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Thursday, June 24, 2021

Assembly officer disagrees with Supreme Court on D54 million loan scheme

By Mafugi Ceesay

Kalipha Mbye, head of table office at the National Assembly, has expressed disagreement with the recent Supreme Court judgment on the D54 million loan for the assembly.

Speaking to The Standard, Mbye said there is no evidence suggesting that the Assembly 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. He said the Standing Orders provides that a motion may be tabled by ministers, committee chairs on behalf of committees and by members.

Mbye further argued that the minister as a defendant in the suit, has not deposed anything that he is against the creation or he was under duress 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 court’s inference of giving the Executive the exclusive power to be creating budget line item for the Legislature unlike the Judiciary, is same as subjecting the Legislature to the mercy of the Executive which is, of course, against the fundamental principle of separation of powers and an affront to parliamentary independence,” he said.

He further stated the court failed to appreciate the fact that the ordinary administrative requirements of budget bilateral are purely meant for institutions and agencies, directly or indirectly, under the Executive but not for constitutional independent institutions like the Judiciary, Legislature, NAO, and IEC.

“Subjecting parliament to budget bilateral or Executive control is identical to equating the former to an Executive agency or institution.”

According to Mr Mbye, one of the principles of the doctrine of separation of powers is parliamentary sovereignty, though not absolute in The Gambia, adding that under most constitutional frameworks and governance structures, 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 Judiciary must not be interpreted generously against its underlying existence, unless it is a matter affecting the fundamental rights provisions,” he said.

He also observed that 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,” Mr Mbye argued. He added that there is no doubt with the court’s ruling in the instance matter, that the Judiciary 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), Mbye said, 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. 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”, he concluded.

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