Thursday, April 15, 2021

Is A Provision Of The Constitution Breached By Approving A Loan Scheme For Nams?

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QUESTION OF THE DAY

Somebody posed the following question to Sait Matty Jaw: Sait Matty Jaw can you enlighten me on which provision of the Constitution was breached by approving a loan scheme or you just taking Halifa’s word for it.  By the way the constituency development fund was proposed this exact same way last year and there were no objections not even from Halifa. NAMs are the only people who have the right to legislate for themselves according to the Constitution.  So [your] opinion is quite contradictory to the dictates of the Constitution?

This question was sent to Foroyaa. Apparently, the matter relates to the introduction of a loan scheme for National Assembly members in the estimates by the National Assembly members without the item being part of the estimates laid by the Minister.  We will confirm the origin and ask the author and Halifa Sallah to clarify matters for the Nation.

Foroyaa would however assist our readers to understand the budgetary process and the unconstitutionality of the move of the NAMs.

In light with the principle of the separation of powers, it is the executive which proposes a budget and it is the National Assembly that disposes of the budget. The responsibilities ae clearly demarcated in the Constitution.

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This is why Section 152 of the Constitution deals with “Annual estimates and Appropriation”

It states : “(1)  The President shall cause the Minister responsible for finance to prepare and lay before the National Assembly at least thirty days before the end of the financial year, estimates of the revenue and expenditure of The Gambia for the following financial year.  The estimates shall include any estimates which, under this Constitution, are to be submitted directly to the President by the Chief Justice or any other authority for presentation by the President to the National Assembly.”

Hence the heads, Subheads and Items in the estimates are prepared and laid before the National Assembly.

What is the role of the National Assembly?

The answer is very simple. Subsection (1A) reads:

“(1A)     The National assembly shall, within fourteen days of the estimates being laid before it, give consideration to and approve the estimates.”

Has the Constitution imposed any limits to the powers of the National Assembly in giving consideration to Bills?

The answer is in the positive. The National Assembly cannot propose heads, subheads or Items. What they could do is propose amendments to allocation by way of increasing or reducing the various allocations by subtracting and adding to the various allocations without increasing the global sum proposed by the executive.

Where is this said in the Constitution. It is indicated under Section 101 Subsection which reads:

“(4)      Without prejudice to the power of the National Assembly to make any amendment (whether by the increase or reduction of any ….. 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 –   

(ii)  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)  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…….”

This is why the Standing Order 91 of the National Assembly has laid clear guidelines of the powers of the National Assembly in considering estimates which we will leave for further elucidation should a debate ensure between Halifa Sallah and the personality who posed the question.

To conclude it is important to indicate that the law making power of the Assembly is not absolute The Assembly is capable of making a law that is in violation of the Constitution.

This is why Section 5 of the Constitution states:

               (1) A person who alleges that   

 (a) any Act of the National Assembly or anything done under the authority of an Act of the National Assembly; or

 (b) any act or omission of any person or authority,

is inconsistent with or is in contravention of a provision of this Constitution, may bring an action in a court of competent jurisdiction for a declaration to that effect.

(2) The court may make orders and give directions as it may consider appropriate for giving effect, or enabling effect: to be given, to such a declaration and any person to whom any order or direction is addressed shall duly obey and carry out the terms of the order or direction.”

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