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Saturday, September 18, 2021

Letters:My lay take on the great debate: should it be the president to appear before the Assembly regarding the extensions of the SoPE?

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Dear editor,
I will attempt to provide my lay understanding of the main or relevant subsections under S.77
Sec. 77(1): The President shall at least once in each year attend a sitting of the National Assembly and address a session on the condition of The Gambia, the policies of the Government and the administration of the State.

I think this above subsection is a “constitutional requirement” imposed on president, willy nilly. He doesn’t have to be summoned by the National Assembly; “the president shall…” As stated, the President should, at least once in the year, “attend a sitting of the National Assembly and address a session….”, as a minimum. I don’t think he has yet done that, us in the second balance of the year. The sub-Section is also very clear about what the President shall address a session on viz “…the condition of The Gambia, the policies of the Government and the administration of the State.” In many countries the State of the Nation Address is done at the beginning of the year, and its purpose is very clear, as rightly stipulated in the Constitution. The SoPE was precipitated by a pandemic which affects the Gambia as well. The SoPE affects or restricts certain fundamental rights of the people. The SoPE affects the running of the State, including the national budget. The SoPE affects governance, financial and administrative policies of the Government. Proactive leadership would have shown the urgent need to address the Assembly, especially that the SoPE can only be legitimized through the powers of the Assembly. Addressing the State on TV, I think, is insufficient. But S.77(1), I think, places the obligation squarely on the President; it didn’t extend that power to the Assembly. And the President can choose to address the Assembly only once in the year, and at his convenience. (may be the Constitution should have stipulated specific periods for this and not left it to abuse).

S.77(2) is a discretionary power of the Assembly and I think, as alluded to by Madi, it is the subsection which the Assembly can rely if it chooses to “request the President” to attend a sitting of the Assembly. What powers do the Assembly has to force the President to heed to its request as per this subsection? What if the President refuses to heed to this particular request? What if the President insists that he would rely solely on Sec.77(1) which places the obligation on him? If the President refuses to accede to this request under this subsection, could the Assembly regard it as contempt and so use Section 110 of the Constitution? Sec. 77(2) seems, in my lay opinion, silent on this questions and the force behind this discretionary power of the Assembly.
That leaves us with 77(3), which I think is categorical and provides the National Assembly unequivocally powers.

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“The vice-president shall answer in the National Assembly for matters affecting the President, and the president shall be entitled to send a message to the National Assembly to be read on his or her behalf by the vice president”
Is the many extension of the SoPE one of the “matter affecting the President”? Certainly it is about his powers under Sec 34 of the Constitution (as well as that of the National Assembly too).The concerns of the Assembly are about the use of this power by the President, a matter that concerns the President. And section 77(3) obligates only the Vice President to answer such matters in the Assembly on behalf of the president. Would the President be violating this specific provision if he comes in person to answer for matters affecting the President? The subsection says the “the vice president shall answer…. for matters affecting the president…” I wonder what was the rationale of the drafters behind this particular subsection? Why the president cannot or must not appear before the Assembly to explain matters affecting him or her, the exercises of powers or the acts of omission or Commission? Did they think that Sec.77(1) was sufficient and that we would also have proactive presidents who would love to attend more than one session of the Assembly to discuss national state of affairs? As per my understanding of S.77(3), the Vice President is merely a messenger of the President, to read the message of the president. Would the VP have all the answers to all the questions the Assembly may wish to ask the President? Should the VP be chastised if the responses are found inadequate? Would it be fair to him or her?

I don’t know the answers to my lay questions. But I wish that the president, any and every president, seizes such golden opportunity to have regular interface with the National Assembly, the house of representatives of the people. It would be great for our democracy and the strengthening of the legislative oversight.

If the National Assembly, in their interface with the VP as per S.77(3) realizes that the President oversteps his powers under S.34, can the Assembly regards the action of the president as “misconduct” contrary to S.67 of the 1997 Constitution? Could that action be regarded as one these under S.67(1)… “abuse of office, wilful violation of the oath of allegiance or the President’s oath of office, or wilful violation of any provision of this Constitution”, grounds on which the President may be removed from office? Hon. Ya Kumba Jaiteh seems to strongly believe so. Over to the legal scholars, the learned people.


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