In my view the TRRC Act, 2017 has bestowed too much power onto the President to appoint, upon consultation with the Minister and the Public Service Commission, the Executive Secretary to the TRRC [TRRC Act, 2017; section 22(2)].
I hold the same view in regards to the power the Act confers on the Minister to appoint a Deputy Executive Secretary to the Commission.
Overall, the powers conferred to the President by the Act is excessive: The President is empowered to appoint the members (TRRC Act; section 5(1), Chairperson & Deputy Chairperson (TRRC Act, 2017; section 5(2), Executive Secretary (TRRC Act, 2017; section 22(2) as well as fill any vacancies that arise (TRRC Act, 2017; section 12).
Further, the President is able to remove Commissioners (TRRC Act, section 10(1-3) and may also be able to remove the Executive Secretary (TRRC Act, 2017; section 22(6). It can be argued that the President may be prejudiced in his hiring, firing and rehiring of some Commission staff. Further, we must also realise that the President, the Executive Secretary and probably the Minister fought against the tyrannical rule of the previous regime whose human rights abuses the Commission is set up to investigate.
To my mind, the conflict of interest is obvious. Some of the victims who have waited so long for justice may see nothing wrong with conflict of interest. To the perpetrators of the crimes (and most likely the international community), the appointments and possible firing/rehiring of conflicted individuals (President, Minister, and Executive Secretary) may be prejudiced and may be justifiably perceived as being fair. I am not a lawyer, but I believe justice has to be seen to be delivered fairly.
[Some questions that will not go away from my mind are: Were the victims or families of affected victims ever asked what they want or expect out of the TRRC prior to the construction of the Act? If not, would it not have been more reasonable to construct the Act at the conclusion of a comprehensive public consultation on the matter?
To me, it seems that the Act was constructed without public consultations and it is only now that they are doing the public meetings. If this is true, then the Act is a work of fiction. If they had constructed the Act following due process, they would have a good chance in capturing something in the Act that matches the expectations of the victims. The current Act cannot deliver what it promises – the last time I checked, the streets of the Gambia were not paved in gold. Why do we like to put the cart before the horse in the Gambia?]
One would have thought that such appointments should not have been left, at best, in the hands of an individual. The work is complex and potentially toxic and so appropriate checks must be applied to ensure that appropriate vetting took place so that the most suitably qualified individual is always recruited. This can only be effectively carried out if we take corrective measures that ensure that we carefully plan what it is that we want to do and assemble a team composed of individuals who have the intuition to do such complex work.
Thus my suggestion for a better procedure in regards to composing the team in the TRRC Secretariat, and where possible staff to the Commission, would have been as follows:
⦁ Following the outcome of a public consultation and the drafting of the TRRC Act, an impartial body composed of suitably qualified individuals with integrity, vision, good track record (in recruitment and selection) and influence be constituted to consider applications to the post(s) through a competitive process which follows good standards and processes (by the way, using a GMAIL is unacceptable!);
⦁ The body makes recommendations [to e.g., Parliament (– a body) and not the President or Minister as the former is definitely conflicted] to appoint the individual(s) qualified for the post, based on merit.
On the appointment of the Executive Secretary to the TRRC: It is my view that the TRRC Act, 2017 conferred too much power onto the President to appoint an individual, upon consultation with the Minister and the Public Service Commission, to this post. Anyone who has read the TRRC Act, 2017 and knows the academic qualifications, skills and competencies which are explicitly stated and implied to do the work would know that the President has got the appointment of Executive Secretary to the Commission very wrong.
For a start, the President is conflicted – he fought against the previous regime and should not have been empowered by the Act to appoint an Executive Secretary to the Commission who also brings conflict of interest to the post. Most of us, if not all, know that Dr. Baba G. Jallow was wronged by the former regime, resulting in his exile in the US for some 16 or more years, so he may well have to appear before the Commission. I think the perpetrators of the crimes may be justifiably concerned that the process may not be impartial or perceived to be fair. Is this what we mean when we say new Gambia?
Heading the Secretariat is a challenging assignment, but also a potentially rewarding one if the work of the Commission can be successfully completed as it will make attractive the resumes of those involved. But what about the rest of us when the TRRC goes wrong, as it is likely to? While it can be considered almost wrong or a weakness to shy away from challenges, we must declare if some challenges are a little beyond our capabilities, i.e., whether, in the interest of doing the job well, one is suitably qualified to take on some challenges. Having read the TRRC Act, 2017 which specifically addressed the criteria and responsibilities of the Executive Secretary, it is my view that Dr. Jallow could have declined the job offer from the President on grounds that he does not fulfil most of the items which could be broadly described as essential and desirable.
Further he too must know that he brings conflict of interest to the job. I have come to the decision, with regret, that Dr. Jallow is not suitably qualified for the post of Executive Secretary of the Commission and some of my reasons can be summarised as follows:
⦁ That there is conflict of interest because he was a victim of the rights abuses of the former regime. The perpetrators of the crimes may have legitimate concerns that the Commission is prejudiced against them in appointing him to this role; the process must be perceived to be fair and his presence in the post does not give the process the impartiality it deserves;
⦁ That he does not have the experience of 10 years in administration or management (TRRC Act, 2017; section 22(4)(b) required to hold the post. Although I describe the TRRC Act, 2017 as a work of fiction, there must be a good reason why the requirement of at least 10 years in administration or management was inserted in it. Indeed, upon reading the Act, one can explicitly see the need for an appointee to fulfil these criteria, with many more reasons being implied;
⦁ That it is doubtful if Dr. Jallow possesses competencies in the other duties and responsibilities required to effectively and with distinction carry out the duties of the post such as outlined in the following sections of the TRRC Act, 2017: 24; 26; 27(2); 28; 31(2)(a)(i-ii); and 32(a)(b).
⦁ In regards to item 3 above, one can argue that the TRRC Act, 2017 empowers our Dr. Jallow (the conflicted Executive Secretary) to appoint and engage consultants, and advisers as the Commission may require (TRRC Act, 2017; section 24(1) & (3). The problem with him appointing staff or Consultants to the Commission is that he cannot be perceived to be impartial in his appointments because he was a victim of the rights abuses the Commission is set up to look into.
And please allow me to insert some cautionary notes here. In order to avoid the cost of this time-limited Commission spiraling out of control, in the best case scenario, the Executive Secretary must be able to do much of the work himself or recruit an individual(s) who can do what he cannot do; that individual must also have considerable influence.
On the issue of spiraling costs, Dr. Jallow’s office is in a hotel, which in all likelihood is not free. Our governments are quite good at saying and writing what they want to do for the people they are meant to serve – as if money grows on trees, but very poor – without much effort, at costing and doing things well, and a large percentage of us fall so easily for their promises – every time.
I do not doubt Dr. Jallow’s abilities as a fine historian and a fine writer too, which is necessary for this work, but I question his other skills and competencies to do this assignment well. We must not confuse title/knowledge/capacity to do a job with leadership. Titles hold no value when it comes to leadership or capacity to do a job and do it well which is always of paramount, most especially here. Leadership may often be assigned, or awarded, but true leadership is earned and one has to invest in it for a considerable amount of time to acquire good leadership skills. By appointing someone with even lower qualifications, leadership skills and influence as Deputy Executive Secretary, I believe we are missing the opportunity to establish a strong team in the Secretariat of the TRRC.
On the appointment of the Deputy Executive Secretary to the Commission: The TRRC Act, 2017 empowers the Minister to appoint the Deputy Executive Secretary to the Commission upon consultation with the Executive Secretary (TRRC Act, 2017; section 22(7). However, the appointment of Ms Musu Bakoto Sawo to the Deputy Executive Secretary could have passed some very basic checks. In my view, empowering the Minister and the conflicted Executive Secretary to appoint a Deputy Executive Secretary undermines the impartiality of the Commission and may be perceived improper.
Further, it is not sufficient for the (conflicted) Executive Secretary to give the recommendation to appoint Ms Sawo as Deputy Executive Secretary a nod without the (conflicted) Executive Secretary exercising his duties by using the provision the Act confers upon him, in regards to appointments. Here, section 24(1) of the TRRC Act, 2017 says ‘The Executive Secretary may appoint through a competitive recruitment process, such other staff as the Commission may require.’
In my view, it would have been reasonable, justifiable and proper for the Executive Secretary to work within the spirit of the provision of the Act in regards to making his position known to the Minister so that public funds are used appropriately. After all, it is the Executive Secretary who has responsibility over the use of the Commission’s funds (TRRC Act, 2017; section 28). In short, did Dr. Jallow ask the Minister if the recruitment of Ms Sawo to the Commission pass the competition test (TRRC Act; section 24(1)? I suppose I can see how the (conflicted) Executive Secretary could feel awkward asking such a question, because his own appointment may not have passed the competition test. Will we ever know?
The point here is that if we can shout our lungs out when we are on the touch lines, we must ensure that we do what is expected of us when we are in theatre. It is an insult to our intelligence to assume that we can be fooled; perhaps some can be, but not all. We have all lived through some failures (-I mean governments but I suppose applicable to self).
Therefore, going forward, we must work in a manner that shows that we have understood and learnt from past failures. This reflective practice is important for our recovery. Let’s abhor mediocrity; we can either choose to do the TRRC well or ask the victims what they want/expect for the wrongs they endured under Jammeh.
To do it well, we would need to bridge the capacity gap by securing the engagement of highly skilled individuals, Commissioner(s) and an able Chairperson who bring impartiality to the task and can help direct the functions of the Secretariat (TRRC Act, 2017; section 23(1)(f) and the Commission. And the recruitment and selection of staff to the Commission must be done by individuals who will not undermine the impartiality of the Commission.
Proof of the pudding is in the eating! Let’s not rush to judge their competence. I am sure Baba and his deputy will prove their critics wrong.
Keluntang,
We must not misconceived the substance of what the writer is trying to communicate here, that is the head of the Commission is conflicted by the nature of his past dealings with the previous regime .As a result this has given rise to a fundamental problem of conflict of interest which is likely to have impinging effect on the credibility of the Commission”s findings. More so, an objective observer is likely to think the Commission cannot be impartial in its proceedings given the perceived conflict of interest. Therefore, its findings are likely to be seen as ‘cooked’. OK I get that, this may be seen as trivial matter to the elites of Banjul village, but there is wider legal and political ramifications because Commission’s findings may be a subject of contentious legal proceedings later in court, or perhaps, the political opponents may use such as tool to score political points. Let us not miss the point here, in my view, it is the integrity of the Commission that has been called in question by the writer,indeed, the staff possess ‘fine skills’ as the writer stated.
I thank Solomon for drawing Keluntang´s attention to the wider legal ramifications of this serious oversight on the part of the powers that be – a potential national scandal if you will.
Reading between the lines, one can clearly conclude that Mr. Solomon is by no means amongst the uninitiated as far as executing judicial functions are concerned. Regarding the problem that Dr Janneh competently draws our attention to in his article, one can´t help pointing some accusing fingers at senior legal officials at the Attorney General´s Chamber. Indeed, one of their paramount duties towards the Gambian state is to warn decision-makers in advance as to possible conflicts of interest matters before formalizing such appointments. Solomon is right that failure to do so will taint decisions taken by the Commission in the near future with long drawn-out legal battles before the courts as an obvious consequence. Unfortunately, the oversight taints the professional reputation of senior officials of the AG’s Office as incompetent in the eyes of legal professionals all over the world as well. If such a blunder had happened in the kingdom where I in due course received my legal training, Denmark, both the minister and the senior officials responsible would resign from their posts or be dismissed by the Prime Minister with immediate effect. Not least because the latter would find it extremely hard to convince the general public that they were unaware of the Commission chairman’s conflicts with the former regime. Those records have after-all been in their custody for the years on end.
As to the substantive composition of the Commission, I’d like to draw the reader’s attention to the fact that Commissions of this nature are typically headed by jurists/lawyers with a number of years experience – judges of superior courts for example. Not least, in that such Commissions often make decisions that are legally binding, hence the need for expertise in assessing witness statements and all the other evidence materials before it with well-trained and time-tested legal eyes. Dr Janneh’s concerns as to the absence of such an expertise as far as the Commission Chairman is concerned are legitimate, which also begs the question: Why has the GBA not raised similar concerns even before the appointment was made formal? Is it because of lack of consultation on the part of the executive branch of government? In any case, such question are as of now of mere academic interest. The time has now come for them to take a professional stance on this serious matter since the Body can no longer claim ignorance – and in line with their patriotic duties towards the nation.
As to his critique of the president’s/minister’s competence when it comes to appointing Commission members, I am afraid to say that I do disagree with Dr. Janneh on that very point. Most, if not all, of the concerns he raised in this regard are far from water-tight. In the first place, top quality legal advice from the AG’s Office combined with a thorough vetting process could certainly nip the lion’s share (if not all) of those concerns in the bud. Even in mature democracies, it is not unusual for a minister or the Prime Minister to make such appointments.
Last, but not least, I once again thank Dr Janneh for drawing the nation’s attention to this potential national scandal.
“Mature democracies”; that’s the difference, Mr Drammeh. Ours is NOT a mature democracy and the fact that the use of appointments to gain loyalty or reward relationships is a tradition in our democracy, means that we MUST curb these executive powers.
I don’t know Denmark, but I’m sure the PM’s appointments and/or removals would always be subjected to intense scrutiny by independent state institutions, the media, and a vibrant civil society.
Unfortunately, these are all missing in The Gambia and thus, such executive powers would affect us different. That’s why we have to be wary and cautious, if we want to achieve that level of maturity.
My take:
1. Very pertinent observations by Dr Janneh. I hope more considerations will be given to the factors he raised in future appointments.
2. It is doubtful, as far as I am concerned, whether a suitably qualified Gambian can be found to carry out the tasks, as per the TRRC Act. The reason being that 20 years of Jammeh’s madness has hardly left any Gambian unaffected, one way or the other. So, we are ALL conflicted in a way.
3. If, on the other hand, a Gambian who meets the stated criteria, and is unconflicted can be found, I wonder what the public perception of such a person would be, given the lengthy struggle against the Jammeh tyrany. How could this “clean, unconflicted” record be explained?
4. Notwithstanding the observations raised, I believe Dr Jallow can deliver and do so well. He may not have the 10 year experience as a senior legal practice (ie high court judge), but he can seek expert advice where needed.
5. I am not a fan of the Barrow/Darboe Administration (not least due to how they betrayed the coalition partnership to create a UDP Government), but I think our unique circumstances makes certain actions, like the constitution of commissions and appointment of commissioners understandable, especially given the time constraints.
6. The concentration of so much power in the executive is something we have to be concerned about, and we must be vigilant that the new Constitution does not create another monarchical President/Presidency.
We must also not make the mistake of thinking that what obtains in other places should be applicable in The Gambia. We have a culture and traditions in government that are totally different from many other places. So our laws must take this into consideration.
I think the powers of the Executive MUST be curbed and Institutions that are meant to be INDEPENDENT, must be INDEPENDENT and be seen to be INDEPENDENT.
For example, the Legislatures (National Assembly) is supposed to be INDEPENDENT, but how can it be when the Speaker is put in there (and probably removable) by the President?
Similar situations can be found at the Judiciary, the Civil Service, the Security Forces, the Prison Service, the Electoral Commision, etc. (The Executive has a degree of influence over all these institutions, through the power of appointments/removals/promotions/demotions, etc.
I thank Bax for the comments above. Simultaneously, I feel constrained to at least try to explain in very, very simple terms the difference between the “general” and “legal” meanings of “incompetence” – not least for the benefit of readers without a legal background.
In legal terms, when Dembo is said to be competent to do something all it means is that he has the legal ability to do something. In contradistinction to this definition the “general” meaning of the term is: Dembo is able to do something or has the requisite qualification to do something. The bone of contention in this debate is not whether Dr Jallow has the requisite intellectual ability to perform this honourable duty. Far from it!! Solomon and Dr Janneh himself concede that fact in their respective pieces. Rather, it is whether or not Dr Jallow has the “legal ability” to perform his duties – i.e. without prejudice to the broader interests of those summoned before the committee in due course.
As the commission charged with carrying out adjudicative duties, it is important to remind readers with a non-legal background that most of the rules that apply to trial judges during trials automatically apply to Dr Jallow. One of which is the absence of conflicts of interest between the judge and parties appearing before him/her. As Dr Jallow has had fights with the former regime, there is a universally accepted legal assumption that his rulings shall accordingly be seen as biased against the latter. Hence, those sanctioned by the tribunal in due course shall have the right to challenge the rulings inter alias by invoking the conflict of interest issue at hand. One can easily guess that the litigation expenses involved for the Gambian state shall be immense – money that could be better used in other sectors of the national economy.
I reiterate none of the comments above has set questions marks to Dr Jallow’s intellectual ability to perform the duties of a chairman – far from it. It is his “legal” ability to perform these duties that constitute the bone of contention in casu, and nothing else. For the reader’s information, this author has served as legal secretary to an Appeals Board dealing with competition, consumer protection and matters dealing with social security law in Greenland some ten years ago. Whenever we had board meetings, those board members with even a minimum of conflict of interest in individual cases would declare so before other board members before routinely vacating their seats so the meetings could carried on. The approach is even recommended by the Danish Justice Ministry’s “guidance notes” on administrative tribunals and the like.
I have no doubts that Dr Jallow would have done otherwise had he known the wider legal consequences of the “conflict of interest” doctrine. Our current government, by all indications, believes in the rule of law, hence the need for us as a nation to jealously stick to it. No matter what the costs. It is only through that, that we eventually can ensure the entrenchment of democratic values among citizens.
As for point 6, final paragraph of Bax’s comment above, I recommend that he borrows an A-level lext book on government and politics from the nearest library. That would demistify the workings and functions of parliament, the judiciary and the executive in his eyes as well as teach him how the civil service works … and the relationship between civil servants and politicians. I in due course learnt about all those matters from “government” o’level sylabus in The Gambia years back, i.e. I could answer those questions even before sitting for my A’level examination at Rygaard International School in Copenhagen.
Mr Manneh…
I thank you for your response but to be honest, I’m not sure how to react to it.
I don’t see the need for that attempted simplified explanation of the difference between the “general” and “legal” meanings of “competence”, for I have neither questioned the writer’s (Dr Janneh) position on the competence of Dr Jallow, nor even used the word, “competence” in my comments. All I have said is that “I believe Dr Jallow can deliver and do so well.” I’ve avoided using the word, “competence/competent” for obvious reasons.
Equally, I do not know what to make of your reaction at point 6.
Did you say that I should “borrow A level book lext on government and politics” to comment on Gambian politics and how the excessive concentration of power in the executive affects sensible governance?
If I, or probably anyone of us, requires to borrow books from a local library to understand how the concentration of power in the executive has stifled our practice of democracy and good governance, then I would say that’s evidence of our absence or disengagement from The Gambia’s political and governance process for a very long time. I wouldn’t say it’s evidence of our ignorance, but I would say it does question our understanding of how we got here and why.
For the record, Gambia emerged as a colonial entity, where sovereignty and ALL power resided in the monarch. Today, though sovereignty is supposed to reside in the people, the Presidency can influence how that is expressed or exercised, if it so desires, through several powers vested in it .
Take the IEC, one of the institutions via which we express our sovereignty to decide who manages our resources, as an example.
● Who directs the activities of the IEC? ■ The Chairperson and Commissioners.
● Who appoints/removes these officials? ■ The President, an elected official.
That’s like the sword of damacles hanging over the heads of IEC officials. Do I need to borrow a book to see how this could compromise their work?
In any case, even if this (power of executive to appoint/remove) is the norm all over the world, and is contained in books and taught in institutions, are these devine proclamations that we can’t do anything different? Must we ALWAYS copy and imitate what others do? Can’t we look at our own situation and chart out what is best for us?
Please Mr Manneh, I may not acquire your level of education, sophistication and experience, but I don’t need a local library to understand why Jawara can get us into a Confederation that nearly destroyed our country or why Jammeh can order the arrest and incommunicado detention of citizens, almost as a past time.
Bax, thanks for the questions posed above, not least my suggestion that you should borrow an A-level textbook on government and politics. My primary reason for so doing is my earnest believe that our compatriots are among the most politically illiterate on our vast continent. Thanks to my observation of the level and quality of political debates in our local media in recent years. Things would have been otherwise had our former semi-educated dictator not removed the subject “government” from the school curriculum some two decades ago.
Almost every Gambian has his/her “everyday philosophy” about politics, but not many of us are conversant with the philosophical basis of politics and its institutions in the scientific sense of the term. The subject government in due course opened up my eyes in this regard. Hence my brotherly suggestion that you probably should do likewise with a view to deepening your understanding of the universe of government and politics since you by all indications have not had the subject during your school days in The Gambia. No offence intended. In fact, and as I have consistently argued over the past eighteen or so months: GOVERNMENT AND POLITICS SHOULD BE MADE A COMPULSORY SUBJECT IN ALL OUR SENIOR SECONDARY SCHOOLS – SOONER RATHER THAN LATER.
The logic behind the above suggestion being the simple fact that it is my considered opinion that it is far easier to discuss the nation’s future political direction fruitfully if we have a common understanding of what government and politics is all about. That is in contrast to status quo where our individual “everyday political philosophies” are typically at variance with one another.