The Gambia 2019 Draft Constitution - Page 16 of 24

Table of Contents

CHAPTER XV. THE PUBLIC SERVICES

PART I. THE PUBLIC SERVICES OF THE GAMBIA

259. The public services of The Gambia

The Public Service of The Gambia includes the following-
1. the Civil Service;
2. the Judicial Service;
3. the National Assembly Service;
4. the Local Government Service;
5. the National Security Service;
6. the Education Service;
7. the Health Service;
8. the Statutory Bodies and State Owned Enterprises; and
9. such other public service as may be established by an Act of the National Assembly.

260. Offices in the public service

An office in the public service includes all offices the emoluments of which are payable out of any public fund of The Gambia.
Subject to section 22 (3), the reference in this Constitution to an office in the public service does not include-
1. the offices of President, Vice-President, Speaker or Deputy Speaker of the National Assembly, Minister 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 the 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.

261. Appointment to and removal from offices in the public services

Subject to the provisions of this Constitution-
1. the President may, acting in accordance with the advice of the Public Service Commission, the Teachers Service Commission or the Health Service Commission, as the case may be, appoint persons to hold or act in any office in the public service of The Gambia of the rank of Permanent Secretary or head of an institution in the public service, including approval of appointments, the exercise of disciplinary control over such persons and their removal from office; and
2. the Public Service Commission, the Teachers Service Commission or the Health Service Commission, as the case may be, may appoint persons to hold or act in any office in the public service of The Gambia other than those referred to in paragraph (a), including the approval of their appointments and the exercise of disciplinary control over such persons and their removal from office.
Except with the consent of the President or Vice President, no person shall be appointed under this section to act in any office on the personal staff of the President or Vice President.
In this Constitution—
1. 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, subject to section 265, 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;
2. power to remove an officer in the public service shall include power to require such officer to retire from the public service;
3. nothing in paragraph (b) 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 Commissioners of the Independent Boundaries and Electoral Commission, National Human Rights Commission and the Anti-Corruption Commission, the Auditor-General, the Governor of the Central Bank of The Gambia, or the Ombudsperson or a Deputy Ombudsperson to retire from the public service; and
4. 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.

262. Secretary General and Head of the Civil Service

There shall be a Secretary General who shall-
1. be the Head of the Civil Service; and
2. be appointed by the President acting on the advice of the Public Service Commission, and subject to confirmation by the National Assembly.
The functions of the Secretary General are as follows-
1. advising the President on matters relating to the public service;
2. ensuring that the public service is efficient and effective;
3. coordinating and supervising the activities and work of Permanent Secretaries;
4. coordinating the policies and programmes of the public service;
5. serving as a link between Cabinet and the public service;
6. serving as a link between service commissions;
7. ensuring the implementation of Cabinet and other Government decisions; and
8. performing any other duties, relating to the public service, assigned to him or her from time to time by the President.

263. Qualifications, disqualifications and tenure of the Secretary General

A person is qualified to be appointed Secretary General if he or she-
1. has a university degree or equivalent professional qualification;
2. has experience in public service affairs at a senior managerial level for a period of not less than fifteen years;
3. is qualified to be appointed as Permanent Secretary; and
4. is a person of high moral character and proven integrity.
A person shall not qualify to be appointed as Secretary General 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. has, during any period of service in any public office or in the private sector, been terminated or dismissed for dishonesty or immoral conduct;
4. 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;
5. 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; or
6. 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.
The Secretary General shall not, in the performance of his or her functions, be subject to the direction or control of any other person or authority but shall, in the performance of such functions, have due regard to the policies and programmes of the Government.

264. Permanent Secretaries

Subject to the provisions of this Constitution, a Ministry or Department of the Government of The Gambia shall be under the administrative supervision of a Permanent Secretary whose office shall be an office in the public service.
A Permanent Secretary shall be appointed by the President acting in accordance with the advice of the Public Service Commission, subject to confirmation by the National Assembly.
The functions of a Permanent Secretary shall include-
1. organisation and operation of the Ministry or Department ;
2. advising the responsible Minister in respect of the business of the Ministry, its Departments, and Agencies ;
3. implementation of the policies of the Government of The Gambia; and
4. responsibility for the proper expenditure of public funds by or in connection with the Ministry or Department.

265. Protection of public officers

No public officer shall—

be victimised or discriminated against either directly or indirectly for having discharged his or her duties faithfully and according to law; or
be removed from office or reduced in rank or otherwise punished without due process of law.

266. Restriction on political activities of public officers

A person holding an office in the public service shall not-
1. hold office in any political party; or
2. openly participate in any political activity.
Any person who holds an office in the 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 or, if applicable, retire from his or her office in the public service and, if he or she fails to do so, his or her services will be terminated.

267. Retirement age

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

shall retire from such office on attaining the age of sixty 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.

268. Pensions

A public officer shall, on retirement, receive such pension as is commensurate with his or her rank, salary and length of service.
The pension payable to any person shall be exempt from tax and shall be subject to periodic review to take account of changes in the value of money.
The payment of pension shall be prompt and regular and easily accessible to pensioners.

269. 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.
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 Revenue Fund or upon such other special fund, whether contributory or non-contributory, as may be prescribed by an 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, and the manner in, which any person may retire in order to become eligible for those benefits.
In this section, “the relevant date” means-
1. in relation to benefits granted before 18th February 1965, the date on which those benefits were granted;
2. in relation to any benefits granted on or after 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 18th February 1965, the date on which he or she became or becomes a public officer.

PART II. SERVICE COMMISSIONS

I. General Provisions

270. Establishment, composition and general functions of service commissions

There is established the following service commissions under the Civil Service-
1. Public Service Commission;
2. Teachers Service Commission; and
3. Health Service Commission.
Each service commission established under subsection (1) shall-
1. comprise a Chairperson and four other members who shall be appointed by the President, subject to confirmation by the National Assembly; and
2. have responsibility for the establishment of offices and appointment to such offices in the Civil Service, including exercising disciplinary control and removing persons holding those offices-
  1. in the case of the Public Service Commission, as it relates to offices other than those relating to the education and health services sectors;
  2. in the case of the Teachers Service Commission, as it relates to offices in the education sector only; and
  3. in the case of the Health Service Commission, as it relates to offices in the health service sector only.

271. Secretariat of the service commissions

The office in the Civil Service with responsibility for personnel matters shall-

serve as the secretariat for each of the service commissions established under sections 270 (1) and 290 (1).
designate personnel to attend and provide guidance to each service commission in order to ensure a proper streamlining of the work of the service commissions; and
provide such other support as may be necessary to ensure that the service commissions function efficiently and effectively.

II. Public Service Commission

272. Powers and functions of the Public Service Commission

The Public Service Commission shall-
1. promote the values and principles of public service mentioned in Part I and Chapter II;
2. investigate, monitor and evaluate the organisation, administration and personnel practices of the public service;
3. ensure that the public service is efficient and effective;
4. develop human resources in the public service;
5. afford adequate, equal and impartial opportunities for appointment, training and advancement, at all levels of the public service for which it has responsibility, without distinction as to ethnicity, gender or class;
6. review and make recommendations to the Government in respect of conditions of service, codes of conduct and qualifications of officers in the public service;
7. evaluate and report to the President and the National Assembly on the extent to which the values and principles mentioned in Part I and Chapter II are complied with in the public service; and
8. perform any other functions and exercise any other powers conferred by an Act of the National Assembly.
The performance of functions or exercise of powers by the Public Service Commission under subsection (1) and section 270 (2) (b) (i) shall not apply to any of the following offices-
1. an office of high commissioner, ambassador or other diplomatic or consular representative of The Gambia;
2. an office or position subject to-
  1. the National Assembly Service Commission;
  2. the Judicial Service Commission;
  3. the Security Services Commission;
  4. the Armed Forces; and
  5. an office in the service of a Local Government.

III. Teachers Service Commission

273. Powers and functions of the Teachers Service Commission

The Teachers Service Commission shall-
1. promote the values and principles of public service mentioned in Part I and Chapter II;
2. investigate, monitor and evaluate the organisation, administration and personnel practices of the public service in the field of education;
3. ensure that the public service is efficient and effective in relation to education;
4. liaise with relevant institutions and authorities with respect to the development of education curricula;
5. develop human resources in the education sector to ensure the delivery of quality education;
6. afford adequate, equal and impartial opportunities for appointment, training and advancement, at all levels of the public service for which it has responsibility, without distinction as to ethnicity, gender or class;
7. ensure the appropriate registration of teachers;
8. assign teachers employed by the Commission for service in any public school or institution;
9. review and make recommendations to the Government in respect of conditions of service, codes of conduct and qualifications of officers in the field of education;
10. evaluate and report to the President and the National Assembly on the extent to which the values and principles mentioned in Part I and Chapter II are complied with in the education sector; and
11. perform such other functions as may be prescribed by this Constitution or an Act of the National Assembly.
The Commission shall, in addition to the functions outlined in subsection (1)-
1. review the standards of education and training of persons entering the teaching service;
2. review the demand for and the supply of teachers; and
3. advise the Government on matters relating to the teaching profession.

III. Health Service Commission

274. Powers and functions of the Health Service Commission

The Health Service Commission shall-

promote the values and principles of public service mentioned in Part I and Chapter II;
investigate, monitor and evaluate the organisation, administration and personnel practices of the public service in the field of health and health care delivery;
ensure that the public service is efficient and effective in relation to the delivery of health care to all the communities in The Gambia;
develop human resources in the health sector to ensure the delivery of quality healthcare;
afford adequate, equal and impartial opportunities for appointment, training and advancement, at all levels of the public service for which it has responsibility, without distinction as to ethnicity, gender or class;
assign medical officers and health care personnel employed by the Commission for service in any public health facility or area in The Gambia;
review and make recommendations to the Government in respect of conditions of service, codes of conduct and qualifications of officers in the field of health and health care delivery;
evaluate and report to the President and the National Assembly on the extent to which the values and principles mentioned in Part I and Chapter II are complied with in the health sector; and
perform such other functions as may be prescribed by this Constitution or an Act of the National Assembly.

PART III. GENERAL PROVISIONS ON SERVICE COMMISSIONS

275. Qualifications, disqualifications and tenure of members of service commissions

A member of a service commission shall be a person who-
1. is a citizen of The Gambia;
2. is fit and proper with knowledge of, or experience in, administration, management or the provision of services in the respective areas of responsibility of the Commission; and
3. is of high moral character and proven integrity.
A person shall not be qualified to be appointed a member of a service commission, if he or she-
1. is a member of the public service or a member of a disciplined force;
2. is a member of the National Assembly or any other elective office;
3. is a member of the governing body of a Statutory Body or State Owned Enterprise;
4. is an office holder in, or 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;
6. 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; or
7. is otherwise disqualified from holding an office in the public service.
A member of a service commission 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 service commission.
Subject to subsection (5), the members of a service commission shall be appointed for a term of five years, subject to renewal for one more term.
The provisions of section 216 shall apply with respect to the removal from office of a member of a service commission.

276. Additional powers and independence of service commissions

A service commission may delegate, in writing and with or without conditions, any of its functions and powers under this section to any one or more of its members, or to any officer, body or authority in the public service.
A service commission-
1. may make regulations for the performance of its functions;
2. shall prescribe a code of conduct for public officers within its jurisdiction; and
3. shall prepare and submit an annual report on the performance of its functions to the National Assembly.
In the exercise of its powers and the performance of its functions, a service commission shall be independent, and shall not be subject to the direction or control of any other person or authority, except that it shall take into account Government policy relating to the public service, including the education and health sectors.

PART IV. STATE OWNED ENTERPRISES

277. Appointment, qualifications, disqualifications and removal of board members of State Owned Enterprises

The members of the Board of Directors or other governing body of a State Owned Enterprise shall be appointed by the President after consultation with the Public Service Commission.
A member of a Board of Directors of a State Owned Enterprise shall be a person who-
1. is a citizen of The Gambia;
2. is fit and proper with knowledge of, or experience in, corporate governance, administration, management, law or expertise in the subject matter under the responsibility of the State Owned Enterprise; and
3. is of high moral character and proven integrity.
A person shall not be qualified to be appointed a member of a Board of Directors or other governing body of a State Owned Enterprise, if he or she—
1. unless an ex-officio member, is a member of the public service or a member of a disciplined force;
2. is a member of the National Assembly or any other elective office;
3. is a member of the governing body of another Statutory Body or State Owned Enterprise;
4. is an office holder in or a member of the executive body of a political party;
5. 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; or
6. is otherwise disqualified from holding an office in the public service.
The provisions of section 216 shall apply with respect to the removal from office of a member of a service commission.

278. Chief Executive Officer

The Chief Executive Officer of a State Owned Enterprise shall be appointed by the Board of Directors, through an open and transparent competitive process, following advertisement of the position, and subject to the approval of the National Assembly.

279. Qualifications, disqualifications and removal of Chief Executive Officer

In addition to any qualification in the law or other governing instrument establishing a State Owned Enterprise, the Chief Executive Officer of a State Owned Enterprise shall-
1. be a citizen of The Gambia;
2. be fit and proper with a minimum of a university degree or an equivalent professional qualification, and at least ten years’ post-qualification experience in a relevant field of study; and
3. be a person of high moral character and proven integrity.
The disqualifications for a member of a Board of Directors outlined in section 277 (3) apply in relation to the office of a Chief Executive Officer of a State Owned Enterprise.
A Chief Executive Officer shall not hold any other public office or other remunerative office.
The Board of Directors of a State Owned Enterprise may remove a Chief Executive Officer only-
1. for inability to perform the functions of his or her office, whether arising from infirmity of mind or body or from any other cause;
2. for misbehaviour;
3. for misconduct, whether in the performance of the member’s functions or otherwise;
4. for violation of this Constitution or any other law;
5. for incompetence;
6. for bankruptcy or entering into an arrangement with creditors; or
7. if any circumstances arise which would have disqualified him or her from appointment to the office.

280. Monitoring body

Within six months of the coming into force of this Constitution, an Act of the National Assembly shall establish a body to monitor the operations of State Owned Enterprises, and shall prescribe the manner in which such Enterprises shall-

be accountable to the National Assembly; and
conduct their affairs in order to promote efficiency, transparency and probity in all their undertakings.

281. Reporting

A State Owned 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.
The appropriate committee of the National Assembly may extend the time for the submission of a report required under subsection (1).