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| T O P I C R E V I E W |
| Momodou |
Posted - 28 Nov 2020 : 11:24:24
National Assembly Members approved 54 million dalasi budget line as loan for themselves!
"The National Assembly yesterday passed or agreed to create a load scheme for themselves amounting to 54,400,00. So today Halifa raised a motion for the National Assembly to withdraw the decision because isn't in line with proceed and the constitution for members of the National Assembly allocate themselves any amount for personal interest.
A vote was taken 17 say no to the motion while 16 say Yes to motion." Kexx Sanneh
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| 15 L A T E S T R E P L I E S (Newest First) |
| toubab1020 |
Posted - 12 May 2021 : 09:37:44
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https://foroyaa.net/simple-things-should-not-be-made-complexthe-debate-on-the-supreme-court-ruling-on-54-4-million-dalsis-assembly-loan-scheme/
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EDITORIAL May 10, 2021
It is important to take note that the Assembly did slice the budgets of other budgetary agencies with the expressed view that the budget deficit of the country needed to be reduced only to add 54.4 Million to the estimates which was never tabled by the executive.
It is incontrovertible that estimates of revenue and expenditure are connected with Appropriation Bills. An appropriation Bill is dependent on and determined by approved Estimates of revenue and expenditure.
The question now arises: Who prepares estimates?
Section 152 of the Constitution explains very clearly that the budgetary process starts with the preparation and laying of estimates before the National Assembly.
It reads:
(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.”
The estimates are so relevant to the Appropriation Bill that section 144 states the following with regards to the judiciary:
“(1) The Chief Justice shall submit the annual estimates of expenditure for the Judicature to the President for presentation to the National Assembly in accordance with this Constitution. The President shall cause the estimates to be placed before the National Assembly without amendment, but may attach to them his or her own comments and observations.”
It is therefore the executive that prepares estimates with the exception of those institutions excluded by the Constitution.
Does the National Assembly have any powers to introduce estimates of items that have not been submitted as part of its budgetary proposals? It does not.
Who then is to approve the estimates?
Section 152 A reads: “(1A) The National assembly shall, within fourteen days of the estimates being laid before it, give consideration to and approve the estimates.”
It is the National Assembly that approves the estimates.
If the National Assembly introduces an item and approves it, would that become legitimate by approving it? It was for the courts to decide.
What is the relation between an Appropriation Bill and an estimate?
Section 152 Subsection (2) reads:
“(3) When estimates of expenditure have been approved by the National Assembly, an Appropriation Bill shall be introduced in the National Assembly for the issue from the Consolidated Fund of the sums necessary to meet that expenditure (other than expenditure charged on the Consolidated Fund), under separate votes for the several services required and for the purposes specified therein.”
(3A) The National Assembly shall, within seven days of the introduction of the Appropriation Bill, give consideration to and pass the bill. “
If the National Assembly passes an Appropriation Bill with an item that was put in the estimates and approved by the National Assembly would that make it legal?
It is for the supreme court to decide. Why?
Section 127 reads:
(1) The Supreme Court shall have an exclusive original jurisdiction –
(a) for the interpretation or enforcement of any provision of this Constitution other than any provision of sections 18 to 33 or section 36(5) (which relate to fundamental rights and freedoms);”
The Supreme court has decided that when a process starts from a faulty step it can never stand on a legal foundation. The law has been made through interpretation. Those with legal minds should concede and move on to avoid recurrence. Parliamentary impunity is alien to democracy and good governance. |
| toubab1020 |
Posted - 07 May 2021 : 11:53:56
You may well agree with what has been written I could not possibly comment !
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SNIPPET FROM THE POSTING ABOVE:
"Asked if the NAMs would apologise to Gambians for the “unlawful move,” Jallow replied: “No! No! I don’t think it needs an apology. When we were doing it, we did it with the right conscience and the right principle. We [NAMs] are bound to make errors and if the court declares it unconstitutional, I don’t think it warrants an apology.”
Central Baddibu NAM, Sulayman Saho reacted: “We have to respect the decision of the Supreme Court but I am not happy with their judgement because parliament can allocate and this is what we have done. I don’t think there is anything fundamentally wrong in what we did; maybe they could argue about the timing.”
He said the current parliament is only setting the precedence to ensure lawmakers are financially independent to serve their purpose.
“We are not stealing or begging but taking a loan we thought we could pay,” he added."
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| Momodou |
Posted - 06 May 2021 : 15:53:45
NAMS REACT TO D54M LOAN BLUES
The Standard: MAY 6, 2021
By Tabora Bojang
https://standard.gm/nams-react-to-d54m-loan-blues0/
Various members of the National Assembly have expressed mixed feelings to the Supreme Court’s ruling against their proposed D54 million loan scheme.
In a landmark ruling on Monday, the apex court ruled that the constitution does not accord the National Assembly the power to create a new budget in the estimates, since any motion seeking to create a new budget line must be done by the executive and not the Assembly.
The court further declared as unconstitutional the lawmakers’ attempt to create the D54 million loan scheme for parliamentarians and staff of the Assembly and called for its retirement from the 2021 budget.
But while a few lawmakers welcomed the court ruling, several others expressed dismay at the decision.
Jarra East NAM, Sainey Touray said he received the decision with “mixed reactions” because he expected the court to “strike” out the case for lack of merit.
“I was definitely of the view that people who took the matter to the court have no case against us. I expected the court to dismiss it but on the contrary, my expectations were dashed,” Touray said.
He argued that the Supreme Court could have decided otherwise if it was guided by section 153 of the 1997 constitution.
“I have nothing to say but respect the verdict of the court because a lawmaker will always remain a lawmaker and not a lawbreaker,” he added.
The Member for Banjul South, Touma Njai congratulated the civil society for taking the matter to the Supreme Court, saying it is a demonstration that “our democracy is at work.”
“I have always been against these loan allocations from the onset because I don’t subscribe to personal gains while in office and I will not support any member [NAM] to enrich him or herself. We cannot create a budget line and do an oversight function on that same budget,” she said.
Touma added that her fellow NAMs could liaise with the Ministry of Finance and get them to create a budget line and then request the allocations.
Foday Drammeh, member for Tumana said even though he does not subscribe to the loan allocation, he is “disappointed” with the apex court’s decision to overturn it.
“I am disappointed because I was never with the notion that the court will overturn the scheme since lawmakers have powers to propose certain things in the budget. But again, this is the beauty of democracy; the court’s judgement has to be respected and it may well serve as a lesson for both the lawmakers and the public,” Drammeh said.
Minority Leader and Member for Niamina Dankunku, Samba Jallow said he is “very happy” with the decision of the Supreme Court.
“This shows that there is democracy working in our country. We represent the citizens and since they felt our decision was wrong and subsequently sought redress at the Supreme Court, which has powers to interpret the laws and they ruled in favour of the citizens that we represent, then I am happy with the ruling,” Jallow said.
Asked if the NAMs would apologise to Gambians for the “unlawful move,” Jallow replied: “No! No! I don’t think it needs an apology. When we were doing it, we did it with the right conscience and the right principle. We [NAMs] are bound to make errors and if the court declares it unconstitutional, I don’t think it warrants an apology.”
Central Baddibu NAM, Sulayman Saho reacted: “We have to respect the decision of the Supreme Court but I am not happy with their judgement because parliament can allocate and this is what we have done. I don’t think there is anything fundamentally wrong in what we did; maybe they could argue about the timing.”
He said the current parliament is only setting the precedence to ensure lawmakers are financially independent to serve their purpose.
“We are not stealing or begging but taking a loan we thought we could pay,” he added.
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| Momodou |
Posted - 05 May 2021 : 11:08:23
Supreme Court Declares Creation of 54.4 Million Dalasi Loan Scheme for Lawmakers Unconstitutional
Foroyaa: May 4, 2021
By Yankuba Jallow & Mariama Marong
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.
“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. |
| Momodou |
Posted - 04 May 2021 : 15:17:18
BREAKING NEWS!!!
The supreme court of the Gambia has ruled that the national assembly violated the constitution when it amended and allocated D54.4m as loan scheme to members. It's declared it null and void and struck it out from the 2021 budget. |
| toubab1020 |
Posted - 02 Mar 2021 : 12:33:36
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https://foroyaa.net/the-54-million-dalasi-allocation-to-parliament-and-elections/
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The 54 Million Dalasi Allocation To Parliament And Elections
he Independent Electoral Commission is experiencing shortfalls in the allocation of resources. Donors are questioning why Gambia needs help to finance its own elections.
The issue of the 54 million dalasi is not what the Court may finally decide on. The National Assembly is the law- making body of the land. It knows its own procedures.
Section 101 Subsection (4) is clear.
It reads:
(4) Without prejudice to the power of the National Assembly to make any amendment (whether by the increase or reduction of any tax or 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 –
(i) the imposition of taxation or the alteration of taxation;
(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; or
(iv) the composition or remission of any debt due to the Government.”
It is incontrovertible that estimates and appropriation Bill proposing charges emanate from the executive represented by the Minister of Finance. The National Assembly can only amend the proposal, but cannot impose original charges on the executive.
National Assembly members are entitled to what others are entitled to. That should be done without reducing other estimates to add to their own.
It is no surprise that the International Community is raising eyebrows as IEC expresses it shortfalls. The National Assembly members should take note. |
| toubab1020 |
Posted - 11 Feb 2021 : 09:56:56
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https://www.chronicle.gm/supreme-court-steps-aside-mps-get-free-ride-to-access-d54-4-million-loan/
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Supreme Court Steps Aside, MPs Get Free Ride To Access D54.4 million Loan
BY Frederic Tendeng on Feb 10, 2021
Staffs of the National Assembly and Members of the Parliament will likely lay hand on the sum of 54.5 million dalasis they allocated themselves as a loan, purportedly to develop some plots of land they benefited from the Executive. The Supreme Court of The Gambia has this Wednesday ruled not to grant an interim injunction to block the disbursement of the parliamentarians’ loan as sought by Gambia Participate and the Center for Research and Policy Development, two organizations of the Gambia Civil Society.
The civil suit defeated today at the Supreme Court was filed by the two CSOs arguing that the approval of the annual estimates of the revenue and expenditure for the year 2021 with the inclusion of the sum of D54.4 million as a loan for National Assembly Members and its staff is “an usurpation of his powers” and “a violation of the National Assembly standing orders”.
The Civil Society Organizations asked in their suit that the Supreme Court issue an injunction for the 54.5 million dalasis not be accessed by the clerk of the National Assembly as first Defendant.
The injunction sought by the CSOs would have requested that the Auditor General, second defendant, the ministry of Finance and Economic affairs, 3rd defendant and the Attorney general as the 4th defendant do each whatever in its capacity to block the release of the money to National Assembly Members and their staff.
As it is now, nothing stops the MPs to access the 54.5 million dalasis despite the huge outcry from the average Gambian asking the members of the legislative to seek loans from the banks instead of filling their pockets from the tax payers’ approved annual estimates of the revenue and expenditure. |
| toubab1020 |
Posted - 11 Feb 2021 : 09:45:18
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https://foroyaa.net/supreme-court-refuses-gambia-participate-others-request-for-interim-injunction/
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By Yankuba Jallow on February 10, 2021
The Supreme Court of The Gambia has in a unanimous ruling refused to grant an interim injunction sought by Gambia Participate and Center for Research and Policy Development against the Clerk of the National Assembly, Auditor General and Minister of Finance.
The two civil society groups on the 28th December 2020 filed a motion for the country’s apex court to grant an interim injunction against both the Executive and Legislature pending the hearing and determination of the case.
The Plaintiffs want the court to make an order directing the Auditor General not to grant approval for the payment of the sum of 54.5 million dalasis to the legislature pending the hearing and determination of the suit.
They wanted the highest court to make an order directing the Minister of Finance and Economic Affairs to hold the sum of 54.5 million dalasis allocated to National Assembly Members and staff of the aforesaid body, in the public interest and not to pay same pending the hearing and determination of the case.
They wanted the court to make an injunction against the Clerk of the National Assembly, his subordinates, any intended beneficiary and whomsoever from applying for, raising of warrants, preparing payment vouchers or any documents to access the sum of 54.5 million dalasi or any part of it by himself, staff of the National Assembly Services and National Assembly members pending the hearing and determination of the suit.
The motion was supported by a 12-paragraph affidavit sworn to by one Marr Nyang, the Executive Director of Gambia Participate. The first defendant (the Clerk of the National Assembly) filed a 13-paragraph affidavit in opposition sworn to by one Momodou A. Sise on the 20th January 2021. The Clerk of the House filed additional affidavit in opposition sworn to by one Lamin M. Dampha on the same day.
The other defendants did not file affidavit in opposition but during the hearing, the Attorney General submitted in their behalf that the court should not grant the application.
“The court holds that this is not a proper case to grant the interim relief sought by the Plaintiffs. Accordingly, the motion is dismissed in its entirety,” the Supreme Court ruled.
The Court said the decision will be incoporated in the final decision of the case.
There is no date fixed for the final judgment. Foroyaa will continue to follow the case. |
| toubab1020 |
Posted - 27 Jan 2021 : 12:44:52
https://foroyaa.net/lawyer-sisay-sabally-accuses-national-assembly-of-violating-the-constitution/
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By Yankuba Jallow on January 26, 2021
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.
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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| toubab1020 |
Posted - 26 Jan 2021 : 16:06:22
https://foroyaa.net/lawyers-argue-over-d54-million-loan-to-nams/
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By Yankuba Jallow & Mariama Marong on January 26, 2021
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 |
| Momodou |
Posted - 21 Jan 2021 : 10:12:28
Chief Justice Presides over Controversial D54 Million NAM Loan Case
Foroyaa: January 20, 2021
By Yankuba Jallow
https://foroyaa.net/chief-justice-presides-over-controversial-d54-million-nam-loan-case/
The Supreme Court of The Gambia presided over by Chief Justice Hassan B. Jallow on Tuesday, 19th January heard the case involving two civil society groups and the clerk of the National Assembly over loan Parliamentarians allocated for themselvest.
Marr Nyang represented Gam Participates while Sait Matty Jaw represented the Center for Research and Policy Development. These two civil society groups brought a case against the Clerk of the National Assembly, the Auditor General, the Minister of Finance and the Attorney General over the loan members of the National Assembly included in the 2021 budget for their use.
From L-R: Marr Nyang and Sait Matty Jaw
The case was instituted pursuant to sections 3, 4 and 5 of the National Assembly Salaries and Pensions Act, section 21 of the National Assembly (Powers and Privileges) Act, section 14 of the Finance and Audit Act and Clause 70 of the National Assembly Standing Orders.
The court will first look into the motion seeking to stop the Defendants from having to disburse or use the D54 million loan for members of the National Assembly.
The case was adjourned to Tuesday, 26th January 2021 for the processes to be regularised. The court gave all parties time to file in all the necessary processes on or before Friday, 22nd January 2021. However, Lawyer Abdoulie Fatty made a motion seeking for leave from the court to file an‘Amiscus’ brief in the case. Lawyer Fatty made this motion on behalf of Activista-The Gambia.
Fatty’s motion was objected by Lawyer Ida Drammeh for the Clerk of the National Assembly.
Fatty said the purpose of the ‘Amiscus’ brief is simply to assist the court on an important issue concerning the public life of this country to come to a just and fair determination. He referred the court to the case of The State and Yankuba Touray where the apex court granted leave for ‘Amiscus’ brief to be filed by certain lawyers.
Lawyer Fatty said the case raises serious issues of constitutional law and the matter is in the public interest. He cited section 5 of the Constitution subsections (a) and (b).
Lawyer Hawa Sisay-Sabally urged the court to allow the application for it is going to assist the court to arrive at a just conclusion. Binga D for the Attorney General did not oppose the application and left it at the discretion of the court.
Ida Drammeh for the Clerk of the National Assembly said the court should refuse the application because it is going to cause delay in the case. She is with the conviction that the Supreme Court is competent enough to deal with the case and arrive at a just conclusion adding where the court is of the view that it needs assistance; the Attorney General is competent enough to deal with it. She said granting ‘Amiscus’ in all cases would prejudices parties to the suit.
She said the filing of the ‘Amiscus’ briefs in this case would delay the court adding the affidavit in support does not contain facts that would warrant the court to grant the application. She urged the court to refuse the request.
Lawyer Fatty in his reply on points of law said Lawyer Drammeh did not cite any law to justify her objection and has not given any sufficient reasons as to why the application should be refused.
The case was adjourned to Monday, 25th January 2021 at 10 am for the ruling on the motion. |
| toubab1020 |
Posted - 02 Dec 2020 : 17:24:37
https://standard.gm/finance-minister-feels-nams-loan-scheme-not-ideal/
By Omar Bah on December 2, 2020
The Minister of Finance has told lawmakers that the process used to allocate themselves a loan scheme is not ideal.
At least seventeen NAMs out of the 33 who voted on Friday agreed to a proposal for a loan of over 50 million dalasis to build their houses. The proposal, tabled by nominated National Assembly member Ya-Kumba Jaiteh, sparked controversy and condemnation.
“It is not ideal for members to have a loan scheme for themselves squeezed into the already drawn 2021 budget,” Mambury Njie said.
He added: “What Halifa Sallah said is correct. Taking from here and putting it as a loan scheme, I don’t think it’s ideal. I think we have to withdraw the loan scheme, even if we have to come with a supplementary bill. I think procedurally that’s the right thing to do. That is the limit of my powers as a minister in the Assembly.”
The NAM for Banjul South, Ousman Sillah said: “I fear double standard in the proposal on the part of the members. It’s the same principle with National Audit Office. We asked them to revise that (travel expenditure) and yet, we want to give it to the National Assembly. The issue is that let us not be seen as playing double standard. Parliamentary elections are expected in 2022 within the first four months. Only sixteen months away. Now, assuming that National Assembly Members are receiving D50, 000 per month including allowance, committee sittings and monthly payments, a loan of one million for a period of sixteen months will require a monthly payment of D62,500. So, the million-dalasi loan question is, how will you be able to pay back the loan?” Sillah quizzed.
Suwaibou Touray, the NAM for Wuli East, argued: “We have only one year to leave this office. So, if you take a loan, which is a building loan, when are you going to finish paying that? Do you leave here and leave your loan behind?”
Another NAM, Alhagie Mbowe of Upper Saloum, said: “For me, it was an ethical issue because we ask these people to cut their budget which they did and take the same loans and give it back to ourselves. That was an ethical issue and we must look at the economic situation of the country. We must be considerate, look at the morality and the ethical issues. That was why I voted against the loan scheme. We must think twice and we must take into consideration that the national interest becomes our topmost priority and not to give ourselves things because we have the powers to do it. “ |
| toubab1020 |
Posted - 02 Dec 2020 : 10:31:51
https://foroyaa.net/is-a-provision-of-the-constitution-breached-by-approving-a-loan-scheme-for-nams/
QUESTION OF THE DAY December 1, 2020
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.
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.” |
| toubab1020 |
Posted - 01 Dec 2020 : 00:24:05
https://standard.gm/opposition-slam-worst-national-assembly-after-d54m-loan-scheme/
By Alagie Manneh on November 30, 2020
Some political parties have slammed as “the most irresponsible and worst ever,” National Assembly of The Gambia, following the lawmakers’ vote Friday granting themselves over D54 million loan.
Nominated member Ya-Kumba Jaiteh tabled the loan proposal that NAMs could access and use to build houses on the much-contentious lands recently allocated to them. Twenty-four NAMs agreed with Ya-Kumba Jaiteh.
The news sparked huge anger and public outcry, with some leading politicians describing it as “irresponsible, and a betrayal of the people”.
Dr Ismaila Ceesay, presidential candidate for Citizens’ Alliance, slammed the lawmakers for “caring only about themselves”.
“Who cares about the poor man, about the farmer, about the teacher, about the police officer? Who cares about your life, about your future?” Dr Ceesay asked.
According to him, this is the “worst [National] Assembly we have in decades, in fact in our entire political history. Look at what they did with the Supplementary Bill in the first place, look at what they did with the constitution and look at what they are doing now. They said they are going to reduce the money given to the presidency to give it to themselves to build houses after acquiring those plots of lands under very scrupulous circumstances. Which government – PPP or Yahya Jammeh – have you seen that? Our lawmakers give themselves land, and they want to take people’s money to build those lands when their tenure is very short. What collateral are they going to put to pay that loan? How will they pay that money back?” he asked.
Gumbo Touray, interim leader of the All Peoples Party, said the development shocked APP, calling it “self-centred”.
“At this time of a crisis and global pandemic, we believe the National Assembly should be responsible. We believe the concern should be economic recovery of the nation,” Mr Touray said.
Calling the loan scheme a ‘betrayal of the people’, Mr Touray called for a swift rectification.
“…The wrongs must be rectified,” he demanded. “And better examples should be set. All those allocations of lands to lawmakers should be forfeited, and the loan scheme canceled. Those allocations of land do not follow procedures. As such, we consider them illegal.”
The spokesperson of the GDC, Ahmadou Kah, did not condemn the loan scheme, but said the GDC was “not happy” about it either.
“We are not saying they should not be given any privileges like other government institutions are enjoying. We as a party would have been happy to see the new budget line not created by themselves [the lawmakers]. They could have requested for some form of appropriation from the Ministry of Finance,” Kah submitted.
Kah, who was careful with his choice of words, said the GDC “is worried” by the development and the ‘many other issues’ of the past surrounding NAMs and their conduct.
“Almost all of them continue to drive cars that they cannot tell us where they [those cars] come from. Lands were also allocated to them by themselves,” he said.
Mr Kah said it is now “too late” to challenge the decision of the lawmakers’ loan scheme.
“We have seen Halifa Sallah move a motion against it [the loan scheme] but they [National Assembly members] rejected [it]. There is a lot of public outcry. People are not happy with this,” he stated.
Majority of those who voted for Ya-Kumba Jaiteh’s proposal are UDP NAMs, but Mr Almami Taal, UDP spokesperson, said the party has no control over its National Assembly members. He said the UDP does not have any position on the issue.
“It [the loan proposal] came before the National Assembly and, like any other proposal that came before the National Assembly, the members vote on their own consent, on what they believe is the right thing,” Taal said.
The spokesperson said he “understands the outcry”, but swiftly added that not every member of the UDP voted for the proposal. “There is a lot of concern about this [loan scheme], even within the membership of the UDP,” Mr Taal said.
Mr Taal said the lack of experience of most NAMs may also be a contributor to this “traditional way of doing things”.
“We need to have an honest conversation on how to develop this country,” Mr Taal said.
NAM for Bakau, Assan Touray, who was among 17 others who voted for the proposal, said in his defence: “When government allocated us with land, we feel they should give us the loan because it’s happening with other departments. … they said all lands belong to the state and if that is the case, I don’t think that should be a problem.” |
| toubab1020 |
Posted - 01 Dec 2020 : 00:20:23
https://foroyaa.net/national-assembly-makes-one-step-forward-and-one-step-backward/
Never in the history of the Gambia did deputies sit more than twenty four hours at a stretch to scrutinise the estimates of revenue and expenditure, both recurrent and development, of the Republic of the Gambia. This was preceded by face to face engagement of each Ministry with a respective Committee of the National Assembly to scrutinise their budget item by item. In so doing, the National Assembly fulfilled its promise not to be rubber stamp assembly. If it stopped at reducing expenditure to reduce the deficit and thus reduce domestic borrowing it would have been on record as the most progressive and effective legislature that ever presided over the budgetary process in the Gambia.
Unfortunately, that never came to be the case. They spoilt everything when the budget cuts they recommended to curb the deficits were relied on to add fifty four million dalasis to the National Assembly budget for loans to National Assembly members without even a budget line existing to make the increase.
Even though the members were clearly cautioned that the action was improper and a violation of the Constitution, the Public Finance Act and the Standing Orders of Parliament, they went ahead to maintain the pursuit of personal interest.
In principle there is nothing wrong in giving loans to Public servants and legislators, but they are given after clear determination of their capacity to pay them within a realistic timeframe. After raising questions of integrity and probity, the legislators will now face an uncompromising accountant general who would never allow public funds to go into the hands of Public servants and legislators who do not have enough money to pay the loans within a realistic timeframe. This could lead to litigation in court for the first time in Gambian history to determine what is lawful or unlawful in a budgetary process. Interesting times are awaiting us.
Every authority could be king in one’s domain but in a democracy, there is no king only the law rules. History will be the judge and posterity will be the scribe that avails the record for the future generation. Action unguided by thought is blind and thought not followed by action is sterile. Unite action and thought and allow thought to lead and we make the progress we desire. This is the verdict of commonsense and it is incontrovertible. |
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