Bar Association Frowns at Consecutive Extension of SOPE by President
The Gambia Bar Association says it has noted with great concern the successive declarations of a State of Public Emergency (SOPE) by the president without following the due process.
President Adama Barrow has been avoiding the parliamentary approval of the State of Public Emergency by relying on his vested emergency powers to declare 21 and 7 days respectively in recent times. He declared it on the 19th May, 10th June, 1st July, 7th July respectively without resorting to the national assembly to seek an extension.
According to the Bar association, section 34(1) of the Constitution gives the President an exclusive power to declare a State of Public Emergency but limits the exercise of this power undersection 34 (2) by prescribing that the State of Public Emergency shall lapse after seven(7) days or if the National Assembly is not in session after twenty-one (21) days.
“Under the aforementioned provision, the duration of the State of Public Emergency can only be extended if prior to its expiration, a resolution is tabled and approved by two–thirds of the National Assembly Members.
“The Constitution therefore subjects the exercise of the Presidential Powers to declare a State of Public Emergency to National Assembly oversight and scrutiny by prescribing the duration of any such declaration made by the President.
“It is important to note that whilst the President of the Republic has the power to declare a State of Public Emergency in accordance with section 34, the Constitutional power to extend a State of Emergency is vested exclusively on the National Assembly. This is unequivocally provided under Section 34(2) of the Constitution.
“Against this background, it is of our view that the Declaration of State of Public Emergency pursuant to Section 34(6) of the Constitution on the 10th June, 1st July and 7th July without recourse to the National Assembly is not consistent with the dictates of the Constitution,” a statement signed by Salieu Taal, the president of the Gambia Bar Association stated.
The purported declarations by the President of the Republic are in essence extensions of the existing State of Public Emergency already declared on 18th March 2020 and 26th March 2020 respectively which were subsequently extended by the National Assembly.
“It is our view that section 34(6) does not give the President the unfettered power or a carte blanche to declare a State of Public Emergency consecutively based on the same emergency (here the COVID-19) thereby circumventing parliamentary scrutiny and oversight, which is an essential check on the exercise of such emergency powers.
“The right and proper course of action was for the Executive to table a motion to extend the State of Emergency before the National Assembly. This is in line with the spirit and substance of the Constitution, which is the supreme law of this country.
“Whilst we take note that wording and literal interpretation of section 34(6) purports to give the President the power to make further declarations under the provision, such a view is manifestly absurd in a democracy as it will in effect render the powers given to the National Assembly under section 34(2) nugatory or redundant to say the least,” it indicated.
The statement indicated that the declaration of a State of Public Emergency consecutively by the President is in effect usurpation of the powers granted to the National Assembly and is a dangerous precedent for our democracy.
“Within the context of our democracy, it is important to note that the Declaration of a State of Public Emergency has serious ramifications given that during this period the State is vested with sweeping emergency powers and can legitimately curtail the enjoyment of fundamental rights.
“It is therefore imperative that such powers are exercised within the limits set by the constitution. Therefore, the purpose of the constitutional requirement under 34(2) is to ensure that the National Assembly checks or restrains the exercise of the power to declare a SOPE by the President.