By Yusef Taylor, @FlexDan_YT
Context
The Gambia has been under a State of Public Emergency (SoPE) since Friday, 27th March 2020 due to the Coronavirus / Covid 19 Pandemic. President Adama Barrow’s announcement which failed to specify a period initially created a situation of uncertainty as the Speaker of the House had suspended all sittings indefinitely in the wake of the pandemic.
After a letter from the President’s Office requesting for Parliament to convene sittings, the National Assembly held a meeting on Thursday 2nd April. The letter sent to National Assembly members highlighted that the Hon. Justice Minister intention to table a motion, requesting for a 90 days extension of the SoPE. (See clarification and letter below)
This article compares the Constitutional provisions on a SoPE in the 1997 Constitution (henceforth called Constitution) and the 2020 Draft Constitution (henceforth called Draft) published on 31st March 2020 by the Constitutional Review Commission (CRC). In so doing this article details how a SoPE will vary under the CRC’s proposed Draft.
SoPE Extension cut to 60 Days
There are many similarities between the two constitutions as far as SoPE is considered. For a start, the declaration of a SoPE is very similar and in some cases the wording is almost identical. Currently, the Constitution allows for an extension of up to 90 days, however, the Draft has reduced this period to 60 Days in section 70 (4) of the Draft.
The first extension of a SoPE is contained in section 34 (5) a (i) of the Constitution and allows for a vote of two-thirds of the National Assembly for approval. This is exactly as provided for in section 70 (5) of the Draft. The second extension to the SoPE is also identical in both which requires a higher threshold of three-quarters of Parliamentary votes for approval. Also, this voter threshold must be achieved for Parliament to approve any subsequent extension of a SoPE in both.
This process raises the question of how Parliament’s record of votes is assessed to ascertain if the voter thresholds required for parliamentary approval has been met. In most Parliaments across the world, an electronic voting system is used to tabulate the total votes cast. This is particularly important in guiding the Speaker to announce the appropriate ruling according to the thresholds of votes recorded. The Gambia’s National Assembly currently employs a vote by voice and or show of hands, making it very difficult for the Speaker to assess if the required voter threshold has been reached.
More Review’s and Supreme Court “Oversight”
An entirely new provision has been included in section 70 (7) of the Draft which empowers the Supreme Court to decide on the validity of any declaration of a SoPE, any extension, acts or “action taken in consequence of a declaration of a state of public emergency”. This adds another layer of scrutiny of a SoPE. Gone are days when only the President and the National Assembly were the main actors when declaring a SoPE. In the case of any confusion, the Draft seeks to install the arbitrator in chief to referee any SoPE declaration, regulations and actions.
One new provision affecting elections during the Draft seeks to rebrand the Independent Electoral Commission (IEC) into the Independent Boundaries and Electoral Commission. The Draft demands that IBEC seeks a ruling from the Supreme Court to postpone a “general election” due to an emergency. Provision 139 in the Draft allows for the Supreme Court to determine if the emergency is warranted and to fix a new date for a general election.
Some major differences are noted under “Person’s detained under Emergency Powers” in provision 72 of the Draft. Where section 36 of the Constitution mandates an arresting authority to give notice in a Gazette of persons detained within fourteen days, the Draft requires the notice to be Gazetted within seven days of a person’s detention. Similarly, during a SoPE, the maximum time a person can be detained before their first High Court hearing has been reduced from 30 Days to 14 Days.
After the first hearing, detainees are allowed a subsequent review after 90 Days according to the Constitution, however, the Draft empowers a detainee to be reviewed every 30 Days. A novel provision has been included in section 72 (2) of the Draft which empowers any detainee to apply for another review, five days after their first. The Draft seeks to rectify this, where the Constitution was silent on detainees rights to a further review.
Compensation for Persons Affected
The Draft has made a significant upgrade to the Constitutional provisions on a SoPE. The Draft has included the Supreme Court as a dispute resolution mechanism which creates another layer of checks and balances. Another important role has also been clearly articulated by outlining the role of the Army in any “emergency” situation.
This provision in section 286 (6) of the Draft allows the Army to “assist and cooperate with other authorities in situations of emergency or disaster”. Most importantly the Draft compels the Army “to report to the National Assembly whenever deployed in such circumstances” providing additional “Civilian Oversight” over the Army when deployed. Meanwhile, the Constitution is currently silent on the Army’s involvement.
On a similar note, my attention was brought to provision 3 (2) f in the Emergency Powers Act which places an onus on the State to “provide for payment of compensation and remuneration to persons affected by the regulations” (see image below). Both the Constitution and the Draft are silent on compensation for persons affected by any regulations made under a SoPE.
One key lesson learned from the current SoPE is the fact that there is a need for any regulation which adversely affects people to provide for reasonably appropriate compensation. However, there is still hope that the National Assembly may amend the Draft to ensure that the basic needs of the people are met even during a SoPE.