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Wednesday, August 12, 2020

Critical interpretation of Section 18 (1), (2), and (3) of The Gambian Constitution

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By Kawsu E Jadama

Introduction:
By virtue of Section 100: the legislative power of The Gambia is vested in the National Assembly. Corollary to that, attention should be drawn to Section 18 which comes under Chapter IV (which provides for the protection of fundamental rights and freedoms) of the 1997 Constitution, as a statutory law.

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Definition:
The term statutory interpretation refers to the action of a court in trying to understand and explaining the meaning of a piece of legislation. According to Lord Hailsham, a senior English Judge once said that, many cases go to appeal on point of interpretation.

Words are prone to different interpretations, even the simplest word can be understood differently. With this being the case, even the best drafted legislation can include many ambiguities. This not the fault of the draftsman, simply a reflection of the fact that where people look at a text from different points of view they will naturally find different meanings in the language used.
Generally, the three basic rules of statutory interpretation used in most common law jurisdictions – The Literal Rule, The Golden Rule, and The Mischief Rule.

 

The Literal Rule
Under the literal rule (also: the ordinary meaning rule; the plain meaning rule), it is the task of the court to give a statute’s word their literal meaning regardless of whether the result is sensible or not. In a famous judgment, Lord Diplock in Duport Steel v. Sirs (1980) said: “The courts may sometimes be willing to apply this rule despite the manifest absurdity that may result from the outcome of its application”. This approach restricts a judge to the so called black letter of the law.

 

The Golden Rule
The golden rule (also: the British rule) is an exception to the literal rule and will be used where the literal rule produces the result where Parliament’s intention would be circumvented rather than applied. In Grey v. Pealson (1857), Lord Wenslleygals said: “The literal rule should be used first, but if it results in absurdity, the grammatical and ordinary sense of the words may be modified, so as to avoid absurdity and inconsistency, but no further”. One example of the application of the golden rule is the case of R v. Allen – Defendant was charged with bigamy, an offence prohibited in Offences Against Persons Act 1861 which reads:
“Whoever is married, marries another commits bigamy”. Held: That the “marries” need not mean a contract of marriage as it was impossible for a person who is already married to enter into another valid contract marriage (legal impossibility) the emphasis is mind. Hence, the court interpreted it as “going through marriage ceremony”.

 

The Mischief Rule
The final statutory interpretation is the mischief rule, under which a judge attempts to determine the legislator’s intention; what is the “mischief and defect” that the statute in question has set out to remedy, and what ruling would effectively implement this remedy? The classic statement of the mischief rule is that given by the Barons of the Court of Exchequer in Heydon’s Case (1854).
As well as these three rules of interpretation, there are a number of rules that are held to apply when determining the meaning of a statute:

The 1997 Constitution Schedule 2 – interpretation section – states:-
6 (2) Where, immediately before the coming into force of this Constitution, any existing law had not been brought into force or was to come into force on a date subsequent to the coming into force of this Constitution, the law may be brought into force in accordance with its terms, or it shall come into force on such subsequent date, as the case may be, in so far as it is not inconsistent with this Constitution.
Meaning the law must go through such modifications, adaptations, qualifications and exceptions as may be necessary to bring it into conformity with the Constitution.

Now a critical look at Section 18 (1), (2) and (3) – Protection of right to life – reads:-
(1) “No person shall be deprive of his or her life intentionally except in the execution of a sentence of death imposed by a court of competent jurisdiction in respect of a criminal offence for which the penalty is death under the Laws of The Gambia as they have effect in accordance with subsection (2) and of which he or she has been lawfully convicted”.

(2) “As from the coming into force of this Constitution, no court in The Gambia shall be competent to impose a sentence of death for any offence unless the sentence is prescribed by law and the offence involves violence, or the administration of any toxic substance, resulting in the death of another person”.

 

(3) “The National Assembly shall within ten years from the date of the coming into force of this Constitution review the desirability or otherwise of the total abolition of the death penalty in The Gambia”.
Sub-section (2) qualifies sub-section (1), now the question is what about sub (3)?
Comparatively, under the 1970 Constitution chapter III – Protection of Fundamental Rights and Freedoms – Section 14 (1), states:-
“No person shall be deprived of his or her life intentionally except in the execution of the sentence of a court in respect of a criminal offence under the laws of The Gambia of which he has been convicted”
Also, by virtue of Section 33 (1) of the 1999 Constitution of Nigeria as amended; states:-

“Every person has a right to life, and no one shall be deprived intentionally of his life, save in the execution of the sentence of a court in respect of a criminal offence of which he has been found guilty in Nigeria”
So in essence the 1970 Constitution of The Gambia provided for a death sentence without any qualifications, and that of the 1999 Constitution of Nigeria. Unlike the 1997 Constitution of The Gambia which stipulated a time frame as to when the provision becomes a functional law/clause.
On an equal footing, in America Death Penalty is authorized by 37 States, the Federal Government, and the U.S. Military included without any qualifier or ambiguity in the laws.

It stands to reason that, in terms of applicability, the death penalty in The Gambia can only be applicable after fulfilling those attributes mentioned in the interpretation part under schedule 2, (6) (2) as stated above.
A fortiori, though in our interpretation, we don’t lose sight of the tripartite rule of interpretation i.e. The Literal Rule; the Golden Rule; and the Mischief Rule. But here our focus will be on two things, (1) Latin “mens legislatoris” i.e. the mind/intention of the lawmaker – at the time and (2) Latin the “mens legis” i.e. the mind of the law.
We take solace in the Argument that, it was like the lawmaker at the time in his mind, was not sure of whether the then National Assembly will adopt the death penalty or not. So as such, the lawmaker carefully decided to put a pendulum or a suspended clause or a condition precedent as a qualifier for that provision to become a law.

Arguably, automatically at the end of the 10 years the law becomes inoperative.

Conclusion:
In the final analysis, Section (18) (3), was only a law by the time frame given by the Constitution – the key word or watch word is shall within ten years as to the desirability or total abolition of the law. The word shall is mandatory – so the above arguments were (Latin) “sine qua non” essential requirements without which not – for Section (18) (3) to qualify and to be called a law.

Otherwise (18) (3) is a moribund law, in the sense that it lacks all the vitality of an existing effective law.
Is a dysfunctional law, simply because it lacks all the attributes of an effective law, and has outlived its purpose. Throughout the text some key words are highlighted or underlined that is just to buttress emphasis on their strength and meaning.
Section (18) (3), is a Sunset law/Clause that has outlived its functionality and automatically terminates its existence at the end of a fixed period (ten years) unless it is formally renewed, otherwise it is not a law per se.
Way forward:

With the time lapses, and the lack of action on the part of the National Assembly, we do hereby in our humble submission, suggest and recommend that the Death Penalty in The Gambia be put to a referendum for it to be revived as a law or to be rejected as a political tool or weapon to be used against political opponents. That was the case when 9 inmates of death row convicts surreptitiously were executed on Thursday 23rd August, 2012 at the state central prison (Mile 2) without the due process.
Finally, we will end this discussion by saying that, laws are meant for us and we are not meant for the laws. So why not the lawmakers go back to the drawing board and ‘take the bull by the horns’ and do the right thing for the benefit of all and sundry.

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