President Barrow’s appointment of Mr. Nuha Touray as the new SG & Head of the Civil Service is unconstitutional. I know Mr. Touray very well, and I have alot of respect for his ability to deliver. Given his qualification and vast experience in the public service, Mr. Touray’s competence is not in doubt. If the President in the exercise of his Executive powers appoints him as his new SG, that’s ok as long as its legal. The law confers on President Barrow the authority to appoint his SG, and having regard to such a sensitive position, the President would be right to appoint someone he trusts and someone in whom he reposes full confidence. In that sense, it would be proper for President Barrow to keep Mr. Touray if he fits that description. In doing so, the President’s powers are circumscribed by the 1997 Constitution.
Section 61(2) of the Constitution imposes a legal obligation on the President to uphold and defend the Constitution. That is to say, this appointment must pass the constitutional test, and not contrary to it, as appears in this case.
Section 168 (1) 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.
However, the President may still keep his new appointee on the condition that he first appoints him into the public service on permanent terms. Subsequently, he could elevate him with an appointment as Head of the Civil Service the next day or same day if he so wishes. It may raise ethical issues but would certainly be lawful. So far, available evidence suggest that this was not done. I request the President to regularize the status of Mr. Touray in compliance with Sections 61 (2) & 168 (1) of the Constitution, except if Mr. Touray retains his position in The Gambia’s public service, while simultaneously serving as an employee of the ECOWAS Commission in Abuja. I understand that President Barrow is not a lawyer, and should seek legal guidance on such matters to avoid preventable embarrassment.
Written by Mai Ahmad Fatty
Source: Mai Fatty’s Facebook page