Monday, May 10, 2021

Supreme Court Declares Creation of 54.4 Million Dalasi Loan Scheme for Lawmakers Unconstitutional

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In a unanimous decision, Justices of the Supreme Court of The Gambia on Tuesday, 4th May, held that the National Assembly has no powers to create a new budget line in the budget estimates.

On the 26th November 2020, nominated National Assembly Member Ya Kumba Jaiteh moved a motion for the amendment of the estimates which was approved by the members. The lawmakers created a new budget line of 54.4 million dalasi as Loan Scheme for Parliamentarians and staff of the National Assembly Service Scheme.

Sequel to this decision, Plaintiffs (Gambia Participates and the Center for Policy and Research Development) instituted civil action against the Clerk of the National Assembly (NA), Auditor General, the Minister of Finance and the Attorney General.

Lawyer Hawa Sisay Sabally for the Plaintiffs argued that the National Assembly was wrong to have amended the estimates to allocate loan to themselves. She argued that the lawmakers lack the power to make such amendments.

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“They usurped 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 line in the estimates.

“They (the National Assembly) have no right to create a budget line. They consider and approve it. 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 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.

In responding to the Plaintiff’s Lawyer, Counsel Ida Drammeh said: “Where it is clear that the Minister of Finance made the amendment before the estimates are approved, there cannot be a complaint,” she said.

The Senior Lawyer said the Court cannot grant the Plaintiffs’ claims considering the principle of separation of powers in the Constitution.

“There is nothing wrong in the National Assembly approving the revolving loan scheme,” she said.

Lawyer Drammeh submitted that no amendment was done by the National Assembly contrary to what the plaintiffs’ case suggests.

“It was the Minister of Finance who actually amended the estimates,” Lawyer Drammeh said.

She said there is no basis for the complaint once it is proven that the Ministers of Finance made the amendment.

“The Plaintiffs misconceived what is contained in the estimates and the Appropriation Act,” she said.

She said the approved estimates make provision for “revolving loan scheme” which was appropriated in line with relevant laws.

She submitted that section 47 of the Public Finance Act (PFA) gives the Minister of Finance the power to extend a loan subject to criteria stated in that section particularly subsection 2.

“There was no amendment done by the National Assembly and that is why there is no document before this court showing such amendment,” Lawyer Drammeh said.

She cited section 97 and 100 of the Evidence Act which deal with production of document.

“This court does not have before it the motion and the court is invited to speculate what was said in that motion in order to consider the prayers in the suit,” Drammeh said.

She said the court cannot and ought not to make far reaching determination on issues like this one. She added that the Constitution entrenches the principle of separation of powers.

She relied on the provisions of Chapter 9 of the Public Finance Act including sections 151.

“It is clear that there is an Appropriation Act 2021 which includes D54.4 million,” she said.

She said by the action, the court is invited at this premature stage to prevent the President and authorities to carry out a responsibility provided for in the laws.

“I urge this honourable court to decline that invitation,” Drammeh said.

She relied on Standing Orders 82 (2), 86 (4) (5) and (6) as well as 86 (8) and (9). Also, she relied on section 101 (4) of the Constitution and section 47 of the Public Finance Act.

She said section 47 of the Public Finance Act does not say loan cannot be made available to the National Assembly.

She said the Plaintiffs have invited the court to speculate on whether section 106 of the Constitution was not complied with.

“The court ought not to act contrary to the principle of separation of powers,” she said.

She submitted that the National Assembly did not act in any way in breach of any applicable law.

Counsel Binga D for the Attorney General informed the Supreme Court that no law was violated by Parliamentarians in the allocation 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.

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 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.

In his judgment on Tuesday, Justice Gibril Samega Janneh said the Constitution does not accord the National Assembly the power to create a new budget line in the estimates.

“The National Assembly cannot pass a resolution creating its own budget line. The National Assembly cannot initiate its own budget line,” he said.

He said the powers of the National Assembly are derived and limited by the Constitution; that all their actions must conform with the dictates of the Constitution.

Justice Janneh said the power to create new budget line is vested in the President which the National Assembly cannot do.

“Any motion or resolution seeking to create a new budget must be brought by the Executive and not the National Assembly,” Justice Janneh said.

He held that, as per section 101 subsection 4, which gives the National Assembly the power to approve estimates, they equally have the power to disapprove, but it does not mean to introduce a new budget line.

He said he does not think the loan scheme serve any good purpose considering the provisions of the Constitution. He said the action of the lawmakers by passing a resolution by a vote of majority allocating themselves 54.5 million dalasis as a loan scheme contravenes sections 152 and 155 of the Constitution as well as section 47 of the Public Finance Act.

He detailed that the Loan Scheme does not provide clarity as to the terms and conditions for the loans. He cited sections 155 of the Constitution and 47 of the Public Finance Act.

“It [the Loan Scheme] is therefore null and void,” he said.

He said a loan is not a gift and therefore, it has to be repaid and this is why sections 155 of the Constitution and 47 of the Public Finance Act provided safeguards. He highlighted that the provisions of the Audit Act as well as the Finance Act were not followed; adding section 14 of the Public Finance Act does not permit long term loans.

He held that any sum disbursed from the 54.4 million should be recovered forthwith, adding the way the Loan Scheme was introduced was improper. He struck out the 54.4 million dalasi from the sum allocated to the National Assembly. Now the National Assembly is left with D192,406,437.

Foroyaa will publish the detail judgment (including the reasoning of the court) whenever copies are available.

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