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Karamba
United Kingdom
3820 Posts |
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Watchman
Gambia
174 Posts |
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toubab1020
12306 Posts |
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Karamba
United Kingdom
3820 Posts |
 Posted - 04 Nov 2010 : 20:54:02
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Rightly put watchman, your warning came clear. That was one time when the fine madam could have stepped off. Now she is compelled to bown down with lost of treasured crown and abysmal frown.
Ma waaru chi domi Adama Njie. |
Karamba |
Edited by - Karamba on 04 Nov 2010 21:04:27 |
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Janyanfara
Tanzania
1350 Posts |
Posted - 04 Nov 2010 : 23:07:57
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| Oh my God now the executive can do anything what type of Gambia do we now live in? |
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kondorong
Gambia
4380 Posts |
Posted - 05 Nov 2010 : 00:13:42
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i want to believe that in this instance, the president can indirectly fire the speaker for the simple reason that the speaker is a nominated member of Parliament and not an elected member. Members then choose among themselves the speaker. If she loses her position as Member of Parliament, then she loses her position as speaker. Its a cause effect situation. The constitutions states that the Speaker ceases to be speaker if his/her position as a nominated member ceases. Nominated Members of parliament are nominated by the Executive.
In the same way, when a memeber of parliament ceases to be a memeber of the party that sponsored him/her, the position in parliamnet ceases. So, the easy way is fire your memeber of parliament from the party and that automatically makes him/her loose the position of memeber of Parliament.
This is what the Constitution states:
The Speaker and the 93.
(1) The Speaker of the National Assembly and the deputy
Deputy Speaker Speaker shall be elected by the members of the Assembly
from among the nominated members.
(2) The Chief Justice shall preside at the election of a Speaker.
(3) Unless he or she sooner dies or resigns the Speaker and the
Deputy Speaker shall vacate their respective offices-
(a) if he or she ceases to be a member of the National Assembly,
(b) if he or she is removed from that office by a resolution of the National Assembly supported by the votes of not less than two-thirds of all the members of the National Assembly.
(4) Persons elected to the office of Speaker or Deputy Speaker shall, before assuming the duties of their respective offices take the prescribed oaths.
(5) No business shall be transacted in the National Assembly other than the election of the Speaker or Deputy Speaker when either of those offices is vacant.
I amy be wrong in my analysis and please rectify me. |
“When I despair, I remember that all through history the way of truth and love have always won. There have been tyrants and murderers, and for a time, they can seem invincible, but in the end, they always fall. Think of it--always.” |
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Janyanfara
Tanzania
1350 Posts |
Posted - 05 Nov 2010 : 00:36:42
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kon. my friend what constitution? The Jammeh Constitution?
Just come think of it as if all of us are fools speaker and deputy speakers are nominated by parliament but they are nominated member not elected representatives of the people so they owe no allegiance to anyone but the one who put them there in the first place! the H.E
Nominated Members of Parliament are selected by the Executive!
Who is the Executive?
If you know the answer which I knew you do,
then where is the separation of powers?
All lies in the hands of one MAN the God Mr. President!
He hires the judiciary and fires them as the constitution empowers him to do.In that he does no wrong but unless there is inplace some hard phrases in the constitution limiting the powers of such one individual, these trend of serving one Man than a nation will continue
and
the hiring and firing will always continue
Only God can save poor Gambians because all these wrongs are perpetuated by sons and Daughters of her who call themselves EDUCATED thus the poor Gambia lies at the Mercy of the SOCALLED EDUCATED GAMBIANS
Day of Judgement would be sweet between the EDUCATED GAMBIANS VS the uneducated! |
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Nyarikangbanna
United Kingdom
1382 Posts |
Posted - 05 Nov 2010 : 08:39:16
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quote:
Originally posted by kondorong
i want to believe that in this instance, the president can indirectly fire the speaker for the simple reason that the speaker is a nominated member of Parliament and not an elected member. Members then choose among themselves the speaker. If she loses her position as Member of Parliament, then she loses her position as speaker. Its a cause effect situation. The constitutions states that the Speaker ceases to be speaker if his/her position as a nominated member ceases. Nominated Members of parliament are nominated by the Executive.
In the same way, when a memeber of parliament ceases to be a memeber of the party that sponsored him/her, the position in parliamnet ceases. So, the easy way is fire your memeber of parliament from the party and that automatically makes him/her loose the position of memeber of Parliament.
I amy be wrong in my analysis and please rectify me.
Actually you are wrong. Apart from death and resignation, there is only one way prescribed by the constitution in which the speaker can be removed and it is by a resolution of the parliament supported by two-third of members-See Section 93[3][b].
The power conferred on the president to nominate members is only designed to help constitute a new parliament anytime the old one expires. This does not carry a concomitant right/power to dismiss either directly or indirectly. In essence, once parliament is constituted, it takes an independent character powerful enough to even sack the president, and answerable only to the people. This makes the office of the speaker the second most important office on the land.
It is a different case in respect of elected members [the speaker is always a nominated member] where the president can engineer the sacking of an elected member of his party by just expelling him/her from the party. The opposition too can do the same should they no longer want a particular member to serve them in parliament [The UDP, as a damage limitation strategy, expelled Almamy Touray of Naini shortly before the 2001 presidential election, having discovered that he was going to declare his support for the APRC during the campaign period]. However, this rule was not meant for this. It was only designed to eliminate opportunism by stopping members from cross-carpeting to another party once elected, a practice that almost crippled the opposition during the first republic. Again, even in this case, the process is being abused although there is nothing illegal about the practice.
I hope this helps.
Regards
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I do not oppose unity but I oppose dumb union. |
Edited by - Nyarikangbanna on 05 Nov 2010 08:51:43 |
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kondorong
Gambia
4380 Posts |
Posted - 08 Nov 2010 : 07:22:50
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Nyaring
In as much as i want to believe your analysis, i am still hesitant to concur with your conclusions on this issue. I am not a lawyer and certainly not offering any legal brief for the actions of the president.
But if i peruse through your own posting above, i begin to see cracks. If only by 2/3 majority of members, can a speaker be removed, and yet no resolution of the House has been brought forward by members, does it not go to show that any subsequent deliberations of the house is being put into disrepute? The constitution further states that, no further business of the house can be legal when the position of the speaker is vacant.
It would then therefore mean that if the speaker is removed without constitutional instruments, then the deputy speaker so appointed to become speaker is also by the same token of constitutional instruments, illegally appointed to assume the office of speaker. By default then, any act of the House that so proceeds for such appointment of the new speaker is illegal because the House cannot sit in session without a speaker and if the speaker is illegally appointed, then any subsequent act of the House can be challenged as not being constitutionally conforming.
The reason being that the business of the House which cannot proceed without a speaker becomes illegal when the Speaker assumes office without the legal instruments that constitute the House. There cannot be a House without a speaker. In the same vein the American President's aircraft only becomes Air Force One when the President is on Board. So what constitutes Air Force One is not the Aircraft, but the presence of the President. In the same way, there is no House without Speaker.
But if I may refer you to my posting above, the constitution did not only describe that the speaker can only be removed by a 2/3 majority of the house. The position of Speaker can become vacant if he or she resigns or dies. It can also become vacant if he or she is no longer a member of the national Assembly. It further says that if he or she is removed from such office by a resolution of 2/3 of the national assembly.
I think what you have lost sight of is the fact that the constitution did not stipulate or use the word "and' after each of the three criteria summarized above to make them dependent criteria.
In lay man terms, it therefore means that you do not need to have all these criteria satisfied. It looks like each of these criteria stand independently of each other. You just have to satisfy one of these. Now if the constitution say, that the office of speaker can be vacant if he or she is no longer a member of the House, and since we all know that the speaker is selected from among nominated members of the House, selected by the President, it would sound like the Chicken that laid the golden eggs has recalled its eggs. Or is this an example of the King Makers in the Ashanti Kingdom who can appoint kings but cannot be king themselves nor can they remove a sitting king? Are you saying that the president can nominate a member but cannot remove a nominated member? Why then did the constitution say that the office of speaker can be vacant when he or she ceases to be a member of the House as an independent criterion and not a dependent criterion?
But what is infact being lost here is the fact that in recent years, the House has infact approved into law, giving the president the power to suspend the house indefinitely and members have already approved that into law. Now you tell me, which is more powerful? The power to send the who whole House packing to Yorobawol or just plucking one of them out?
Only one question was asked in parliament and that was whether members would continue to receive their salaries while on suspension and the answer being affirmative, they moved to approve the bill and the president signed it into law of the land. So sometimes, the issue of the constitutionality of removing the speaker sounds quite amusing to my ears.
I stand to be corrected. Please help me understand and I do seek your patience in teaching me to appreciate the legal intricacies since it sounds like you have some legal training. I am only a GAINAKO tending to my cattle. So pleae be simplistic in your choice of words so i can digest.
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“When I despair, I remember that all through history the way of truth and love have always won. There have been tyrants and murderers, and for a time, they can seem invincible, but in the end, they always fall. Think of it--always.” |
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Nyarikangbanna
United Kingdom
1382 Posts |
Posted - 08 Nov 2010 : 13:28:34
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'But if I may refer you to my posting above, the constitution did not only describe that the speaker can only be removed by a 2/3 majority of the house. The position of Speaker can become vacant if he or she resigns or dies. It can also become vacant if he or she is no longer a member of the national Assembly. It further says that if he or she is removed from such office by a resolution of 2/3 of the national assembly.'- Kondorong
Kodorong,
Thanks for your commentary. I have to say though, I certainly do not know what you are talking about for I have stated almost all these grounds, and you certainly haven't shown what cracks my previous posting exhibited.
First of all, it is not the president who appoints the speaker but parliament itself. The only condition is that she/he has to be nominated to parliament by the president. It is that power to nominate that is being misconstrued here as having a concomitant right to revoke, which is nonsense as there are no constitutional powers conferred on the president to revoke the nomination of any nominated member of parliament.
Secondly, in this particular circumstance, the speaker is not legally removed but made unavailable to the House. Therefore, it is legal and entirely legitimate for the deputy speaker to preside until at such time when the speaker could make herself available to the House.
Thirdly, if the speaker did not make herself available to the House and the House proceeded to appoint another speaker by a majority of two-third, that will effectively serve as a dismissal resolution for her. That also means that the new speaker will assume office with the right constitutional instruments.
Fourthly, regardless of what their press release says, the president has not actually removed Ms Renner as speaker but purportedly revoked his nomination to parliament. This means that Ms Renner could not make herself available to parliament to preside as speaker. However, that does not necessarily make the office of the speaker vacant. She is just being prevented by circumstance beyound her control from presiding. In that case, the deputy speaker can preside and all businesses he/she presided over will be as good as if the speaker herself presided.
Fifthly, the speaker should seek from the Supreme Court a nullification of the revocation of her nomination on the grounds that it is unconstitutional, and made herself available to parliament. If she can do that, she will be entitled to preside as speaker once again. However, if upon her return, parliament decided to sack her by a majority of 2/3, then and only in that case shall all business of the house be suspended until a new speaker is appointed and without this, they will have no legal effect.
I hope this helps
Regards
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I do not oppose unity but I oppose dumb union. |
Edited by - Nyarikangbanna on 08 Nov 2010 13:37:43 |
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njucks
Gambia
1131 Posts |
Posted - 08 Nov 2010 : 14:07:29
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quote:
Originally posted by Nyarikangbanna
........First of all, it is not the president who appoints the speaker but parliament itself. The only condition is that she/he has to be nominated to parliament by the president. It is that power to nominate that is being misconstrued here as having a concomitant right to revoke, which is nonsense as there are no constitutional powers conferred on the president to revoke the nomination of any nominated member of parliament.
Secondly, in this particular circumstance, the speaker is not legally removed but made unavailable to the House. Therefore, it is legal and entirely legitimate for the deputy speaker to preside until at such time when the speaker could make herself available to the House.
Kondonrong/Nyaling
thanks for a very interesting debate. putting this particular case aside, all the other previous speakers in this administration were nominated.
you're both right as the speakers themselves were not directly sacked but there nominations revoked.
i think you both need to simply refer to the quoted section in all the press releases to see where the powered were taken from.
section 231(1)( which is always quoted) gives the power to whoever can nominate the power to revoke. its very clear there.
were a nomination is announced, the house meets and elects a speaker as pointed out above. the revere is equally true.
fyi, the constition is available at :
http://www.ncce.gm/files/constitution.pdf
i hope this helps |
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mansasulu
997 Posts |
Posted - 08 Nov 2010 : 17:09:43
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Thanks Njucks...below is the actual text. I believe the Sheikh is standing on firm legal footing on this one...
Cons- 231 (1) Where any power is conferred by this Constitution to make any proclamation, order,
powers regulation, rule or pass any resolution or give any direction or make any declaration or designation, it shall be deemed to include the power, exercisable in like manner and subject to like conditions if any, to amend or revoke the same. |
"...Verily, in the remembrance of Allâh do hearts find rest..." Sura Al-Rad (Chapter 13, Verse 28)
...Gambian by birth, Muslim by the grace of Allah... |
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kondorong
Gambia
4380 Posts |
Posted - 08 Nov 2010 : 17:23:14
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Njuks/mansasulu
This is exactly what i was trying to say here that the power to nominate aslo give the power to remove.So i cannot see the unconstitutionality here especially in the light of Section 231(1). I have long since realised that the law is written by lawyers and lawyers by their nature, are trained never to agree.
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“When I despair, I remember that all through history the way of truth and love have always won. There have been tyrants and murderers, and for a time, they can seem invincible, but in the end, they always fall. Think of it--always.” |
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Nyarikangbanna
United Kingdom
1382 Posts |
Posted - 09 Nov 2010 : 02:11:10
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Mansasulu, Jnucks and kondorong, thanks for your comments.
I am glad that there is now a common understanding that the issue is not the office of the Speaker but whether or not the President can revoke the nomination to parliament of a sitting member. You have all come to the conclusion that under Section 231[1], which deals with the construction of various powers, he can. I do respect this conclusion of yours but regrettably, I beg to disagree for I have no doubt that you have erred.
First of all, the constitution provided for a separation of powers between the three arms of government i.e. the executive, the legislature and the judiciary.
Secondly, Section 231[1] has provided an exhaustive list of powers to which revocation relates. That means the list must contain the power[s] conferred on the president in respect of the establishment of the National Assembly before it can apply to it.
Thirdly, the National Assembly is established under Section 87 of the constitution and Section 88 conferred power on the president to nominate five members to it. Therefore, for Section 231[1] to be relevant or applicable to Section 88 above, the exhaustive list of powers thereto must explicitly include the power to nominate. However, this is not the case for the exhaustive list under Section 231[1] does not include the power to nominate. So clearly, Section 231[1] has no application to the power prescribed by Section 88. It could only be applicable to section 88 if it had listed the power thereto and using the same operative language [nominate] therein. This is what Section 231[1] states;
'Where any power is conferred by this Constitution to make any proclamation, order, pass any resolution or give any direction or make any declaration or designation, it shall be deemed to include the power, exercisable in like manner and subject to like conditions if any, to amend or revoke the same.'
Fourthly, the constitution has provided an exhaustive list of grounds for the removal or cessation from office of a National Assembly Member whether elected or nominated- See Section 91- and none of these involve the power to revoke a serving nomination to the Assembly.
Fifthly, under the doctrine of the separation of powers, which is an entrenched clause, nothing outside this list could possibly and legally apply to a sitting member of parliament, whether elected or nominated, in so far as it relates to their removal from office. This is how Section 91 provided the list;
'A member of the National Assembly shall vacate his or her seat in the National Assembly
(a) On the dissolution of the National Assembly;
(b) Subject to subsection (2), if any circumstances arise which, if he or she were not a member, would cause him or her to be disqualified for election as a member or nomination as a member;
(c) If he or she resigns his or her office as member;
(d) If he or she ceases to be a member of the political party of which he or she was a member at the time of his or her election;
Provided that nothing in this paragraph shall apply on a merger of political parties at the national level where such merger is authorised by the constitution of the parties concerned;
(e) If, having been elected a member as an independent candidate, he or she joins a political party
(f) If he or she is recalled by the writing electorate in accordance with an Act of the National Assembly to give effect to section 92;
(g) If, without the permission in writing of the Speaker or reasonable cause, he or she is absent from ten or more sittings of the National Assembly during any period that the National Assembly is in session and continued to meet;
(h) If he or she is found in contempt of the National Assembly and is expelled on a resolution supported by not less than three quarters of all the members of the National Assembly.'
On the basis of the above analysis, I maintain that the power to nominate to the National Assembly by the President does not have a concomitant right/power to revoke such nominations.
I hope this helps
Regards
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I do not oppose unity but I oppose dumb union. |
Edited by - Nyarikangbanna on 09 Nov 2010 03:32:46 |
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kondorong
Gambia
4380 Posts |
Posted - 09 Nov 2010 : 03:21:39
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| thank God am not a lawyer. This is too complicated for me. |
“When I despair, I remember that all through history the way of truth and love have always won. There have been tyrants and murderers, and for a time, they can seem invincible, but in the end, they always fall. Think of it--always.” |
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mansasulu
997 Posts |
Posted - 09 Nov 2010 : 15:21:45
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| Nyari, I think we will all have to agree to disagree on this one... |
"...Verily, in the remembrance of Allâh do hearts find rest..." Sura Al-Rad (Chapter 13, Verse 28)
...Gambian by birth, Muslim by the grace of Allah... |
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