By Alagie Manneh
Top constitutional lawyer, Lamin J Darbo, has said the formation of the Local Government Service Commission, a section at the local government Ministry with administrative oversight over local councils, is unconstitutional.
In a lengthy legal opinion shared with The Standard, the Gunjur-born legal luminary argued that the idea that a Chief Executive Officer of a local government authority cannot be removed by the authority “represents a misreading of the controlling legal provisions and is therefore perverse in the extreme”.
“A local government authority has complete control over a CEO notwithstanding what is contained in any provision of the LG Act 2002,” Mr Darbo said.
Citing constitutional provisions, he said Section 194 of the constitution has empowered local government authorities and made provisions for “the appointment of a chief executive for the authority to be responsible to the authority for the administration of its services and the implementation of its policy and programmes; and for the terms and conditions of his or her appointment”.
Giving a broader context to the Local Government Act, Mr Darbo said: “This particular legislation emerged out of a maximal political milieu where the presidency arrogated powers it could only implement with the compelling logic of force. A new dispensation should have consigned the LG Act 2002 to its unique political setting by pruning it of its overwhelming antidemocratic excesses. It was never to happen as legislation like it has its great appeal to leaders not mindful of the restraining demarcations around public authority.
“As if the foundations envisaged for the local authority system are not clear from sections 193, and 194 of the Constitution, the Executive, always for more centralisation and an insatiable propensity for control of every aspect of public life, crafted the monstrosity of the LG Act 2002.
As for the specific position of Chief Executive, Mr Darbo reiterated that the government has no authority to make any appointment in this area.
“At 194(g) of the Constitution, it is clearly stated that any implementing Act must include “the appointment of a chief executive for the authority to be responsible to the authority for the administration of its services and the implementation of its policy and programmes; and for the terms and conditions of his or her appointment.
“Given the incongruence between sections 193, and 194 of the Constitution, and sections 37, 45, and 118, of LGA 2002, as relied upon by the Ministry of Lands, Regional Government, and Religious Affairs, the former wins conclusively. At section 4, it is specifically stated that “the Constitution is the supreme law of The Gambia and any other law found to be inconsistent with any provision of this Constitution shall, to the extent of the inconsistency, be void”.
He questioned what legal authority Saffie Sankareh-Farage, a former Solicitor General and Legal Secretary, now Permanent Secretary at the Lands Ministry, relied on when she contended that BAC cannot fire its CEO.
“BAC can fire its CEO in accordance with section 194 (g) of the Constitution regardless of what LGA 2002 say anywhere within its gridlock prone and paralysing provisions. Sections 193, and 194, of the Constitution, place the local authorities beyond the reach of transient governing majorities,” Mr Darbo submitted.
