While we recognise the need to pursue ethno-chauvinistic majoritarian ambitions and playing court jesting around the President with “Heeno Barrow, Kairo Barrow, Mo kendo Barrow” pleasantries, we must be cognisant of the idea that we are not a country ruled by fiat. 

We must resist being a country of “what the president wants” to one that is governed by “what the law is.” We cannot be a “shit hole” country because of this kind of thinking. We cannot allow the normalisation of President Adama Barrow mocking the Constitution he swore to uphold. 

Gambian people witness this slow-motion erosion of the Constitution and wonder, rightly, if President Barrow will be held accountable. He walks away, effectively permitted to violate the law with impunity.

I have read the Gambia Bar Association ‘s petition against the indeterminate declaration of the State of Public Emergency ( SOPE) powers by President Adama Barrow without the National Assembly approval.  

Under 34(6), President Adama Barrow cannot declare a State of Public Emergency( SOPE) without reverting to the National Assembly. What is the National Assembly’s role as anticipated and provided for under Section 34 (2) of the 1997 Constitution?  

Moreover, why is President Barrow continue declaring SOPE in perpetuity? The reading constrained me to conclude that the Attorney General and Minister of Justice did not seek legal advice before issuing  State of Public Emergency, or ignored competent legal advice before issuing the State of Public Emergency Order; or received corrupt and sycophantic legal advice (a very likely possibility) before issuing the State of Public Emergency(SOPE) Orders. 

In the modern Gambia, the National Assembly and the courts should act like police walking the beat to protect the rule of law. 

Unfortunately, President Barrow is thumbing his nose at both of them. The question remains: When will there be consequences for the unprecedented level of shameless, flagrant corruption and lawlessness in this administration. 

Anything less appalling weakens the National Assembly as an institution, gravely undermines our constitutional democracy, and sets a terrible precedent. Future presidents may be able to get away with virtually any wrongdoing they commit in office.

The Gambian President is not a monarch. Even in established monarchies, such as existing in the United Kingdom, the Queen is deemed above the law. 

However, the monarch is careful to ensure that all her activities in her capacity are carried out in strict accordance with the law. 

For example, in the UK, Her Majesty has never been in a position where her legal standing is in question, precisely because there can be no question. There is a greater responsibility for a Head of State to exhibit undying fidelity for the law and the Constitution unless one is hell-bent on leading a nation unto anarchy.

The Gambia government can undoubtedly impose drastic measures, including the State of Public Emergency (SOPE) powers and other fundamental rights restrictions, to control the spread of the coronavirus and other severe pandemics. 

The Gambia Bar Association’s petition against the State of Emergency Order is about the constitutionality, legality, proportionality, and rationality of the Public Emergency (SOPE). 

The petition would not have arisen but for police officers’ folly in their misguided colonial enthusiasm of unjustifiably harassing the public in the enforcement of the State of the Emergency powers.

The president is not above the constitution. He may not be sued for his actions during his time in office. 

However, his conduct, actions, or decisions in his official capacity as President of the Republic of the Gambia are constrained by the limits laid out by the Constitution. 

Provisions in the 1997 Constitution, on the President’s authority and executive powers, states as much. President SHALL, respect, upholds, and safeguards this Constitution; ensure the protection of human rights and fundamental freedoms and the rule of law. 

The pedestrian idea that institutions of State, or other arms of government, may disregard constitutional provisions solely at the behest of the President is repugnant.

Therefore, it does not mean that in being President, one has the legal luxury to veto constitutional provisions that may limit how he should exercise his executive authority, as President, concerning other government arms, namely the Judiciary and the legislative arm. 

So the matter at hand is not the excitement about, Is the President an Imperial President or a powerful President who can break the law and can disobey the Constitution? 

The issue here is fidelity to the Constitution from where such power is donated to the three arms of government by the people of the Gambia, as per the  1997 Constitution as the supreme law. 

In any case, political power and influence must be constrained by decorum and not applied excessively to undermine the rule of law and the Constitution. 

We have been swimming towards a perilous constitutional territory. The crocodile ate all architects of the unfolding dictatorship, such as intellectual prostitutes, legal mercenaries, and sycophantic enablers here, when they finished tying up its structures. History is replete with examples.

President Adama Barrow’s declaration of State of emergency Order is “unconstitutional” extended the public State of emergency by seven days was not consistent with the dictates of the Constitution. 

Section 34(1) of the Constitution of The Republic of The Gambia gives the President of the Republic the exclusive power to declare a State of Public Emergency but limits the exercise of this power under section 34(2) by prescribing that a 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 provision mentioned earlier, the duration of the State of Public Emergency can only be extended if, before its expiration, a resolution is tabled and approved by two–thirds of the National Assembly Members. 

It is important to note that while the President of the Republic has the power to declare a State of Public Emergency following 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. 

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 amid the Coronavirus, thereby circumventing lawmakers scrutiny and oversight, which is an essential check on the exercise of such executive powers. 

The right and proper course of action were for the Executive to table a motion to extend the State of Emergency (SOPE) before the hallowed chambers. 

In a constitutional democratic country, the issues raised in the Gambia Bar Association’s petition against an unconstitutional declaration of State of Public Emergency (SOPE) would cause acute embarrassment to the Government of the Gambia, the Attorney General of the Gambia. 

However, this is the Gambia, a country where we often attach a higher value to overblown and insecure personal egos of state officers than the rule of law and other matters of collective public interest. 

So we can expect many of government official s react to the in the Gambia Bar Association petition against the declaration of the State of the Emergency powers to wage clever but dishonest legal arguments in the usual Friday afternoon Press Conferences or in court instead of engaging all stakeholders, mostly, the National Assembly on the replacement of the State of Emergency(SOPE) with a constitutional approved State of Public  Emergency( SOPE) powers approved by the National Assembly (or a different measure altogether) that complies with the applicable legal, constitutional and public health standards. 

In other words, our undue focus on height, athleticism, absence of body scars and presence of 32 teeth in the recruitment policy for police constables as well as police bestiality and police brutality has constrained the civil society groups to lodge a legal challenge when the threat of the coronavirus pandemic would easily have inspired everyone to ignore the illegality of the State of the Emergency ( SOPE) Powers and look the other way.

By Alagi Yorro Jallow

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