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Monday, June 14, 2021

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

Introduction

The recent judgment passed by the Supreme Court of The Gambia, herein referred to as ‘the court’, on a matter between two civil society organisations and parliament, has stimulated a great debate in the public space on separation of powers and the rule of law in The Gambia. It should be a good case of interest for scholars who are interested in parliamentary independence and democracy, particularly in The Gambia where the subject has little or no attention and literature.

The two civil society organisations invoked the original jurisdiction of the Supreme Court seeking, inter alia, a declaration that the amendment done by the National Assembly by including a budget line item of D54.4m is in contravention of Sections 151, 152, and 155 of the Constitution and a violation of Section 47 of the Public Finance Act, 2014.

The court, in a unanimous decision, held that the inclusion of D54.4m by parliament in the Estimates contravened the provisions of Sections 152 and 155 of the Constitution as well as violated section 47 of the Public Finance Act; thereby stroke out the said sum from the Appropriation Act, 2021.

The court, however, in its judgment sees “…NOTHING inconsistent with or in contravention of the Constitution on setting up loan scheme for the members and staff of the National Assembly…” This simply means, as per the court, the allocation of funds for loan scheme for members and staff of the National Assembly was legally, ethically, and morally correct, but flawed the procedure or process. The initiative and objective of the scheme was not to enrich any member or staff of the National Assembly.

Now, let us to get into the issue how we respectfully disagree with the court in faulting the procedure or process of parliament allocating funds in a purported creation of a new budget line item in the Estimates by parliament. Why the word ‘purported’ new budget line is used would be answered later.

The Annual Estimates and the Annual Appropriation Bill

In an attempt to interpret the word ‘approve’ in section 152(1A), the Supreme Court failed to interpret the preceding word ‘consideration’ and I do not know why but its interpretation could have had significant bearing on the case.

Similarly, the court misconstrued a bill under 101, which has no bearing on the suit, with the Annual Estimates of Revenue and Expenditure which is the main issue for determination under section 152.

The court failure to give meaning to the word ‘consideration’ in Section 152 suggests a deliberate move to deny parliament that flexibility intended by the drafters, knowing fully well that interpreting the word may led them to inquire into the standing orders of parliament which they lack jurisdiction as per Section 108, unless it is contrary to the Constitution. It must be emphasised that the Constitution in this case is silent on how the Estimates should be considered but the standing orders of parliament did detail out the consideration stage of the Estimates extensively.

In addition, I do agree with the court’s assertation that: “Central to the safeguards for the protection of the Consolidated Fund and other public funds is the balanced apportionment and separation of powers and responsibilities of the executive and legislature in respect of the control and administration of these funds. The executive has the responsibility of preparing detailed proposals of the budget and also of lending public funds and entering into financial agreements such as loans and guarantees. The legislature, on the other hand, exercises financial scrutiny and oversight on these matters through its powers of amendment and approval as per sections 101, 151, 152, and 155 of the Constitution and Sections 14 and 47 of the Public Finance Act, 2014.” However, again, the court acknowledged the power of parliament to amend and approve but failed to recognise or give meaning to the power of “consideration”.

A Blackwell (2008) in Essential Law Dictionary, defined ‘consideration’ to mean: “The payment or reward essential to the formation of a contract and that persuades a person to enter the contract; something of value given in exchange for a performance or a promise.” For the purposes of this context, a consideration could be defined to mean negotiations and exchanges between the minister of finance and parliament that persuaded the former to create the budget line item in parliament. I would have preferred to see the court’s interpretation of the word in both parliamentary context and that of the law.

The procedure of considering the Estimates is regulated in detail by the Standing Orders, since both the Constitution and the Public Finance Act are silent about it, and this is what Standing Order 91(3) says:

 “(3) In considering the Estimates, the Committee of Supply shall take into consideration the reported findings and recommendations of the Assembly Committees and the Finance and Public Accounts Committee’s consolidated report on the Assembly committees’ consideration of the draft budget, and shall ensure that –

(a) an increase in expenditure in a proposed Estimate is balanced by a reduction in expenditure in the same or another proposed Estimate; or

(b) a proposed reduction in expenditure is used to reduce a deficit in the Budget.”

This means that the only thing parliament is restrained of, even by its own standing orders, is to increase the overall Estimates without the minister’s consent. It is evident that the Estimates was never increased by parliament, rather the deficit was reduced.

Assuming, without conceding, that Section 101 of the Constitution, especially paragraph 4, is relevant for the case, that provision is not a matter for court to interpret in such a way it did but a procedural power for the Speaker of the National Assembly to exercise in his or her own opinion.

Section 101(4) reads: 

“Without prejudice to the power of the National Assembly to make any amendment (whether by the increase or reduction of any tax or charges, or the amount of any payment or withdrawal, or otherwise), the National Assembly shall not give consideration to a Bill that in the opinion of the person presiding makes provision for any of the following purposes –

(i) for the imposition of taxation or the alteration of taxation;

(ii) for the imposition of any charges on the Consolidated Revenue Fund or any other public fund of The Gambia or the alteration of any such charge;

(iii) for the payment, issue or withdrawal from the Consolidated Revenue Fund or any other public fund of The Gambia of moneys not charged thereon or any increase in the amount of such payment, issue or withdrawal; or

(iv) for the composition or remission of any debt due to the Government, unless the Bill is introduced into the National Assembly by the President.’

Still on Section 101(4) of the Constitution, why did the court refused to take cognisant of the word ‘otherwise’ in the said construction of the provision even though it has emphasised that provision in rejecting the submission of the counsel for the 2nd, 3rd and 4th defendants? The word ‘otherwise’ here in parliament’s power of amendment may include the power to do anything associated with amendment to the document before it.

Assuming further that section 101 is relevant to the case, I do not agree with the court rejection of the defendant’s submission that the power of Parliament to amend the Estimates extend to creating new budget lines or fresh expenditure in the Estimates. The court further went to hold the view that parliament cannot, on its own or permitted by Sections 152 and 101(4) of the Constitution, to create a new or fresh charge in the Consolidated Fund under the Estimates.

Interestingly, the court could not alert its mind that an allocation in the Estimates is not necessarily a direct charge on the Consolidated Fund, but it is only the Appropriation Bill when approved that puts charge on the Consolidated Fund. This is illuminated by Sections 151 and 152(3) of the Constitution.

Section 151(1)(a) and (b) of the Constitution states: ‘No money shall be withdrawn from the Consolidated Fund except – (a) to meet expenditure charged on that fund by this Constitution or an Act of the National Assembly; or (b) where the issue of that money has been authorised by an Appropriation Act, a Supplementary Appropriation Act or in accordance with subsection (4) of this section.’

Furthermore, for purposes of clarity, section 152(3) of the Constitution states: ‘When estimates of expenditure have been approved by the National Assembly, an Appropriation Bill shall be introduced in the National Assembly for the issue from the Consolidated Fund of the sums necessary to meet that expenditure (other than expenditure charged on the Consolidated Fund), under separate votes for the several services required and for the purposes specified therein.’

Section 101 of the Constitution talks about the introduction of bills and motion in the National Assembly and has nothing to do with the consideration of the Estimates. The most relevant section dealing with the Estimates is section 152 of the Constitution. The Appropriation Bill cannot be introduced without first dealing with the Annual Estimates as clearly asserted by Section 152(3) of the Constitution above.

This means that there is no way that the Appropriation Bill could be dealt without the Annual Estimates disposed first, and then the minister of finance prepares his or her Appropriation Bill for introduction in parliament.

I do agree with the court that the legislature cannot introduce money bills as per the constitutional framework, but it has not barred them the power to amend, change or modify that bill once tabled before for consideration. While this is a settled parliamentary convention in all Commonwealth jurisdictions, it has been further codified in the standing orders of the parliament of The Gambia under Order 79. However, and I repeat, it is important to note that the Appropriation Bill was never, and had never been, introduced by parliament but the Minister of Finance.

Consequently, therefore, the court should have also alerted its mind to the fact that the National Assembly did NOT “…introduced ANY Bill that provides for withdrawal from the Consolidated Fund for any transaction, which creates or is likely to create long-term commitments without the prior consent of the minister of finance.” Rather, the Appropriation Bill was introduced by the minister of finance, days after the approval of the Annual Estimates of Revenue and Expenditure.

Independence of certain constitutional independent institutions

The court had also failed to dwell on the intention of the drafters or the fundamental principle of the Constitution granting certain independent institutions, of similar status with parliament, such as the judicature, NAO and IEC, explicit protection from executive interference in their budget preparatory process but not to parliament. This is because, in my view, the drafters knew that parliament ultimately has the final say in the budget, and if their budget to the executive is not accommodated in the submitted version then they could implicitly redress that at their consideration stage.

The court was vigilant to the fundamental principles behind the following Constitutional provisions accorded to such institutions of equal status with parliament, if not more important. Sections 44, 144(1) and 159(4) of the Constitution respectively states:

“The Independent Electoral Commission shall submit its annual estimates of expenditure to the President for presentation to the National Assembly in accordance with this Constitution. The President shall cause the estimates to be placed before the National Assembly without amendment, but may attach to them his or her own comments and observations.

 “The Chief Justice shall submit the annual estimates of expenditure for the Judicature to the President for presentation to the National Assembly in accordance with this Constitution. The President shall cause the estimates to be placed before the National Assembly without amendment, but may attach to them his or her own comments and observations.

 ‘The Auditor-General shall submit the annual estimates of expenditure for the National Audit Office for the following year to the President for presentation to the National Assembly in accordance with this Constitution. The President shall cause the estimates to be placed before the National Assembly without amendment, but may attach to them his or her own comments and observations.”

Ideally, the mind of the drafters for this common provision is to guarantee these important institutions their financial independence and free from executive interference in their budget preparatory process, unlike parliament which has the final say in the budget when the executive does not meet their demands.

Since the alleged violation of the provisions of Section 151, 152 and 155 of the Constitution and Section 47 of the Public Finance Act is ambiguous and not literally clear, I believe the court should have drawn its mind to the fundamental reasons of parliamentary independence and swim in the ocean of the doctrine of separation of powers to give effect to the meaning of the independence of the legislature just like that of the judicature

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