Supreme Court ruling on the Local Government Act

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By Kemo Conteh

I read the recent Supreme Court Ruling in the case if Talib Ahmed Bensouda and 54 others and in my view this is the proverbial story of the “Tail Wagging The Dog”. The learned Justices of the court for whatever reason seemed to have contented themselves only with the face value of the wording of the constitution and what in their wisdom it stood for in the analysis of the case in its entirety. They had total disregard for the substance of local government policy and practice as context and background with which it had to be weighed on the scale of justice in a judgement like this. They did not put into consideration the current policy priorities and challenges of local government developmen the Gambia embarked on 20 years ago in 2002. It seems that the full attention and focus of the court was drawn only to the skeleton of the law without any regard to to the substance of the matter itself (local governance) as the crux of the matter before them. They seemed to have had no regard to  local governance as a process of deconditioning and reconditioning the local government system in a never ending process of change and reform. The arguments highlighted in the judgement seemed to have missed any assessment of the level of achievement or otherwise in decentralization and capacity building in the councils. They seemed to have paid little heed to the objects and reasons of the legal framework of decentralization which in my view should have been the main thrust of assessment, analysis and regulation in the Ruling. The back bone of the Judgement was clearly hinged on the concept of “High Degree Of Autonomy” but sadly, they did not demonstrate a clear understanding and appreciation of this in a local government development (devolution) context. If they did, they would have tried to seek out for record of assessment of the continuum of the implementation of decentralization at this stage to support a ruling or not in favor of the plaintiff based on the autonomy argument. Decentralization is not a one off event and as a process it is subject to continuous monitoring and periodic assessment to determine its achievements at any time state of readiness for further reform and amendments to the next level of self administration. On the specific issue of Interim Management Committees, the decision to insert the proposal in the Act was based on lessons learned from international best practice in young fragile decentralization regimes. Where there is positive outlook, understanding, cooperation and collaboration in the spirit of good central/local government relations, this is seen in positive light as a bridging council between the out-going and in-coming council. It allows for a body of persons selected by central government to act on its behalf as the holder of local government policy to assess the weaknesses of a council, make recommendations for a smooth transfer of authority to the next council and allow it to take off on a clean slate. In practice the practice of the idea may have implications for tenure considerations in law but this could be addressed through an amendment of the constitution rather than throwing the principle under the bus. Over time when the level of institution building and capacity development has advanced enough in the councils as in central government, the continuous reform process would dictate the need for necessary adjustments in law. On the matter of councils to seek permission of the Minister of local government to travel out of the country. This is line with existing government regulation where public servants have to seek the clearance of Subcommittee on travels (SCOT), based in the Office of The Vice President. This is mainly for the obvious reason of financial controls. Presently there is a relatively higher degree of functional decentralization than fiscal decentralization in a resource poor country like ours. To a much larger extent, the national tax base is still controlled at ministry of Finance and local taxes and other council funds are under the audit regime of central government. External travels of Cabinet Ministers are monitored in the same way and for the same reasons of financial controls. They (Cabinet Ministers) are subject to seek clearance from Office of The President every time they travel out of the country. Also, councils are part of the architecture of government and it is not allowed in our foreign policy framework for any Ministry, Parastatal or government agency including local councils to establish or maintain diplomatic relations with any government, branch of government or agency in any country that is deemed as an unfriendly country of the Gambia. Under the constitution the sovereignty and territorial integrity of the Gambia is within the purview of the President and he has delegated the Minister of local government to act on his behalf in monitoring international travels in the councils. The Gambia established decentralization 20 years ago but we must be reminded that the most part of this time was spent under a dictatorship, going forwards and backwards in democratic local government development. In reality, there has been very little institution building in the councils as expected and little to no human resources capacity building took place in most of the councils. The lower grass roots structures Ward and Village Development Committed are very weak and under developed where they exist and in some places they don’t even have these crucial structures. There is a great deal of work to be done in decentralization. And the Ministry of local government is the institution that should spearhead the national process. It will be a great mistake to weaken the power and authority of the Ministry by law at this stage. In my view interpreting the provisions of the constitution in a straight jacket on these highly delicate issues will complicate more than help the situation. Instead of this kind of approach to local government regulation, I think a more considered view of and assessment of the trajectory of local government development should have been tabled to inform the constitutional interpretation of the local government legislation. I am sure this would have led the Supreme Court in their collective wisdom to order a review and amendment of the relevant sections of the law to allow for a methodical, step by step and systematic attainment of the prayers of the plaintiff rather than a total disruption of an otherwise stalled but structured national development project.  And in the same vein, compel the Ministry of local government to undertake the necessary sectoral consultations and establish a clear and shared Decentralization Implementation Program immediately, that will serve as a dashboard for the monitoring of local democracy and local development in the Gambia.