By Alf Soninke
If we go by what we heard at The Gambia Participates forum, the anti-corruption bill appears in grave danger. The bill seeks to enact “an Act to prohibit and prescribe punishments for corrupt practices and other related offenses and connected matters.”
It has been pending since 2018 and could suffer the same fate as the bill on the draft Constitution 2020, should Gambians and donor partners funding the ongoing transitional justice process fail to be vigilant.
With the NAMs taking a recess, now is a good time to alert the public and Gambia’s development partners about the threat our lawmaker’s actions present to enacting an anti-corruption law with teeth.
Indeed, based on what we know, it is time for all concerned to insist that the lawmakers stop tampering with the good work done by the Ministry of Justice drafters of the bill, which was validated at stakeholder consultation workshops, to produce “a progressive law” to fight corruption in the country.
Now, this is a call for vigilance, and action must be heeded after millions of Gambian taxpayer Dalasis were invested – without much to show in reaching the desired goals – by both the Gambia government and its donor partners in the CRC and TRRC processes.
In wrapping up their ordinary session before they adjourned sine die on Thursday, 21 September, the NAMs decided to defer further consideration of the bill to their next meeting.
This has been described as “delaying tactics” by NAMs suspected of wanting to derail the process after creating the perception of whittling down the bill’s contents.
The fate of the draft Constitution 2020 could be recalled, which they debated at the first reading and then threw out.
When the NAMs reconvene, the anti-corruption bill is expected to be scheduled for the third reading.
However, already our NAMs have ensured that any new anti-corruption law they pass will not be retroactive.
Public officers such as Cabinet members are required by law to make an assets declaration when they take office.
It makes it possible to compare, for example, their possessions like houses and cars, monies in the bank, and so on when they leave office with what they declared when they took office.
President Adama Barrow has been in office since 2016 and is now in his second term after being re-elected in 2021.
Over this period, he has appointed persons to his Cabinet and other public service positions in various branches of the government. These public servants make asset declarations at the office of the Ombudsman.
Making the anti-corruption law retroactive makes it possible to evaluate what new property they acquired in office and assess them for any corruption while in office.
We remember that the provision that the two-year term limit is retroactive was one of the reasons some NAMs rejected the draft Constitution 2020.
In the draft, counting would begin from 2017, when Barrow’s first term started, and his second term ended in 2026, meaning he cannot legally seek re-election.
Also, before taking a recess last week, the NAMs voted to remove the following provision on “illicit enrichment” in the bill. It stated as follows:
Section 37. Illicit enrichment
“A person who, being or having been a public officer, is in possession of unexplained wealth, through himself or herself or another person-
(a) maintains a standard of living above that which is commensurate with his or her present or past official emoluments; or
(b) is in control of pecuniary resources or property disproportionate to his or her present or past official emoluments, unless he or she gives a satisfactory explanation as to how he or she was able to maintain such standard of living or how such pecuniary resources or property came under his or her control, commits an offence and is liable on conviction to a fine of three hundred thousand dalasis or to imprisonment for seven years or to both.”
Undeniably, this provision should form part of the bill; whoever wanted and had got it removed cannot claim to be serious about fighting corruption anywhere!
It was emphasized at the Gambia Participates forum that removing this particular provision on “illicit enrichment” severely weakened the bill – and definitely reduced any future law into a toothless bulldog.
So the questions Gambians and their donor partners funding the transitional justice projects must now ask are:
Who is afraid of making the bill retroactive? Who is afraid of maintaining the provision on “illicit enrichment”?
Also, who was reportedly calling for removing the phrase “undue advantage” everywhere it appears in the bill? And, who favors that, and what is their motive? For clarity, the phrase “undue advantage” is used here:
Section 31. Bribery concerning contracts
“(1) A person who, without lawful authority or reasonable excuse, offers an undue advantage to a public officer as an inducement to, reward for, or otherwise on account of such public officer giving assistance or using influence in, or having given assistance or used influence in-
(a) the promotion, execution, or procuring of-
(i) any contract with a public body for the performance of any work, the providing of any service, the doing of anything or the supplying of any article, material or substance; or
any sub-contract to perform any work, provide any article, materials, or substance required to be..
Gambia Anti-Corruption Bill, 2019 performed, provided, done, or supplied under any contract with a public body or
(b) the payment of the price, consideration or other moneys stipulated or otherwise provided for in any such contract or sub-contract as aforesaid,
commits an offence and is liable on conviction to the confiscation of the proceeds of the crime and a fine of one hundred thousand dalasis or imprisonment for three years or to both.
(2) A public servant who without lawful authority or reasonable excuse, solicits or accepts any advantage as an inducement to, reward for, or otherwise on account of him or her giving assistance, using influence in, having given assistance or used influence in-
(d) the promotion, execution or procuring;
(e) the payment of the price, consideration; or
(f) other moneys stipulated or otherwise provided for in,
any contract or sub-contract as is referred to in sub-section (1) commits an offence and is liable on conviction to the confiscation of the proceeds of the crime and a fine of one hundred thousand dalasis or imprisonment for three years or to both.
(3) A public officer who in the course of his or her official duties, inflates the price of any goods or service above the prevailing market price commits an offence and is liable on conviction to the confiscation of the proceeds of the crime and a fine of one hundred thousand dalasis or imprisonment for five years or to both.
(4) A public officer who in the discharge of his or her official duties, awards or signs any contract without budget provision, approval and cash backing, commits an offence and is liable on conviction to the confiscation of the proceeds of the crime and a fine of fifty thousand dalasis or imprisonment for one year or to both.
(5) A public officer who, without lawful authority, transfers or spends any sum allocated for a particular project, or service, on another project or service, commits an offence and is liable on conviction to the confiscation of the proceeds of the crime and a fine of fifty thousand dalasis or imprisonment for one year or to both.
The following is also part of the anti corruption bill: Section 20. Corrupt offers to Public Officers
(1) A person who – (a) gives, confers or procures, directly or indirectly, any property or undue benefit of any kind to, on or for a public officer or any other person; or
(b) promises or offers to give, confers, procures or attempts to procure, directly or indirectly, any property or benefit of any kind to, on or for a public officer or any other person,
on account of any such act, omission, favour or disfavour to be done or shown by the public officer commits the offence of corruption and is liable on conviction to the confiscation of the proceeds of the crime and a fine of one hundred thousand dalasis or imprisonment for seven years or to both.
(2) If in any proceedings for an offence under this section, it is proved that any property or undue advantage of any kind, or any promise or offer thereof, was given to a public officer or some other person at the instance of a public officer, by a person-
(a) holding or seeking to obtain a contract, licence, permit, employment or anything whatsoever from a Government department or public body in which that officer is serving as such;
(b) concerned or likely to be concerned in any proceeding or business transacted, pending or likely to be transacted before or by that public officer or a Government department or public body in which that public officer is serving as such; or
(b) acting on behalf of or relative to such a person, the property, benefit or promise shall, unless the contrary is proved, be deemed to have been given corruptly on account of such past or future act, omission, favour or disfavor.
In conclusion, what we are saying here was picked up at The Gambia Participates forum we attended and participated in.
There, the alarm was sounded for CSOs and the media to help sensitize the public and international community on the perceived efforts to weaken and delay passing the bill, as highlighted above.
The one-day Gambia Participates forum deliberated on the work of oversight government institutions such as the police, National Audit Office, and National Assembly In holding government institutions accountable. Also, civil society, including the media, holds state institutions accountable.
Participants at the forum heard a presentation from a representative of the office of the Inspector General of Police, focusing on the outcome of recently investigated corruption cases at the office of the IGP.
A representative of the Ministry of Justice in Banjul spoke on the ministry’s response to corruption and corruption-related cases in the public sector.
Representatives of the media and CSOs presented the many findings of investigative journalists and how the two can work with public accountability institutions in fostering accountability.
The presentations and discussions by participants also tried to answer the question: “Are there political will challenges?”
The forum also heard from the honorable Alhagie S Darboe, the chair of the Finance and Public Accounts Committee (FPAC) of the National Assembly, on the FPAC’s work to address the reported mismanagement of public funds as highlighted in reports of the Auditor General.
The chair of the Public Petitions Committee (PPC), honorable Suwaibou Touray, briefed the forum on the fate of corruption-related public petitions submitted to NAMs.
The Gambia Participates forum was organized with Transparency International and funded by the European Union. It was held on Friday, 22 September 2023, at the SJDK International Conference Center.
Attending were representatives of CSOs, the media, members of the National Assembly, as well as representatives of the Ministry of Justice and office of the Inspector General of Police (IGP).
Marr Nyang, Executive Director of Gambia Participates, gave the introductory remarks and served as moderator.
The presentation by the representative of the office of the IGP was delivered by the officer commanding the police Fraud Squad, Buba Ceesay.
The representative of the Ministry of Justice was Alieu Jallow, Curator of Intestate.
Sait Matty Jaw, Executive Director of the CRPD, represented and presented for CSOs and Yusuf Taylor, Editor of Gainako Online, presented on behalf of the media fraternity.