The Gambia 2020 Draft Constitution

CHAPTER XIII. PUBLIC FINANCE

PART I. PRINCIPLES OF PUBLIC FINANCE MANAGEMENT

238. Principles of public finance

1. The following principles shall guide the Government and all public institutions, including persons dealing with the Government and such public institutions, in order to ensure the proper management of the public finance system in The Gambia–
   1. all aspects of public financial management shall be based on transparency, accountability, public participation and appropriate resource allocation;
   2. the public finance system shall be directed towards the development of The Gambia, and in particular-
      1. the burden of taxation shall be applied fairly and equitably;
      2. the revenue sources for the Government and the Local Government Authorities shall be clearly defined, and the revenues raised in accordance with law;
      3. all expenditure shall be directed towards the development of The Gambia, and special provision shall be made for marginalised groups and disadvantaged areas;
   3. the burdens and benefits of the use of resources shall be shared equitably between present and future generations;
   4. public funds shall be expended transparently, prudently, economically, efficiently and effectively;
   5. public financial management shall be conducted responsibly, and fiscal reporting shall be clear and transparent; and
   6. public borrowing and all transactions involving the Public Debt shall be carried out transparently and in the best interest of The Gambia.
2. No taxes shall be levied except–
   1. under the specific authority of this Constitution or an Act of the National Assembly; and
   2. after due consultation with the relevant stakeholders, including the general public.

239. Government financial support to Local Government Authorities

1. Subject to this Constitution, the Government shall from revenues raised by it in each year, provide additional funding to Local Government Authorities in such percentage as may be provided in an Act of the National Assembly.
2. The following criteria shall be taken into account in determining the additional funding to be made by the Government to Local Government Authorities–
   1. the national interest;
   2. any provision to be made in respect of the public debt and other national obligations;
   3. the needs of the Government, determined by objective criteria;
   4. the need to ensure that Local Government Authorities are able to perform their functions efficiently and effectively;
   5. the fiscal capacity and efficiency of Local Government Authorities;
   6. the developmental and other needs of Local Government areas;
   7. the economic disparities within and among Local Government areas and the need to remedy them;
   8. the need for affirmative action in respect of marginalised groups and disadvantaged areas ;
   9. the need for Local Government Authorities to harness their potential and optimise their capacity to raise revenue;
   10. the desirability of stable and predictable allocation of funding to Local Government Authorities; and
   11. the need for flexibility in responding to emergencies and other temporary needs, based on similar objective criteria.

PART II. TAXATION

240. Imposition, waiver and variation of tax

1. No taxation shall–
   1. be imposed, waived or varied except by or under the authority of this Constitution or an Act of the National Assembly; or
   2. have retroactive effect.
2. An Act of the National Assembly may make provision for–
   1. the collection of taxes proposed to be imposed or altered in a Bill, and the Bill shall not be passed before a period of four months from the date of presentation in the National Assembly; and
   2. any Local Government Authority established by law to impose taxation within the area for which such authority is established, and to alter such taxation, but no provision shall include power to waive any tax due.
3. Where any law confers power on any person or authority to waive or vary a tax imposed by any law, the exercise of that power in favour of any person or authority shall be subject to the approval of the National Assembly.
4. Where an Act of the National Assembly permits the waiver or variation of any tax or other charges–
   1. a public record of each waiver or variation shall be maintained together with the reason for the waiver or variation; and
   2. each waiver or variation, and the reason for it, shall be reported to the National Assembly and the Auditor-General.
5. Where any person or authority exercises the power to waive or vary a tax or other charges imposed under any law, the person or authority shall publish the waiver or variation in the Gazette.
6. A public officer may not be exempted from payment of tax by reason of the office held or the nature of the work of the public officer.

PART III. PUBLIC FUNDS

241. Consolidated Revenue Fund

1. There shall be a Consolidated Revenue Fund into which shall be paid–
   1. all revenues or other money raised or received for the purposes, or on behalf, of the Government; and
   2. any other money raised or received in trust for, or on behalf of, the Government.
2. Notwithstanding subsection (1), an Act of the National Assembly may provide for the–
   1. payment of particular revenue or other money into some other fund established for a specific purpose; and
   2. retention of revenue or other money by the department of Government that received it for the purpose of defraying the expenses of that department.

242. Withdrawals from Consolidated Revenue Fund and other funds

1. No money shall be withdrawn from the Consolidated Revenue Fund except–
   1. to meet expenditure charged on that Fund by this Constitution or an Act of the National Assembly; or
   2. where the issue of that money has been authorised by an Appropriation Act, a Supplementary Appropriation Act or in accordance with section 251 (1).
2. No money shall be withdrawn from any other public fund of The Gambia unless the issue of that money has been authorised by law.
3. Where money is charged on the Consolidated Revenue Fund or any other public fund by law, it shall be paid out of that fund to the person or authority to whom it is due.

243. Contingencies Fund

1. An Act of the National Assembly may make provision for the establishment of a Contingencies Fund and for authorising the Minister responsible for finance, subject to subsection (2), to make advances from that Fund if he or she is satisfied that there has arisen an unforeseen and urgent need for expenditure for which no other provision exists.
2. The Minister responsible for finance shall not authorise any expenditure from the Contingencies Fund in excess of one per cent of the estimates approved by the National Assembly for the current year before he or she has caused a supplementary estimate in respect of such excess expenditure to be presented to the Assembly.
3. Where any advance is made from the Contingencies Fund, a supplementary estimate shall be presented, and a Supplementary Appropriation Bill shall be introduced for the purpose of replacing the amount so advanced, within ninety days of the advance being made.

244. Development Fund

1. There is established a Development Fund into which shall be paid at least five per cent of all the revenue collected by the Government each year calculated on the basis of the most recent audited accounts of revenue received, as approved by the National Assembly.
2. The Government shall use the Development Fund only to provide basic services including water, roads, health facilities and electricity to marginalised groups and disadvantaged areas to the extent necessary to bring the quality of services with respect to those groups and areas to the level generally enjoyed by the rest of the nation, so far as possible.
3. The Government may use the Development Fund–
   1. only to the extent that the expenditure of those funds has been approved in an Appropriation Bill enacted by the National Assembly; and
   2. either, directly or indirectly, through conditional grants to Local Government Authorities in which marginalised groups and disadvantaged areas exist.
4. Any unexpended money in the Development Fund at the end of a particular financial year shall remain in that Fund for use in accordance with subsections (2) and (3) during any subsequent financial year.

245. Salaries charged on the Consolidated Revenue Fund

1. The salaries and allowances, and the retirement benefits, of the holders of the offices to which this section applies shall be charged on the Consolidated Revenue Fund.
2. This section applies to the offices of–
   1. President and Vice-President;
   2. Speaker;
   3. judge of a superior court;
   4. Secretary General;
   5. member of the Independent Boundaries and Electoral Commission;
   6. Auditor-General;
   7. Ombudsperson;
   8. National Human Rights Commissioners;
   9. Anti-Corruption Commissioners; and
   10. Director of Public Prosecutions.

246. Accountability

1. The accounting officer in charge of a Ministry or Department shall be accountable to the National Assembly for the funds in that Ministry or Department.
2. Any person holding a political or public office who directs, or concurs in, the use of public funds contrary to any law or existing instructions, shall be accountable for any loss arising from that use and shall be required to make good the loss even if he or she has ceased to hold that office.
3. The National Assembly shall monitor all expenditure of public funds.

PART IV. LOANS, GRANTS, GOVENRNMENT GUARANTEES AND PUBLIC DEBTS

247. Loans

1. The National Assembly may, by resolution supported by the votes of not less than one half of all the members, authorise the Government to enter into an agreement for the granting of a loan out of any public fund or public account.
2. An agreement to which subsection (1) refers shall be laid before the National Assembly and shall not come into effect until it is approved by not less than one half of all the members of the Assembly.
3. No loan shall be raised by the Government on behalf of itself or any other person or authority otherwise than by or under the authority of an Act of the National Assembly.
4. An Act of the National Assembly authorising the raising of a loan shall provide that–
   1. the terms and conditions of a loan shall be laid before the National Assembly and that the loan agreement shall not come into operation until it has been approved by the Assembly; and
   2. any money received in respect of a loan shall be paid into the Consolidated Revenue Fund or some other public fund as may be authorised by an Act of the National Assembly.
5. An Act of the National Assembly may provide for the application of this section, with any necessary modifications, to–
   1. any guarantee by the Government; or
   2. an international business or economic transaction to which the Government proposes to become a party.
6. The Minister responsible for finance shall, at such times as the National Assembly may require, present to the National Assembly such information as he or she may have relating to the–
   1. granting of loans, their servicing and repayment; and
   2. payment into the Consolidated Revenue Fund or other public fund, as may be authorised by an Act of the National Assembly, of money derived from loans raised from institutions outside The Gambia.

248. Limits of state borrowings, public debts and state guarantees

1. An Act of the National Assembly shall set limits on–
   1. borrowings by the State;
   2. the public debt; and
   3. debts and obligations whose payment or repayment is guaranteed by the State.
2. Any limits set by an Act of the National Assembly under subsection (1) shall not be exceeded without the authority of the Assembly.
3. An Act of the National Assembly shall prescribe terms and conditions under which the Government may guarantee loans.
4. Within sixty days after the Government has concluded a loan agreement or guarantee, the Minister responsible for finance shall cause its terms to be published in the Gazette.
5. The Minister responsible for finance shall–
   1. at least twice a year, report to the National Assembly on the performance of loans raised or guaranteed by the Government; and
   2. at the same time as the estimates of revenue and expenditure are laid before the National Assembly under section 250 present to the Assembly a comprehensive statement of the public debt of The Gambia.

249. The public debt

1. The public debt of The Gambia shall be a charge on the Consolidated Revenue Fund and such other public fund as may be authorised by an Act of the National Assembly.
2. For the purposes of this section, the public debt includes interest on the debt, sinking fund payments and redemption money in respect of that debt, and all costs, charges and expenses incidental to the management and repayment of that debt.

PART V. BUDGET

250. Annual estimates and appropriation bill

1. The President shall cause the Minister responsible for finance to prepare and lay before the National Assembly at least sixty days before the end of the financial year, estimates of the revenue and expenditure of The Gambia for the following financial year.
2. The estimates shall include any estimates which, under this Constitution, are to be submitted directly to the–
   1. President by any person or authority for presentation by the President to the National Assembly; and
   2. National Assembly by any person or authority for consideration and approval by the National Assembly.
3. Any person or authority that is entitled to draw up its own estimates for presentation–
   1. by the President to the National Assembly, shall provide the President with such estimates at least ninety days before the end of the financial year; or
   2. directly to the National Assembly, shall provide such estimates to the National Assembly at least ninety days before the end of the financial year.
4. Before the National Assembly considers the estimates of revenue and expenditure, a committee of the Assembly shall discuss and review the estimates and make recommendations to the Assembly.
5. In discussing and reviewing the estimates, the committee shall seek representations from the public and the recommendations shall be taken into account when the committee makes its recommendations to the National Assembly.
6. When the estimates of expenditure have been approved by the National Assembly, an Appropriation Bill shall be introduced into the Assembly to authorise the withdrawal from the Consolidated Revenue Fund of the money needed for the expenditure, and for the appropriation of that money for the purposes mentioned in the Bill.
7. The Appropriation Bill mentioned in subsection (6) shall not include expenditure that is charged on the Consolidated Revenue Fund by this Constitution or an Act of the National Assembly.
8. In addition to presenting the estimates for the following financial year, the President may cause to be prepared and presented to the National Assembly–
   1. fiscal and monetary programmes and plans for economic and social development covering periods exceeding one year; and
   2. estimates of revenue and expenditure in respect of such programmes and plans.

251. Expenditure before annual budget is passed

1. If the Appropriation Bill in respect of any financial year has not been passed into law by the beginning of that financial year, the President may authorise the withdrawal of money from the Consolidated Revenue Fund for the purposes of meeting expenditure necessary to carry on the services of the Government for a period not exceeding four months from the beginning of the financial year.
2. The withdrawal of funds in accordance with subsection (1) shall not exceed one-third of the sums authorised for the relevant services by the Appropriation Act for the immediately preceding financial year.

252. Supplementary appropriation

1. Subject to section 243, if in respect of any financial year it is found that the amount appropriated under the Appropriation Act is insufficient or that a need has arisen for a purpose for which no amount has been appropriated by that Act, a supplementary estimate showing the sums required shall be laid before the National Assembly before the expenditure is incurred.
2. Where a supplementary estimate has been approved by the National Assembly, a Supplementary Appropriation Bill shall be introduced into the National Assembly for the appropriation of the sums so approved.

PART VI. PUBLIC PROCUREMENT

253. Public procurement of goods, works and services

1. When a State organ, Statutory Body or State Owned Enterprise or any other public entity contracts for goods, works or services, it shall do so in accordance with a system that is fair, equitable, transparent, competitive and cost-effective.
2. An Act of the National Assembly shall prescribe a framework within which policies relating to procurement and asset disposal shall be implemented, and may provide for all or any of the following–
   1. categories of preference in the allocation of contracts;
   2. the protection or advancement of persons, categories of persons or groups previously disadvantaged by unfair competition or discrimination;
   3. sanctions against contractors that have not performed according to professionally regulated procedures, contractual agreements or laws; and
   4. sanctions against persons who have defaulted on their tax obligations, or have been guilty of corrupt practices or serious violations of fair employment laws and practices.