Regarding presidential appointments in the new constitution Part 2

By Foday Samateh The constitution is right to make the president, the only public official elected by the entire nation, the principal authority in the appointment of judges. But the constitution is wrong to effectively make the president the sole authority in the appointment of the chief justice. This is absolute power. And all absolute powers are threats to the freedoms and liberties of citizens and to a republic. Just ask the Romans or the Germans. And for good measure, a Gambian old enough to remember the last regime. The solution is not to double down on the folly of involving the Judicial Service Commission as in the appointment of other superior court judges. Yes, some countries have this system, but we shouldn’t be doing a host of things other countries do. As vital as the JSC is in the staffing and administration of judicial branch, it is still an ad hoc body operating under the authority and direction of the chief justice. It lacks the institutional standing to share decision-making authority with the president and should therefore be taken out of the equation of appointing judges. Moreover, the president shouldn’t huddle with an unelected bunch behind closed doors to appoint judges without the public knowing anything about those judges whose rulings will potentially affect so much of their personal and civic lives. The right constitutional and democratic institution to evaluate the president’s judicial appointments is the one whose members are elected as the people’s representatives. The president should nominate judges and the legislature confirms them. Only through the process of open confirmation hearing will the public learn who the judges are, what their values are, and what principles they will employ in dispensing justice. In the appointment of the ombudsman, the constitution makes the right call initially. It requires the President’s nominee to be confirmed by the National Assembly. This is to ensure the President doesn’t have a unilateral power to make a crucial appointment; and more importantly, the power is checked by the only body with the constitutional and institutional standing to weigh in on presidential decisions outside of judicial proceedings. That body is the legislative branch, a co-equal to the executive branch. But alas, what the constitution giveth, the constitution taketh. It states that if the National Assembly rejects the president’s first choice, it must confirm the second choice. The only explanation for this illiberal injunction is that the drafters of the constitution were bent on conferring as much power on the president as possible. Hence, the imperial presidency. In this case, for instance, the president can simply line up crony A and crony B as ombudsman nominees. If the National Assembly votes down crony A, they will be compelled to confirm crony B. This defeats the purpose of legislative confirmation. What’s the point if the National Assembly is limited to a number of the president’s nominees that can be rejected as unworthy for a particular office? One more instance of illogical inconsistency, if not peculiarity, in the constitution concerning presidential appointments is the auditor general. The president appoints the auditor General “in consultation with the Public Service Commission,” but can fire the appointee without consulting with anyone, and can do so by claiming any reason as ambiguous as incompetence. Is there a better justification for legislative confirmation of presidential appointments to determine their competence before they assume office? The observations above converge on one theme. All presidential appointments, save the staff in the Office of the President, should be subject to legislative confirmation. But not all presidential appointments are equal and they should therefore be confirmed based on different categories of job security and tenure of service. The first category should be those the president can fire without cause. They include cabinet members, ambassadors, other administration officials, and security chiefs. If the constitution requires the vice president to be on the ballot, the president shouldn’t be able to fire the person or anyone who fills a vacancy in that office. If the Constitution doesn’t require the vice president to be on the ballot, the President should retain the power to fire the person or anyone who fills a vacancy in that office. Permanent secretaries should be included in the administration officials the President can hire and fire. Given how instrumental the permanent secretaries are to the successful implementation of the administration’s policy agenda, the president should reserve the right to appoint them. The second category should be those who are appointed to the independent agencies. They include members of the Independent Electoral Commission, the Public Service Commission, the chief executive officers (and boards of directors as the case may be) of public enterprises such as the Gambia Revenue Authority, the Ports Authority, Social Security and Housing Finance Corporation, the Central Bank, the auditor general, the ombudsman and so forth. All such appointments should be term-limited. To protect the independence of their agencies and their job security, they shouldn’t be fired before their term ends without cause. And the cause should be of only medical or criminal nature proven by an independent investigation. Either the president or the legislature should be given the power to commission such an investigation. And the third category should be the judges. They should be confirmed for a term of 15 or 18 years with the option of voluntary retirement after ten years on the bench. Only the legislature should remove them from office for a cause involving medical or criminal nature. The president should have no role in the removal of judges. While the president will lose the power to fire judges, the legislature is gaining none on that score. The constitution already empowers the National Assembly to remove judges and other officials, including the president, from office. Aside from the problems that dog the stipulated processes by which the assembly is to remove some officials from office, these powers are proper and necessary for the legislature to have. Their existence, however, exposes another glaring flaw in the constitution. The National Assembly has the power to remove almost all the presidential appointees from office, but has no say in almost none of the appointments to make sure the individuals deserve the privilege of serving the public. Isn’t it both logical and imperative that the legislature has a say in the appointments in the first place? The significance of legislative confirmation of presidential appointments can never be overstated. The great advantages include a necessary check on the president’s imperial power of choosing heads of cabinet ministries, diplomatic missions, independent commissions, administrative agencies, the police, the armed forces, the prisons, the intelligence service, public enterprises and so forth. The need for confirmation will compel the president to pick nominees who have the qualification for a particular office, and the character to boot. This will be the most effective antidote to the president using public offices for patronage to reward friends, cronies and sycophants with appointments. It will also restrain the president from firing, say a high-performing minister, for petty motives since there will be demand for answers before the replacement is confirmed. The era of no questions asked about suspicious firings will be over. The other great advantage of legislative confirmation is the open hearing. The process begins with the president naming a nominee for a particular office. The nominee submits pertinent credentials, along with an exhaustive form about the nominee’s personal history, including finances and any criminal record, to the relevant National Assembly select committee. The committee looks into any disqualifying matter, and consider any false information knowingly submitted as perjury under the penalty of criminal prosecution. If the background check is satisfactory and there is a need for an open hearing, especially for a cabinet, superior court or public enterprise nominee, the committee schedules an open hearing. Then comes the day of judgment — the hearing. With the media bearing witness, the nominee faces the committee to field their questions. The questions will not just be about the nominee’s qualifications, but what the job entails, what problems exist there, and what values, skills and reforms the nominee will bring to it. A kind of televised job interview for the nation to watch. Imagine a Finance minister nominee analysing the country’s economic and fiscal conditions, and laying out ways of reducing government expenses for more investments in productive services. Imagine a Health minister nominee diagnosing the country’s healthcare system, and prescribing cures to its chronic plagues. Imagine a Central Bank nominee assessing monetary policy, and forecasting the country’s macro-economic outlook. Imagine a GRA nominee enumerating ways to maximise revenue collection and do away with corruption within the agency. Imagine a Ports Authority nominee specifying ways to expedite delivery of freights and stamp out bribery there. Imagine an auditor general nominee breaking down ways to scrutinise the accounts of government departments and other public institutions and enterprises for any misappropriation of funds. Imagine an ombudsman nominee outlining ways to investigate allegations of maladministration, mismanagement and corruption in the public service. Imagine an IEC chairperson nominee setting out ways to ensure free, fair and transparent elections. Imagine an IGP nominee identifying ways of effective policing to combat crime, and measures to crack down on police corruption. Imagine an Attorney General nominee testifying on crime and public corruption as priority targets. Imagine a chief justice nominee stating a judge’s role in a legal dispute and the chief justice’s administrative and supervisory role as the head of the judiciary. Based on the nominee’s performance at the hearing, the committee votes to send or not send the nomination to the floor. And finally, if the nominee wins the committee’s approval, the full National Assembly votes to confirm or reject their nomination. Compare this open and rigorous process to the status quo. The president picks someone to be, for example, a minister or an ambassador. That’s the beginning and end of it. If the individual is to serve as a member of the IEC or a judge, the president has to only consult with the Public Service Commission and/or the Judicial Service Commission. The Òconsultation’ with these unelected commissions is done behind the scenes. The public knows little to nothing if the appointment is based on merit, favour or quid pro quo. As for the individual’s fitness for office, especially a relatively unknown’s competence and character, there is no immediate telling. And the jury may be out on that for a long time. Which process is better for democracy and for the republic? Ends]]>