Constitution

The Gambia 2019 Draft Constitution

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Table of Contents

CHAPTER XII. INDEPENDENT INSTITUTIONS

PART I. ESTABLISHMENT OF INDEPENDENT INSTITUTIONS AND OFFICES

212. Establishment

  1. There is hereby established the following independent institutions and offices, which shall be institutions and offices in the public service-
    1. National Human Rights Commission;
    2. Anti-Corruption Commission;
    3. Ombudsperson;
    4. Auditor-General; and
    5. Central Bank of The Gambia.
  2. The provisions of this Chapter apply to the Independent Boundaries and Electoral Commission established under Chapter VII, as the context requires, and in so far as the provisions of this Chapter are not provided for in Chapter VII.
  3. The reference in this Chapter to “member” refers to the persons constituted under the Independent Institutions and Offices mentioned in Parts II to VI including, as the context requires, the Independent Boundaries and Electoral Commission.

213. Objects and funding of Independent Institutions and Offices

  1. Every independent institution and office derives its authority from the sovereignty of the people and shall, in the performance of its duties be guided by integrity, transparency and accountability, including the following-
    1. protecting the sovereignty of the people;
    2. ensuring that all relevant institutions observe the values and principles enshrined in this Constitution;
    3. ensuring strong governance standards and practices; and
    4. promoting the objects and principles of this Constitution and any Act of the National Assembly applicable to it.
  2. The independent institutions and the holders of offices shall not, in the performance of their functions, be subject to the direction or control of any other person or authority.
  3. Save in relation to the Central Bank, the National Assembly shall allocate adequate funds to enable each independent institution and office to perform its functions, and the budget of each independent institution and office shall-
    1. be a separate vote; and
    2. be charged on the Consolidated Revenue Fund.

214. Appointments and term of office

  1. Each independent institution or office shall be constituted as prescribed in this Constitution.
  2. The Chairperson, each member of an independent institution, and the holder of an independent office, as provided in this Chapter, shall be appointed by the President, subject to confirmation by the National Assembly.
  3. To be appointed, a person shall have the specific qualifications required by this Constitution or an Act of the National Assembly, or both where applicable.
  4. Appointments to independent institutions and offices shall take into account the national values mentioned in Chapter II, and the principle that the composition of the independent institutions and offices, taken as a whole, shall reflect gender diversity.
  5. Save in relation to the Central Bank, the remuneration and benefits payable to or in respect of a member of an independent institution or the holder of an independent office shall be a charge on the Consolidated Revenue Fund.
  6. The remuneration and benefits payable to, or in respect of, a member of an independent institution or the holder of an independent office shall not be varied to the disadvantage of the member.
  7. A member of an independent institution, or the holder of an independent office, is not liable for anything done in good faith in the performance of a function of his or her office.
  8. The Chairperson, and Vice-Chairperson where applicable, of an independent institution or office shall not be of the same gender.

215. Qualifications and disqualifications

  1. A person qualifies to be appointed as a member of an independent institution or a holder of an independent office if he or she-
    1. is a citizen of The Gambia;
    2. has a minimum of a university degree or an equivalent qualification in a relevant field, and such other qualifications, as may be prescribed by an Act of the National Assembly;
    3. declares his or her assets and liabilities;
    4. has paid his or her taxes or has made arrangements satisfactory to the appropriate tax authority for the payment of the taxes; and
    5. is of high moral character and proven integrity, and possesses considerable experience and demonstrated competence in the conduct of public affairs.
  2. A person shall not qualify to be appointed as a member of an independent institution or a holder of an independent office if he or she-
    1. has been declared to be of unsound mind;
    2. is a member of the National Assembly or any other elective office;
    3. is, or has at any time during the five years immediately preceding his or her appointment, been nominated as a candidate for election as a member of the National Assembly or any other political office;
    4. is, or has at any time during such period of five years been, the holder of any office in any organisation that sponsors or otherwise supports, or has at any time sponsored or otherwise supported, a candidate for election as a member of the National Assembly or of any Local Government Authority or he or she has actively identified himself or herself with any such organisation;
    5. holds another office in the public service;
    6. has, except in the case of the Central Bank and the Auditor General, held office as a staff of the Commission within a period of two years immediately preceding his or her appointment; or
    7. has been convicted in any country of an offence for which he or she has been sentenced to a term of imprisonment of 6 months or more and has not received a pardon.
  3. In addition to the qualifications set out in subsection (1), the Chairperson of the Independent Boundaries and Electoral Commission, National Human Rights Commission and Anti-Corruption Commission shall be a person qualified to be appointed a judge of the Supreme Court, a retired judge, or a person with other relevant qualifications with proven integrity, experience and demonstrated competence.

216. Removal from office

  1. The President may remove from office a member of an independent institution or a holder of an independent office-
    1. for inability to perform the functions of his or her office, whether arising from infirmity of body or mind or from any other cause;
    2. if any circumstances arise which would have disqualified him or her from appointment to the office;
    3. for misbehaviour;
    4. for misconduct, whether in the performance of the member’s or office holder’s functions or otherwise;
    5. on account of being suspended or disqualified from practicing his or her profession;
    6. for violation of this Constitution or any other law;
    7. for incompetence; or
    8. for bankruptcy or entering into an arrangement with creditors.
  2. Before removing a member of an independent institution or a holder of an independent office, the President shall-
    1. notify the member or holder of the complaint against him or her for which a tribunal is being established; and
    2. acting on the recommendation of the Chief Justice, appoint a tribunal comprising-
      1. a judge of a superior court, as chairperson;
      2. a legal practitioner of not less than fifteen years’ standing; and
      3. one person, not being a judge of a superior court or legal practitioner, with not less than fifteen years’ experience in public service affairs.
  3. A tribunal that is appointed under subsection (2) (b) shall-
    1. regulate its own proceedings;
    2. inquire into the matter concerning the member of an independent institution or holder of independent office in an expeditious manner;
    3. afford the member or holder the opportunity to be heard and to be represented by a legal practitioner of his or her own choice; and
    4. prepare a report setting out its findings and making a recommendation to the President on whether or not the member or holder should be removed from office.
  4. The proceedings of the tribunal under this section shall be held in camera.
  5. Where the tribunal recommends the removal of the member of an independent institution or holder of independent office, the President shall remove the member or holder from office.
  6. If the tribunal recommends to the President that the member of an independent institution or holder of independent office should not be removed, the member or holder shall immediately be reinstated in office.

217. Finance

  1. An independent institution or holder of an independent office shall submit the annual estimates of expenditure of the institution or office to the President for presentation to the National Assembly in accordance with this Constitution.
  2. 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.
  3. Where the National Assembly fails to approve the annual estimates and expenditure of an independent institution or office, the budget for the previous year shall continue to apply until such time that the annual estimates and expenditure for the institution or office is approved.
  4. The National Assembly shall not reduce the budget estimates and expenditure of an independent institution or office below what was approved for the immediately preceding year.
  5. This section shall not apply to the Central Bank.

218. Reporting obligation

  1. An Act of the National Assembly shall make provision for the submission by independent institutions and offices of annual reports to the Assembly.
  2. At any time, the President or the National Assembly may require an independent institution to submit a report on a particular issue.
  3. Every report required from an independent institution shall be published.

PART II. NATIONAL HUMAN RIGHTS COMMISSION

219. Composition, functions and powers

  1. The National Human Rights Commission shall comprise five Commissioners, who shall be appointed for a term of three years, subject to renewal for one more term.
  2. An Act of the National Assembly shall provide for the functions and powers of the National Human Rights Commission, which shall include-
    1. to promote respect for human rights and develop a culture of human rights in The Gambia;
    2. to promote and protect the observance of human rights in public and private institutions;
    3. to monitor, investigate and report on the observance of human rights in all spheres of life in The Gambia;
    4. to receive and investigate complaints about alleged abuses of human rights and take steps to secure appropriate redress where human rights have been violated;
    5. on its own initiative or on the basis of complaints, to investigate or research a matter in respect of human rights, and make recommendations to improve the functioning of State organs;
    6. to act as the principal organ of the State in ensuring compliance with obligations under treaties and conventions relating to human rights; and
    7. to perform any other functions prescribed by an Act of the National Assembly.
  3. Every person has the right to complain to the Commission, alleging that a right or fundamental freedom in Chapter VI or in any other Act of the National Assembly has been denied, violated or infringed, or is threatened with contravention.

PART III. ANTI-CORRUPTION COMMISSION

220. Composition, functions and powers

  1. The Anti-Corruption Commission shall comprise three Commissioners, and other staff members of the Commission.
  2. The Chairperson of the Anti-Corruption Commission shall be appointed for a term of five years, and the two other members shall be appointed for a term of four years each, subject to renewal for one more term.
  3. The functions and powers of the Commission shall be provided for in an Act of the National Assembly, which shall include the following-
    1. to take all steps as may be necessary for the prevention, eradication or suppression of corruption and corrupt practices;
    2. to carry out research on the prevention of corruption and to submit recommendations for improvement to relevant authorities regarding actions to be taken;
    3. to promote the values of honesty and integrity in the operations of the State and Government, and to promote public awareness of the dangers of corruption;
    4. to investigate instances of alleged or suspected corruption referred to it by any person or authority or which has come to its attention, whether by complaint or otherwise;
    5. to receive and deal with declarations of assets as may be required under this Constitution or an Act of the National Assembly;
    6. to investigate any matter that, in the opinion of the Commission, raises suspicion that any of the following has occurred or is about to occur-
      1. conduct constituting corruption or an economic or a related offence; and
      2. conduct liable to allow, encourage or cause conduct constituting corruption or an economic or related offence;
    7. to recommend further inquiries and investigations by other investigatory bodies;
    8. to initiate and conduct prosecution for any act of corruption, including making referrals to the Director of Public Prosecutions for advice or prosecution; and
    9. to perform any other functions prescribed by an Act of the National Assembly.

PART IV. THE OMBUDSPERSON

221. Composition, functions and powers

  1. The Ombudsperson shall comprise the Ombudsperson and two Deputy Ombudspersons.
  2. The Ombudsperson shall be appointed for a term of five years, and the Deputy Ombudspersons shall be appointed for a term of four years each, subject to renewal for one more term.
  3. An Act of the National Assembly shall define the functions and duties of the Ombudsperson, which shall include the investigation of any action taken or omitted to be taken in the exercise of an administrative function, by or on behalf of-
    1. any department or Ministry of Government;
    2. any Statutory Body or State Owned Enterprise or institution of higher learning or education, set up entirely or partly out of public funds; and
    3. any member of the public service.
  4. The Ombudsperson shall, in addition to any functions and duties outlined in an Act of the National Assembly under subsection (3), also investigate-
    1. any conduct in State affairs, or any act or omission in public administration in any sphere of government, that is alleged or suspected to be prejudicial or improper or to result in any impropriety or prejudice; and
    2. complaints of abuse of power, unfair treatment, manifest injustice or unlawful, oppressive, unfair or unresponsive official conduct.
  5. Nothing contained in this Part or under any Act of the National Assembly shall be construed as giving power to the Ombudsperson to investigate any matter pending before, or relating to a decision of-
    1. a court; or
    2. the National Human Rights Commission or Anti-Corruption Commission.

PART V. THE AUDITOR-GENERAL AND NATIONAL AUDIT OFFICE

222. The Auditor-General

There shall be an Auditor-General-

  1. whose office shall be an office in the public service; and
  2. who shall hold office for a term of nine years and shall not be eligible for re- appointment.

223. Functions of the Auditor-General

  1. Within six months after the end of each financial year, the Auditor-General shall audit and report, in respect of that financial year, on-
    1. the public accounts of The Gambia;
    2. the accounts of all offices and authorities of the Government of The Gambia, including Local Government Authorities;
    3. the accounts of the National Assembly;
    4. the accounts of the Judiciary;
    5. the accounts of every commission and independent institution or office established by this Constitution;
    6. the accounts of all Statutory Bodies and State Owned Enterprises;
    7. the public debt; and
    8. the accounts of any other body or institution as may be required by an Act of the National Assembly.
  2. The Auditor-General shall satisfy himself or herself that money charged on the Consolidated Revenue Fund or other public fund, appropriated by an Act of the National Assembly, and expended, has been applied for the purpose for which it was charged or appropriated, and that the expenditure conforms to the authority that governs it.
  3. The Auditor-General may exercise such other functions as may be conferred by an Act of the National Assembly.

224. Powers of the Auditor-General

  1. In the exercise of his or her functions under this Constitution or any other law, the Auditor-General—
    1. shall at all times carry out economy, efficiency and effective examinations to satisfy himself or herself that public funds are spent in such manner as to reduce waste, eliminate inefficiency and maximise the benefits to be gained from the use of resources;
    2. may disallow any item of expenditure which is contrary to law and to surcharge-
      1. the amount of any expenditure so disallowed upon the person responsible for incurring or authorising the expenditure;
      2. any sum which has not been brought into account upon the person by whom that sum ought to have been brought into account; or
      3. the amount of any loss or deficiency upon any person by whose negligence or misconduct the loss or deficiency has been incurred.
  2. A person aggrieved by any disallowance or surcharge made by the Auditor-General may appeal to the High Court.
  3. The Auditor-General and any member of the National Audit Office authorised by him or her shall have power to call for and inspect all books, records, returns, reports and other documents in the exercise of the functions conferred upon him or her by this Constitution or an Act of the National Assembly and to make such enquiries and call such witnesses who, in his or her opinion, have any responsibilities, in relation to the accounts referred to in section 223 (1).
  4. Wherever discrepancies of a criminal or fraudulent nature are discovered during the audit of accounts, the Auditor-General shall immediately cause a report of his or her findings to be submitted to the Inspector-General of Police and the Anti-Corruption Commission.
  5. Where the Government holds a minority interest in any company, the Auditor-General may exercise, on behalf of the Government, the power to inspect the books of account of the company and report to the Government.
  6. Nothing in this Constitution shall preclude the Auditor-General, at the request of the head or governing body of any public body, corporation or institution referred to in section 223 (1) or on his or her own initiative, from carrying out any special audit of such body, corporation or institution, and where he or she carries out such a special audit, it shall be reported to the Finance and Public Accounts Committee of the National Assembly.

225. Auditor-General’s report

  1. The Auditor-General shall-
    1. within six months of the end of the immediately preceding financial year to which each of the accounts referred to in section 223 (1) relates, report to the National Assembly on the accounts and draw attention to any irregularities in the accounts audited and to any other matter which, in his or her opinion, ought to be brought to the notice of the National Assembly; and
    2. publish his or her annual reports on the accounts referred to in section 223 (1) after ninety days of submission of the report to the National Assembly, or after the report has been discussed in the National Assembly, whichever is earlier.
  2. The Finance and Public Accounts Committee of the National Assembly may extend the time within which the report referred to in subsection (1) shall be made to the Assembly.

226. National Audit Office

  1. The National Audit Office shall comprise the Auditor-General, two Deputy Auditors-General and the staff appointed by the Auditor-General.
  2. The two Deputy Auditors-General and the staff appointed by the Auditor-General shall assist the Auditor-General in the performance of his or her functions under this Constitution and any applicable Act of the National Assembly.
  3. The accounts of the National Audit Office shall be audited by an appropriately qualified auditor or firm of auditors appointed by the Finance and Public Accounts Committee of the National Assembly.

PART VI. CENTRAL BANK OF THE GAMBIA

227. Central Bank

  1. There is established the Central Bank of The Gambia and the authority of the Central Bank shall vest in a Board of Directors comprising-
    1. a Chairperson;
    2. the Governor of the Central Bank; and
    3. three persons, not being members of the Central Bank, with extensive experience in the fields of economics, finance, banking or law.
  2. The members of the Board of Directors shall be appointed for a term not exceeding five years, subject to renewal for one more term, and their appointments shall be made in such a way that they all do not expire at the same time.
  3. The Central Bank shall be the only authority to issue the currency of The Gambia, which may bear images that depict or symbolise The Gambia or an aspect of The Gambia, but no currency shall bear the portrait of a person who is serving in public office, whether or not the office is elective.
  4. The Central Bank shall be the sole banker of the Government and it shall be the principal depositary bank for all funds raised for, or on behalf of, the Government.

228. Functions

  1. The Central Bank shall—
    1. promote and maintain the stability of the currency of The Gambia;
    2. direct, regulate and supervise the banking, monetary policy and currency system in the interest of the economic development of The Gambia, and such other financial services as may be provided in an Act of the National Assembly;
    3. encourage and promote sustainable economic development and the efficient utilisation of the resources of The Gambia through the effective and efficient operation of a banking and credit system; and
    4. exercise such other functions as may be conferred on the Central Bank by an Act of the National Assembly.
  2. The Central Bank shall ensure that all moneys paid to or received for or on behalf of the Government is recorded in proper books of account in accordance with recognised accounting standards.
  3. The Central Bank shall ensure that all withdrawals from the various Government accounts with the Bank are properly authorised in accordance with this Constitution and any Act of the National Assembly, and that the overdrawing on any of the Government’s accounts with the Bank is permitted only if so authorised by law.

PART VII. COMMISSIONS OF INQUIRY

229. Commissions of Inquiry

  1. Subject to subsection (3), the President may, whenever he or she deems it advisable, issue a Commission appointing one or more Commissioners.
  2. The President may, in making appointments under subsection (1), authorise such Commissioners to inquire into—
    1. the conduct of any public officer;
    2. the conduct of any District Chief or Alkalo;
    3. the conduct or management of-
      1. any department or authority of the public service;
      2. any Local Government Authority or Statutory Body or State Owned Enterprise; and
      3. any person or entity with whom the Government has entered into a contract or arrangement for the delivery of a service or performance of a duty, or any other obligation whatsoever; and
    4. any other matter arising in The Gambia in which an inquiry would, in the opinion of the President, be in the public interest.
  3. The National Assembly may, by a resolution supported by not less than two-thirds of the Assembly, request the President to establish a Commission of Inquiry for any of the purposes set out in subsection (1).
  4. Where the President receives a request accompanied by the resolution of the National Assembly under subsection (3), he or she shall issue a Commission of Inquiry in accordance with this section.
  5. Except as may be ordered by the presiding Commissioner in the interest of public morality, public safety or public order, the proceedings of a Commission of Inquiry shall be held in public.
  6. Notwithstanding subsection (5), the presiding Commissioner may exclude any person from the proceedings of a Commission of Inquiry for the preservation of order.

230. Presiding Commissioner

  1. A person shall not be appointed a sole Commissioner or the Chairperson of a Commission of Inquiry unless—
    1. he or she is, or has been, a judge of a superior court, whether in The Gambia or outside The Gambia; or
    2. he or she is qualified to be appointed a judge of a superior court.
  2. Where a Commission of Inquiry consists of more than two members, at least one Commissioner shall be a person who has special qualifications or knowledge in the field of the matter under investigation.

231. Function and powers of Commission

  1. A Commission of Inquiry shall—
    1. make a full and impartial investigation into the matter in respect of which the Commission is established; and
    2. furnish in writing a report on the results of the inquiry, including a statement of the reasons leading to the conclusions of the Commission.
  2. A Commission of Inquiry shall have all the powers, rights and privileges of a judge of the High Court at a trial in respect of—
    1. enforcing the attendance of witnesses and examining them on oath, affirmation or otherwise;
    2. compelling the production of documents;
    3. issuing a commission or request for the examination of witnesses abroad, and
    4. making interim orders.
  3. A Commissioner appointed under section 229 shall not be liable to any action or suit in respect of any matter or thing done in good faith or omitted to be done in the performance of his or her functions as a Commissioner.

232. Publication of report

On receipt of the report of a Commission of Inquiry—

  1. the President shall, within six months, publish the report and his or her comments on the report, together with a statement of any action taken, or the reason for not taking any action, thereon; or
  2. where the President refuses to publish the report for reasons of national security or otherwise in the public interest, he or she shall, within six months, publish a statement to that effect.

233. Adverse findings

  1. Where a Commission of Inquiry makes an adverse finding against a person, it shall, at the time of submitting its report to the President, inform the person, in writing, of the finding and the reasons for the finding.
  2. A person against whom any adverse finding has been made may appeal against the finding to the Court of Appeal as of right as if the finding were a judgment of the High Court.
  3. On the hearing of an appeal under subsection (2), the report of the Commission of Inquiry shall be treated as if it were a judgment of the High Court.
  4. An appeal under this section shall be made within three months of the appellant being informed of the adverse finding as provided by subsection (1) or such later time as the Court of Appeal may allow.

234. Immunities of witnesses

A witness before a Commission of Inquiry shall be entitled to the same immunities and privileges as if he or she were a witness in proceedings before the High Court.

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235. National Assembly to make further provision

An Act of the National Assembly may make further provision for the purposes of this Part, and subject to any such Act, the power conferred by any law to make rules of court for the superior courts shall be deemed to include power to make rules regulating the procedure and practice of all Commissions of Inquiry.

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