A sharp legal disagreement over the status of the Financial Manual for Local Government Councils took center stage on Monday as the Commission of Inquiry continued its hearings into the administrative and financial operations of local councils across The Gambia.
The Chairperson of the Commission, Ajaratou Jainaba Bah, intervened directly during the testimony of Kanifing Municipal Council (KMC) Mayor Talib Bensouda, emphasizing that the Financial Manual is not merely a policy guide but a document “sanctioned by law.”
“This manual is sanctioned by law,” she told the mayor. “Because when you go to the Finance [and Audit] Act and the main legislation, this financial manual is derived from the Act. It is a step-by-step procedure to allow for coherent administration of the revenue and expenditure so that there could be accountability.”
She further explained that the manual “comes to ensure standardization and also to provide for accountability and transparency,” adding that it is designed to ensure legal compliance and enable decentralization.
Bensouda agreed. “The council should follow the financial manual,” he responded. “The councils should set the thresholds that they believe are in the best interest of the council as the financial manual has stated.”
The Status of the Manual
The exchange followed hours of testimony from Mayor Bensouda, who reiterated his view that the Financial Manual is a policy document, not a legal one. “The Financial Manual is a policy document,” the mayor said, resisting efforts to link it directly to statutory obligations.
Lead Counsel Patrick Gomez firmly disagreed, citing specific legal instruments to argue that the manual holds the force of law.
“Regulations are part of the laws of The Gambia,” Gomez said, pointing to the Local Government Act, the Local Government Finance and Audit Act, and the 1997 Constitution of The Gambia.
He referenced Section 5 of the Local Government Act, which provides for councils to operate within the framework of national legislation. He also cited Section 109 of the Local Government Finance and Audit Act, which allows the Minister responsible for Local Government to issue regulations for financial control and transparency — from which, he argued, the Financial Manual is derived.
Additionally, Gomez relied on Section 4 of the 1997 Constitution, which states:
“This 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.”
He argued that the Financial Manual, as a regulation derived from a parent law, is thus part of the laws of The Gambia.
Thresholds and Oversight
At the center of the debate is the procedure for approving public expenditures at the council level. Mayor Bensouda told the Commission that the KMC passed its own resolution, allowing the CEO to approve payments up to D500,000, with any amount beyond that subject to council approval.
He made clear that the mayor is not part of the approval process in KMC. “For KMC, the mayor is not part of the approving authority,” Bensouda said. “I am elected to follow the Local Government Act.”
However, the Financial Manual, as read by Counsel Gomez, appears to establish a three-tier approval system, involving the CEO, the mayor, and the council, depending on the size of the expenditure.
Gomez cited Section 305 of the Financial Manual, which states:
“The authority to incur expenditure is vested in Council through budget approval. The Finance Director shall not make any payment nor accept any charge in his accounts unless authorized by the Chief Executive and in accordance with the monetary thresholds approved by each Council. As regard the monetary threshold it should be noted that up to a given amount the CEO can approve and incur expenditure without reference to the Chairman/Mayor of the Council. Up to a certain amount, the CEO is required to consult and seek clearance from the Chairman/Mayor. Beyond a given amount, the CEO is required to refer such expenditure to Council to seek approval.”
Bensouda agreed with the principle but disagreed with the interpretation that the manual supersedes the Act or eliminates council discretion. He said:“The authority to incur expenditure is vested in Council through budget approval,” and added, “My understanding is that if the council sets thresholds, then the CEO should abide by those thresholds.”
When Gomez asked, “Should the council, as a body, in adhering to the laws that govern its administration comply with the financial manual?” Bensouda responded: “Yes, the council should follow the financial manual at the administration of the council.”
However, when pressed about whether a council could bypass setting a threshold in line with the manual, the mayor maintained, “It is a discretion.”
Gomez repeated the question: “If council did not abide by the financial manual to set up a threshold, will that be proper?” Bensouda stood his ground: “The council has a discretion to approve its own thresholds.”
He then read from Section 305, emphasizing:“The Finance Director shall not make any payment nor accept any charge in his accounts unless authorized by the Chief Executive and in accordance with the monetary thresholds approved by each Council.”
Gomez pushed back, warning against what he described as “imported words that are not in the law.”
“The mayor should not import the word ‘discretion,’” he said. “That is improper.”
Still, Bensouda concluded: “When it says the chief executive officer should abide by the monetary thresholds approved by council, it also implies that the council can disapprove of thresholds.”
On Decision-Making and Administrative Role
The exchange between Gomez and Bensouda also extended to the mayor’s role in decision-making within the council administration.
Gomez began by presenting a file of senior management meeting minutes, which Bensouda identified as those of the Senior Management Team (SMT). The mayor explained that the SMT meets monthly, sometimes twice a month, and that he also holds daily briefings with the CEO.
He said these briefings are to receive updates and sometimes to be informed about administrative challenges. However, he emphasized that the CEO does not require his approval to act.
“If I instruct the CEO and it is against the law, he should not follow that,” Bensouda said. “If it is within the law, it is his discretion.”
He added: “It is not my mandate to instruct the CEO. If I do instruct the CEO, it is his discretion to do so or not to do so.”
Asked what would happen if the CEO chose not to follow his instruction, Bensouda said: “If it contravenes any law or Act, I can bring [the issue] to the council and if it does not, nothing comes out of it.”
On Memo and Threshold Revision
Gomez presented a memo dated 15 February 2018 from the deputy clerk of the council, addressed to the CEO and copied to the chairman of the interim management committee. It conveyed a resolution from the 14 February 2018 meeting to reduce the CEO’s threshold from D500,000 to D100,000, with expenditures above that requiring approval from the committee chairman.
“I am not aware of this memo,” Bensouda said.
Gomez clarified that thresholds are not to be decided by the contracts committee or the finance committee, stating: “The authority on thresholds does not rest on the contracts committee or the finance committee. The authority for expenditure rests on the CEO, the Mayor and the council.”
Bensouda responded: “As per the financial manual, the mayor should be consulted but does not have the authority to decide or not to decide.”
The Role in Senior Management Team
Gomez then focused on the mayor’s involvement in administrative decision-making, noting that meeting minutes from 2018 to 2023 consistently listed him as chairman of the Senior Management Team.
Bensouda explained: “I am not a member of the senior management team. I invite the senior management team to my office for update and I offer advice and guidance.”
When asked why the minutes list him as chairman, he said it was a tradition that began with former mayor Lie Conteh. He acknowledged that “the structure could have been better to show the roles of the mayor and the members of the senior management team.”
Gomez pointed to repeated references by CEOs, including Jaja Cham, Sainabou Martin, and Salama Njie, describing the mayor as leading SMT meetings and requiring clearance before action. “All the meeting minutes we have seen from 2018 all the way to 2023, you were the chairman of the SMT,” Gomez said.
He argued that the idea that the mayor only advises “is grossly inaccurate.”
He then presented a meeting minute dated 15 April 2021, in which the mayor was recorded saying the Bakoteh Market had secured a D40 million facility from Mega Bank to construct 70 shops, a bank space, and a car park. Bensouda explained the transaction was later canceled after the bank was sold.
Another minute from 24 April 2020 stated that “payments were forwarded to the Mayor’s office for endorsement.”
To that, Bensouda responded: “Any CEO who says that is giving a statement that is not true.”
