Wednesday, August 4, 2021

Lawyer Sisay Sabally Accuses National Assembly of Violating the Constitution

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By Yankuba Jallow

Lawyer Hawa Sisay Sabally for two civil society groups has accused the National Assembly of abrogating their responsibility to act in the public interest when they allocated themselves D54.4 million.

The former vice chairperson of the Constitutional Review Commission (CRC) is the lawyer for Gambia Participate and Center for Research and Policy Development. These two groups instituted a case against the Clerk of the National Assembly regarding the 54.4 million dalasi loan that members of the National Assembly allocated for themselves and staff of the aforesaid public body.

She said when the budget estimates was tabled before the National Assembly, there was no budget line for National Assembly members’ loan but they went ahead to create it in contravention of the law. She highlighted that the National Assembly committee that scrutinized the estimates did not make any recommendation for their loan.

She said the action of the lawmakers to allocate themselves loan was not done in the public interest.

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On the 26th November 2020 a member of the National Assembly moved a motion to amend the estimates which was approved by the members.

“It is the case of the Plaintiffs that the National Assembly was wrong to have amended the estimates to allocate loan for themselves,” she said.

She argued that the lawmakers lack the power to make such amendments.

“They usurp the powers of the President,” she said, as she relied on section 152 of the Constitution.

She argued that it is only the President who has the power to give instruction to the Minister of Finance to make available and it is not for the Minister to prepare without any instruction.

The Senior Lawyer argued in considering what was presented before them, the lawmakers like all other institutions do not have any authority to amend their budget.

“The National Assembly cannot amend and create a new budget line that was not in the budget estimates,” she said.

She submitted that nothing stopped the National Assembly from negotiating with the Finance Minister with a view to come up with an appropriation bill rather than creating a new budget in the estimates.

“They (the National Assembly) have no right to create a budget line. They consider and approve. It is only the President who can authorize such,” she said.

She relied on section 101 (4) of the Constitution and said for the National Assembly to be able to do that, they needed a statute to be able to carry out that exercise.

She told the court that in The Gambia all loans are regulated by statute.

She relied on sections 3, 4 and 5 of the National Assembly Salaries and Pensions Act.

She said the Plaintiffs are not challenging the speeches of lawmakers, but their action.

She said the loan came by way of a motion by a member of the National Assembly which was supported by the majority of the members, adding it was not a unanimous decision which means there were members who opposed it.

“They adopted a procedure which was fundamentally flawed and which contravened the Constitution,” she said.

She submitted that the responsibilities of members of the National Assembly are provided for under section 112.

“What they did was inconsistent with section 112 (2) of the Constitution because what they did was not in the public interest,” she said.

She said as per section 47 of the Public Finance Act, it does not fall within the powers of the National Assembly to create their own budget line.

Lawyer Sabally said the Defendants raised the issue of the legal standing of the Plaintiffs to institute the case against them. She submitted that the Plaintiffs have the legal standing to institute the case as she relied on sections 5 and 6 of the Constitution and some decided cases.

She said they are not calling for the interpretation of the Standing Orders adding the National Assembly failed to follow their own standing orders.

Lawyer Sisay-Sabally submitted that the National Assembly violated section 106 (3) of the Constitution.

“How then did they approve this loan which was in their harmonious interest? They did not follow the dictates of public interest. They created the loan and voted for their interest,” she said.

She said the members made it clear that they have lands and they want to build on it.

“The National Assembly is not allowed to do what they did,” she said.

She referred the Supreme Court to a Ugandan case where the Court ordered the lawmakers to refund the money after they were issued with the fund.

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