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| T O P I C R E V I E W |
| Momodou |
Posted - 10 Jun 2020 : 21:55:12
PRESS RELEASE:
Further Presidential Declaration Dated: 10th June, 2020 Banjul, The Gambia
In exercise of the powers vested in him by section 34(6) of the 1997 Constitution of the Republic of The Gambia, His Excellency President ADAMA BARROW declares that a state of public emergency continues to exist in the whole of The Gambia.
This further declaration shall last for a period of twenty-one days pursuant to section 34 (2), with effect from today 10th June 2020.
Therefore, all the Emergency Regulations issued under the Emergency Powers Act shall continue to apply during the period of the state of public emergency.
Signed:
Ebrima G Sankareh
The Gambia Government Spokesperson
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| 3 L A T E S T R E P L I E S (Newest First) |
| Momodou |
Posted - 11 Jun 2020 : 14:25:14
Section 34(6) Cannot be a Basis for Declaring a State of Emergency
By Madi Jobarteh
On June 10 the Government Spokesman said the President has relied on Section 34(6) to declare that “a state of emergency continues to exist in the whole of the Gambia”. The wording of the press release clearly indicates that this declaration is an extension as it stated, ‘continues to exist’. The question is what continues to exist? Obviously they are referring to the state of emergency that was in place from May 19 to June 9. Hence the idea that this is a new declaration on the basis of Section 34(6) is false.
The question citizens must ask is why should the President rely on Section 34(6) and not go back to 34(2) and (5) which provide for extensions?
Remember it was the President who initiated a state of emergency on his own, in the first place on March 18 without any public announcement. Then all of a sudden he made a public announcement on March 27 to declare another public emergency, unilaterally. This was to expire on April 2. His Minister of Justice then came to the National Assembly to seek an extension of 90 days but the NAMs reduced it to 45 days, i.e. from April 3 to May 18.
In order to extend that declaration when it was about to expire, the President made the National Assembly come on an extraordinary session on May 15 to consider his request for extension. Unfortunately for him, this time the National Assembly rejected the request and then went into recess that day. Consequently, we saw the President invoke Section 34(2) to declare a 21-day state of emergency from May 19 to June 9.
Therefore, when we got to June 9, shouldn’t the President have recalled the National Assembly once again as he did before to request their consideration for an extension? This is what the President should have done in line with Section 34(2) and (5). But the President refused to do that and instead went straight to Section 34(6) to invoke a ‘new’ state of emergency. Why?
Section 34(6) is a subsidiary of Section 34. The main stem of Section 34 is subsection 1 which gives original power to the President to declare a state of emergency. All of the subsections from 2 to 6 are merely to support the main subsection 1. None of the subsections can stand on its own such that the President could use them regardless of the others.
Section 34(6) is merely to provide the general environment that a new declaration could be declared. To do that the process has to follow from subsection 1. But in this present moment there is no need for a new declaration because there is already a declaration in place and there is only one public emergency which is COVID 19. Hence the President does not need Section 34(6) at all. What he needs is Section 34(2) and (5). Period.
The President and his Minister of Justice are trying to play with our minds by seeking to separate Section 34(6) from the rest of Section 34 just to perpetuate an unconstitutional and undemocratic act. It is the same narrative we saw this President and his advisors peddle when he sacked Hon. Ya Kumba Jaiteh, unconstitutionally. They claimed that Section 231 empowers the President to revoke Hon. Jaiteh’s nomination because he nominated her in the first place. But it was good that the Supreme Court ruled against them. Just because you have the power to appoint or nominate does not necessarily mean you have the same power to fire.
Once again it is the same game being played here. The President cannot use Section 34(6) to smartly extend his own state of emergency when the Constitution clearly states that it is the National Assembly that can extend a state of emergency. The President does not need Section 34(6) at all because it is not necessary. There is no situation prevailing that makes it necessary. The current situation makes only Section 34(2) and (5) necessary and these are the only provisions that the President needs and should use. Nothing else.
Let us stand up to defend the Constitution and our democracy. In the wake of this pandemic we have seen several governments employ unconstitutional means by hook or crook just to refuse to be held accountable. If the President is scared that his second request would be rejected, then let him adjust himself and perform better so that NAMs will approve his request. If he is afraid that hard questions would be asked about the transparency and accountability for the use of public funds, then let him ensure that they manage our funds well.
We must not let the President run away from scrutiny by misapplying constitutional provisions. If the New Zealand Government could use the rule of law and democratic principles to combat and defeat COVID 19 there is no reason why another government such as the Gambia cannot also employ the right constitutional means and democratic principles to defeat COVID 19.
I hereby urge Pres. Adama Barrow to revoke his June 10 declaration and instead request the Speaker to reconvene the National Assembly in an extraordinary sitting to consider extending the state of emergency that expired on June 9. Respect the rule of law and the Constitution. Otherwise I urge NAMs, political parties, CSOs and indeed individual citizens to go to the Supreme Court to request it to declare the President’s June 10 declaration as unconstitutional.
For the Gambia Our Homeland |
| Momodou |
Posted - 10 Jun 2020 : 21:57:01
State of Emergency in its right perspective
By Madi Jobarteh
The 1997 Constitution anticipates that a situation could arise that could threaten the life of the country and so it provides for a state of emergency powers to enable the Executive to manage the situation, under Section 34. Since any terrible situation could erupt at anytime the Constitution gives the power to the President to unilaterally and immediately declare a state of emergency for 7 days right away.
But the Constitution was considerate enough to say that if the National Assembly is not in session then the emergency can continue to 21 days under subsection 2. Thus the maximum time the Constitution empowers the President to make a declaration is 21 days without parliamentary approval and this is only once under any particular emergency situation.
Because a state of emergency severely affects human rights and impacts on governance processes and operations and public resources, the Constitution therefore makes necessary safeguards to prevent abuse and corruption. This is why the power to oversee and validate emergency powers is vested in the National Assembly.
Hence after 21 days, the President should come to parliament to seek approval for extension. This can go on and on so long as the President thinks there is a need for such powers to address an emergency situation as in subsection 5(a)(ii).
We have seen that the President first made a declaration on March 18 and this expired in April so that on April 3 the National Assembly approved an extension of 45 days when the President in fact wanted 90 days, as per subsection 5.
This extension ended on May 18 and even though the National Assembly was not in session they were recalled for an extraordinary sitting to consider the second extension. This request was rejected and the National Assembly went back into recess. Because of that it means the President can rely on subsection 2 again to declare a 21-day state of emergency which he did, and rightly so.
Now where this second 21 days expired the only route available to the President is to go back to that subsection 2 to present a request for extension before the National Assembly for their consideration. This means the President should have requested the Speaker to reconvene an extraordinary session as previously done to review his request for extension. This was not done.
Instead we see the President declare his own 21 days again with many people referring to subsection 6 as the legal basis for his action. This is incorrect. The President has no need for subsection 6 since that subsection only provides the opportunity for SOE declaration at anytime just that the new declaration shall go in line with the rule of law as set out in Section 34.
But since the President has already made a declaration of 21 days because National Assembly was not in session, he needed to recall them to consider his request for extension as per subsection 2. He cannot fail to do that just because there is subsection 6. That would mean that he can therefore continue to declare SOE after SOE till doomsday which effectively makes the National Assembly completely redundant and a mockery of our Constitution. This is not what subsection meant, even literally reading.
Those who rely on subsection 6 to back this declaration are therefore missing only one major point. They are reading subsection 6 in isolation when in fact subsection is only one element in a whole provision. In other words, subsection 6 is not a substantive, stand alone provision. No. It is part of Section 34 and this section has set out how a declaration could be made or extended.
If one interprets subsection 6 as giving the power to the President to make this declaration one must ask, what then happens to the 21 days that just expired? Should it be ignored? Is it unconnected to this June 10 declaration? Is it dealing with another state of emergency different from COVID 19? If so, then fine. If not, then the issue here is not subsection 6 but subsection 2 instead. This is the direction the President must head to and not towards subsection 6.
I urge the President to withdraw this current declaration and follow the Constitution to get things right.
For the Gambia Our Homeland |
| Momodou |
Posted - 10 Jun 2020 : 21:56:16
The new SOE Declaration is Unconstitutional
By Madi Jobarteh
1. The President has no power to make more than 1 SOE declaration one after the other consecutively without parliamentary approval in between. Having declared an SOE on May 19 to expire on June 9 cannot be extended unless approved by the National Assembly;
In other words the President has no power to extend his own SOE declaration. When a current SOE declaration expires only the National Assembly can extend it.
2. The President has power to issue an SOE declaration only once at the first instance whether the National Assembly is sitting or not. This was done on March 18 and extended on April 3 by the National Assembly.
3. The next time the President can issue an SOE declaration on his own is when the National is not sitting or when sessions have ended. He did that on May 19.
In a nutshell, anytime the President makes an SOE declaration it cannot be extended the next time by him alone but he has to have the approval of the National Assembly.
Therefore the May 19 SOE declaration which expired on June 9 require parliamentary approval for its extension. If the National Assembly is not sitting then they must be called in an emergency session to sit over the motion to extend the SOE. This was actually done when the National Assembly was recalled to sit from May 15 to 18 to decide an extension which was rejected.
Therefore this declaration today is utterly unconstitutional and must be thrown out!
Stand against undemocratic practices under the cover of combating COVID 19. |
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