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Thursday, February 25, 2021

President’s further declaration of a state of emergency was very constitutional, Madi Jobarteh ignorantly called it unconstitutional

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By DR Henry D.R Carrol (M.R.G.)
Solicitor General Emeritus of The Gambia (From 2007 to 2009)
Senior Oxford-trained lawyer (From 1994 to date) &
Founder Adjunct UTG law lecturer (From 2007 to date)

A recent press release, from the Office of the President, signed by Ebrima Sankareh, the government spokesperson, was recently released. The release had this as its important subject matter: Further Presidential Declaration Dated: 10th June 2020, Banjul, The Gambia.

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The clear and comprehensible wording of the aforesaid succinct press release, read as follows: “In exercise of the powers vested in him by Section 34(6) of The 1997 Constitution of The Republic Of The Gambia, His Excellency President Adama Barrow declares that a state of public emergency continues to exist in the whole of The Gambia.
This further declaration shall last for a period of twenty-one days pursuant to Section 34(2), with effect from today 10th June 2020. Therefore, all the Emergency Regulations issued under the Emergency Powers Act, shall continue to apply during the period of the state of public emergency.”

Madi Jobarteh’s first bogus online article titled: The New SoE Declaration Is Unconstitutional
On 10th June 2020, Madi Jobarteh, wrote and published, the above-named bogus article online. Paragraph 1 of the bogus and totally unacceptable article read: “The President has no power to make more than one SoE declaration, one after the other, consecutively, without parliamentary approval in between. Having declared an SoE on May 19th to expire on June 9th, cannot be extended unless approved by the National Assembly.”

My legal analysis:As usual, Madi Jobarteh, the so-called human rights activist, who is legally and constitutionally bankrupt, was certainly engaging in his habitual and totally unacceptable hobby, of misinterpreting the law with impunity, for cheap popularity, thereby manifesting a monumental and totally unacceptable intellectual dishonesty, which will certainly inflict incalculable damage, on the general public. If Mr Jobarteh is bogusly alleging, that President Adama Barrow, does not have the power, to make more than one SoE declaration, one after the other, consecutively, without parliamentary approval in between, then the onus of proof, lies squarely on his shoulders, to quote the relevant section of the Gambian law, which dictates that, this should be the case. One of the cardinal and incontrovertible principles of The Law of Evidence is: “He who alleges, must prove.”

I am putting it to Mr Jobarteh, that Section 34(6) of our 1997 Constitution, upon which the aforesaid press release, was firmly based, indeed gives President Adama Barrow, the constitutional right, to extend the state of public emergency in The Republic of The Gambia, without any need, to obtain a parliamentary approval for this further or consecutive presidential declaration, for another 21 days, as a legal or constitutional condition precedent. To use the appropriate criminal law or The Law of Tort/Civil Law terminology, this very important Section 34 (6), clearly ensures that there is no novus actus interviniens(a break in the chain of causation).

The important Section 34(6) reads: “Any provision of this section, that a declaration shall lapse or cease to be in force at any particular time, shall be without prejudice to the making of a further declaration under this section, whether before or after that time.” This important Section 34(6), is called in legal drafting terminology “a proviso”, which Google authoritatively defines as “referring to a condition, stipulation or limitation, inserted in a document, upon whose compliance the document’s validity or application may depend. In short, it is a clause in a statute, contract or the like, by which a condition is introduced.”
Madi Jobarteh then went on to say in Paragraph 1 of his aforesaid bogus article: “In other words, the president has no power to extend his own SoE declaration. When a current SoE expires, only the National Assembly can extend it.” Firstly, Mr Jobarteh’s laconic statement: “…to extend his own SoE declaration,” is linguistically wrong, because it is a monumental and unacceptable tautology. It should instead simply be: “…to extend his SoE declaration”. He is indeed also linguistically bankrupt. Google authoritatively defines “tautology” thus: “The saying of the same thing twice over in different words, generally considered to be a fault of style (e.g. they arrived one after the other in succession).”

Secondly, this bogus statement of Mr Jobarteh, clearly shows that he does not have the slightest idea, knowledge or understanding of the aforesaid press release, especially its subject matter, which read thus: “Further Presidential Declaration Dated: 10th June, 2020, Banjul, The Gambia.” This in simple English means, that after making a first presidential declaration of a state of public emergency In The Gambia, if after the expiration of that first presidential declaration, His Excellency The President of The Gambia, is of the opinion, that a state of public emergency still exists in The Gambia, then Section 34(6) of the aforesaid Constitution, automatically empowers the president, or gives him or her the presidential prerogative, to instantaneously make a subsequent or consecutive presidential declaration, and there is no need for him or her, to seek for a parliamentary approval of such extension, as a Legal and constitutional condition precedent. Google authoritatively defines “Prerogative” thus: “A right or privilege, exclusive to a particular individual or class.” The Holy Bible says, “Many are called, but few are chosen.”

A classic example of presidential prerogative: I am also vociferously putting it to Mr Jobarteh that even in the finest of democracies, (for example, in the UK, the USA etc), the incumbent elected political leaders of these states, do enjoy certain constitutional prerogatives. In the case of the UK, the elected political leader, is Prime Minister, Boris Johnson (MP), and in the case of the USA, the elected political leader is President Donald Trump. A classic example of this, was when President Trump wanted to commence the construction of a massive wall to prevent illegal immigrants from neighboring countries (especially from Mexico), from entering the USA illegally. The USA bicameral parliament (which is composed of Congress and Senate), outrightly objected to this grand and very expensive project, which will cost USA taxpayers millions of US dollars (about 10 to 12 billion dollars). President Donald Trump never rested on his laurels” (relented or gave up). Instead, he invoked certain prerogative presidential powers, relating to national security, and he finally got his way, with the final construction of the aforesaid project, of great national importance. The construction of this great wall was one of President Trump’s campaign promises to the American electorate, during his race to the White House, with Mrs Hilary Clinton in 2016.

The second paragraph of Mr Jobarteh’s first online article read: “The president has power to issue an SoE declaration only once at the first instance, whether the National Assembly is sitting or not. This was done on March 18th and extended on April 3rd by the National Assembly.”

President Adama Barrow deemed it wise to institute a state of public emergency on 18th March 2020. On 27th March 2020, he unilaterally declared a state of public emergency, which expired on 2nd April 2020. When the learned and Attorney General and Minister of Justice, Mr Alhaji Abubacarr Tambadou (who constitutionally speaking, is also the chief legal adviser of The Gambia Government), went to the National Assembly (of course on the official instruction of President Barrow), to seek for an extension of another 90 days, the National Assembly Members (NAMs) objected to this, and they instead approved an extension of only 45 days (from 3rd April to 18th May 2020). In order to extend that declaration, when it was about to expire, President Barrow made the Assembly to convene an extraordinary or emergency session on 15th May 2020, to consider his request for extension. Unfortunately, this time the Assembly rejected the request, and then went into recess, on that same day. Consequently, President Barrow, having the great interest of the nation at heart, therefore had no other alternative, but to rightly and appropriately invoke the constitutional power expressly vested in him, by Section 34(6) of our 1997 Constitution, to officially declare 21 days state of public emergency, from 19th May to 9th June 2020. “Necessity is the mother of invention”, as the famous adage goes.

Mr Jobarteh’s second online bogus article titled, “Section 34(6) cannot be a basis for declaring a state of emergency”In paragraph 5 of this second online bogus article, Mr Jobarteh hilariously and bogusly wrote: “Therefore, when we got to June 9th, shouldn’t the president have recalled the National Assembly once again as he did before to request their consideration for an extension? This is what the president should have done in line with Section 34(2) and (5). But the president refused to do that, and instead went straight to Section 34(6) to invoke a ‘new’ state of emergency, why?”

In response to this bogus and unfounded assertion of Mr Jobarteh, let me first of all say, he was legally and constitutionally wrong, when he wrote that by going straight to Section 34(6), President Barrow was invoking a ‘new’state of Emergency. Firstly, I am putting it to Mr Jobarteh that President Barrow was not in anyway, invoking a new state of emergency. On the contrary, he was constitutionally re-activating a state of emergency that had just elapsed, and Section 34(6) of our 1997 Constitution, which is still in force, clearly gives him the presidential prerogative to do so, without the need, to first seek for parliamentary approval for such extension, as a legal or a constitutional condition precedent. “Equity aids the vigilant, but not the indolent”, as the famous Equity adage goes.

Secondly, I am putting it to Mr Jobarteh that when we as a nation got to 9th June 2020, President Barrow might have thought it very unwise to recall the National Assembly once again, as he had done before to request their consideration, for yet another extension, because: (a) After having summoned another extraordinary or emergency session of the National Assembly, for the second time, this time around it could have been very difficult or impractical, to have a quorum for that very important parliamentary session, because some of the NAMs, might have travelled out of The Greater Banjul Area to their respective constituencies, all over the country, in order to update themselves, with the problems of their voters or political supporters;

(b) If President Barrow successfully solved the aforesaid political dilemma, by easily invoking Section 34(6), which was readily available to him, it would therefore not make any sense whatsoever, for him to abandon Section 34(6), and instead attempted to solve the political dilemma by invoking Section 34(2) and (5) of the afore said constitution, as Mr Jobarteh was hilariously and ignorantly suggesting. Ignorantia juris non excusta (ignorance of the law, is no excuse). A bird in the hand, is worth two in the bush. Google authoritatively explains the meaning of this famous adage thus: “It is better to hold unto something which one already has, than to risk losing it, by trying to attain something better”;

(c) thirdly, it was very wise for President Barrow to rightly used Section 34(6)to solve the aforesaid political dilemma, instead of Section 34(2) and (5) of our 1997 Constitution, which is still in force, because by wisely doing so, President Barrow as a big democrat and a great respecter of human rights, was in fact fully respecting “the right to rest and leisure” of all Gambian parliamentarians, which is expressly guaranteed by Article 24 of the United Nations 1948 Universal Declaration of Human Rights. Article 24 of this very important universal human rights convention, which The Gambia has already signed and ratified, reads: “Everyone has the right to rest and leisure, including reasonable limitation of working hours…”

In paragraph 6 of this second bogus online article, Mr Jobarteh bogusly said: “Section 34(6) is a subsidiary of Section 34. The main stem is Subsection 1, which gives original power to the president to declare a state of emergency. All of the subsections from 2 to 6 are merely to support the main Subsection 1. None of the subsections can stand on its own, such that the president could use them, regardless of the others.” I am vociferously putting it to the very interesting and adventurous Madi Jobarteh that this bold, illegal and unconstitutional assertion of his, is indeed tantamount to a monumental illegal and unconstitutional nonsense. If he wanted readers to believe that what he was saying was truthful, then he should have quoted a legal authority, to substantiate what he was saying. But he was obviously unable to do so, because no legal authority exists, to this effect. Nemo dat non quob habet (no person can give, what he or she does not have). On the contrary, I am putting it to Mr Jobarteh (an unpardonable quack or charlatan), that I have an unquestionable legal authority, to substantiate my incontrovertible assertion that, in legal drafting, a sub-section, can indeed be used on its own, irrespective of what the main section is saying. That is why, I have already authoritatively defined “proviso” above. The famous legal drafting authority, which I am rightly alluding to above is The Construction Of Deeds And Statutes, by Charles Odgers.

In paragraph 9 of this second bogus online article, Mr Jobarteh inter alia bogusly said: “The president does not need Section 34(6) at all, because it is not necessary. There is no situation prevailing that makes it necessary. The current situation makes only Section 34(2) and (5) necessary, and these are the only provisions that the president needs and should use. Nothing else…” I am further putting it to Mr Jobarteh that President Barrow, indeed needs Section 34(6), because it is absolutely necessary. The current situation prevailing in The Gambia at the moment (ie the slow but steady increase of our few Covid-19 cases, as regularly confirmed by our health experts ably headed by Dr Ahmadou Samateh, Minister of Health), really justifies the aforesaid yet another extension of the state of public emergency by the president. Anyone, who myopically and maliciously opposes this, like Mr Jobarteh, is either an unpatriotic Gambian citizen, or an ill-intentioned person, who does not have the interest of our beloved motherland at heart.

President Barrow should indeed be warmly congratulated, since The Gambia has recently been officially declared as “The 12th most peaceful country in Africa”. I invite reference, to a very interesting and eye-catching front-page article titled “Gambia is 12th most peaceful country in Africa”, ably authored by Aisha Tamba, which was published in the Monday, 15th June, 2020 publication of The Standard newspaper. President Barrow’s highly photogenic coloured photograph was also appropriately affixed to the aforesaid masterpiece article. The first paragraph, of this very interesting article reads: “The latest Global Peace Index (GPI), which ranks 163 independent states and territories according to their level of peacefulness, has named The Gambia as the 12th most peaceful country in sub-Saharan Africa, and 60th in the world. Produced by the Institute For Economics And Peace (IEP), The GPI is the world’s leading measure of global peacefulness….”
Once again, our heartiest congratulations, to President Barrow, because this noble and enviable national achievement occurred under his distinguished statesmanship and stewardship.

In conclusion, let me give Mr Jobarteh, a sound piece of legal advice again. I have already given him this important legal advice twice before, but it seems, that he is arrogantly refusing to listen to it, not to talk about him complying with it. If he is not tired of misrepresenting the law with impunity, to the detriment of the general public, I would also never be tired of boldly, habitually and happily rectifying him publicly pro bono publico (for the public good). I am fully aware of the famous proverb, “Where ignorance is bliss, it is folly to be wise”, which Google authoritatively defines as: “It is better to remain unaware or ignorant of things that may otherwise cause one stress, if you don’t know about something, you don’t need to worry about it.” This famous quotation is from a masterpiece poem titled Ode On A Distance Prospect Of Eton College by Thomas Gray, a celebrated and erudite late British poet. Eton College, is a very prestigious and aristocratic 13-18 independent boarding school for boys, in the parish of Eton, near Windsor, in Berkshire, England.

Despite my full knowledge of the aforesaid well known proverb, let me reiterate to Mr Jobarteh, that his younger brother, Mr Junkung Jobarteh, was one of my brilliant LL B degree students of the Faculty of Law of the University of The Gambia. Junkung is now a fully qualified lawyer, my learned junior and the able executive director of the Gambia Media Council. He is now studiously studying for the General Master of Laws (LL M) degree, from the aforesaid faculty of UTG. It will indeed be very wise of Mr Jobarteh to be always eating the humble pie (admitting defeat) and to be always taking his so-called legal articles to Junkung for the necessary legal vetting before publications in our national newspapers, on the Internet and social media, in order to prevent legal luminaries, who know the law far more than him, from habitually disgracing him again and again. A word to the wise, is quite sufficient. A few days ago, the current and learned solicitor general and legal secretary, Mr Cherno Marenah, was having an interview on this important national matter on the Kerr Fatou TV media platform against the notorious Madi Jobarteh. The interesting and highly educative TV Interview was successfully hosted by Mr Lamin Cham, a veteran Gambian journalist, whose day job is being the editor-in-chiefof the most widely read Gambian newspaper (The Standard). It was very entertaining and intellectually stimulating to notice with glee how my learned friend, Mr Marenah was indeed giving Mr Jobarteh a merciless academic and intellectual beating in full glare of the general public.
I rest my case.

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