New Civil Society Report on The Gambia: Gaps in the legislative framework hamper UNCAC implementation and enforcement

31 August 2022 – 

Click on the image to download the report

The Gambia has taken steps to improve its legislative and institutional frameworks in line with the implementation of provisions under both Chapter II (Preventive measures) and Chapter V (Asset Recovery) of the United Nations Convention against Corruption (UNCAC). A recent report authored by Public-Private Integrity (PPI) discusses the country’s strengths and weaknesses in UNCAC implementation, illustrated by several case studies and recent developments in the nation. The report concludes with key recommendations to government institutions for tackling corruption more effectively in The Gambia. The report is intended as a contribution to the UNCAC implementation review process in its second cycle, with technical and financial support from the UNCAC Coalition.

Gambian legislation contains rules and regulations as a guide for transparent governance, but in practice, the impact of preventive anti-corruption measures on a national scale has been minimal at best. A lack of information sharing, outdated bureaucratic systems and the lax application of sanctions (where they exist) renders the public service prone to corruption. While the country is equipped with a variety of bodies, such as the Public Service Commission and Public Procurement Authority to combat precisely these risks, the foremost piece of legislation, the Gambia Anti-Corruption Commission Act, passed into law in 2012, has not yet been implemented. This contrasts with the passing of a new Access to Information Bill, approved by the National Assembly and assented to by the President in August 2021, in fulfillment of UNCAC articles 10 & 13.1. Civil society’s active engagement in governance issues due to corruption has also increased since the 2016 political impasse, with greater reporting on corruption cases and engagement in public debates hosted by independent media outlets.

On Chapter V articles of the UNCAC related to Asset Recovery, The Gambia has yet to domesticate most of the conventions it has ratified, including the UNCAC in the area of anti-money laundering. Overlapping responsibilities among different investigative financial bodies in the country complicate procedures for confiscation and the direct recovery of property. The Gambia has yet to actively pursue the recovery of assets acquired through fraud from former and current public officials, individuals and groups mentioned in the 2018 Janneh Commission report, a committee of enquiry set up to investigate the financial activities of the former Gambian president.

The official UNCAC review process in The Gambia is ongoing. The governmental experts list and executive summary are available on The Gambia’s UNODC country profile page, and while the national UNCAC focal point is known, little information on the official review process has been made available to civil society. The government of The Gambia has yet to commit to making all documents, including the full country report, available once finalized.

The full civil society parallel report can be found here, or at the bottom of this page.

Main findings

Below are several of the key findings from the report, grouped according to topic:

Preventive Anti-Corruption Policies and Practices

Several features of the legal framework in The Gambia, such as the Constitution, the Criminal Code and the Economic Crimes Act, among others, provide sets of rules and regulations that serve as a guide on how to promote integrity, honesty and responsibility in public offices. In principle, these policies reflect the rule of law, proper management of public affairs and property, integrity, transparency and accountability, yet their application is flawed. The Gambia faces obstacles such as a lack of inter-departmental, inter-ministerial information sharing and poor cooperation further weakened by an ineffective ICT system. Moreover, internal anticorruption monitoring and application measures are not enforced, non-existent or yet to be formulated into law.

Anti-Corruption Bodies

The Gambia has established, by law, various anti-corruption bodies and agencies, ranging from the Gambia Financial Intelligence Unit (GFIU) to the Gambia Public Service Commission (GPSC), the Gambia Public Procurement Authority (GPPA) and the Assets Recovery and Management Corporation (AMRC). These independent bodies are equipped to improve reporting mechanisms in the fight against corruption. Nevertheless, the Gambia Anti-Corruption Commission Act passed into law in 2012 established the composition and functioning of a national anticorruption body, yet has not been implemented. More generally, the poor implementation and application of recommendations and findings by commissions of enquiry points to state capture by corrupt interests.

Political Financing 

The Constitution of The Gambia provides that a political party shall not accept any donations from any person who is not a citizen of The Gambia or from any corporation or body. In order to ensure transparency, political parties are required to disclose to the government revenue, sources of revenue and assets, and also to publish annually audited financial statements detailing administrative expenses. In practice, the rules are flawed and poorly enforced. Legal definitions of what constitutes a donation or contribution and restrictions on donations to political parties and candidates are missing; in addition to poor identification of donors (whether anonymous or international) and whether third-party donations or loans are acceptable, restricted or prohibited.

Codes of Conduct and Asset Declarations

The regulation of public officials’ conduct is set out in the 1997 Gambian Constitution, the Public Service Commission Act and the Personnel Management Office Act. Provisions include avoiding nepotism, favoritism and conflicts of interest; receiving gifts or donations in customary settings only when providing a declaration; and submitting written declarations of all property and assets to the office of the Ombudsman six months from the date of appointment, and biannually thereafter; while property and assets of the Ombudsman are declared to the National Assembly. Sanctions and disciplinary measures for defaulters are contained within the law. Despite this, assets declared by officials of the Ombudsman’s office are kept by the Finance and Public Accounts Committee of the National Assembly, and are never made public. Although the laws of The Gambia prescribe administrative, criminal and other sanctions for non-compliance, they are seen as ineffective, disproportionate and do not serve as a deterrent in practice.

Public Procurement

The Gambia’s Procurement Act, amended in 2014, prohibits corrupt practice, which includes the offering, giving, receiving, or soliciting of anything of value to influence the action of a public official in the procurement process or in the execution of a contract. The law ensures that the public has fair access to the goods and services they provide to the public, and prohibits the use of inducements to influence bidding and the procurement process, such as bribery and fraud. The Gambia Public Procurement Authority (GPPA) published a list of updated registered suppliers and contractors on the GPPA website in 2022. Since the beginning of 2022, it has updated periodic procurement reports, conforming with the Gambian Procurement Act 2014 and adhering to UNCAC article 10.

Public Finances

The management of public finances in The Gambia is regulated by the Constitution, as well as specific legislation, such as the 2004 Government Budget Management and Accountability Act (GBMA) and the 2014 Public Finance Act. In practice, the supervision of monetary transactions by the National Assembly has been weak. While the Minister of Finance and Economic Affairs (MoFEA) is accountable to the latter, along with the President, for budgetary decisions within his ministry, the distinction between the roles of the permanent secretary within the ministry and the minister himself are ambiguous. An independent task force is necessary in order to lodge and hear appeals.

Access to Information & Civil Society Participation

In 2019, a new Access to Information Bill was approved by the National Assembly and assented to by the President in August 2021, in fulfillment of UNCAC articles 10 & 13.1. The number of private print, electronic, radio stations and other media operations has increased considerably since 1994. These include a number of community radio stations and wide use of social media as communication tools for the general public. Yet while civil society’s active engagement in governance issues due to corruption has increased since the 2016 political impasse, with greater reporting on corruption cases and engagement in public debates hosted by independent media outlets, there are few measures promoting periodic review and reporting on corruption in the public administration in The Gambia.

Judiciary and Prosecution Services

The 2009 Judges Supplementary Code of Conduct Act guides judges in the performance of their judicial duties. Judges must uphold and exemplify judicial independence, strive to act with integrity, appear impartial, avoid improper judicial conduct, avoid civic and charitable activities and not engage in political activities, among other aspects. Nevertheless, weaknesses are apparent in terms of the independence of the Department of Public Prosecutions, which operates under the remit of the Attorney General and the Minister of Justice, thus acting as an extension of executive power. Moreover, the President of the republic is able to personally appoint the Chief Prosecutor at the Attorney General’s office – a selection process which is not subject to public review.

Private Sector Transparency

The Gambia has a partial beneficial ownership registration and disclosure system in place. The Gambia also has an effective legal ownership registry that requires companies to register all of their legal owners. However, this information is generally not available online. Registered companies in The Gambia are required to publish the annual accounts and audited accounts in the local newspapers and file a copy with the Corporate Division of the Ministry of Justice. In practice, however, enforcement of the rules prohibiting crimes laid down under the UNCAC is not fully respected.

Anti-Money Laundering

New legislation on AML/CFT (2012) has replaced the 2003 Money Laundering Act. The former designates roles to all relevant, competent authorities responsible for implementation of measures such as customer due diligence (CDD), financial record-keeping, suspicious transaction reports (STRs) and investigating ML claims, among others. The Gambian financial infrastructure is based on the International Financial Reporting Standard (IFRS), and more recently, The Gambia successfully implemented a payment system to reduce the use of cash in the economy through ‘Gamswitch’ projects.

However, different bodies work separately on the investigation of money laundering, prosecution and legal affairs in The Gambia: the serious crime unit (fraud squad) and the GFIU. The GFIU is functional but needs to be more effective by assuming investigative functions in addition to its current administrative authority, and by sharing information about how it carries out its duties. There is no provision in domestic AML/CFT regulations which prohibits financial institutions from entering into correspondence banking with shell banks. Further, The Gambia has yet to domesticate most of the Conventions it has ratified, including the UNCAC in the area of AML.

Direct Recovery of Property 

The Gambia has enacted laws to punish acts of corruption and to pay damages. Yet despite the existence of regulations and institutions, The Gambia has yet to actively pursue the recovery of assets acquired through fraud from former and current public officials, individuals and groups mentioned in the 2018 Janneh Commission report. At the national level, the Janneh Commission seized numerous properties believed to have been fraudulently obtained by the former President, his close associates and family members. However, the sale of these large assets is not transparent and has not been publicly disclosed since 2018.

Confiscation Tools

The aforementioned 2012 AML/CFT Act contains a comprehensive and innovative set of provisions on restraint, seizure and forfeiture of assets in relation to ML and TF, including procedures for property tracking, ensuring effectiveness of confiscation orders, and confiscation where a person dies or absconds, among others. Unfortunately, there is no effective mechanism in place to ensure efficient tracing and identification of ML and TF cases. The GFIU does not have the capacity to receive and analyze STRs to assist law enforcement agencies (LEAs) in the investigation of AML/CFT cases. No specialized training has been provided to personnel of law enforcement agencies, the GFIU, the Central Bank of The Gambia, and prosecutors, on the application of freezing and confiscation measures. The Gambia is falling behind in implementing and applying UNCAC article 54 fully.

International Cooperation

The Laws of The Gambia provide that the court or competent authority may receive a request from the court or other competent authority of another state to identify, trace, freeze the property, proceeds or funds, to confiscate or forfeit in connection with money laundering offenses and may take appropriate measures. The Gambia has a bilateral agreement with the Republic of Senegal through the Senegalo-Gambian Permanent Secretariat (PSSG), to provide a level of international cooperation and asset recovery assistance. However, The Gambia has not considered establishing an asset forfeiture fund for other countries or authorizing asset sharing with other countries. Privileges are only granted to countries that have signed bilateral or multilateral treaties with The Gambia under the AML Act.

Return & Disposal of Confiscated Property

There are currently no provisions in domestic legislation providing for the disposal and return of confiscated foreign-origin assets, even in cases of autonomous confiscation. Although it has established The Assets Recovery and Management Corporation (AMRC), The Gambia is unable to pursue effective disposition of confiscated property, constrained by several factors such as the challenges of tracking assets abroad.

Key recommendations

In its report, Public-Private Integrity makes several key recommendations to authorities to ensure the full implementation of the UNCAC in The Gambia, among them:

  1. Implement important anti-corruption measures by ensuring that an anti-corruption commission is in place and anti-corruption policies are applied in practice, such as:
    • Ensuring that systematic corruption risk assessments take place in public services and government enterprises, regularly implementing corruption risk mitigation strategies and improving public service performance.
    • Extending The Ombudsman’s mandate to include the power to instruct public officials on issues of maladministration in the functional activity of the public service.
  2. Publish the progress of budget execution, as has been done previously, and provide a clear timetable for publication, including the examination and inspection of every system of financial management, books and accounts in every budgetary authority. If that is not possible, responsible bodies should submit government financial statements to the Auditor General and release them in the public interest as required by law.
  3. Clearly define and identify the public sector for reporting, transparency and accountability purposes, and government financial relationships with the private sector should be disclosed, with transactions conducted openly and under clear rules and procedures.
  4. Expand the role and functions of the Office of the Director of Public Prosecutions in the administration of justice in The Gambia and grant it administrative and financial independence.
  5. The Central Bank of The Gambia should seek to conduct regular risk assessments for the financial and non-financial (or informal) sectors to determine the level of oversight that would be required in a low-risk sector. More resources should be made available to supervisors.
  6. Ensure the implementation of FATF Recommendation 25 on Transparency and Beneficial Ownership of Legal Arrangements. The Gambia should also take steps to prevent abuse of money laundering or terrorist financing laws, and should also be able to initiate countermeasures independently, effectively and appropriately according to the risks.
  7. Conclude bilateral or multilateral agreements to improve international cooperation in relation to extradition, mutual legal assistance, transfer of sentenced persons or criminal proceedings, law enforcement cooperation, joint investigations and special investigative techniques in accordance with Articles 44-50 of the UNCAC.

More detailed recommendations are provided in Chapter VI of the report.

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