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I cordially invite reference to an interesting and eye-catching article titled: “Mai says new SG’s appointment is unconstitutional”, which was duly published in the Wednesday 27th May 2020 publication, of the widely-read Standard Newspaper.
The first paragraph of the aforesaid article read thus: “Former Interior Minister Mai Fatty has said the appointment of the new Secretary General, Nuha Touray, is unconstitutional. President Barrow appointed former Cabinet Secretary, Nuha Touray, as the new S.G. on Tuesday replacing Muhammed B.S. Jallow, who retired…”
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My learned Junior, Mr Mai Fatty, inter alia wrote this on his Facebook page:“President Barrow’s appointment of Mr. Nuha Touray as the new S.G. & Head of The Civil Service is unconstitutional…” He went on to bogusly say:“Section 61(2) of the Constitution prescribes the mode of appointment of the Head of The Civil Service. It also delineates who is eligible for the position. The language is plain, direct and unambiguous. The person must be a serving member of the public service, and not outside the public service. Section 166(1) of the Constitution defines what constitutes the public service in The Gambia, and it includes the Civil Service. The President’s new appointee, IS NOT “a person holding an office in the Public Service on permanent terms,” and by law cannot be appointed to the position of Head of The Civil Service…”
My learned junior Mr Mai Fatty got it legally and constitutionally wrong. The key reason which he advanced, in a frantic effort to fault the aforesaid faultless Presidential appointment of Mr Nuha Touray, was purportedly that: Mr Nuha Touray,at the time he was appointed by His Excellency President Adama Barrow,he was an employee of ECOWAS, and therefore he was not a serving member of the Public Service of The Gambia, in The Gambia.
Mr Mai Fatty, myopically thought, that The Gambia Civil Service, starts and ends, on The Gambia’s territorial integrity. The very appropriate Land Law maxim, that comes surfacing to the landscape of my mind is: “Quic Quid Plantatur Solo Solo Cedit” (Latin:i.e. what is attached to the land, is also part of the land). I am putting it to my learned junior, Mr Mai Fatty, that it is legally feasible, for one to still be a member of The Gambia Civil Service/Public Service, even though, he or she is not physically, within The Gambia’s territory.
I am vociferously putting it to my learned junior, Mr Mai Fatty, that The Gambia Civil Service, is not strictly confined to the territory of The Republic of The Gambia. On the contrary, it definitely transcends beyond our national boundaries, as clearly confirmed by Order 02501, under Section 5: Secondment and Transfers, of The General Orders for The Public Service of The Gambia. Order 02501 reads:“Secondment and transfer opportunities will be availed to Officers in grade 6 and above provided they have served for a period of three years and are confirmed in their regular appointments.”
The very fact that, at the time my good friend and Civil Service colleague, Mr Nuha Touray, was deservedly appointed by His Excellency President Adama Barrow, as the Secretary General &Head of The Civil Service, he was probably an employee of our sub-regional organization (E.C.O.W.A.S.), this should not at all disqualify him for his well-deserved Presidential appointment, to the aforesaid exalted position, because the Republic of The Gambia, is indeed a Founder E.C.O.W.A.S. Member State, like Ghana, Sierra Leone, Nigeria etc., and they all simultaneously or contemporaneously signed The Treaty of Lagos, on 28th May 1975, in Lagos, the then Capital of the Federal Republic of Nigeria, which legally brought into being, our aforesaid cherished sub-regional organization.
It is also of paramount importance, for me to highlight the fact that, Mr Edward Singhatey, who was one of my most brilliant L.L.B. students, at the Faculty of Law of the University of The Gambia (U.T.G.), is indeed the immediate past, His Excellency the Vice President of ECOWAS,in Abuja, the new Capital of the Federal Republic of Nigeria.
If Gambians who have been employed by international, regional and sub regional organizations, are being discriminated against, for appointments to certain senior government positions in-country, simply because they are working out of The Gambia, this will certainly be a violation of“protection of the right against discrimination”, which is expressly guaranteed or protected, by Section 33 of our present 1997 Constitution, which is still legally in force. This is why, if a Gambian who is qualified, to stand as a presidential candidate, is ordinarily resident outside The Gambia, (in the diaspora), he or she must fully satisfy the residency requirement, before his or her candidature, can be fully accepted by the Honourable Alhaji Mr. Momarr Njai, the able Chairman of the Independent Electoral Commission (IEC). Distance should not at all be a basis, for discriminating against Gambians in the diaspora. In the same vein, that is why, in our so-called Final Draft Constitution, a long overdue provision has now been made, to enable Gambians in the diaspora, to vote in National Elections, that are organized in-country, by the IEC. After all we are now residing “in a global village.”
Also, if Gambians in the diaspora, are being discriminated against, for appointments to certain senior government positions, simply because they are resident and/or working out of The Gambia, this will also automatically be a flagrant violation of The African Charter of Human and People’s Rights, alternatively known as “The Banjul Charter of Human and People’s Rights”, since Article 15 of that famous sub-regional human rights Charter, expressly guarantees or protects “The Right To Work”, for all citizens and inhabitants of Member States, which have signed and ratified, the aforesaid important Charter. Presently all 52 African Union (A.U.) Member States (The Republic of The Gambia inclusive), have indeed signed and ratified, the aforesaid important Charter. They therefore, cannot now avail themselves, of the Contract Defence of,“Non-Est Factum” (Latin: not my deed).
My learned junior, Mr Mai Fatty, also said: “Section 166(1) of the Constitution defines what constitutes the public service in The Gambia, and it includes the Civil Service….” The very fact that, Section 166(1) of the aforesaid Constitution, authoritatively defines “the public service in The Gambia”, as “includes the Civil Service”, this clearly means, that “The Public Service”, is greater and bigger than “The Civil Service”, which, to use mathematical parlance, is indeed “a sub-set” of “The Universal Set” (ie The Public Service).
It was therefore legally wrong, for my learned junior, Mr Mai Fatty, to wrongly assert, that “…. The President’s new appointee, IS NOT “a person holding an office in the Public Service on permanent terms.” To provide more evidence or to prove beyond all reasonable doubt, that what Mr Mai Fatty said, was indeed legally wrong, let me draw the attention of readers, to a laconic and powerful article titled: “New SG’s appointment is constitutional”, which was recently published, in the Thursday 28th May, 2020 publication, of Gambia Radio Stations. Paragraph 3 of the said article read: “However, according to new information The Standard is privy to, Nuha Touray has actually been in The Civil Service for the past three years. The information reveals that Touray was reinstated into The Public Service on 3rd May 2017, after his dismissal from the Jammeh Government…”
To be continued
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