, whom, and time.

 It is worth concluding by recognising that the speaker is collectively the custodian of the rights of members and the Assembly and is also responsible for facilitating the smooth and orderly conduct of the business of the Assembly. During proceedings, the speaker ensures that all corners of the Assembly are heard and whenever a point of order is raised, he or she is required to interpret the rules, study, and in some cases refer to precedent, if any. In addition, when necessary, the speaker is expected to evolve a new practice by using discretionary powers[xxvi], and pronounce rulings as was the case in the speaker’s ruling[xxvii] of 12th September 2022.

Erskine May[xxviii] opines that the speaker is under a duty to intervene to preserve order but may refrain from intervening if he or she considers it unnecessary to do so. However, even if the speaker does not believe that a breach of an order has been committed, it is the right of any member who believes so to interrupt any member on the floor and direct the attention of the speaker to the alleged breach.[xxix] 

As observed earlier, the onus lies on the proponent of any point of order to simply direct attention to the point complained of and submit the same to the decision of the speaker. Where the speaker is of the opinion that the words or conduct complained of are outside the bounds of the rules or practice, the concerned member will be called upon to conform him or herself to the rules. 

It is customary and so trite parliamentary rule that the speaker is given utmost respect and attention by all members of the Assembly. Parliamentary law dictates that whenever the speaker rises to speak, he or she is heard in silence and any member who is speaking or wants to speak is required to be seated.

It is significant to note that no person is expected to leave the chamber when the speaker is addressing the Assembly, as this may imply disrespect to the chair. It is also concluded and for members to alert their minds that the speaker’s rulings cannot be questioned except on a substantive motion, and they constitute precedents that are collected for future guidance.

Finally, it is procedurally depressing that members habitually rise on a point of order when a member on his or her feet refuses to give way on a point of clarification or observation, only to interrupt the member on the floor without any genuine procedural breach. The speaker including the Assembly must denounce this growing practice of interruptions of debate by members where such interruptions constitute a blatant breach of parliamentary rule and a recipe for chaos and disorder in the Assembly.

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SUGGESTED CITATION: Mbye, Kalipha MM, Point of Order: The parliament of The Gambia in operation, Law Hub Gambia blog, November 7, 2022, https://www.lawhubgambia.com/lawhug-net/wwwlawhubgambiacom/lawhug-net/point-of-order

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Kalipha MM Mbye is the Deputy Clerk for Legal and Procedural Matters at the National Assembly of The Gambia. He holds an LLB degree (Bachelor of Laws) from the University of The Gambia, and an LLM degree (Master of Laws) in International Legal Studies Law from the University of Bradford, UK. He has 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 does not represent the views or opinion of the National Assembly of The Gambia or any institution or person he may be associated with.

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[ii] Standing Orders of the National Assembly of The Gambia was adopted by members of the fifth legislature in September, 2019 following an extensive review of its earlier version of 2001.

[iii] Standing Orders, National Assembly of The Gambia, 2019, Order 17(f)

[iv] Standing Orders, National Assembly of The Gambia, 2019, Order 18 and 32

[v] Points of Order, MPs’ Guide to Procedure, https://guidetoprocedure.parliament.uk/articles/f1OqrfIi/points-of-order (accessed 20th September, 2022

[vi] Points of Order, MPs’ Guide to Procedure, https://guidetoprocedure.parliament.uk/articles/f1OqrfIi/points-of-order (Accessed 28th September, 2022)

[vii] In The Gambia, a point of clarification or observation is a permissible interruption provided that the member on his or her feet is ready to give way.

[viii] Standing Orders, National Assembly of The Gambia, 2019, Order 32(2)

[ix] Standing Orders, National Assembly of The Gambia, 2019, Order 19

[x] Standing Orders, National Assembly of The Gambia, 2019, Order 20

[xi] M. Robert Marleau and M. Camille, House of Commons Procedure and Practice, 2000, Canada https://www.ourcommons.ca/marleaumontpetit/DocumentViewer.aspx?Sec=Ch13&Seq=5&Language=E&Print=2

[xii] Points of Order; Parliamentary Inquiries, US House Practice: https://www.govinfo.gov/content/pkg/GPO-HPRACTICE-104/pdf/GPO-HPRACTICE-104-38.pdf

[xiii] Standing Orders, National Assembly of The Gambia, 2019, Order 19

[xiv] L. James, Meeting Procedures: Parliamentary Law and Rules of Order for the 21st Century, Scarecrow Press, Inc. Lanham, Maryland, and Oxford 2003

[xv] It was held in this ruling that an [ordinary] must complete all its stages notwithstanding it is negatived at second reading stage. This implies that even if an ordinary was voted down at second reading stage the bill must continue to the next stage of the legislative process.

[xvi] Points of Order, MPs’ Guide to Procedure, https://guidetoprocedure.parliament.uk/articles/f1OqrfIi/points-of-order (Accessed October, 2022)

[xvii] Ibid

[xviii] Erskine May: Parliamentary Practice, (25th edn,) https://erskinemay.parliament.uk/section/4900/right-of-members-to-direct-the-attention-of-the-chair-to-supposed-breaches-of-order-points-of-order/?highlight=point%20of%20order (accessed 22nd October, 2022)

[xix] 2022 State of the Nation Address by the President of the Republic

[xx] Standing Orders, National Assembly of The Gambia, 2019, Order 32(1)(b)

[xxi] Standing Orders, National Assembly of The Gambia, 2019, Order 69

[xxii] Speaker’s ruling of 19th September, 2022 during Third Ordinary session of the Assembly.

[xxiii] Standing Orders, National Assembly of The Gambia, 2019, Order 20

[xxiv] Standing Orders, National Assembly of The Gambia, 2019, Order 20

[xxv] Constitution of the Republic of The Gambia, 1997, s113 and Standing Orders of the National Assembly of The Gambia, 2019, Order 17, 18, 21 and 22.

[xxvi] Standing Orders, National Assembly of The Gambia, 2019, Order 8

[xxvii] Ruling No. 1 of 2022, the speaker ruled on a matter of procedure affecting the Assembly on unfinished business of the immediately preceding Assembly [the Fifth Legislature]. The Speaker adapted and contextualised the parliamentary convention that one parliament cannot bind its successor parliament.

[xxviii] Thomas Erskine May produced the first edition of his ‘Treatise on the Law, Privileges, Proceedings and Usage of Parliament’ in 1844 in the House of Commons, UK and the publication came to be named after him.

[xxix] Erskine May: Parliamentary Practice, (25th edn,) https://erskinemay.parliament.uk/section/4900/right-of-members-to-direct-the-attention-of-the-chair-to-supposed-breaches-of-order-points-of-order/?highlight=point%20of%20order (accessed 20th September, 2022)

The Supreme Court of The Gambia and the power of Parliament in the budget making process – opinion on the judgement!

Introduction

The recent judgment passed by the Supreme Court of The Gambia, hereinafter 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 were not to enrich any member or staff of the National Assembly.

 Now, let us get into the issue of how we respectfully disagree with the court in faulting the procedure or process of Parliament allocating funds 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 a 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’s 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 lead 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 eth 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, 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.

 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) states:

(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 were 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 the 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 money 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 refuse 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 the amendment to the document before it.

 Assuming further that section 101 is relevant to the case, I do not agree with the court's rejection of the defendant’s submission that the power of Parliament to amend the Estimates extends 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, create a new or fresh charge in the Consolidated 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 a 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 with 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, or 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 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 state:

 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 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 drawn 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 agreeable that section 47(1) of the Public Finance Act, subject to sub-paragraphs (2), (3), and (4), did give 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 are irrelevant to 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 was an alleged violation of the Constitution. Why did the court engage itself in a 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 only available 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 provide 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.

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 the governance structure of the State. I, therefore, need not to belabor 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 a 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 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 on.

 Section 28(3) of the said Act has designated the Clerk of the National Assembly as the voting controller of the National Assembly and paragraph (5) of the same section charged the voting 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 of five National Assembly members including the Speaker.

A combined reading of section 111 of the Constitution with section 28 of the Public Finance Act implies that there is enough administrative structure 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 the internal audit department prescribed in section 68 of the Public Finance Act, would not have allowed any public funds 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 is regulated and controlled by the Ministry of Finance under the Public Finance Act and the attendant Financial Instructions.

 Conclusion

 In conclusion, I wish to reiterate that, the court’s inference of giving the Executive the exclusive power to be creating a budget line item for the Legislature unlike the Judicature, is the 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 is 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 to equating the former to an Executive agency or institution.

 One of the principles under 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 the 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 a 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 to 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). These are the fundamental reasons why the drafters of our 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.

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SUGGESTED CITATION: Mbye, Kalipha MM, The Supreme Court of The Gambia and the power of Parliament in the budget making process – opinion on the judgement!, Law Hub Gambia blog, May 10, 2021, https://www.lawhubgambia.com/lawhug-net/wwwlawhubgambiacom/supreme-court-and-parliamentary-power-in-budget-making.

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 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 does not represent the views of any institution or person he may be associated with.