The KMC Saga: The Constitution vis-a-vis The Statute

Mr. Kawsu Jadama, Esq

By: Kawsu Jadama, Esq

If I may ask, who is calling the shots at the Kanifing Municipal Council – The President, The Lord Mayor or The Minister for Lands, Regional Government and Religious Affairs?

The President is the Head of State, Head of Government and Commander-in-Chief of the Armed Forces – by virtue of S: 61 of the 1997 Constitution.

If we may be allowed to tour the line of administrative cadre, the Minister for Local Government is directly responsible for all the Area Councils in the country, by virtue of the Local Government Act, 2002.

The Lord Mayor/Chairperson is the political head of Municipality/Council by virtue of S: 15, and the administrative head of Municipality/Council is the CEO by virtue of S: 43 of the Local Government Act, 2002 respectively.

What happens if something is unconstitutional?

When the Supreme Court rules on a constitutional issue, naturally, the followings happen:

1) the judgment is virtually final i.e res judicata;

2) stare decisis i.e “Standby things decided”. According to the doctrine of precedent, the lower courts are duty-bound to follow;

3) its decisions can be altered only by the rarely used procedure of constitutional amendment; or

4) by a new ruling of the court itself i.e a review.

However, when a constitutional court interprets a statute, and the need for a new legislation arises, action should be taken if need be.

Where there exists a conflict between the Constitution and a Statute, in law, the Constitution takes precedence. In like manners, where there exists a conflict between the Parent Act and a Subsidiary legislation, in law, the Parent Act takes precedence. Ask me why, and I will give my reasons later.

Back to the talking point, yes our topic of conversation in this discourse is predicated on Ss: 200 of the 1997 Constitution, and 151 of the Local Government Act, 2002.

From this juncture, if permitted, we would like to reproduce the aforementioned sections ipsissima verba, to wit:

Section 200 of the 1997 Constitution – Commission of Inquiry –

“(1) The President may whenever he or she deems it advisable, issue a Commission appointing one or more Commissioners and authorizing such Commissioners to inquire into:

a) the conduct of any public officer;

b) …;

c) the conduct or management of any department or authority of the public service or any local government authority or Public Enterprise; or

d) any matter whatever arising in The Gambia in which an inquiry would, in the opinion of the President, be for the public good.

(2) The National Assembly may request the President to establish a Commission of Inquiry for any of the purposes set out in subsection (1).

(3) …”.

For the purpose of clarity, we confined ourselves only to the relevant subsections of S: 200.

Section 201 delineates as to who is qualified to be a sole Commissioner and a Chairperson of a Commission of Inquiry.

Whilst S: 202 describes the functions and powers of Commission. Section 203 dictates the Publication of report, and S: 204 prescribes Adverse findings.

On the contrary, S: 151 of the Local Government Act, 2002 – Sectary of State to give guidance –

“(1) Where on receipt of a report on a Council, the Sectary of State is satisfied that a duty or power of a Council is being performed or exercised in an improper, unlawful or inefficient manner, the Sectary of State may, in respect of that duty or power, cause a meeting of the Council to be called and point out the irregularities found and give the Council any guidance necessary.

(2) Where the Sectary of State considers that the matter is of grave nature, the Sectary of State may institute a commission of inquiry to look into the matter.

(3) Where the findings of a commission of inquiry under this section disclose that an offence may have been committed, the Sectary of State shall refer the matter to the President for appropriate action”.

Now a closer look at the citations of S: 200 of the 1997 Constitution versus S: 151 of the Local Government Act, 2002, there lies a prima facie fundamental difference. The citation for S: 200 reads: “Commission of Inquiry”, whilst the citation for S: 151 of the Local Government Act, 2002 reads: “Sectary of State to give guidance”. Section 200 of the Constitution provides a comprehensive regime governing Commission of Inquiry, whereas, S: 151 of the Local Government Act, restricted the Minister’s role to “give guidance”.

If we are allowed to apply the Pith and Substance rule in this case, S: 151 of the Statute can be challenged as a trespass law that encroaches on the constitutional domain of S: 200 of the 1997 Constitution. If such a case happens, the law requires the courts to look into the substance of the case in relation to the subject matter.

Whilst I was discussing this topic with a lawyer friend of mine, he gave me an instance that justifies the argument I am about to make, and he wrote: “The doctrine of covering the field will apply in this area. When the constitution has covered the field a statute in respect of the same will not be operative in view of the constitutional provision. Assuming the legislation is inconsistent with the provisions of the Constitution, then the legislation is void to the extent of the inconsistency. Therefore, section 151 of the Local Government Act is not in operative, it is keep in abeyance. The Constitution is the legal framework for the establishment of the Commission of Inquiry”. E. Sallah of Counsel.

The Constitutional Doctrine of Covering the Field and its applicability:

The doctrine of covering the field is a constitutional law principle which is manifested specifically in a Federal System of government with particular respect to which legislating houses possess the constitutional power to legislate on laws in that state.

The doctrine of covering the field simply means that where there exist conflict between the legislation of a state and the federal parliament on a matter in the Concurrent legislative list, an inconsistency arises; and as between the two laws so enacted, the one passed by the federal parliament prevails and that of the state will be in “abeyance”, “imperative”, “suspended”, and “inoperative” during the life time of the federal law. Thus, this warrant the formulation of Exclusive legislative list and Concurrent legislative list respectively.

This lead us to interrogate whether or not the state legislature can make a law on a matter wherein exist an Act of the National Assembly.

This principle has been held in a vast litany of cases, and among them include the case of A. G Ondo State V. A. G Federation (2002) 9 NWLR (P.T 722) 222, the Supreme Court of Nigeria held that both the federal and state governments can enact laws to abolish corruption in line with Ss: 4, 15 (5), 318, item 60 (a), 67 and 68 in Part 1 of the Second schedule and Section 2 (a) of Part III of the Second schedule of the 1999 Constitution (as amended).

Constitutionally, both the federal and state government can validly make laws on matters enumerated in the Concurrent legislative list.

Notwithstanding, where the federal government enacts a law which expressly or impliedly covers the whole gamut of a subject matter contained in the Concurrent legislative list, the state cannot enact its own law to co-exist with the federal law on the same subject matter. This position was reiterated in the case of Saraki V. FRN (2016) LPELR – 40013 (SC), “Where the doctrine of covering the field is vogue in the Constitution any other legislation on the same field whether by federal or state governments must bow to the dictates of the Constitution. That other law/legislation, if not repugnant must be supplementary or subsidiary to the constitutional provision”. R. F. Diete Spiff Esq.

The doctrine of covering the field in Section 1 (3) of the Constitution of Federal Republic of Nigeria 1999 (as amended), which states that: “If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall, to the extent of the inconsistency, be void”, is in pari materia with S: 4 of the 1997 Gambian Constitution, and it reads: “This Constitution is the supreme law of The Gambia and any other law found to be inconsistent with any provision of this Constitution shall, to the extent of the inconsistency, be void”.

Olayinka Ayoola, JSC, in the case of INEC V. Balarobe Musa (2003) 3 NWLR (Pt. 806) 72, held that, “Where the Constitution has covered the field as to the law governing any conduct, the provision of the Constitution is the authoritative statement of the law on the subject.

The word ‘shall’ is mandatory in this case. However, in interpretations, the word ‘shall’ may mean ‘may’ and the word ‘may’ may sometimes mean ‘shall’, and vice versa. It only depend on the wordings of a particular provision.

Also, the word “‘void’ in law is bad, and not only bad, but incurably bad.You cannot put something on nothing and expect it to stay there. It will collapse”. See Alfred Thomas, The Lord Denning in the oft cited case of Macfoy V. United African Company 3 (1962).

By necessary implications, if we may Barrow the philosophical dictum of Parmenides “ex nihilo nihil fit”, out of nothingness comes nothing or out of nothing, nothing is produced.

A fortiori, from a stronger argument, we therefore submit that, any “Commission of Inquiry” is purportedly set up to investigate corrupt practices at the KMC, must be constituted by the relevant legal framework, and operates within the contours of such legal framework. Without such legal basis, that commission in the eyes of the law, is a nullity. To avoid a situation of “going on a wild goose chase”, we humbly submit that the laws governing the regime of “Commission of Inquiry” be revisited.

In our view, the doctrine of covering the field is very important legislative instrument because it helps to forestall a situation where there will be two conflicting laws on the same subject matter at two levels of government. This above statement, aptly described the KMC Saga.

As the constitutionality of the Commission is now been legally challenged, the matter deserves the attention of the Constitutional Court of the land for interpretation – by virtue of S: 127 (1) – Original Jurisdiction – though with a qualifier and an exception for that matter i.e Ss: 18 to 33, and 36 (5), which relate to fundamental rights and freedoms.

Therefore, in our final submission, we uphold that, the Constitutional provision overrides the Statutory provision. Section 200 of the 1997 Constitution takes precedence over Section 151 of the Local Government Act, 2002. Put it differently, S: 151 of the Local Government Act, offends S: 200 of the 1997 Constitution. Section 4 of the 1997 Constitution therefore, serves the purpose of a double-edged sword. It does not only present to us “Supremacy” of the Constitution, but also provides us with the Constitutional Doctrine of Covering the Field in our jurisprudence. That much stated, it plays an important role in the intellectual life of our legal system. Words are prone to different interpretations, even the most simple word can be misconstrued differently.

The views and opinions expressed in this write up are exclusively of the author, and do not reflect or represent the views of anyone else. Kawsu Jadama, Esq…


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