It
is like the law of the law, or the law policing the law, or the law behind the
law.
The
million dollar question is, who watch the watchman?
A
Proclamation is said to be a subsidiary legislation, and according to the
Interpretation Act, it reads:-
“subsidiary
legislation” means any Proclamation, Rule, Regulation, Order, Notice, By-law or
other instrument made under any Act or by or under any other lawful authority
and having legal effect;”
After
all, why do we need an Interpretation Act, when all our laws are clearly
described and prescribed? The answer is a simple one, the purpose of the
Interpretation Act is to clarify or explain the meaning of; to construe the
significant or intention of; to convey the spirit or meaning of (a poem, word,
song etc.) in performance. So the word interpretation, is the act or processing
of interpreting or explaining.
I
think it is of paramount important for one to know that any time one is
interpreting a legal text, one should bear in mind that, it should be amenable
to one and the same interpretation all the time.
It
is also important for one to know that, this subsidiary legislation drives its
authority from the 1997 Constitution, by virtue of Section 7 (b), and it
states:-
“any
Orders, Rule, Regulations or other subsidiary legislation made by a person or
authority under a power conferred by this Constitution or any other law;”
Now
a closer look at the wordings of the Interpretation Act is this if we can make
sense out of the last four words of the Act “....... and having legal effect”.
That bit is in the present continuous, so in
essence a “Proclamation” is only a law when gazetted, good argument.
I
think the Interpretation Act, acted here as an omnibus clause, which in itself
encompasses all other forms of subsidiary legislations.
A
similar and more convincing explanation is found in Section 11 paragraph (d),
of the Interpretation Act, which states:-
“Subsidiary
legislation shall be published in the Gazette and shall have the force of law
upon the publication thereof or from the date named therein:
Provided
that a Proclamation may be published in such manner as the authority making it
shall direct and upon publication the Proclamation shall forthwith have the
force of law unless the Proclamation otherwise provides.”
From
my readings, the authority in the person of the President shall, and can direct
the publication of a “proclamation” in such manner other than gazetting and
shall forthwith have the force of law unless the Proclamation otherwise
provides. The last three words “...... Proclamation otherwise provides” meaning
that unless the Proclamation in itself mentioned that, this Proclamation only
gets the effect of law by gazetting. If that is the case then a Proclamation
only get the force of law through gazetting simply because the Proclamation
itself said so.
The
proviso in Section 11 paragraph (d), bails out the President, if he chooses to
do otherwise. This is because one of the effects or functions of a proviso - is
a complete departure from the rule/law, and in an instance case this is exactly
what happened. So thanks to the proviso, once again the President is being
vindicated, and it gives the President a leverage and the prerogative to do
otherwise within the law.
That
is the beauty about the law, the imperfection in law gives the lawyers’ a
career in this ancient, honourable and learned profession.
With
all due respect, I think is a duplication of official efforts on the part of
the drafters, to mentioned that, the Gazetting of a Presidential Proclamation
or a person in authority shall be Gazetted in order to get the force of law.
Now to our lawmakers.
Yes,
the House is balance, is a mix-bag and we have some singular characters that
are parallel to none, but that those not mean that the House is perfect.
I
also think it would be prudent to save some Parliamentary Time in the National
Assembly, and invest it into more pressing issues of the Government. Let us do
away with the process of obstructing legislation by means of delaying tactics
i.e. filibustering. As honourable members we should try to interrelate and not
to interpellate in our dealings with others. We should always try and live up
to the letter and spirit of Section 112 of the Constitution, and it states:-
“The
responsibilities of the members of the National Assembly shall include the
following –
(a)
all members shall maintain the dignity of the National Assembly both during the
sittings of the National Assembly and in their acts and activities outside the
National Assembly;
(b)
all members shall regard themselves as
servants of the people of The Gambia, desist from any conduct by which they
seek improperly to enrich themselves or alienate themselves from the people,
and shall discharge their duties and functions in the interest of the nation as
a whole and in doing so shall be influenced by the dictates of conscience and
the national interest.”
Finally,
a writing like this, is not meant to appease or agitate anyone.
The
last word in this argument, has to come from the preamble of the 1997
Constitution, courtesy of paragraph six, which reads:-
“This
Constitution guarantees participatory democracy that reflects the undiluted
choice of the people. The functions of the arms of government have been clearly
defined, their independence amply secured with adequate checks and balances to
ensure that they all work harmoniously together toward our common good.”
That
connects us all the way to the last paragraph of the said preamble and as an
abstract from the National Anthem, and it reads:-
“In
this spirit, we continue to pledge our firm allegiance to our beloved Country
and pray that the Great God of Nations will keep us all ever true to The
Gambia.”
Author:
Kawsu E. Jadama
