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The Gambia Independence Order 1965

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Citation, commencement and construction

1.—(1) This Order may be cited as the Gambia Independence Order 1965.

(2) This Order shall come into operation immediately before 18th February 1965:

Provided that where the Governor-General has power by or under this Order to make any appointment or make any order (other than an order under section 4(3) of this Order relating to any Act of the Parliament of the United Kingdom or any Order of Her Majesty in Council) or to do any other thing for the purposes of this Order, that power may be exercised by the Governor and Commander-in-Chief of the Colony and Protectorate of The Gambia at any time after 4th February 1965 to such extent as may, in his opinion, be necessary or expedient to enable the Constitution of The Gambia established by this Order and set out in Schedule 3 to this Order to function as from 18th February 1965.

(3) Save where the context otherwise requires, expressions used in sections 1 to 15 (inclusive) of this Order have the same meaning as in the said Constitution and the provisions of section 116 of that Constitution shall apply for the purpose of interpreting those sections as they apply for the purpose of interpreting that Constitution.

(4) References in Chapter VII of the said Constitution to any question as to the interpretation of that Constitution shall be construed as including references to any question as to the interpretation of this Order.

Revocation

2.  The Orders in Council specified in Schedule 1 to this Order (hereinafter referred to as “the existing Orders”) are revoked .

Establishment of Constitution

3.  Subject to the provisions of this Order, the Constitution set out in Schedule 3 to this Order (hereinafter referred to as “the Constitution”) shall come into effect in The Gambia at the commencement of this Order.

Existing laws

4.—(1) The existing laws shall, as from the commencement of this Order, be construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with the Gambia Independence Act 1964 and this Order.

(2) Where any matter that falls to be prescribed or otherwise provided for under the Constitution by Parliament or by any other authority or person is prescribed or provided for by or under an existing law (including any amendment to any such law made under this section) or is otherwise prescribed or provided for immediately before the commencement of this Order by or under the existing Orders, that prescription or provision shall, as from the commencement of this Order, have effect (with such modifications, adaptations, qualifications and exceptions as may be necessary to bring it into conformity with the Gambia Independence Act 1964 and this Order) as if it had been made under the Constitution by Parliament or, as the case may require, by the other authority or person.

(3) The Governor-General may by order made at any time before 18th February 1966 make such amendments to any existing law as may appear to him to be necessary or expedient for bringing that law into conformity with the provisions of the Gambia Independence Act 1964 and this Order or otherwise for giving effect or enabling effect to be given to those provisions.

(4) The provisions of this section shall be without prejudice to any powers conferred by this Order or by any other law upon any person or authority to make provision for any matter, including the amendment or repeal of any existing law.

(5) For the purposes of this section, the expression “existing law” means any Ordinance, law, rule, regulation, order or other instrument made in pursuance of (or continuing in operation under) the existing Orders, and having effect as part of the law of The Gambia or of any part thereof immediately before the commencement of this Order or any Act of the Parliament of the United Kingdom or Order of Her Majesty in Council so having effect.

Existing officers

5.—(1) Where any office has been established by or under the existing Orders or any existing law and the Constitution establishes or provides for the establishment of a similar or an equivalent office, any person who, immediately before the commencement of this Order, holds or is acting in the former office shall, so far as is consistent with the provisions of the Constitution, be deemed as from the commencement of this Order to have been appointed, elected or otherwise selected to or to act in the latter office in accordance with the provisions of the Constitution:

Provided that any person who under the existing Orders or any existing law would have been required to vacate his office at the expiration of any period or on the attainment of any age shall vacate his office at the expiration of that period or on the attainment of that age.

(2) Any person who, by virtue of this section, is deemed as from the commencement of this Order to have been appointed, elected or otherwise selected to hold or act in any office shall also be deemed to have taken and subscribed any necessary oath under the Constitution.

(3) (a) The person who holds the office of Deputy Governor on 17th February 1965 shall be entitled to the leave, beginning on 18th February 1965, for which, under the terms of service applicable to him on 17th February 1965, he is then eligible and to any additional leave for which he is eligible under the law with respect to pensions benefits in respect of his service as a public officer, and while on such leave shall be regarded as still holding an office in the public service:

Provided that, if the said person is charged, as from 18th February 1965, with the performance of special duties in respect of the government of The Gambia, then—

(i)he shall, during the period for which he is so charged, be regarded as still holding an office in the public service; and

(ii)the leave to which he is entitled under this subsection shall include the leave for which, under the terms of service aforesaid, he is eligible in respect of that period and shall begin at the expiration of that period.

(b)In this subsection “pensions benefitshas the meaning assigned to that expression in section 112 of the Constitution.

(4) A person who is a member of the Public Service Commission established by the existing Orders may, notwithstanding that, by reason of his having held or been nominated for election to any office before 18th February 1965, he is disqualified to be appointed as a member of the Public Service Commission established by the Constitution, continue in office under this section as a member of that Commission and be re-appointed thereto upon the expiration of his term of office.

(5) The provisions of this section shall be without prejudice to the provisions of section 6 of this Order.

(6) In this section“existing law” means such a law as is referred to in section 4(5) of this Order.

Parliament

6.—(1)  The House of Representatives constituted by the existing Orders (hereinafter referred to as “the existing House of Representatives” ) shall be the House of Representatives during the period beginning with the commencement of this Order and ending with the first dissolution of Parliament thereafter.

(2) The electoral districts established immediately before the commencement of this Order in pursuance of section 37(d) of the Gambia (Constitution) Order in Council 1962(1) for the purposes of elections of the elected members of the existing House of Representatives referred to in paragraphs (a) and (b) of section 28(2) of that Order shall be deemed as from the commencement of this Order and until other provision is made in that behalf in accordance with this Order to be the constituencies into which The Gambia is divided in pursuance of section 38 of the Constitution; and the persons who, immediately before the commencement of this Order, are the elected members of the existing House of Representatives representing those electoral districts shall be deemed as from the commencement of this Order to have been elected to the House of Representatives in accordance with the provisions of this Order as the elected members representing the respective constituencies corresponding to those electoral districts and shall hold their seats in the House of Representatives in accordance with those provisions.

(3) The registers of voters having effect immediately before the commencement of this Order for the purposes of elections of the elected members of the existing House of Representatives referred to in paragraphs (a) and (b) of section 28(2) of the Gambia (Constitution) Order in Council 1962 shall, as from the commencement of this Order, have effect as if they had been compiled in pursuance of this Order.

(4) The persons who, immediately before the commencement of this Order, are the elected members of the existing House of Representatives referred to in section 28(2)(c) of the Gambia (Constitution) Order in Council 1962 and the persons who, immediately before the commencement of this Order, are the nominated members of the existing House of Representatives shall, as from the commencement of this Order, be deemed respectively to have been elected or, as the case may be, appointed as the Chiefs' representative members and the nominated members of the House of Representatives in accordance with the provisions of this Order and shall hold their seats in the House of Representatives in accordance with those provisions.

(5) The person who, immediately before the commencement of this Order, is the Speaker of the existing House of Representatives shall be deemed as from the commencement of this Order to have been elected as Speaker of the House of Representatives in accordance with the provisions of this Order and shall hold office in accordance with those provisions.

(6) Until Parliament otherwise provides, any person who holds or acts in any office the holding of which would, under the existing Orders, have disqualified him for membership of the existing House of Representatives shall be disqualified to be nominated for election as a voting member or appointed as a nominated member of the House of Representatives as though provision in that behalf had been made in pursuance of section 35(6) of the Constitution.

(7) The Standing Orders of the existing House of Representatives as in force immediately before the commencement of this Order shall, until it is otherwise provided by the House of Representatives under section 58(1) of the Constitution, be the Standing Orders of the House but they shall be construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with this Order.

(8) Subject to the provisions of sections 60 and 61 of the Constitution, Parliament shall, unless sooner dissolved, stand dissolved on the date on which the existing House of Representatives would have been required by the existing Orders to be dissolved.

(9) The Governor-General may, at any time after the commencement of this Order, appoint a Constituency Boundaries Commission in accordance with the provisions of the Constitution to review the boundaries of the constituencies into which The Gambia is divided and he shall in any event appoint such a Commission for that purpose in time to enable it to complete such a review and to make any order that may be consequential thereon before the date specified in subsection (8) of this section.

(10) The Commission that is appointed in pursuance of subsection (9) of this section shall be deemed to have been appointed in the circumstances specified in section 38(3)(c) of the Constitution.

(11) Any person who, by virtue of this section, is deemed as from the commencement of this Order to have been elected as Speaker or any other member of the House of Representatives shall be deemed to have taken and subscribed any necessary oath under the Constitution.

Transitional provisions relating to Attorney-General and Director of Public Prosecutions

7.—(1) Notwithstanding the provisions of section 64 of the Constitution, until Parliament or, subject to the provisions of any Act of Parliament, the Governor-General, acting in accordance with the advice of the Prime Minister, otherwise provides, the office of Attorney-General shall be a public office.

(2) Notwithstanding the provisions of section 76(1) of the Constitution, no appointment shall be made to the office of Director of Public Prosecutions so long as the office of Attorney-General remains a public office.

(3) So long as the office of Attorney-General remains a public office subsections (3) and (4) of section 64 of the Constitution shall not have effect and, subject to the provisions of subsection (4) of this section, the following provisions of the Constitution shall have effect as if references therein to the Director of Public Prosecutions were references to the Attorney-General, that is to say, sections 55, 76 (other than subsection (1) thereof), 85(5), 106(3)(b), 107, 113(3) and 116(7)(a).

(4) In their application, by virtue of this section, in relation to the Attorney-General, subsections (1) and (2) of section 107 of the Constitution shall have effect as if references therein to the Public Service Commission were references to the Prime Minister:

Provided that, before tendering advice to the Governor-General for the purposes of the said subsection (1) or subsection (2), the Prime Minister shall consult the Public Service Commission.

(5) Until Parliament otherwise provides, the Attorney-General shall, so long as his office remains a public office, be an ex officio member of the House of Representatives but he shall not be entitled to vote therein.

(6) When the office of Attorney-General ceases to be a public office, the person who immediately prior thereto held that office shall, for the purposes of any law with respect to pensions benefits (which expression shall in this section have the meaning attributed to it in section 112 of the Constitution), be entitled to be treated as if his office had been abolished.

(7) In relation to the appointment of any person, at any time before 18th February 1970, in exercise of the powers conferred by subsection (1) or subsection (2) of section 107 of the Constitution and in relation to any person who has been so appointed, the reference in subsection (3) of the said section 107 to a period of seven years shall be construed as if it were a reference to a period of five years:

Provided that this subsection shall not have effect in relation to the appointment of any person in any case in which, by virtue of subsection (4) of this section, the said powers are exercisable by the Governor-General, acting in accordance with the advice of the Prime Minister, unless the Public Service Commission concurs in its having effect in relation to that appointment.

Emergency Powers Orders in Council 1939 to 1964

8.  The Emergency Powers Orders in Council 1939(2) to 1964(3) shall cease to have effect as part of the law of The Gambia on 18th August 1966 or such earlier date as Parliament may prescribe:

Provided that sections 6(2)(d) and 8 of the Emergency Powers Order in Council 1939 shall cease to have effect as part of the law of The Gambia as from the commencement of this Order.

Appeals in respect of certain decisions affecting pensions benefits

9.—(1) The provisions of this section shall have effect for the purpose of enabling an officer to whom this section applies or his personal representatives to appeal against any of the following decisions, that is to say:—

(a)a decision of the Public Service Commission to give such concurrence as is required by section 113(1) or section 113(2) of the Constitution in relation to the refusal, withholding, reduction in amount or suspending of any pensions benefits in respect of such an officer's service as a public officer;

(b)a decision of any authority to remove such an officer from office if the consequence of the removal is that any pensions benefits cannot be granted in respect of the officer's service as a public officer; or

(c)a decision of any authority to take some other disciplinary action in relation to such an officer if the consequence of the action is, or in the opinion of the authority might be, to reduce the amount of any pensions benefits that may be granted in respect of the officer's service as a public officer.

(2) Where any such decision as is referred to in subsection (1) of this section is taken by any authority, the authority shall cause to be delivered to the officer concerned, or to his personal representatives, a written notice of that decision stating the time, not being less than twenty-eight days from the date on which the notice is delivered, within which he, or his personal representatives, may apply to the authority for the case to be referred to an Appeals Board.

(3) If application is duly made within the time stated in the notice, the authority shall notify the Prime Minister in writing of that application and the Prime Minister shall thereupon appoint an Appeals Board consisting of—

(a)one member selected by the Prime Minister;

(b)one member selected by an association representative of public officers or a professional body, nominated in either case by the applicant; and

(c)one member selected by the two other members jointly (or, in default of agreement between those members, by the Judicial Service Commission) who shall be the Chairman of the Board.

(4) The Appeals Board shall enquire into the facts of the case, and for that purpose—

(a)shall, if the applicant so requests in writing, hear the applicant either in person or by a legal representative of his choice, according to the terms of the request, and shall consider any representations that he wishes to make in writing;

(b)may hear any other person who, in the opinion of the Board, is able to give the Board information on the case; and

(c)shall have access to, and shall consider, all documents that were available to the authority concerned and shall also consider any further document relating to the case that may be produced by or on behalf of the applicant or the authority.

(5) When the Appeals Board has completed its consideration of the case, then—

(a)if the decision that is the subject of the reference to the Board is such a decision as is mentioned in paragraph (a) of subsection (1) of this section, the Board shall advise the Public Service Commission whether the decision should be affirmed, reversed or modified and the Commission shall act in accordance with that advice; and

(b)if the decision that is the subject of the reference to the Board is such a decision as is referred to in paragraph (b) or paragraph (c) of subsection (1) of this section, the Board shall not have power to advise the authority concerned to affirm, reverse or modify the decision but—

(i)where the officer has been removed from office the Board may direct that there shall be granted all or any part of the pensions benefits that, under any law, might have been granted in respect of his service as a public officer if he had retired voluntarily at the date of his removal and may direct that any law with respect to pensions benefits shall in any other respect that the Board may specify have effect as if he had so retired; and

(ii)where some other disciplinary action has been taken in relation to the officer the Board may direct that, on the grant of any pensions benefits under any law in respect of the officer's service as a public officer, those benefits shall be increased by such amount or shall be calculated in such manner as the Board may specify in order to offset all or any part of the reduction in the amount of those benefits that, in the opinion of the Board, would or might otherwise be a consequence of the disciplinary action,

and any direction given by the Board under this paragraph shall be complied with notwithstanding the provisions of any other law.

(6) In this section—

pensions benefitshas the meaning assigned to that expression in section 112 of the Constitution ; and

legal representative” means a person entitled to practise as a barrister or as a solicitor in The Gambia.

(7) This section applies to any officer who is the holder of a pensionable office and who is designated under the Overseas Service Aid Scheme.

Compulsory retirement to facilitate appointment of local candidates

10.—(1) If the Prime Minister so requests, the authorities having power to make appointments in any branch of the public service shall consider whether there are more local candidates suitably qualified for appointment to, or promotion in, that branch than there are vacancies in that branch that could appropriately be filled by such local candidates; those authorities, if satisfied that such is the case, shall, if so requested by the Prime Minister, select officers in that branch to whom this section applies and whose retirement would, in the opinion of those authorities, cause vacancies that could appropriately be filled by such suitably qualified local candidates as are available and fit for appointment and inform the Prime Minister of the number of officers so selected; if the Prime Minister specifies a number of officers to be called upon to retire (not exceeding the number of officers so selected), those authorities shall nominate that number of officers from among the officers so selected and require them by notice in writing to retire from the public service; and any officer who is so required to retire shall retire accordingly.

(2) Any notice given under subsection (1) of this section requiring any officer to retire from the public service shall—

(a)in the case of an officer who, when he receives the notice, is on leave of absence upon the completion of a tour of duty, specify the date on which he shall so retire which shall be not earlier than the expiration of six months from the date when he receives the notice or, if his leave of absence would otherwise expire later, not earlier than when it would otherwise expire; and

(b)in the case of any other officer, specify the period, which shall be not less than six months from the date when he receives the notice, at the expiration of which he shall proceed upon leave of absence pending retirement:

Provided that the officer may agree to the notice specifying an earlier date or, as the case may be, a shorter period.

(3) This section applies to any officer who holds a pensionable office and—

(a)is designated under the Overseas Service Aid Scheme; or

(b)is an overseas officer who, after the commencement of this Order, is appointed to any public office (otherwise than on promotion or transfer from another public office) and who is notified at the time of his appointment that this section will apply to him.

(4) In this section “overseas officer” means an officer in the public service who is, either individually or as a member of a class, declared by the appropriate Commission to be an overseas officer, and “the appropriate Commission” means

(a)in relation to an officer who can be removed from office by the Judicial Service Commission, that Commission; and

(b)in any other case, the Public Service Commission.

Transitional provisions relating to functions of existing public service authorities

11.—(1) Any power that, immediately before the commencement of this Order, is vested in an existing public service authority (that is to say, the Governor, acting on the advice of the Public Service Commission established by the existing Orders, or the Commissioner of Police) and that, under the existing Orders is then delegated to some other person or authority shall, as from the commencement of this Order and so far as is consistent with the provisions of the Constitution, be deemed to have been delegated to such person or authority in accordance with those provisions.

(2) Any matter that, immediately before the commencement of this Order, is pending before an existing public service authority shall, so far as is consistent with the provisions of the Constitution, be continued before the corresponding public service authority established by the Constitution, and any matter that, immediately before the commencement of this Order, is pending before a person or authority to whom power to deal with that matter has been delegated by an existing public service authority shall, so far as is consistent with the provisions of the Constitution, be continued before the person or authority to whom that power was delegated:

Provided that, where the hearing of a disciplinary proceeding has begun but has not been completed immediately before the commencement of this Order, the continued hearing shall not be held before any person unless the hearing that has already taken place was also held before him; and where, by virtue of this proviso, the hearing cannot be continued it shall be re-commenced.

Legal proceedings

12.—(1) All proceedings that, immediately before the commencement of this Order, are pending before any court established by or under the existing Orders or by or under any law continuing in operation under the existing Orders may be continued and concluded after the commencement of this Order before the corresponding court established by this Order or by or under an existing law.

(2) Subject to the provisions of section 13(3) of this Order, any decision given before the commencement of this Order by any such court as aforesaid shall, for the purpose of its enforcement or for the purpose of any appeal therefrom, have effect after the commencement of this Order as if it were a decision of the corresponding court established by this Order or by or under an existing law.

(3) In this section “existing law” means such a law as is referred to in section 4(5) of this Order.

Appeals to Her Majesty in Council and to Judicial Committee

13.—(1) Subject to the provisions of subsection (3) of this section, no appeal shall lie to Her Majesty in Council, whether as of right or by leave either of Her Majesty in Council or of any court established for The Gambia, from any decision given in any civil or criminal matter by any such court.

(2) The Judicial Committee shall have and exercise the jurisdiction in respect of appeals from the Court of Appeal and in respect of proceedings concerning judges of the Court of Appeal and of the Supreme Court that, in the law of The Gambia, is conferred on the Committee by Chapter VII of the Constitution, and the provisions of the Judicial Committee Act 1833 and of any rules made thereunder from time to time shall, in so far as they relate to the powers of the Committee and the procedure to be adopted with respect to proceedings before the Committee, apply in relation to proceedings before the Committee under the said Chapter VII and for that purpose shall be construed with such modifications, adaptations, qualifications and exceptions as may be necessary by reason of the nature of those proceedings or otherwise to bring them into conformity with the provisions of this Order.

(3) Any appeal or petition for special leave to appeal to Her Majesty in Council from a decision given by the Court of Appeal established by the existing Orders, being an appeal or a petition that is pending immediately before the commencement of this Order and—

(a)in the case of an appeal, is one in which the records have been registered in the Office of the Privy Council before the commencement of this Order; or

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