The Gambia 1996 Constitution (reviewed 2018) - Page 7 of 26

Table of Contents

CHAPTER VI. THE EXECUTIVE

PART I. The President

61. Office of President

There shall be a President of The Gambia who shall be the Head of State and of Government and Commanderin-Chief of the Armed Forces.
The President shall uphold and defend this Constitution as the supreme law of The Gambia.

62. Qualifications for election as President

A person shall be qualified for election as President if-
1. he or she is a citizen of The Gambia by birth or descent;
2. he or she has attained the minimum age of thirty years;
3. he or she has been ordinarily resident in The Gambia for at least the five years immediately preceding the election;
4. he or she has completed senior secondary school education; and
5. he or she is qualified to be elected as a member of the National Assembly.
A person who holds the citizenship or nationality of a country other than The Gambia, shall not be qualified for election as President.
A person who, while holding public office in The Gambia has been-
1. compulsorily retired, terminated or dismissed from such office; or
2. has been found guilty of any criminal offence by any court or tribunal established by law; or
3. has been found liable for misconduct, negligence, corruption or improper behaviour by any commission or committee of inquiry established by law
shall not be qualified for election as President.

63. Tenure of office of President

The term of office of an elected President shall, subject to subsection (3) and (6), be for a term of five years; and the person elected President shall before assuming office take the prescribed oaths.
The person declared elected as President shall take the prescribed oaths and assume office on the day the term of the incumbent President expires.
A person elected as President may at any time during his term of office be removed from office if, a no confidence motion is passed in the National Assembly supported by two thirds of the members of the National Assembly.
Where a no confidence motion is passed in accordance with subsection (3), the Speaker shall request the Independent Electoral Commission to call for a referendum within thirty days of the passing of such motion to endorse or reject the decision of the National Assembly; and where such decision is endorsed the President shall vacate the office.
The procedure for the conduct of such referendum shall be prescribed by an Act of the National Assembly.
Where the life of the National Assembly is extended for any period in accordance with section 99(2), the term of office of the President shall be extended for the same period.

64. Temporary exercise of President’s functions

Whenever the Speaker has requested the Chief Justice to appoint a Medical Board in accordance with section 66, to enquire into the alleged mental or physical incapacity of the President to discharge the functions of his or her office, those functions shall be performed by the Vice-President or, if he or she is for any reason unable to perform those functions, by the Speaker, until the Medical Board has submitted its report:

Provided that the Vice-President or the Speaker shall not take or subscribe any oath for the due execution of the office of President.

65. Vacancy in the office of President

The office of President shall become vacant during the term of a presidency-
1. on the death or resignation of the President;
2. on the President ceasing to hold office under section 63, 66 or section 67.
Whenever the office of President becomes vacant in the circumstance set out in subsection (1), the Vice-President, or if there is no Vice-President in office at the time, the Speaker shall assume the office of President for the residue of the term of the former President.
Before assuming office under this section, the Vice-President or, as the case may be, the Speaker shall take the prescribed oaths for the office of President.
On assuming the office of President, the Speaker shall vacate his or her office as Speaker and his or her seat in the National Assembly.

66. Mental or physical incapacity

Where the Speaker receives a notice in writing signed by not less than one half of all the members of the National Assembly alleging that the President is, by reason of infirmity of mind or body, incapable of discharging the functions of his office, and giving particulars of the alleged incapacity, the Speaker shall request the Chief Justice to constitute, on the recommendation of the head of the medical services of The Gambia, a Medical Board comprising at least five independent medical practitioners of appropriate standing.
The Board shall enquire into the matter and make a report to the Chief Justice stating the opinion of the Board whether or not the President is, by reason of infirmity of mind or body, incapable of discharging the functions of the office of President. The President, and if he or she so wishes, his or her own medical adviser may appear, and shall have the right to be heard, before the Board.
Where the Board reports that the President is incapable of discharging the functions of his or her office by reason of infirmity of mind or body, the Chief Justice shall submit the report to the Speaker, who shall, if the National Assembly is not sitting, summon the National Assembly to meet within seven days.
The members of the National Assembly shall deliberate on the report and vote on it and the President shall only be removed where two thirds of the members present and voting, vote for his removal.
The report of the Board shall be final and conclusive and shall not be enquired into by any court.

67. Misconduct by the President

The President may be removed from office in accordance with this section on any of the following grounds-
1. abuse of office, wilful violation of the oath of allegiance or the President’s oath of office, or wilful violation of any provision of this Constitution, or
2. misconduct in that-
  1. he or she has conducted himself in a manner which brings or is likely to bring the office of President into contempt or disrepute; or
  2. he or she has dishonestly done any act which is prejudicial or inimical to the economy of The Gambia or dishonestly omitted to act with similar consequences.
Where the Speaker receives a notice in writing signed by not less than one half of all the members of the National Assembly of a motion for the removal of the President on any of the grounds set out in subsection (1), specifying particulars of the allegations (with any necessary documentation), and requesting that a tribunal be appointed to investigate the allegations, the Speaker shall-
1. inform the President of the notice;
2. request the Chief Justice to appoint a tribunal consisting of a Justice of the Supreme Court, as Chairman, and not less than four other persons selected by the Chief Justice, at least two of whom shall be persons who hold or have held high judicial office.
The tribunal shall investigate the matter and shall report to the National Assembly through the Speaker whether or not it finds the allegations specified in the motion to have been substantiated. The President shall have the right to appear and be legally represented before the tribunal.
If the tribunal reports to the National Assembly that it finds that the particulars of any allegation against the President contained in the motion have not been substantiated, no further proceedings shall be taken under this section in respect of that allegation.
Where the tribunal reports to the National Assembly that it finds that the particulars of any such allegation have been substantiated, the National Assembly may, on a motion supported by the votes of not less than two thirds of all the members, resolve that the President has been guilty of such abuse of office, violation of oath, violation of the Constitution, or misconduct or misbehaviour as to render him or her unfit to continue to hold the office of President; and where the National Assembly so resolves, the President shall immediately cease to hold office.

68. Salary and allowances

The President shall receive such salary and allowances as may be prescribed by an Act of the National Assembly, and such salary and allowances shall not be altered to his or her disadvantage during his or her tenure of office.
The President shall be entitled to such pension and retirement benefits as may be prescribed by an Act of the National Assembly and such pension and other benefits shall not be altered to his or her disadvantage after he or she has relinquished office:Provided that no such pension or other retirement benefits shall be granted to a President who ceases to hold office in accordance with section 67.
The salary and allowances, and pension and retirement benefits, as prescribed by an Act of the National Assembly, shall be exempted from taxation, but the President shall be subject to taxation on all other chargeable income.
The President shall not-
1. while he or she continues in office as President, hold any other office of profit or emolument whether public or private, occupy any other position carrying the right to remuneration for the rendering of services;
2. undertake any activity inconsistent with his or her official position or expose himself or herself to any situation which carries with it the risk of a conflict developing between his or her official concerns and his or her private interests;
3. use his or her position as such or use information entrusted to or received by him or her in an official position directly or indirectly to enrich himself or herself or any other person.
Where the President was engaged in any trade, business or other undertaking before assuming the office of President, he or she shall, if he or she wishes to continue such trade, business or other undertaking, do so under a trusteeship.

69. Immunity from civil and criminal proceedings

Except as provided in subsection (2), no civil or criminal proceedings shall be instituted or continued against any person while holding or performing the functions of the office of President in respect of anything done or omitted to be done by him or her whether in an official or a private capacity.
Nothing in subsection (1) applies to an action for a declaration under section 5 (enforcement of the Constitution), and any proceedings under that section against the President or a person performing the functions of that office shall be brought against him or her by his or her official title or style, and he or she shall appear, and be represented by, the Attorney-General.
After a President has vacated the office of President-
1. no court may entertain any action against him or her in any civil proceedings in respect of any act done in his or her official capacity as President;
2. a criminal court shall only have jurisdiction to entertain proceedings against him or her in respect of acts or omissions alleged to have been perpetrated by him or her while holding office as President if the National Assembly has resolved on a motion supported by not less than two-thirds of all the members that such proceedings are justified in the public interest.

PART II. The Vice-President, Ministers and the Cabinet

70. The Vice-President

There shall be a Vice-President of The Gambia who shall be the principal assistant of the President in the discharge of his or her executive functions and shall exercise such other functions as may be conferred on him or her by this Constitution or assigned to him or her by the President.
A person shall be qualified to be appointed as Vice-President if he or she has the qualifications required for the election of the President under Section 62. Provided that the Vice President shall not be a member of the National Assembly.
The Vice-President shall be appointed by the President.
The provisions of sections 66 and 67 (which relate to removal for incapacity or misconduct) shall apply with the necessary variations to the office of Vice-President as they apply to the office of President.
The office of Vice-President shall become vacant:
1. on the termination of his appointment by the President;
2. on the Vice-President assuming the office of President for the unexpired term of his predecessor;
3. on the Vice-President’s death or resignation;
4. on his or her ceasing to hold office under the provisions of section 66 or 67.
Whenever there is a vacancy in the office of Vice-President in the circumstances mentioned in paragraph (b), (c) or (d) of subsection (5), the President shall, appoint as Vice-President a person qualified to be appointed to that office.
A person appointed as Vice-President shall, before assuming the functions of his or her office, take and subscribe to the prescribed oaths.
Without prejudice to the right to revoke an appointment for any cause, the President shall revoke the appointment of the Vice-President if the National Assembly adopts a vote of censure against the Vice-President under Section 75.

71. Ministers

There shall be such number of Ministers, including Attorney-General, as the President may consider necessary.
A person shall not be qualified to be appointed, or hold the office of a Minister if, he or she is a member of the National Assembly or if he holds the citizenship or nationality of any country other than The Gambia. In addition, a person shall not be qualified to be appointed Attorney General unless he or she is a legal practitioner of at least five years standing at the Gambia bar.
Ministers shall be appointed by the President and shall, before assuming the functions of their office, take and subscribe the prescribed oaths.
The office of a Minister shall become vacant-
1. on the assumption by a person of the office of President;
2. on his or her appointment being revoked by the President;
3. on his or her death or resignation.
Without prejudice to the right to revoke an appointment for any cause, the President shall revoke the appointment of a Minister if the National Assembly adopts a vote of censure against the Minister.

72. Functions and incidents of office

The Vice-President and Ministers shall be responsible for such Ministries or other business of the Government as the President may assign to them. In making such assignments, the President shall have regard to the desirability of ensuring that such responsibilities are entrusted to competent persons with relevant qualifications or experience.
The Attorney General shall be the principal legal adviser to the Government and shall have the right of audience in all courts in The Gambia.
The Vice-President and Ministers shall be entitled to such remuneration, allowances and other incidents of office as may be prescribed by an Act of the National Assembly.
The Vice-President and Ministers shall not-
1. while they continue in office, hold any other office of profit or emolument whether public or private, occupy any other position carrying the right to remuneration for the rendering of services;
2. undertake any activity inconsistent with their official position or expose themselves to any situation which carries with it the risk of a conflict developing between their official interests and their private interests;
3. use their position as such or use information entrusted to or received by them in their official position directly or indirectly to enrich themselves or any other person.
Where the Vice-President or Ministers were engaged in any trade, business or other undertaking before assuming their offices, they shall, if they wish to continue such trade, business or other undertaking, do so under a trusteeship.

73. Cabinet

There shall be a Cabinet which shall consist of the President, the Vice-President and the Ministers.
Cabinet shall regulate the procedure of its meetings.
The Cabinet shall be responsible for advising the President with respect to the policies of the Government and shall have such other functions as may be conferred by any other law.

74. Responsibility of Cabinet and Ministers

The Vice-President and Ministers shall be collectively responsible to the National Assembly for any advice given to the President in Cabinet, and the Vice-President and each Secretary of State shall be accountable to the President and the National Assembly for the administration of the departments and other business of Government committed to his or her charge.

75. Vote of censure

The National Assembly may, by resolution supported by the votes of two-thirds of all the members, pass a vote of censure against a Minister or Vice President on the grounds of-
1. his or her inability, arising from any cause, to perform the functions of his or her office;
2. abuse of office or violation of any provision of this Constitution;
3. his or her misconduct in office.
A vote of censure shall be initiated by a petition, signed by not less than one third of all the members of the National Assembly to the President through the Speaker stating the grounds on which they are dissatisfied with the conduct or performance of the Minister or Vice President.
The President shall cause a copy of the petition to be given to the Minister or Vice President immediately he or she receives it.
The motion for the resolution of censure shall not be debated until after the expiry of fourteen days from the day the petition is sent to the President.
The Secretary of State or Vice President concerned has the right to attend and be heard during the debate on the motion.
In this section, “misconduct in office” means that the person concerned has-
1. conducted himself or herself in a manner which brings or is likely to bring his or her office into contempt or disrepute;
2. dishonestly done any act which is prejudicial or inimical to the economy of The Gambia or dishonestly omitted to act with similar consequences.

PART III. Executive Powers

76. The executive power

The executive power of The Gambia is vested in the President and, subject to this Constitution, shall be exercised by him or her either directly or through the Vice-President, Ministers or officers responsible to him or her.
In addition to the powers conferred on him or her by this Constitution, the President shall have such powers and responsibilities as may be conferred on him or her by or under an Act of the National Assembly.
The President shall be responsible for making due provision for the execution of Acts of the National Assembly.

77. The Executive power and The National assembly

The President shall at least once in each year attend a sitting of the National Assembly and address a session on the condition of The Gambia, the policies of the Government and the administration of the State.
The National Assembly may request the President to attend a sitting of the National Assembly for the discussion of a matter of national importance.
The Vice-President shall answer in the National Assembly for matters affecting the President, and the President shall be entitled to send a message to the National Assembly to be read on his or her behalf by the Vice-President.
The Vice-President or a Minister shall, when requested by the National Assembly, report to the National Assembly on any matter concerning a department or other business of Government committed to his or her charge, and shall be entitled to attend and speak in the National Assembly whenever any Bill or other matter concerning such department or business is being debated.

78. National Security Council

There shall be a National Security Council which shall consist of-
1. the President;
2. the Vice-President;
3. the Minister responsible for defence and internal affairs;
4. the Chief of Defence Staff and two other members of the Armed Forces appointed by the President;
5. the Inspector General of Police;
6. the Director-General of the National Intelligence Agency; and
7. the intelligence adviser to the President.
The National Security Council shall be responsible for advising the President on all matters relating to the security of The Gambia and the integration of domestic and foreign policies relating to its security; and, under the direction of the President, shall take appropriate measures to safeguard the internal and external security of The Gambia and to provide for the co-operation of the departments and agencies of the Government in that regard.

79. Foreign Affairs

The President shall be responsible for-
1. the conduct of relations with other states and international organizations;
2. the reception of envoys accredited to The Gambia and the appointment of the principal representatives of The Gambia abroad;
3. the negotiation and, subject to ratification by the National Assembly, the conclusion of treaties and other international agreements;
4. subject to the prior approval of the National Assembly, the declaration of war and the making of peace.
The Gambia shall not-
1. enter into any engagement with any other country which causes it to lose its sovereignty without the matter first being put to a referendum and passed by such majority as may be prescribed by an Act of the National Assembly;
2. become a member of any international organization unless the National Assembly is satisfied that it is in the interest of The Gambia and that membership does not derogate from its sovereignty.
The National Assembly may, by resolution, establish procedures for the ratification of treaties and other international agreements.

80. Constitution of Public Offices

Subject to this Constitution and any Act of the National Assembly, the President may constitute any public office for The Gambia and make appointments to such office and terminate such appointments.

81. Administration of Departments of State

Where the Vice-President or a Secretary of State has been charged with responsibility for any department of the Government, he or she shall exercise general direction and control over that department; and subject to such direction and control, the department shall be under the supervision of a permanent secretary whose office shall be an office in the public service.
The principle advisers on professional and technical matters in all the departments of the Government shall be professionally qualified persons.

82. Prerogative of Mercy

The President may, after consulting the Committee established by subsection (2) –
1. grant to any person convicted of any offence a pardon either free or subject to lawful conditions;
2. grant to any person a respite, either indefinite or for a specified period, of the execution of any punishment imposed on that person for any offence;
3. substitute a less severe form of punishment for any punishment imposed on any person for any offence;
4. remit the whole or any part of any punishment imposed on any person for such an offence or any penalty otherwise due to the Republic on account of any offence.
There shall be a Committee on the exercise of the prerogative of mercy consisting of the Attorney General and three other persons appointed by the President subject to confirmation by the National Assembly.

83. Honours and awards

The President may, after consulting the Committee established by subsection (2), confer honours and awards, including honorary honours and awards to friends of The Gambia.
There shall be a Committee to advise the President on the exercise of his or her powers under this section which shall consist of not more than five, and not less than three, persons appointed by the National Assembly.

PART IV. Prosecutions

84. Director of Public Prosecutions

There shall be a Director of Public Prosecutions whose office shall be an office in the public service.
The Director of Public Prosecutions shall be appointed by the President.
A person shall not be qualified to hold or act in the office of Director of Public Prosecutions unless he or she is qualified for appointment as a judge of the High Court.
Subject to the other provisions of this section, a person holding the office of the Director of Public Prosecutions shall vacate his or her office when he or she attains the compulsory retirement age.
A person holding the office of Director of Public Prosecutions may be removed from office only for inability (whether by reason of infirmity of mind or body or any other cause) to perform the functions of his or her office, or for misbehaviour or incompetence.

85. Control of prosecutions

The Director of Public Prosecutions shall have power in any case in which he or she considers it desirable to do so, and subject to the approval of the Attorney General-
1. to initiate and undertake criminal proceedings against any person before any court for an offence against the law of The Gambia;
2. to take over and continue any such criminal proceedings that have been instituted by any other person or authority;
3. to discontinue at any stage before judgement is delivered any criminal proceedings instituted or undertaken by himself or herself or any other person or authority:Provided that the Director of Public Prosecutions shall not-
  1. take over and continue any private prosecution without the consent of the private prosecutor and the court; or
  2. discontinue any private prosecution without the consent of the private prosecutor.
For the purpose of this section, any appeal from a determination in any criminal proceedings before any court, or any case stated or question of law reserved for the purpose of such proceedings to any other court, shall be deemed to be part of those proceedings:Provided that the power conferred on the Director of Public Prosecutions by subsection (1) (c) shall not be exercised in relation to any appeal by a person convicted in any criminal proceedings or any case stated at the instance of such a person.
The powers conferred on the Director of Public Prosecutions under this section may be exercised by him or her in person or by persons under his or her direction and control.
In the exercise of his or her functions under this section, the Director of Public Prosecutions shall be subject to the direction or control of the Attorney General.
In this section, “private prosecutions” means a prosecution instituted by any person or authority other than-
1. the Director of Public Prosecutions or any person acting under his or her direction or control;
2. a police officer in the exercise of the functions of his or her office, or
3. an officer in the public service in the exercise of the functions of his or her office

86. Private prosecutions

An Act of the National Assembly may make provision for private prosecutions.