Tuesday, December 1, 2020

State Of Public Emergency Where The Powers Of The Executive And The National Assembly

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START AND STOP

A state of emergency was declared to take effect from 19 May 2020. Since the National Assembly was not in session the period of the emergency was earmarked to last for 21 days.

When will the 21 day expire and what is to follow?

The Constitution of the Republic envisages the emergence of an unexpected situation that threatens or may  threaten life and property, at a large scale. In order to handle such extraordinary situation, it gives certain  powers to the Executive, the National Assembly and the Judiciary to handle a state of emergency.

First and foremost, the Executive is given the extraordinary power to declare the existence of a state of emergency or the likeliness of its existence if extraordinary measures are not taken to preempt it. This power is exercised under Section 34 Subsection 1 of the Constitution.

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The Question now arises: Could the President declare a state of emergency to last indefinitely?

The answer to this question in the negative. The number of days a state of emergency should last is determined by Section 34 Subsection 2 of the Constitution which makes it categorically clear that if the declaration is made while the Assembly is sitting it shall lapse at the expiration of 7 days beginning on the day on which the proclamation is published in the Gazette. On the other hand, if the National Assembly is not sitting the declaration shall lapse on the 21st day after its publication in the Gazette. If the executive wants an extension of a state of emergency beyond the seven days while the Assembly is sitting it must introduce a motion for an extension before the expiry of the seven days. In the same vein, it must introduce a motion for an extension beyond 21 days before the expiration of the declaration.

The National Assembly is given powers to extend a period of public emergency under Section 34 Subsection 2 and Subsection 5 for not more than 90 days at a time.

Any state of emergency extended by the National Assembly could also be revoked by the National Assembly by a resolution supported by the Majority of members.

Section 35 of the Constitution provides for the enactment of an Emergency powers Act to prescribe the measures to take after a state of emergency is declared. It is the Act which provides for regulations to enforce emergency powers.

The declaration of a state of emergency on 19th May 2020 for a period of 21 days lapses no later than Monday 15th June 2020.  The National Assembly begins its Second Session of the Legislative year on Monday 15th June 2020.

What then is the plan of the Executive?  Foroyaa has tried to get a copy of any Gazette declaring a state of emergency. Under Section 34 Subsection 6 the President is empowered to declare   a state of Emergency on or before the expiration of a previous declaration.  However, Since the National Assembly is to commence siting on Monday 15th June the Attorney General should balance the validity accorded by technicality in adhering to the letter of the Constitution and that accorded by adhering to the principles of good governance which embrace the necessity of parliamentary oversight of executive decisions and actions. When a state of emergency should be declared and how long it will last before resorting to parliament for extension is a matter that should be decided by proper computation of the mathematics of the law and high regard for  parliamentary oversight.

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