By Yankuba Jallow & Mariama Marong
Lawyers in the controversial case of the 54 million dalasi loan for lawmakers have on Monday, 25th January completed their arguments on the motion seeking to restraint the Clerk and Government from disbursing the fund to legislatirs pending the hearing and determination of this case.
The Supreme Court is set to rule on the motion and the date will be communicated.
Lawyer Hawa Sisay Sabally for the Plaintiffs said they have filed a motion dated 28th December 2020 which was served on all the defendants, adding the motion was supported by affidavit in-support by Marr Nyang, the Executive Director of Gambia Participate.
The Plaintiffs in this suit are Gambia Participate and the Center for Policy and Research Development whereas the Defendants are the Clerk of the National Assembly (NA), Auditor General, the Minister of Finance and the Attorney General.
The Plaintiffs want an injunction against the Clerk of the NA, his subordinates, intended beneficiaries and whomsoever from applying for the loan.
Also, the Plaintiffs want the Supreme Court to issue an order directing the Minister of Finance and Economic Affairs to hold the sum of D54.4 million allocated for members of the National Assembly members and the staff in the public interest.
The Plaintiffs also want an order directing the Auditor General not to grant approval for the payment of the sum of D54.4 million.
She said the court has the power to grant the prayers in the motion since the State Proceedings Act does not cover the Clerk of the National Assembly.
The senior private legal practitioner relied on provisions of the Constitution including section 230 (1) and 73 (1) as well as some decided cases.
She said the case is proper under the laws adding the 54 million that the lawmakers pegged for themselves was wrong.
“We are urging the court to maintain the status quo pending the hearing and determination of this case,” she said.
The former vice-chairperson of the Constitutional Review Commission said it is convenient to grant the application and it is not going to cause any damages to the defendants.
Lawyer Sisay-Sabally said the issuance of loan by the Government from the consolidated fund is regulated. She cited the Public Finance Act and other laws (regulations) for civil servants but was quick to add the National Assembly has no such laws regulating their loan.
She pointed out that the defendants provided the court with a gazette (Appropriation Bill 2021) which does not have a number and date. She added that the gazette bears the signature of both the Clerk of the National Assembly and the President of the Republic.
“That is not a gazette because it is not complete,” she said.
She said the defendants were aware of the case and this was why they rushed to prepare the gazette.
She enjoined the court to take judicial notice of previous government gazettes. She informed the court the printers (GPPC) do not have the gazette in their custody.
“Even the printers said they don’t have this gazette. So it is not a proper gazette,” she said.
Lawyer Ida Drammeh said the application by the Plaintiffs was not proper and urged the court not to grant it. She said by virtue of the State of Proceedings Act, the court cannot grant a motion against the Clerk.
She relied on sections 94 and 270 of the Constitution that the office of the Clerk is a public office. She also relied on section 17 (2) of the State Proceedings Act as she argued that the court cannot grant an intellocutory injunction against the Clerk of the NA. She contended that the apex court cannot grant any of the reliefs in the motion by the Plaintiffs.
She submitted there is presumption of regularity in this case that the court has to give regard to. She said if the motion is allowed by the court, it would undermine the presumption of regularity in their favour. She added that the main case is there and the court will decide on the merits by the end.
She argued that the Appropriation Bill 2021 was properly passed.
“If there was no Appropriation Act, none of us would have been here. It is what set out how the money has to be spent,” she said.
Counsel Drammeh also submitted that the facts were deposed to in the affidavit in-support of the motion do not support the ground of application.
Binga D. for the Attorney General said an injunction cannot be issued against the Minister of Finance and Auditor General.
