By Mafugi Ceesay
A day after the Gambia Bar Association argued that president Barrow cannot sack a nominated member of the national assembly, lawyer Ibrahim Jallow has told The Standard that it is the constitutional right of President Adama Barrow to hire or fire nominated members of the National Assembly.
Kumba Jaiteh’s nomination was reportedly revoked by the president last weekend causing a big debate and split among Gambians in the assembly and elsewhere.
Lawyer Jallow pointed out that with the law and practice of presidential constitutionalism, it is always the prerogative of the chief executive to nominate and revoke, appoint and fire, recommend and rescind etc.
“The reality, however, is that the powers of President under the 1997 Constitution, are still one of the most misunderstood aspects of our constitutional process and discourse.
“I also believe that, given the mechanized character and formation of the Government and the National Assembly, it is quite possible that the resolution passed by some members of the National assembly rejecting the revocation of the nomination of Kumba Jaiteh by the President, is a cooked strategy to gradually deny the President of his powers ahead of the most anticipated power struggle in the history of The Gambia,” he said.
“The question is how far can the President go to exercise his powers under the 1997 Constitution of the Republic of The Gambia? For a start, the 1997 Constitution provides in Section 76 (1) as follows: “The executive power of The Gambia is vested in the President and, subject to this Constitution, shall be exercised by him or her either directly or through the Vice- President, Secretaries of State or officers responsible to him or her.”
Furthermore Subsection (2) provides thus: “In addition to the powers conferred on him or her by this Constitution, the President shall have such powers and responsibilities as may be conferred on him or her by or under an Act of the National assembly.”
Section 91 (1(b) of the Constitution further provides thus: “A member of the National Assembly shall vacate his or her seat in the National Assembly-
“(b) subject to subsection (2), if any circumstances arise which, if he or she were not a member, would cause him or her to be disqualified for election as a member or nomination as a member;”
Section 231 Subjection (1, 2, 3, 4, 5) particularly subsection (1) of the Constitution also provide thus:
“Where any power is conferred by this Constitution to make any proclamation, order, regulation, rule or pass any resolution or give any direction or make any declaration or designation, it shall be deemed to include the power, exercisable in like manner and subject to like conditions if any, to amend or revoke the same.”
Subsection (5) provides: “Without prejudice to the provisions of section 167, but subject to the other provisions of this Constitution, the power to make any appointment to a public officer includes the power to dismiss any person so appointed.”
Jallow said the constitutional law in The Gambia as stated above is that, including the Vice President who may come into office on a joint ticket with the President, and all other members of the cabinet, whether appointed or nominated by the President into public offices, except where specifically established by the Constitution or an Act of the National Assembly, hold their appointments or nominations as the case maybe at the pleasure of Mr. President.
“Section 231 (1) read together subsection (5) restate the exclusivity of the President’s power to appoint and fire, nominate and revoke, as the case maybe. The implication of the above provisions of the law is that, since the President is the initiator using a constitutional right and power to nominate Kumba Jaiteh as a National Assembly member, the process of her removal as a National Assembly member, can as well be initiated by the President by revoking his nomination.
“The right and power of the President to revoke the nomination of a National Assembly member, is equivalent to the right and power of the electorate in any constituency to recall an elected National Assembly member from that constituency, if the National Assembly member failed to deliver the promises he was elected for under section 91 (1(f) and section 92 (a and b) of the constitution of The Gambia. This is common sense.
The constitution generally makes it clear that the appointment and dismissal or nomination and revocation of the nomination of public office holders by the President is an executive power, and those appointed or nominated by the President shall be at the President discretion, with the practical exception of those elected into public office in accordance with an Act of the National Assembly.
“If the constitution gives such powers to the President to appoint and fire, or nominate and revoke, why would it become unconstitutional for the President to do away with appointees and or a nominated member of the National Assembly by the President, if the nominated member of the National Assembly has become a political and or moral liability to the President or the administration of the state? For a nominated member of the National assembly serving in a self-respecting arm of government, the gravity of the dissatisfaction of the person who nominated her, was enough for her to promptly tender her resignation as National Assembly member if only to save the National Assembly from a degraded public esteem.
“I have read the National Assembly unconstitutional and inconsistent resolution rejecting the Presidents revocation of his nomination of Kumba Jaiteh as National Assembly member – as null and void. The National Assembly would claim that its position is stemmed from the provision of the constitution or other laws even though the National Assembly cited no particular section of any law or the constitution in support of its resolution. Ironically, the National Assembly declared that it is okay for the President to nominate Kumba Jaiteh as member of the National Assembly, but that the President has no right or power to revoke his nomination – what a theatre. With due respect to the National Assembly, I greatly disagree, and submit that the right and power of the President to revoke his nomination of Kumba Jaiteh as a National Assembly member is constitutional.”