State of Emergency in its right perspective
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