Friday, December 1, 2023

Is the President a Public Officer?


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By Kebba Jeffang At the false information trial of Borry J. Saidy yesterday 2 March, the prosecution and defence defence debated on whether or note in the eyes of the law the President of The Gambia is a public officer.A prominent lawyer Mr Borry S. Touray, the counsel in the false information trial of Borry J. Saidy, the Acting Air Traffic Service Manager at the Banjul International Airport (GIA), submitted that the charge preferred against his client is incompetent because the President of the Republic is not a public officer and therefore the case should be dismissed. Counsel Touray made this submission at Brikama Magistrates’ Court before Magistrate Omar Cham. When the matter was called the IGP was represented by Chief Inspector Kebba Fadera while Lawyer Borry. S. Touray appeared for the accused person. The police prosecutor revealed to the court his intention of calling for an adjournment of the matter as his witness is engaged at superior court. However, the accused person’s lawyer said he is not objecting to the application but that he too has an application which can proceed without the presence of the witness. There was no objection raised from the other side too. The defence counsel applied for the dismissal of the charge against his client arguing that it is incompetent. He said the charge sheet states that the accused person has given false information to the President of the Republic as a public officer, which he added, is not in line with the provisions of the laws of the Gambia. B. S Touray added that since giving false information is under section 122 of the Criminal Procedure Code (CPC), the prosecution must prove that the information has been given to a public servant. He said this will raise the issue of whether the President is a public servant and this question has been answered by the Constitution of the Republic. He said the Constitution has negated the belief that the President is a public servant while fully relying on section 166 (4) of the 1997 Constitution of the Gambia which states that “in this Constitution, an office in the public service does not include the offices of the President, Vice President, Speaker or Deputy Speaker of the National Assembly, Secretary of State or a member of the National Assembly.” The defence counsel said “the office of the President is not an office within the public service. I submit further that the graveness of this offence is a charge of giving false information to a public officer. The Public Service Act, PMO Regulation, Code of Conduct of Civil Service and General Orders and the Guide to General Orders have all defined public servant as a person employed in the public service, government of the Gambia.” Counsel Touray revealed that section 4 of the Public Service Act states that the Secretary General should be the head of the public service. He said therefore all public service workers are under him and that Office of the President does not fall under this category.  He said public service is defined to mean the civil service of the government of the Gambia and that is the reason why the common phrase applies to all public officers. “ Therefore the meaning of the term ‘public officer as referring to a public servant can only be effectively amended to include reference to the Office of the President if this Constitutional provisions (section 166) (4)  and the Public Service Act are simultaneously amended to include the President as a public servant. I submit that the amendment of one section of legislation only cannot change the status of the President as a civil servant. Unless there are amendments of section 166 of the Constitution dealing with Public Service and the Public Service Act, they remain unchanged, Touray insisted. He said the action is incompetent and therefore urged the court to dismiss the charge sheet. However, responding to the application, Chief Inspector Fadera argued that the charge against the accused person is an appropriate one and it is in accordance with the laws of the Gambia. He said it cannot be correct to say that President is not a public officer for the fact that he is voted into office by the people. “Office of the President is a public office and this is why members of the public when they feel something inappropriate they write a petition to his office,” he said. CI Fadera cited section 166 (1) and (2)(a) of the 1997 Constitution and later indicated that the said section that counsel is relying on is inapplicable in this case because the President is holding a public office prior to the coming into force of the constitution. He urged the court to disregard the application of his counterpart. Lawyer Touray in reacting to the objection of the prosecution said, the prosecutor has relied on Section 166 (1) and submitted that the civil service was created prior to the coming into force of the 1997 Constitution. However, he submitted that both 1970 Republican Constitution and the present one are containing the same message but only names are different. “In 1970 Republican Constitution we used to call it Civil Service while in 1997 Constitution it is call Public Service and that is in line with my argument because President has never been a public servant. He is not a staff of Local Government nor is he a Managing Director. Section 61 of the Constitution defined President as the head of state and of government and Commander-in-Chief of the Armed Forces. He is putting on three caps and if you want to know who he is refer yourself there,” Lawyer B.S Touray told the Court. At this juncture, the matter was adjourned till Thursday, 5th March 2015 at 3pm for the court to decide whether to dismiss the charge against the accused or let it go. Mr. Borry. J. Saidy, is charged with a single count of giving false information to a public servant contrary to Section 114 of CPC Cap 10, Vol 3 Revised Laws of the Gambia, 2009. The particulars of offense states that the accused person on or about the 27th November, 2014 at Banjul International Airport in the West Coast Region and diverse places in the Gambia, while serving as Acting Air Traffic Service Manager, he wrote to the Office of the President claiming an unfair treatment among others, which he knew or believed to be false, thereby committed an offense.]]>

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