At the opening ceremony of the 2023 legal year on February, 5, Mr Salieu Taal President of the Gambia Bar Association criticised the government of President Adama Barrow for failure to change the Public Order Act, Elections Decree and other Draconian laws and practices from the previous dictatorship.
This criticism was misguided and revealed an astonishing misunderstanding by Mr Taal of the separation of powers in government.
For the benefit of the public, our constitutional form of government consists of three branches: The executive, legislature and Judiciary. The executive formulates and implements policies, and is responsible for the governance of the country. The legislature has the powers to make new laws and repeal existing laws, whereas the judiciary interprets the constitionality and validity of laws, and resolves legal disputes. A clear understanding of the separation of powers is necessary in order to assign credit or blame for the success or failure of any branch of government in the conduct of their role in law. The validity of the Public Order Act was challenged in the Supreme Court of the Gambia after the coalition government came into power in January 2017. To the disappointment of many, including legal practitioners, the Supreme Court ruled that the Act was valid and constitutional. Ironically, this is the very law under which the former dictator arrested and brutally tortured Solo Sandeng to death. President Adama Barrow and the executive branch of government had nothing to do with the the Ruling of the Supreme Court that upheld the Public Order Act.
How Mr Taal missed this obvious fact is confounding and incomprehensible. One wonders whether he inadvertently lapsed into wrecklessness or whether he was just simply afraid to put the blame on the Supreme Court where it was due. With respect to the retention of the Elections Decree and other draconian laws, it should be reiterated that the constitutional authority to repeal existing laws and to enact new laws is vested in the National Assembly.
The Executive may propose changes in the law but only the legislature has the authority to make the changes that Mr Taal is calling for and thus should have included the National Assembly in his quest for the repeal of these draconian laws. He is correct indeed in saying that changing these laws was long overdue but his decision to direct criticism at the executive and not hold the legislature responsible is unfair and perhaps partisan.
Mr Taal concluded his speech by asking President Barrow to personally champion the implementation of the recommendations of the TRRC. He must be reminded that unlike a dictatorship, matters of governance in a democratic dispensation are not personal in nature. Implementation of the TRRC Recommendations therefore will require the collective judgement and decision of cabinet, albeit under the leadership of the President, and of course with the enactment of the appropriate legislation by the National Assembly, and the wisdom and competent interpretation of the law by the Judiciary. Constructive critism is always welcome but to use the Presidency as the scape goat for the short comings of the independent branches of government is not helpful to anyone.
Head of Strategy,
Nations People’s Party