By Foday Samateh
Nothing exemplifies the imperial presidency and on the similar time undermines the spirit of separation of powers within the 1997 Structure (the present Structure) as a lot because the President’s unchecked energy to make key appointments throughout the chief and judicial branches. The President hires the Vice President, cupboard ministers, and virtually all rating officers within the public service with none oversight. The appointees could possibly be simply anyone. The one factor that basically issues is the President likes them. No mechanism is in place to independently decide their qualification and ethical competence for the job. And the President reserves the unilateral energy to fireside most of them at anytime.
The one exemptions to this absolute presidential energy of hiring and firing appear to be the members of the Unbiased Electoral Fee (IEC), judges and the Ombudsman. The operative phrase right here is appear. And appear, as Hamlet observes within the nice play of the identical identify, isn’t all the time what it appears to be. Its misleading attraction is presenting look as substance. Within the case of the IEC, the President appoints the members “in session with the Judicial Service Fee and the Public Service Fee.” This appears the President should deliberate over appointments to the electoral fee with these two commissions. However the impression right here is nothing greater than a constitutional conceit.
The President appoints the Public Service Fee (PSC) and nearly all of the Judicial Service Fee (JSC). Involving these two commissions within the President’s appointment authority is among the many obvious flaws within the Structure. Given the good disparity within the energy dynamic between them and the President, it defies logic underneath any circumstance.
Let’s give attention to the PSC for from time to time the JSC for the appointment of judges. Although the PSC is an unbiased physique, it operates beneath the chief department. That is value noting because the President is the top of the chief department. And naturally, government energy/authority flows from the President downward, not the opposite means round. The idea of the PSC’s independence is to guard it from undue affect on the a part of the President or others who could also be appearing on the President’s behest. If the President is rightly restrained from telling the PSC tips on how to do their job, it stands to purpose that the PSC also needs to not be within the enterprise of telling the President what selections to take.
Apart from, requiring the President to seek the advice of with the PSC (and the JSC) on the appointment of IEC implicates two sensible, although contrasting, issues. Given the disproportionate energy imbalance between these two commissions and the President, the commissions are much more more likely to merely defer to the President’s needs, which renders the session a constitutional smokescreen for unilateral presidential energy. The choice is the commissions would have an open and frank give-and-take with the President; or, if moderately unlikely, they might bear true religion to their constitutional obligation on this matter and stand as much as the President when the event requires it. Both method, this association is functionally tenuous, and subsequently untenable. The PSC and the JSC as inferior powers can’t fairly be tasked with holding the President, a superior energy, accountable. The President shouldn’t be consulting with the commissions for the sake of getting them on board with the appointments.
However, a significant session on this case would entail the 2 commissions sharing decision-making authority with the President in terms of appointing the IEC. In different phrases, theoretically at the least, they will maintain up and even veto the President’s selections. That shall be subjecting a superior energy to defer to inferior ones. Such a course of occasions will undermine not simply the authority of the President, but in addition the underlying energy construction of the Structure, the mandate of elected Workplace and democracy itself. The President ought to reply to solely the Legislature and the Courts — the 2 establishments that take pleasure in comparable constitutional stature because the President. As such, the PSC and its corresponding commissions must be stored out of presidential selections.
The appointment of judges raises a good larger concern. The President appoints the Chief Justice “after session with the Judicial Service Fee.” “Session” on this context is strictly a formality. Even when the JSC advises the President to not appoint somebody because the Chief Justice, the President doesn’t should comply. This isn’t some selective or prejudiced studying of the related constitutional provision. The Structure explicitly stipulates in part 231 (four): The place beneath any provision of this Structure any individual or authority is authorised or required to train any perform after session with some other individual or authority, the individual or authority first referred to shall not be required to behave in accordance with the recommendation of that individual or authority. Because the President is just obligated to seek the advice of however to not heed any recommendation, there may be no denying that the President has a unilateral energy to nominate the Chief Justice.
As for all different judges of the superior courts, the President appoints them “on the advice of the Judicial Service Fee.” Right here, it’s protected to say, the President is required to nominate these judges from the JSC’s listing of beneficial candidates.
The apparently totally different procedures for appointing the Chief Justice and the opposite judges are, individually and collectively, flawed. If both process is justifiably sufficient in itself, why can’t it’s utilized uniformly in each instances? If the President could be trusted to nominate the Chief Justice regardless of the recommendation of the JSC, why can’t the President be trusted to do the identical for the opposite superior courtroom judges? And conversely, if the President is required to behave on the JSC’s suggestion in appointing the opposite superior courtroom judges, why is the President exempted from the identical in appointing the Chief Justice?
Moreover, the issues which are inherent within the JSC and PSC’s involvement within the appointment of IEC rear their ugly heads within the JSC’s involvement within the appointment of judges. First, the President appoints 4 of the six members of the JSC — specifically, the Chief Justice, a decide of the superior courtroom, the Solicitor Basic, and some other appointee of the President’s personal selection. The Lawyer Common, who’s appointed by the President, appoints the fifth member in session with the Gambia Bar Affiliation. The one member of the JSC the President performs no position in appointing is the Nationwide Meeting’s appointee. It goes with out saying the President’s appointees comprise the bulk on the JSC. And it must be additional identified that the President has the facility to fireside a minimum of three key members by eradicating them from their respective workplaces by means of which they sit on the JSC. Within the mild of those elements, can there be any reasonable expectation that they’ll present strong oversight in regards to the President’s different judicial appointments?
Second, whereas there’s want for Judicial Service Fee for the judicial department, as there’s Public Service Fee for the chief department, the JSC’s composition and its position within the appointment and removing of judges are gravely misconceived. They current too many issues for the independence of the judiciary. The JSC, in contrast to the PSC, isn’t a element of the chief department. Subsequently, the President ought to play no position within the appointment of the JSC, and officers serving within the government department shouldn’t serve on the fee. The Structure foresaw the necessity for separation of powers on this matter however addressed it solely midway. It forbids members of the legislature from serving on the JSC. The identical restriction ought to apply to officers of the chief department as properly. Oh, by the best way, why ought to the President appoint the Judicial Secretary who’s to function the principal assistant to the Chief Justice? To understand this constitutional absurdity or arbitrariness is to think about the Nationwide Meeting or the Supreme Courtroom appointing the President’s Cupboard Secretary. These presidential appointments to the third department of the federal government are antithetical to separation of powers and the independence of the justiciary.
To reiterate an earlier level, the JSC, just like the PSC, should not have any say in presidential selections. They need to haven’t any duty within the appointment of judges besides when the President voluntarily asks for his or her advise or suggestion. The JSC ought to be restricted to aiding the Chief Justice employees and administer the judicial department. Telling the President who ought to be appointed decide or eliminated as a decide ought to not be their obligation. The President as the top of the chief department and the JSC as a sub-body within the judicial department ought to don’t have anything to do with one another. Along with the facility imbalances that exist between the 2, any degree of involvement they’ve is fraught with conflicts of curiosity that would have deleterious results on the justice system.
Third, judges are as essential to a democratic system of presidency because the legislators and the President are. They’re the judiciary’s school of cardinals, if you’ll, with the Chief Justice because the Pope. Of their distinctive obligation to interpret the regulation, they train the facility of figuring out whether or not legal guidelines handed by the legislature, and the actions and selections of the President are constitutional or not. They settle authorized disputes between residents, between residents and the state, between personal pursuits, between personal pursuits and residents, between personal pursuits and public pursuits, between personal curiosity and the state, between localities and the state, and between the chief and legislative branches, amongst different issues. No case or controversy, from probably the most private to probably the most public, escapes the attain of their consideration or the the impact of their judgment. And nothing is extra understated or unacknowledged than the truth that, although the legislators cross the legal guidelines and the President executes the legal guidelines, the regulation truly is what the judges say it’s. Particular person, civic, political, and property rights are solely as broad because the judges’ interpretation of the regulation. That’s why who’s appointed a decide is as necessary as who’s elected a legislator or President.
The Structure is true to make the President, the one public official elected by the complete nation, the principal authority within the appointment of judges. However the Structure is mistaken to successfully make the President the only authority within the appointment of the Chief Justice. That is absolute energy. And all absolute powers are threats to the freedoms and liberties of residents and to a republic. Simply ask the Romans or the Germans. And for good measure, a Gambian sufficiently old to recollect the final regime.
The answer is to not double down on the folly of involving the Judicial Service Fee as within the appointment of different superior courtroom judges. Sure, some nations have this technique, however we shouldn’t be doing a number of issues different nations do. As very important because the JSC is within the staffing and administration of judicial department, it’s nonetheless an advert hoc physique working underneath the authority and course of the Chief Justice. It lacks the institutional standing to share decision-making authority with the President and will subsequently be taken out of the equation of appointing judges. Furthermore, the President shouldn’t huddle with an unelected bunch behind closed doorways to nominate judges with out the general public understanding something about these judges whose rulings will probably have an effect on a lot of their private and civic lives. The best constitutional and democratic establishment to guage the President’s judicial appointments is the one whose members are elected because the individuals’s representatives. The President ought to nominate judges and the legislature confirms them. Solely via the method of open affirmation listening to will the general public study who the judges are, what their values are, and what rules they may make use of in shelling out justice.
Within the appointment of the Ombudsman, the Structure makes the correct name initially. It requires the President’s nominee to be confirmed by the Nationwide Meeting. That is to make sure the President doesn’t have a unilateral energy to make an important appointment; and extra importantly, the facility is checked by the one physique with the constitutional and institutional standing to weigh in on presidential selections outdoors of judicial proceedings. That physique is the legislative department, a co-equal to the chief department. However alas, what the Structure giveth, the Structure taketh. It states that if the Nationwide Meeting rejects the President’s first selection, it should affirm the second selection. The one rationalization for this intolerant injunction is that the drafters of the Structure have been bent on conferring as a lot energy on the President as attainable. Therefore, the imperial presidency. On this case, for example, the President can merely line up crony A and crony B as Ombudsman nominees. If the Nationwide Meeting votes down crony A, they are going to be compelled to verify crony B. This defeats the aim of legislative affirmation. What’s the purpose if the Nationwide Meeting is restricted to numerous the President’s nominees that may be rejected as unworthy for a specific workplace?
Another occasion of illogical inconsistency, if not peculiarity, within the Structure regarding presidential appointments is the Auditor Common. The President appoints the Auditor Basic “in session with the Public Service Fee,” however can hearth the appointee with out consulting with anybody, and may achieve this by claiming any purpose as ambiguous as incompetence. Is there a greater justification for legislative affirmation of presidential appointments to find out their competence earlier than they assume workplace?
The observations above converge on one theme. All presidential appointments, save the employees within the Workplace of the President, ought to be topic to legislative affirmation. However not all presidential appointments are equal and they need to subsequently be confirmed based mostly on totally different classes of job safety and tenure of service.
The primary class ought to be these the President can hearth with out trigger. They embrace cupboard members, ambassadors, different administration officers, and safety chiefs. If the Structure requires the Vice President to be on the poll, the President shouldn’t have the ability to hearth the individual or anybody who fills a emptiness in that workplace. If the Structure doesn’t require the Vice President to be on the poll, the President ought to retain the facility to fireside the individual or anybody who fills a emptiness in that workplace. Everlasting secretaries ought to be included within the administration officers the President can rent and hearth. Given how instrumental the everlasting secretaries are to the profitable implementation of the administration’s coverage agenda, the President ought to reserve the suitable to nominate them.
The second class ought to be those that are appointed to the unbiased businesses. They embrace members of the Unbiased Electoral Fee, the Public Service Fee, the chief government officers (and boards of administrators because the case could also be) of public enterprises such because the Gambia Income Authority, the Ports Authority, Social Safety and Housing Finance Company, the Central Financial institution, the Auditor Common, the Ombudsman and so forth. All such appointments ought to be term-limited. To guard the independence of their businesses and their job safety, they shouldn’t be fired earlier than their time period ends with out trigger. And the trigger must be of solely medical or felony nature confirmed by an unbiased investigation. Both the President or the legislature must be given the facility to fee such an investigation.
And the third class ought to be the judges. They need to be confirmed for a time period of 15 or 18 years with the choice of voluntary retirement after ten years on the bench. Solely the legislature ought to take away them from workplace for a trigger involving medical or felony nature. The President should not have any position within the removing of judges.
Whereas the President will lose the facility to fireside judges, the legislature is gaining none on that rating. The Structure already empowers the Nationwide Meeting to take away judges and different officers, together with the President, from workplace. Except for the issues that canine the stipulated processes by which the Meeting is to take away some officers from workplace, these powers are correct and crucial for the legislature to have. Their existence, nevertheless, exposes one other obtrusive flaw within the Structure. The Nationwide Meeting has the facility to take away virtually all of the presidential appointees from workplace, however has no say in virtually not one of the appointments to ensure the people deserve the privilege of serving the general public. Isn’t it each logical and crucial that the legislature has a say within the appointments within the first place?
The importance of legislative affirmation of presidential appointments can by no means be overstated. The good benefits embrace a needed examine on the President’s imperial energy of selecting heads of cupboard ministries, diplomatic missions, unbiased commissions, administrative businesses, the police, the Armed Forces, the prisons, the intelligence service, public enterprises and so forth. The necessity for affirmation will compel the President to select nominees who’ve the qualification for a specific workplace, and the character as well. This would be the handiest antidote to the President utilizing public workplaces for patronage to reward associates, cronies and sycophants with appointments. It should additionally restrain the President from firing, say a high-performing minister, for petty motives since there shall be demand for solutions earlier than the alternative is confirmed. The period of no questions requested about suspicious firings will probably be over.
The opposite nice benefit of legislative affirmation is the open listening to. The method begins with the President naming a nominee for a specific workplace. The nominee submits pertinent credentials, together with an exhaustive type concerning the nominee’s private historical past, together with funds and any legal document, to the related Nationwide Meeting choose committee. The committee appears into any disqualifying matter, and think about any false info knowingly submitted as perjury underneath the penalty of felony prosecution. If the background examine is passable and there’s a want for an open listening to, particularly for a cupboard, superior courtroom or public enterprise nominee, the committee schedules an open listening to. Then comes the day of judgment — the listening to. With the media bearing witness, the nominee faces the committee to subject their questions. The questions won’t simply be concerning the nominee’s qualifications, however what the job entails, what issues exist there, and what values, expertise and reforms the nominee will convey to it. A sort of televised job interview for the nation to observe.
Think about a Finance Minister nominee analyzing the nation’s financial and monetary circumstances, and laying out methods of decreasing authorities bills for extra investments in productive providers. Think about a Well being Minister nominee diagnosing the nation’s healthcare system, and prescribing cures to its persistent plagues. Think about a Central Financial institution nominee assessing financial coverage, and forecasting the nation’s macro-economic outlook. Think about a GRA nominee enumerating methods to maximise income assortment and eliminate corruption inside the company. Think about a Ports Authority nominee specifying methods to expedite supply of freights and stamp out bribery there. Think about an Auditor Basic nominee breaking down methods to scrutinize the accounts of presidency departments and different public establishments and enterprises for any misappropriation of funds. Think about an Ombudsman nominee outlining methods to research allegations of maladministration, mismanagement and corruption within the public service. Think about an IEC Chairperson nominee setting out methods to make sure free, truthful and clear elections. Think about an IGP nominee figuring out methods of efficient policing to fight crime, and measures to crack down on police corruption. Think about an Lawyer Common nominee testifying on crime and public corruption as precedence targets. Think about a Chief Justice nominee stating a decide’s position in a authorized dispute and the Chief Justice’s administrative and supervisory position as the top of the judiciary.
Based mostly on the nominee’s efficiency on the listening to, the committee votes to ship or not ship the nomination to the ground. And eventually, if the nominee wins the committee’s approval, the complete Nationwide Meeting votes to verify or reject their nomination.
Examine this open and rigorous course of to the established order. The President picks somebody to be, for instance, a minister or an envoy. That’s the start and finish of it. If the person is to function a member of the IEC or a decide, the President has to solely seek the advice of with the Public Service Fee and/or the Judicial Service Fee. The “session’ with these unelected commissions is completed behind the scenes. The general public is aware of little to nothing if the appointment is predicated on benefit, favor or quid professional quo. As for the person’s health for workplace, particularly a comparatively unknown’s competence and character, there isn’t a fast telling. And the jury could also be out on that for a very long time.
Which course of is best for democracy and for the republic?
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