Wednesday, August 4, 2021

Attorney General Makes Submission in Controversial D54 Million NA Loan Case


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By Yankuba Jallow

Counsel Binga D for the Attorney General has informed the Supreme Court that no law was violated allocating the by Parliamentarians in the allocation of 54.4 million dalasi loan to themselves and staff of the National Assembly.

The head of civil litigation department at the Ministry of Justice said the two civil society groups that sued the Clerk of the National Assembly, the Auditor General and the Minister of Finance misconceived the laws governing the budget process.

He said when budget estimates are laid before the National Assembly, members may comment on it and they have the power to make proposals.

“The issue of the inclusion of D54.4 million into the budget estimate was as a result of a motion before the National Assembly. This was why the Minister of Finance amended the estimates to include it,” he said.

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He added: “The National Assembly proposed and the Minister in his wisdom deemed it fit to include it in the budget line.”

He informed the apex court that the inclusion was not through the “back way” adding it was done by way of introducing a motion which was accepted and supported by the majority.

“There is nothing in section 152 of the Constitution that is violated by the National Assembly when they proposed for the inclusion of their loan,” he said.

Binga said there are procedures to access the loan, adding there are separate rules and procedure that bind them.

The Senior State Counsel said section 47 of the Public Finance Act does not apply on the revolving loan scheme and it is only applicable to the loans by the Government of The Gambia.

He submitted that the amendment of the proposed budget estimate was done in good fate and did not violate section 112 of the Constitution adding it was meant for the entire staff of the National Assembly – not only lawmakers.

He argued that the case is misconceived and the court cannot look into the proceedings, actions and speeches of the National Assembly.

“This court lacks the jurisdiction to look into the proceedings of the National Assembly,” he said.

Justice Awa Bah asked, “does the Minister have the power to say no?” And Binga’s response was “yes, if it is not in the public interest.”

Lawyer Abdoulie Fatty for Activista – The Gambia and Transparency International said the powers of the National Assembly in the consideration and approval of budget estimates is unfettered, but was quick to add that they are governed by the Constitution.

He cited sections 151 and 152 of the Constitution which he stated were in line with the IMF Guidelines. He said the purpose of presenting budget estimates before the National Assembly is to enable the lawmaker monitor the Government’s spending.

He argued that the lawmakers should not have created their own budget line for themselves adding there was conflict of interest.

“The public wouldn’t expect them to use their offices to bring up something when they have conflict of interest. They should be guided by the public interest,” Fatty said.

Fatty relied on provisions of international law, conventions and international best practices from other jurisdictions as it regard parliament.

Fatty said the National Assembly members should not use their offices on anything other than for the public interest.

He said the Supreme Court has in some of its decision drawn inspiration from international law and treaties.

“The case is of profound interest to the public. We have to look at the aspiration of the public,” Fatty said.

Hawa Sisay Sabally said international law has always served as a guide in interpreting the Constitution. She said separation of powers goes along with check and balances both of which are provided for in the constitution.

She disagrees with Counsel Binga that the Minister accepted the motion. She submitted that section 101 of the Constitution provides that the Minister has no role in accepting when motions are passed at the National Assembly.

“The Minister does not participate in the voting. Therefore, the issue of accepting it does not arise,” she said.

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