Upholding the Supremacy of the Law over Whims and Caprices
The desire to display unhindered adherence to the best practice in managing the affairs of the legislature has compelled me to address this open letter to you.
It is incontrovertible that every action and decision by law makers must be circumscribed by law. In short, law makers should not be law breakers.
It goes without saying that there is no other way of summoning elected National Assembly members to attend the first sitting of the National Assembly after an election except by relying on a legal instrument prescribed by law.
This is precisely the reason why I had to contact the appropriate officers prior to the first sitting of the National Assembly after the April 6 National Assembly Elections to find out whether the proclamation that The President of the Republic is required to make under Section 97 of the Constitution has been published in the Gazette for the general notice of the elected representatives as the legal instrument summoning them to attend the first sitting. I received assurance from official quarters that the proclamation would be Gazetted to give it legal effect.
On Tuesday 11th April, the Chief Justice appeared before the National Assembly to preside over the election of speaker as required by Section 93 of the Constitution and standing order No: 2.
In order not to allow any semblance of impunity to herald the birth of the National Assembly under a new political dispensation I asked the Chief Justice whether he was acting under the dictate of a Proclamation published in the Gazette to preside over the election of Speaker. His response eventually revealed that the proclamation to hold the sitting of the National Assembly was not published in the Gazette. It is at this point that I cautioned that the 11th April sitting was not being convened under the mandate of a law.
This has brought about a contention that should have compelled your office to do further legal research in order to establish the truth and further undertake to remedy any defect, without fear or favour, affection or ill will, if the observations I made are found to be factual.
The sitting of 13th April 2017 did convince me that your office and that of the clerk are not convinced that the Proclamation the President has the prerogative to make under Section 97 of the Constitution should be published in the Gazette.
It is therefore obligatory to stretch the debate beyond the confines of the National Assembly so that the public would know the essence of my contentions.
First and foremost, one may ask: When should the first sitting of the National Assembly be held after an Election?
Section 97 (1) “The first session of the National Assembly after a General election shall be held in such place in The Gambia as the
President may, by Proclamation, appoint.”
One may now ask: How are Proclamations classified under law and why is it necessary to publish them in the Gazette before they become law?
The answer is simple. A Proclamation is a subsidiary legislation. According to the Interpretation Act “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;”
The question now arises: Could a Subsidiary Legislation have the effect of law without being published in the Gazette?
The answer is in the negative. Section 11 paragraph (d) of the Interpretation Act 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.”
There is no ambiguity in the law. It is as plain as noon day that all Proclamations must be gazetted to have the force of law.
It goes without saying that where law is evident common sense has no role to play in determining what proper or improper practice is.
Jurisprudence therefore demands that law makers put the dictates of law, conscience and the National interest before personal or partisan interest.
I therefore strongly recommend that the Proclamation be published and further given retroactive effect if the flaws are to be remedied for the sake of posterity. To err is human. To persist in error after it is identified is to gradually descend into the abyss of impunity which is the root cause of bad Governance.
While anticipating your maximum cooperation in ensuring freedom of speech and debate in the National Assembly so as to give the legislature the clout it needs to be an effective oversight institution that would foster a culture of Democracy , Good Governance, Due Process , the Rule of law and respect for Funder mental Rights and Freedom;
Yours in the Service of the People