Thursday, November 26, 2020

THE COUNTRY MUST GUARD AGAINST ARBITRARY RULE DESPITE THE THREAT OF CORONA VIRUS: A state of emergency must be declared before rights are suspended

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The Gambia is facing a threat like all other countries in the world because of the pandemic. Extra ordinary measures are required and could be voluntarily taken if there is proper consultation and if the language of state authority could take the form of counselling rather than commandment. In many parts of the world, this surface borne virus COVID-19 is being contained by reducing direct human contact. This has led to cancellation of flights and restriction of public gatherings.

However, everything done in a country should be in accordance with the dictates of law and the Constitution. In The Gambia, there is a Constitution which aims to guarantee fundamental rights and freedoms. These rights and freedoms must be protected from any encroachment. However, under exceptional circumstances they may be encroached on as in Section 35 of the Constitution which reads:

“(1) An Act of the National Assembly may authorise the taking, during any period of public emergency, of measures that are reasonably justifiable for dealing with the situation that exists in The Gambia.

(2) Nothing contained in or done under the authority of such an Act shall be held to be inconsistent with or in contravention of sections 19, 23, 24 (other than subsections (5) to (8) thereof) or 25 of this Constitution to the extent that it is reasonably justifiable in the circumstances arising or existing during a period of public emergency for the purpose for dealing with the situation.”

Section 34 adds:

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“( 1) The President may, at any time, by Proclamation published in the Gazette, declare that –

(a) a state of public emergency exists in the whole or any part of The Gambia;

(b) a situation exists which, if it is allowed to continue, may lead to a state of public emergency.”

A declaration made under this section shall lapse at the expiration of a period of seven days, or if the National Assembly is not then in session twenty-one days, beginning on the day on which the Proclamation is published in the Gazette unless, before the expiration of that period, it has been approved by a resolution of the National Assembly supported by the votes of not less than two-thirds of all the members thereof.”

Hence it is clear that it is the duty of the President to declare a state of public emergency and then legal measures put in place that are necessary, reasonable and justifiable under the law. The Attorney General should therefore be on the alert to give the necessary advice so that passion to act with speed to deal with COVID-19 would not exceed the bounds of the law.

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