By Babucarr Drammeh
In his article published by The Gambia Times on June 12th, 2020, with the above title, Madi Jobarteh asserted thus:
Section 34(6) is merely to provide the general environment that a new declaration could be made. 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 outbreak. Hence the President does not need Section 34(6) at all. What he needs is Section 34(2) and (5). Period . . . 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 . . .
Is Mr. Jobarteh’s assertion the proper position of the law? The answer is an emphatic No. What then is the proper position of the Law? The response to this question needs a thorough constitutional analysis. At this juncture, it is vital to point out that neither Mr. Jobarteh nor myself or anyone’s opinion is the proper position of the law on this matter. All we can then do is to engage in an academic exercise. The only legitimate institution whose answer to this question will be considered the position of the law is the Supreme Court of The Gambia. The Constitution of The Gambia in Section 127(1)(a) provides that the Supreme Court of The Gambia shall have an exclusive original jurisdiction “for the interpretation or enforcement of any provision of this Constitution other than any provision of sections 18 to 33 or section 36 (5) (which relate to fundamental rights and freedoms) .” Therefore, any answer provided — which may or not align with a ruling of the Supreme Court if that body were to interpret this section — will be an academic exercise until such a ruling is made.
Who has the authority to declare a state of emergency?
The 1997 Constitution of The Gambia, in Section 34, like many other constitutions around the world provides for what the President and the legislative branch of their governments should do in case of an emergency or a potential emergency. The constitution in Section 34 gives President the exclusive power to declare that “a state of public emergency exists in the whole or any part of The Gambia” or “a situation exists which, if it is allowed to continue, may lead to a state of public emergency.” In other for the exercise of this constitutional power to be considered legitimate, the President must do the declaration via a “proclamation published in the Gazette.” Any other form of declaration as per the constitution will be declared null and void by the Supreme Court.
How long does a state of emergency last after the President declared one?
Once the President legitimately declares a state of emergency for the whole country or part of the country, such a declaration does not last indefinitely. The constitution has provided for the following timeline:
The state of emergency will last for seven days if at the time the declaration was made by the President the National Assembly was in session. Unless, before the expiration of 7 days, “it has been approved by a resolution of the National Assembly supported by the votes of not less than two-thirds of all the members thereof.”
The state of emergency will last for twenty-one days if at the time the declaration was made by the President the National Assembly was not in session. Unless, before the expiration of 21 days, “it has been approved by a resolution of the National Assembly supported by the votes of not less than two-thirds of all the members thereof.”
Any state of emergency made under Section 34 “shall remain in force for ninety days or such shorter period as may be specified therein.” Provided that “any such resolution may be extended from time to time by a further resolution . . .” Thus, the longest any state of emergency declaration made under Section 34 could last is ninety days.
How does a state of emergency gets revoked?
State of emergency declared by the President without a resolution from the National Assembly supporting such a declaration could be revoked in two ways: (1) The state of emergency “may at any time be revoked by the President by Proclamation which shall be published in the Gazette;” or (2) The state of emergency shall lapse at the expiration of a period of seven days or twenty-one days.
State of emergency declared by the President and supported by a resolution of the National Assembly could be revoked in three ways: (1) The National Assembly may at any time revoke the state of emergency by a resolution supported by the votes of the majority of all the members; (2) After ninety days or such shorter period as may be specified in the declaration; or (3) The President may at any time revoke the declaration by Proclamation which shall be published in the Gazette.
How does a state of emergency gets extended?
A state of emergency is extended by a resolution. The National Assembly has the exclusive power to extend a state of emergency “from time to time by a further resolution.”
Is the power of the President to a declare a state of emergency limited?
The answer to the above question is NO. Section 34(6) provides that “Any provision of this section that a declaration shall lapse or cease to be in force at any particular time shall be without prejudice to the making of a further declaration under this section whether before or after that time.” Thus, if a state of emergency lapses because of expiration of time without any further extension, the President, by virtue of Section 34(6), could declare another state of emergency. Also, if a state of emergency ceased to be in force because of a revocation by the President or National Assembly, the President, by virtue of Section 34(6), could declare another state of emergency. The reason for declaring such an emergency could be the same or different from the one revoked.
Therefore, to state that “Section 34(6) is merely to provide the general environment that a new declaration could be made” and “that the process has to follow from subsection 1” are, in my opinion, inaccurate. But to accuse the President and his Minister of Justice of “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” is nonsensical.
I do believe we should “not let the President run away from scrutiny by misapplying constitutional provisions.” Recognizing that right, however, citizens must not present to the public their opinions on unsettled laws as if they are the laws. We should, instead, endeavor to challenge allege violations of our constitution in the Supreme Court.
Bubacarr Drammeh, Esq. LLB, BL, LL.M. was a Former State Attorney at the Office of the Attorney General at Ministry of Justice in The Gamba. He is Columnist at The Gambia Times