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Thursday, February 22, 2024
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The Local Government Service Commission is unconstitutional

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With its overarching framework embedded in sections 193, and 194 of the Constitution of The Gambia, 1997 (the Constitution), it stands to reason that the Local Government Act 2002 [LGA 2002] must comply fully with the letter and spirit of the primary document.

The idea that a Chief Executive Officer (CEO) 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 LGA 2002.

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 LGA 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.   

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The constitutional framework of local government

Section 193 of the Constitution

(1) Local government administration in The Gambia shall be based on a system of democratically elected councils with a high degree of local autonomy.

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(2) An Act of the National Assembly shall provide for the establishment of city councils, municipalities and area councils (which are together referred to as local government authorities) and the district in which each shall have jurisdiction…”

(3) An Act of the National Assembly shall make provisions for the functions, powers and duties of local government authorities, including provisions for-

a.         the infrastructure and development of the area within the authority’s jurisdiction;

b.         the encouragement of commercial enterprises;

c.         the participation of the inhabitants in the development and administration of the area;

d.         the essential and other services to be provided by the authority;

e.         the raising of local revenue;

f.          the management, control and oversight of the authority’s finances and the audit of its accounts by the Auditor-General;

g.         the making of by-laws;

h.         the preservation of the environment;

i.          the promotion of Gambian traditions and culture; and

j.          the control of financial and other resources allocated by the Central Government. It shall be an object of the local government system that so far as possible, issues of local policy and administration shall be decided at a local level and that local government authorities shall cooperate with the Central Government in adopting a policy of decentralization.

4. It shall be an object of the local government system that so far as possible, issues of local policy and administration shall be decided at a local level and that local government authorities shall cooperate with the Central Government in adopting a policy of decentralization.

Section 194 of the Constitution

An Act of the National Assembly by or under which a local government authority is established shall include provision for-

a.         the election of members of the authority from among residents of the area within the authority’s jurisdiction at intervals of four years, and the qualifications for election;

b.         the additional representation on the authority of District Seyfolu and representatives of local commercial, occupational or social interests or groups whether by election or otherwise;

c.         the direct election of the Mayor and the election of the Chairperson of the authority, by the Councilors, from among themselves;

d.         the tenure of office of members of the authority;

e.         the recall by their wards of members of the authority;

f.          the appointment of committees from amongst the members of the authority, including finance, establishment and appointment, and development committees; and

g.         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

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 centralization and an insatiable propensity for control of every aspect of public life, crafted the monstrosity of LGA 2002. 

At section 118 (1) of LGA 2002, a Local Government Service Commission (LGSC) was set up to do the following (see 118(3):-

a.         make appointments to offices in the Local Government Service;

b.         make arrangements for the overall management and efficiency of the Local Government Service;

c.         set up general and uniform guidelines for appointment, promotion and discipline;

d.         review the terms and conditions of service of persons in the Local Government Service;

e.         perform such other functions as may be assigned to it by the Council or the Public Service Commission;

f.          do such other things as are necessary or conducive for the performance of its other functions.

Section 118, and many other sections of LGA 2002, runs counter to sections 193, and 194 of the Constitution.  It is not discernible from these provisions that the executive arm of the national Government has authority to constitute the LGSC, making that institution unconstitutional.

As for the specific position of Chief Executive, again the national 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”.

Notwithstanding its avowed object “… to establish and regulate a decentralized local government system for The Gambia; to make provisions for the functions, powers and duties of local authorities and for matters connected therewith”, LGA 2002 has frontally collided with Constitutional provisions on the local authority system of control.

LGA 2002 went through countless antidemocratic amendments since coming into force with the consistent objective of frustrating the legal framework delineated for the local government system at sections 193 and 194 of the Constitution. It was always the Executive arm of the national government meddling with the local authority system in the country. That a modern state committed to democracy would usher in legislation so contrary to the tenets of its parent source is a matter of great disquiet.

When a former Solicitor General and Legal Secretary, now Permanent Secretary at the Ministry of Lands, Regional Government and Religious Affairs contends that Brikama Area Council (BAC) cannot fire its CEO, I wonder what legal authority she relies on. 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 paralyzing provisions. Sections 193, and 194, of the Constitution, place the local authorities beyond the reach of transient governing majorities.

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