The Gambia 1996 Constitution (reviewed 2018) - Page 12 of 26

Table of Contents

CHAPTER XI. THE PUBLIC SERVICES

PART I. Public Service

166. The Public Service

Subject to an Act of the National Assembly, the public service of the Gambia shall comprise the civil service as established immediately before this Constitution comes into force and the offices declared elsewhere in this Constitution to be offices in the public service.
Subject to this Constitution, Acts of the National Assembly may provide for the establishment and regulation of separate public services of The Gambia (which may include common services for the staff of local government authorities or the staff of Public Enterprises). Any such Act shall include provision for-
1. the appointment or election of a competent authority for the administration of the particular public service;
2. the functions and membership of the service, and may provide for an appointing authority other than the Public Service Commission for the service. Any such particular public service shall form part of the public service of The Gambia.
For the avoidance of doubt, it is hereby declared that an office in the public service includes the office of judge of a superior court, and of any other court the emoluments of which are payable out of any public fund of The Gambia, and the office of a principal representative of The Gambia abroad.
In this Constitution, an office in the public service does not include-
1. the offices of President, Vice-President, Speaker or Deputy Speaker of the National Assembly, Secretary of State or a member of the National Assembly;
2. the offices of a member of any commission (other than a commission the members of which are hereby or by an Act of National Assembly declared to hold an office in the public service), or a member of the Advisory Committee on the exercise of the Prerogative of Mercy or the Advisory Committee on the conferment of honours.

167. Appointment to and removal from offices in the public service

In this Constitution-

power to appoint any person to hold or to act in any office in the public service shall include the power to confirm appointments, to exercise disciplinary control over and to remove persons holding or acting in such offices and to re-appoint or reinstate any person appointed in exercise of the power in question unless such power is expressly or by necessary implication vested in some other person or authority;
power to remove an officer in the public service shall include power to require such officer to retire from the public service:Provided that nothing in this paragraph shall be construed as conferring on any person or authority the power to require a judge of a superior court, the Director of Public Prosecutions, the Auditor-General or the Ombudsman or a deputy ombudsman to retire from the public service;
any provision which vests in any person or authority power to remove a person from any public office shall be without prejudice to the power of any person or authority to abolish any office or to any law for the compulsory retirement of public officers.

168. Head of the Civil Service

The President, acting in accordance with the advice of the Public Service Commission, shall appoint a person holding an office in the public service on permanent terms to be the Head of the Civil Service. The Head of the Civil Service shall be the competent authority for the Civil Service.
The Head of the Civil Service shall not hold any other office of profit or emolument in the service of The Gambia.

169. Protection of public servants

No public servant shall be-
1. victimised or discriminated against either directly or indirectly for having discharged his other duties faithfully and according to law;
2. be removed from office or reduced in rank or otherwise punished without just cause.
In this section, “public servant” means a person holding an office in the public service, a person in the service of local government authority, and a person in the service of a Public Enterprise.

170. Restriction on political activities of public servants

A person holding an office in the public service shall not hold office in any political party.
Any person who holds an office in a public service who wishes to contest an election for political office shall, prior to nomination as a candidate, obtain one year’s leave of absence without pay, which leave shall not unreasonably be refused.
If a person who has obtained leave of absence in accordance with this section is elected to a political office, he or she shall immediately resign from his or her office in the public service and, if he or she fails to do so, he or she shall be removed from such office.

171. Retirement age

Save as provided in this Constitution, a person holding an office in a public service-

shall retire from such office on attaining the age of fifty-five years* or such other age as may be prescribed by an Act of the National Assembly (which age is referred to as “the compulsory retirement age”); and
may retire with an earned pension at any time after attaining the age of forty-five years or such other age as may be prescribed by an Act of the National Assembly.

PART II. The Public Service Commission

172. Establishment of Commission

There shall be a Public Service Commission for The Gambia.
The Public Service Commission shall comprise a Chairman and not less than two nor more than four other members. The members shall be persons of high integrity and good character and shall be appointed by the President. All the members of the Commission shall be full time members.
A person shall not be qualified to be appointed a member of the Public Service Commission if he or she-
1. is a member of a public service or a member of a disciplined force;
2. is a member of the National Assembly or of a local government authority;
3. is a member of the governing body of a Public Enterprise;
4. is a member of the executive body of a political party;
5. has, within the two years preceding his or her appointment, been nominated as a candidate in an election to the National Assembly; or
6. is not qualified to be elected as a member of the National Assembly or is disqualified from holding an office in the public service.
A member of the Public Service Commission shall not hold any other public office and shall be disqualified for appointment to any office in the public service during a period of three years after he or she ceases to be a member of the Commission.
Subject to the provisions of this section, the members of the Public Service Commission shall be appointed for a term of two years, which term shall be renewable:Provided that half of the members first appointed after the coming into force of this Constitution shall be appointed for shorter terms in order to provide continuity in the Commission
A member of the Public Service Commission may be removed from office by the President only for inability to perform the functions of his or her office by reason of infirmity of mind or body or any other cause, or for misconduct or incompetence.
Before assuming the functions of his or her office, a member of the Public Service Commission shall take the prescribed oaths.
Except as provided in this Constitution or any other law not inconsistent with this Constitution, in the exercise of its functions under this Constitution, the Public Service Commission shall not be subject to the direction or control of any other person or authority.

173. Powers of appointment

Save as otherwise provided in this Constitution or any Act of the National Assembly for the establishment of a particular public service, the power to make appointments to offices in the public service shall vest in the Public Service Commission.
Subsection (1) does not apply in relation to-
1. any office in the service of a local government authority;
2. any office as a member, or in the service, of a Public Enterprise;
3. any office as a member of the disciplined forces.
The power to make an appointment to the office of permanent secretary of a department of the Government shall be exercised by the Public Service Commission in consultation with the Head of the Civil Service.
No person shall be appointed to the personal staff of the President or the Vice-President except with the agreement of the President or Vice-President, as the case may be.
The power to appoint persons to hold or act in any office in an institution of higher education, research or professional training established within the public service, shall vest in the governing body of that institution.
The Commission shall, in any case in which this Constitution requires an appointment to be made after or in consultation with, or on the recommendation of, the Commission, exercise its powers in that regard, and may, at the request of the President or the competent authority concerned, render advice on appointments within their respective powers.

174. Other powers of Commission

The Public Service Commission shall have power-
1. to make provision for the overall management and efficiency of the public service;
2. to review the terms and conditions of service of persons holding office in the public service;
3. to review the General Orders and Regulations of the public service and the requirements of the public service as respects training and qualifications and to advise the Government thereon;
4. to prescribe the terms and standards for entrance and promotion examinations and establish standards and guidelines for the public service.
The Public Service Commission shall have such supervisory and regulatory powers to give effect to their functions under subsection (1) as may be prescribed by an Act of the National Assembly.
Subject to this Constitution and any Act of the National Assembly establishing a particular public service, the functions of the Commission under subsection (1) may be exercised in respect of offices in the public service notwithstanding that the power to make appointments to such offices is vested in some person or authority other than the Commission.
The President may delegate such of his or her powers relating to the public service as he or she thinks fit to the Public Service Commission or to the competent authority for any particular service of the public service, subject to such conditions as may be included in the instrument of delegation or any subsequent instrument.
The Public Service Commission may with the approval of the President and subject to confirmation by the National Assembly make regulations for the performance of its functions.
The Public Service Commission shall submit an annual report on the performance of its functions to the National Assembly.

PART III. Public Enterprises

175. Public Enterprises

In this Constitution, “Public Enterprise” means any body corporate or other body or institution wholly owned or controlled by the Government.
The members of the Board of Directors or other governing body of a Public Enterprise shall be appointed by the President after consultation with the Public Service Commission and shall be selected from amongst persons of integrity, competence and maturity of judgement. A member of the National Assembly, the holder of a political office or an officer of a political party shall not be qualified to be appointed to the Board of Directors or other governing body of a Public Enterprise.
The Chief Executive of a Public Enterprise shall be appointed by the President after consultation with the Board of Directors or other governing body of the Public Enterprise and the Public Service Commission. All other appointments to the staff of a Public Enterprise shall be made by the Board of Directors or governing body, or by some member of the staff of the Public Enterprise appointed by the Board or governing body.
Within six months of the coming into force of this Constitution, an Act of the National Assembly shall establish a committee to monitor the operations of Public Enterprises, and shall prescribe the manner in which such enterprises shall be accountable to the National Assembly and shall conduct their affairs in order to promote efficiency, transparency and probity in all their undertakings.
A Public Enterprise shall, within three months of the end of its financial year submit an annual report to the National Assembly on its business and operations during the preceding year:Provided that the appropriate committee of the National Assembly may extend the time for the submission of any report.
On the coming into force of this Constitution, the Public Service Commission shall provide existing Public Enterprises with guidelines on personnel matters and shall provide such guidelines to any Public Enterprise established thereafter.

PART IV. Pensions

176. Protection of pension rights

The law applicable to any benefits to which this section applies shall, in relation to any person who has been granted, or who is eligible to be granted, such benefits, be that in force on the relevant date or any later law that is not less favourable to that person.
In this section, “the relevant date” means-
1. in relation to benefits granted before the 18th February 1965, the date on which those benefits were granted;
2. in relation to any benefits granted on or after the 18th February 1965 to or in respect of any person who was a public officer before that date, the 18th February 1965;
3. in relation to any benefits granted or to be granted to or in respect of any person who became, or becomes, a public officer on or after the 18th February 1965, the date on which he or she became or becomes a public officer.
Where any person is entitled to exercise an option as to which of two or more laws shall apply in his or her case, the law specified by him or her in exercising the option shall, for the purpose of this section, be deemed to be more favourable to him or her than the other law or laws.
Any benefit to which this section applies (not being a benefit that is a charge on some other fund of The Gambia) shall be a charge on the Consolidated Fund or upon such other special fund, whether contributory or noncontributory, as may be prescribed by Act of the National Assembly.
This section applies to any benefits payable under any law providing for the grant of pensions, gratuities or compensation to persons who are or have been public officers in respect of their service in the public service or to the widows, children, dependants or personal representatives of such persons in respect of such service.
Reference to the law applicable to any benefits to which this section applies includes references to any law relating to the time at which and the manner in which any person may retire in order to become eligible for those benefits.

177. Public service pensions to be free of tax

A pension payable to any person who is or has been a public officer in respect of his or her service in the public service or to the widow, children or dependants of such persons in respect of such service shall-