James Madison, America’s fourth President, made a significant contribution to the ratification of the Constitution by writing The Federalist Papers, along with Alexander Hamilton and other “Publius,” wrote in Federalist 51, “ambition must be made to counteract ambition.”
The Executive and Legislature were designed to battle each other for power, but what does this look like in practice in the Gambia?
There is an assault on the Judiciary, and the Legislature is under attack; our emergent democracy is under a severe threat of subversion, the Executive is frustrated, and our Constitutional governance is in danger are some of the “casts” that now are commonly spewed out when the consequences of personal failures are being masked as attacks on our institutions of State.
In our constitutional democracy under the rule of law, underpinned by the doctrine of separation of powers amongst the three arms of Government: Legislature, Executive, and the Judiciary, the twin doctrine of checks and balances operates to ensure interdependence of Government and equilibrium of powers amongst the three arms.
This guarantees the functionality of Government, the prevention of the emergence of executive dictatorship, and, overall, the preservation of the democratic order.
There is a time to fight the Executive of Government and insist on the independence of the Legislature, a time to grandstand that, as the bulwark of a representative government, the Legislature must guide its autonomy jealously, and must not allow dictation from the intruding and obtrusive executive arm.
However, there is also a time to desperately plead for the interference of the Executive in the affairs of not only the Legislature but also in the “travails” of the leadership of the Legislature.
A time when lawmakers go with subdued ego to solicit the intervention and assistance of the Executive to resolve a problem that may affect the Legislature or the political fortunes of the leadership of the Legislature.
In the Gambia, it appears this is such a time. Struggles between Executive and legislative authorities in governments are nothing new.
In John Locke’s famous essay, Second Treatise of Government, Locke argued that the executive power in Government should hold the prerogative power, or the ability to make decisions in times of emergency to address a situation adequately.
In other words, the Executive must have the ability to act swiftly in a way that a deliberative body is unable to act. At the same time, Locke believed that people as a whole would ensure that this prerogative power is not abused.
On 19th March 2020 President Barrow signed the first Proclamation, which was published in the gazette under section 34(1)b) of the 1997 Constitution declaring that a situation exists which, if it is allowed to continue, may lead to a state of public emergency.
The Legislature reconvened and approve the motion for the extension of a period State of Public Emergency in the whole of The Gambia, following section 34(2) of the 1997 Constitution, for 45 days, effective 03rd April 2020. The Constitution gives that role to the legislative branch.
The Executive applied Locke’s ideas on prerogative power to the Legislature is given the power to fund operations; the Executive is delegated authority in conducting the need of the executive authority to make decisions to protect the nation quickly.
The morality, ethics, values, and beliefs of the actors heading these three arms of government impact on and shape their institutional capacities to play the checks and balances roles that are assigned to them by the Constitution.
An incompetent, morally unfit, and ethically challenged President, for example, may bring about a weak, corrupt and inefficient presidency, which may be incapable of performing its checks and balances roles regarding the exercise of, or abuse of powers by the two other arms.
Similarly, an incompetent, corrupt and ethically challenged leadership of the National Assembly may become so vulnerable and insecure that it may lack the gut to rally the National Assembly to check the excesses of the Executive and thus prevent a slide into a dictatorship.
Do Gambians have the discernment to detect and detest this fraudulent claim? The executive arm is currently, and the Legislature has been unable to agree on budget spending through Virement, the Minister of Finance and Economic Affairs authorizing the budget virement policy of the Gambia Public Financial Act.
Specifically, the two sides have so far refused to compromise on the issue of Executive authorizing the spending of virement policy.
Some members of the Legislature describe Virement as “fraud,” which the Executive accuses the members of the Legislature “engages in for unparliamentary languages” and use of profanities deemed inappropriate against the Executive in the hallowed chamber.
Virement budget policy is the process of moving money from one financial account or part of a budget (a plan for how the money will be spent) to a different one. For example, within the Government where one department underspends and another department needs more funding, the funds can be procured through Virement.
How would the Legislature be able to deal with the Executive for engaging in extra-budgetary payments of oil imports, other essential commodities subsidies and palliatives and not making disclosures, other than to pliantly and submissively appeal to a brazenly contemptuous executive to please bring a supplementary appropriation bill to capture the subsidy payments already made without appropriation!
As for the Judiciary, it is indisputable that if the leadership of the Judiciary is ethically challenged, is not only justice administration endangered, but also the discharge of the arduous duty to confine the Government and the governed to the narrow path of constitutionality and the rule of law will fail.
It, thus, can be seen how vital qualification, credibility, integrity, and sound ethical credentials of the leaderships of these arms of Government are to the smooth operation and perfect functioning of the arms of Government themselves.
Sadly, we have observed that sometimes when the leaderships or some in the memberships of these three institutions are facing ethical or political challenges, the entire institutions which they head, or to which they belong are deftly blackmailed into solidarity, they are roped in.
