Section 34(6) cannot be a basis for declaring a state of emergency

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