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The Supreme Court of The Gambia and the power of parliament in the budget making process: Opinion on the judgement!

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The court’s reliance on the Public Finance Act requiring the prior consent of   MoFEA and the need for an agreement before a loan scheme or any other kind of loan is established is fatal. This is because the court is implying that provision which is intended to regulate conventional loan between the state and a state, national or multinational corporations, national or international organisations or entities is also applicable to a mere institutional service loan. Otherwise, the civil service loan scheme itself would be rendered illegal because there was no such agreement tabled before the National Assembly for approval, rather the fund was just allocated in the Estimates and thereafter the responsible institution, the Personnel Management Office (PMO), came up with the implementing structure or governing regulation. Likewise the National Audit Office staff loan scheme.

Furthermore, it is agreeable that Section 47(1) of the Public Finance Act, subject to sub-paragraphs (2), (3) and (4), did give the Minister of Finance the sole authority to lend state funds. However, it would have been good for the court to dwell on the intention of this legislation and that of Section 155 of the Constitution. Basically, Section 155 of the Constitution and the said legislation seek to regulate or govern the lending of state funds outside the ordinary institutional state structure like public enterprises, private institutions, international organisations, or other nation-states. This provision does not necessarily apply to administrative and institutional loan structures or schemes, otherwise even the civil service loan schemes and that of the NAO, which they have just secured from the same budget approval process under review, would be rendered unlawful. This is because none of their structures or agreements had ever been subject to parliamentary approval as it would have been required by Section 155 of the Constitution and Section 47(4) of the Public Finance Act if the interpretation of the court is anything to go by. Therefore, in my view, Sections 14 and 47 of the Public Finance Act are irrelevant for the case. It is not the state that is lending as envisaged by the Public Finance Act but the institution loaning within itself – it is an internal and administrative loan scheme.

Lord Denning stated his view in Magor and St Mellons Rural District Council v Newport Corporation (1952):

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 “We do not sit here to pull the language of parliament to pieces and amend nonsense of it…we sit here to find out the indention of parliament and carry it out, and we do this better by filling in the gaps and making sense of the enactment than by opening it up to destructive analysis.”

Based on the above quotation, it is my considered view that the court could have adopted the purposive approach to give effect to the true purpose of the Public Finance Act – state-to-state lending or state to other private or international corporations.

The main issue of the suit and the locus standi of the plaintiffs were an alleged violation of the Constitution. Why did the court engage itself in a fishing expedition? It was supposed to be the court’s responsibility to interpret the provisions of the Constitution especially Section 152 in its entirety, together with the mind of the drafters and intention of parliament rather than extending a generous interpretation of Section 101 of the Constitution as if a provision in the fundamental rights chapter is in dispute, leaving out Section 152(1A) without greater analysis.

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In answering the purported element of a new budget line created by parliament, I wish the court could have extended its fishing expedition to the side of the defendants to unveil the fact that the said budget line which the court in fact quoted as budget line number 2111280 of which the D54.4m was allocated was created by the minister of finance, of course at the request of parliament. Without conceding that parliament cannot create its own budget line, it should have been the minister of finance’s responsibility to object to the request and if need be, request the court’s declaration that the request made by parliament was unlawful for him to execute. There is no evidence suggesting that parliament created the budget line, but the available evidence relied on by the court is that the motion was made by a member of parliament requesting for the minister to create the budget line. A parliamentary motion is defined in Standing Order 1(1) to mean “the means of initiating an assembly debate, in which a course of action is proposed and/or an assembly decision sought on a relevant issue”.  Furthermore, the standing orders provides that a motion may be tabled by ministers, committee chairs on behalf of committees and by members.

Therefore, the minister as a defendant in the suit, has not deposed anything that he is against the creation or he was under duress, if I may say, to act on the request of parliament. The minister could have invoked his privilege to move a motion to challenge or nullify that member’s motion.

Yes, Gambia’s parliament and authority is not typically that of the British, but it has drawn great inspiration from it. For example, in the British House of Commons, Ways and Means resolutions are needed to authorise the creation, extension or increase of taxes or other charges. Thus, I could have safely categorised the member’s motion requesting the finance minister to create such a budget line under this parliamentary convention through the power of parliament to give consideration to the Estimates by virtue of Section 152(1A) of the Constitution.

The loan scheme

On the issue of the legality or otherwise of the loan scheme, the court has satisfactorily dealt with the merit of the scheme, that it is not inconsistent with the law for such to be accorded to the legislature as an institution within governance structure of the state. I therefore need not to belabour the point but just to reiterate the issue in the court’s own words: “Just like the revolving loan scheme set up for the civil service, I see nothing inconsistent with or in contravention of the Constitution on setting up a similar loan scheme for members and staff of the National Assembly…”

Notwithstanding, the court went further to put a caveat to this, that the establishment of the loan scheme ought to go through a proper process such as an enabling legislation or regulation to allow for the setting up of governing and administrative structures, including necessary rules or policy to safeguard the public funds before a seed money is made in the Estimates. This, to me, reveals that the court failed to even interrogate, as a whole, the Finance Act it relied on.

Section 28(3) of the said act designated the Clerk of the National Assembly as the vote controller of the National Assembly and Paragraph 5 of same section charged the vote controller the legal obligation “to properly and efficiently manage the utilisation of public funds under his or her custody and shall:

(a) comply with all the regulations, instructions and directions issued in respect of such funds; and

(b) maintain proper systems for effective internal control.”

Primarily to the above, Section 111(3) of the Constitution has mandated the Clerk of the National Assembly as the administrative head of the National Assembly Service under the supervision of an authority comprising five National Assembly Members including the Speaker.

Combined reading of Section 111 of the Constitution with Section 28 of the Public Finance Act implies that there are enough administrative structures to safeguard the public funds as well as the established fact that no fund could be released without the necessary governing rules. In fact, the existing internal governance structure of the State, such as the functions of internal audit department prescribed in Section 68 of the Public Finance Act, would not have allowed any public fund spent without safeguard measures or legitimate reasons in place. The court ought to have drawn its attention to the fact that there is a difference between allocation and disbursement of funds. The appropriation of funds in the Estimates and the Appropriation Act are all mere allocation of funds but the actual disbursement of funds are regulated and controlled by the Ministry of Finance under the Public Finance Act and the attendant Financial Instructions.

Conclusion

In conclusion, I wish to reiterate that the court’s inference of giving the executive the exclusive power to be creating budget line item for the legislature unlike the judicature, is same as subjecting the legislature to the mercy of the executive which is, of course, against the fundamental principle of separation of powers and an affront to parliamentary independence. The court failed to appreciate the fact that the ordinary administrative requirement of budget bilateral is purely meant for institutions and agencies, directly or indirectly, under the executive but not for constitutional independent institutions like the judicature, legislature, NAO, and IEC. Subjecting parliament to budget bilateral or executive control is identical of equating the former to an executive agency or institution.

One of the principles of the doctrine of separation of powers is parliamentary sovereignty, though not absolute in The Gambia. Under most constitutional frameworks and governance structures like The Gambia, the constitution is supreme, and this is indisputable. However, under same constitution, parliament is not an ordinary institution and any action of it that is under review by the judicature must not be interpreted generously against its underlying existence, unless it is matter affecting the fundamental rights provisions.

Has the court considered the consequential effects of its holding that parliament cannot create a new budget without the prior consent of the president or minister of finance? As reiterated earlier, the court knows best the cornerstone of judicial and parliamentary independence in a democracy is executive-free interference and adequate resources. Certainly, the independence of the judiciary as well as that of parliament cannot be guaranteed in the absence of adequate resources. There is no doubt with the court’s ruling in the instant matter, the judicature has legitimised executive interference in parliament. For instance, if parliament, during the budget preparatory process, proposes to create an oversight or any other budget line item that it sees fit in effectively operate and to have funds allocated to that like but government or MoFEA rejects such a proposal, who would rescue parliament or check on the executive to ensure the former gets the said budget line created since the court has already stated that parliament cannot create its budget line unless agreed by the executive?

The Commonwealth Parliamentary Association had argued that governments, generally, do not like parliamentary oversight or accountability and they could do anything within their powers and privileges to stifle such.

It is always good to take special note that parliament is not an ordinary institution, in fact not an institution but an organ of state, that should be considered or treated as other institutions operating under the pleasure of government (the executive). This is one of the fundamental reasons why the drafters of the 1997 Constitution expressly safeguarded the judiciary, NAO and IEC from such executive budgetary control and granted them the expressed easy ride to prepare their budget untouched by government. Contrarily, parliament was not given such an express provision because the drafters knew that parliament is ultimately in control of the budget and in spirit could decide on their fate.

Kalipha MM Mbye is Head of Table Office at the National Assembly of The Gambia. He holds a Bachelor of Laws degree from the University of The Gambia. He is currently pursuing an LLM degree degree in International Law at the University of Bradford, UK. He has interest in parliamentary democracy, constitutional law, public international law, and the rule of law.

Disclaimer: The opinion expressed in this article is entirely that of the author and does not represent the views of any institution or person he may be associated wit

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