Is the President a Public Officer?

By Kebba Jeffang
At the false information trial of Borry J. Saidy yesterday 2 March,
the prosecution and defence defence debated on whether or note in the
eyes of the law the President of The Gambia is a public officer.A prominent lawyer Mr Borry S. Touray, the counsel in the
false information trial of Borry J. Saidy, the Acting Air Traffic
Service Manager at the Banjul International Airport (GIA), submitted
that the charge preferred against his client is incompetent
because the President of the Republic is not a public officer and
therefore the case should be dismissed.
Counsel Touray made this submission at Brikama Magistrates’ Court
before Magistrate Omar Cham.
When the matter was called the IGP was represented by Chief Inspector
Kebba Fadera while Lawyer Borry. S. Touray appeared for the accused
person.
The police prosecutor revealed to the court his intention of calling for
an adjournment of the matter as his witness is engaged at superior court.
However, the accused person’s lawyer said he is not objecting to the
application but that he too has an application which can proceed
without the presence of the witness. There was no objection raised
from the other side too.
The defence counsel applied for the dismissal of the charge against his client arguing that it is incompetent. He said the charge
sheet states that the accused person has given false information to
the President of the Republic as a public officer, which he added, is
not in line with the provisions of the laws of the Gambia.
B. S Touray added that since giving false information is under section
122 of the Criminal Procedure Code (CPC), the prosecution must prove
that the information has been given to a public servant. He said this
will raise the issue of whether the President is a public servant and
this question has been answered by the Constitution of the Republic. He
said the Constitution has negated the belief that the President is a
public servant while fully relying on section 166 (4) of the 1997
Constitution of the Gambia which states that “in this Constitution, an
office in the public service does not include the offices of the
President, Vice President, Speaker or Deputy Speaker of the National
Assembly, Secretary of State or a member of the National Assembly.”
The defence counsel said “the office of the President is not an office
within the public service. I submit further that the graveness of this
offence is a charge of giving false information to a public officer.
The Public Service Act, PMO Regulation, Code of Conduct of Civil
Service and General Orders and the Guide to General Orders have all
defined public servant as a person employed in the public service,
government of the Gambia.”
Counsel Touray revealed that section 4 of the Public Service Act
states that the Secretary General should be the head of the public
service. He said therefore all public service workers are under him and that
Office of the President does not fall under this category.  He said
public service is defined to mean the civil service of the government
of the Gambia and that is the reason why the common phrase applies to
all public officers.
“ Therefore the meaning of the term ‘public officer as referring to a
public servant can only be effectively amended to include reference to
the Office of the President if this Constitutional provisions (section
166) (4)  and the Public Service Act are simultaneously amended to
include the President as a public servant. I submit that the amendment
of one section of legislation only cannot change the status of the
President as a civil servant. Unless there are amendments of section
166 of the Constitution dealing with Public Service and the Public
Service Act, they remain unchanged, Touray insisted.
He said the action is incompetent and therefore urged the court to
dismiss the charge sheet.
However, responding to the application, Chief Inspector Fadera argued
that the charge against the accused person is an appropriate one
and it is in accordance with the laws of the Gambia. He said it cannot
be correct to say that President is not a public officer for the fact
that he is voted into office by the people.
“Office of the President is a public office and this is why members of
the public when they feel something inappropriate they write a
petition to his office,” he said.
CI Fadera cited section 166 (1) and (2)(a) of the 1997 Constitution
and later indicated that the said section that counsel is relying on
is inapplicable in this case because the President is holding a public
office prior to the coming into force of the constitution. He urged
the court to disregard the application of his counterpart.
Lawyer Touray in reacting to the objection of the prosecution said,
the prosecutor has relied on Section 166 (1) and submitted that the
civil service was created prior to the coming into force of the 1997
Constitution. However, he submitted that both 1970 Republican
Constitution and the present one are containing the same message but
only names are different.
“In 1970 Republican Constitution we used to call it Civil Service
while in 1997 Constitution it is call Public Service and that is in
line with my argument because President has never been a public
servant. He is not a staff of Local Government nor is he a Managing
Director. Section 61 of the Constitution defined President as the head
of state and of government and Commander-in-Chief of the Armed Forces.
He is putting on three caps and if you want to know who he is refer
yourself there,” Lawyer B.S Touray told the Court.
At this juncture, the matter was adjourned till Thursday, 5th March
2015 at 3pm for the court to decide whether to dismiss the charge against the accused or let it go.
Mr. Borry. J. Saidy, is charged with a single count of giving false
information to a public servant contrary to Section 114 of CPC Cap 10,
Vol 3 Revised Laws of the Gambia, 2009.
The particulars of offense states that the accused person on or about
the 27th November, 2014 at Banjul International Airport in the West
Coast Region and diverse places in the Gambia, while serving as Acting
Air Traffic Service Manager, he wrote to the Office of the President
claiming an unfair treatment among others, which he knew or believed
to be false, thereby committed an offense.