Monday, January 27, 2020

How Checks And Balances Work In A Democracy


Laws do not make or interpret themselves. They are made and interpreted by organs of the state. Those who implement the law may violate its letter and spirit. Those who make the law may exceed the bounds established by law. This is why section 5 of the Constitution establishes controls to prevent any action from an authority that is not circumscribed by the law or the making of laws that are not authorised by the Constitution. It reads:

“(1) A person who alleges that

(a) any Act of the National Assembly or anything done under the authority of an Act of the National Assembly; or

(b) any act or omission of any person or authority,

is inconsistent with or is in contravention of a provision of this Constitution, may bring an action in a court of competent jurisdiction for a declaration to that effect.

(2) The court may make orders and give directions as it may consider appropriate for giving effect, or enabling effect: to be given, to such a declaration and any person to whom any order or direction is addressed shall duly obey and carry out the terms of the order or direction.

(3) The failure to obey or carry out any order made or direction given under subsection (2) shall constitute the offence of violating the Constitution and –

(a) shall, in the case of the President or Vice President, constitute a ground for his or her removal from office in accordance with section 67; and

(b) any other person who is convicted of that offence shall be liable to the penal prescribed by an Act of the National Assembly.”

As the nation revisits the principles of good governance and rule of law many test cases are likely to go to the Supreme Court for determination. Landmark decisions are expected that would shape the constitutional and legal architecture of the country. Hence Gambians should not hesitate to seek the interpretation of the Supreme Court for matters that have substance but are still unclear. Lessons could be drawn from the decision that could benefit the constitutional and legal process.

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