The Executive Is On A Collision Course With Law, Reason And The Principle Of The Sovereignty Of The People
Events of far reaching political significance are unfolding right before our own eyes. Many lessons of fundamental significance to our existence as a people need to be drawn. History teaches us that those who are to be equal to the task of being the architects of their own destiny must neither be driven to a state of despair or desperation. Despair leads to passivity and resignation while desperation leads to adventurism and over-reaction. A Sovereign people must always be in charge. They must never fear difficulty. They must be ready to make all necessary sacrifices to surmount every challenge to be in charge of their own destiny.
ON A COLLISION COURSE WITH LAW AND REASON
Two Bills are already published in the Gazette. Gazette No: 13 of 1st June 2015 publishes a Bill aiming to amend the Elections Act which includes key clauses which are unreasonable and unjustifiable and whose implementation, if enacted, would contravene the letter and spirit of the Constitution.
Allow us to start with the amendments proposed for Section 105 of the Elections Act which deals with the registration of political parties.
If the Bill is enacted, political parties would be required to pay a registration fee of one Million Dalasis among other requirements. Why are these amendments on a collusion course with law and reason? The answer is simple.
APRC, GMC, GPDP, NRP, PDOIS, PPP and UDP are already registered political parties. These parties cannot be de-registered for not complying with a law which was not in existence when they were registered. This is clearly stipulated under Section 100 Subsection (2) (c) of the Constitution. It leaves no ambiguity in stating that “The National Assembly shall have no power to pass a bill to deprive any person retroactively of vested or acquired rights. The National Assembly should heed the command of law and seek not to deprive any party of its acquired rights. Any such attempt could be challenged.
Needless to say, if the bill is enacted to govern the registration of new parties without the retroactive application of the law an absurdity would be engendered. In short, one would have two different standards for registration for parties which should have equal rights. This would also be unconstitutional since section 33 of the Constitution has stated without ambiguity that “Subject to the provisions of subsection (5), no law shall make any provision which is discriminatory either of itself or in its effect.”
It defines discrimination as “affording different treatment to different persons attributable wholly or mainly to their respective descriptions by race, colour, gender, language, religion, political or other opinion, national or social origin, property, birth or other status whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject, or are accorded privileges or advantages which are not accorded to persons of another such description.”
Hence PDOIS calls on the executive to withdraw this Bill, open up consultation with the opposition to reach a consensus on credible electoral reform and set the Gambia on the trail of free, fair and genuine elections starting with Presidential elections in 2016.
There is no way of escaping a formidable opposition in 2016. No bad law could stop a people who are determined to take charge of their destiny. The greater the obstacles, the greater becomes the resolve to overcome them. Only the chicken hearted try to cheat destiny and they do so without any honour due to them. The lion-hearted always look at destiny squarely in the face. History will tell how our current decision makers would be classified.
The second amendment is published in Gazette No. 14 of 10th June 2015. It seeks to amend Section 18 Subsection (2) of the constitution which states: “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 toxic substance, resulting in the death of another person.”
In short, the Constitution is saying he or she who has not used violence to kill any one does not deserve to be sentenced to death. This is a just and reasonable law.
The executive of the Gambia is however not satisfied with the law. It wants Subsection (2) to be amended by “deleting the words appearing immediately after the word “law”.
Hence if the amendment happens to be enacted the constitution would permit the sentencing to death of any person for offences other than using violence or toxic substances to kill another person. In short, once a law is passed in the National Assembly allowing a sentence of death for economic crimes, sedition , libel, false news , etc it could be enforced by the courts.
This matter should not be taken lightly. In fact, in 2010 the National Assembly and the executive enacted a law which imposed the death penalty for crimes associated with drugs. We are among those people who exposed that the law was unconstitutional pointing out that it contravened Section 18 Subsection (2) which does not permit any body to be killed who has not killed another person by using violence or toxic substances.
Eventually, the state had to repeal the law in 2011. Now they want to amend Section 18 Subsection (2).
What then are its objects and reasons for proposing an amendment?
It is strange that the executive only stated the policy direction of the bill without stating what they wanted to remedy.
It simply states that “the amendment seeks to amend the 1997 Constitution of The Gambia to provide for the application of the death penalty in circumstances other than where there is actual violence or administration of toxic substance resulting in death.”
Why would the executive aim to apply the death penalty on people who have not killed? Which mind or conscience could justify such logic? The Constitution was however sensible enough not to give them the final say.
Since life is very precious the Constitution decided to give the final say to the people to decide on such an amendment through a referendum.
This is why the executive mentioned the following in the bill:
“However, since Section 18 falls under the entrenched clauses of the Constitution the amendment Bill will also have to be subjected to a referendum after it is passed by the National Assembly.”
However, the constitution is categorical in stating that a Bill of the National Assembly altering any of the entrenched provisions, “shall not be passed by the National Assembly or presented to the President for assent unless-
“before the first reading of the Bill in the National Assembly, the Bill is published in at least two issues of the Gazette, the latest publication being not less than three months after the first, and the Bill is introduced into the National Assembly not earlier than ten days after the latest publication;
Hence the Bill cannot be tabled at the National Assembly before September 2015 when the three months and ten days would have elapsed as required by the constitution.
It is at this point that the Bill would be subjected to a second and third reading at the National Assembly and if supported by three quarters of the members the National Assembly it would then be referred to the Independent Electoral Commission by the speaker. The Commission is required to hold a referendum within 6 months.
Before an amendment could take effect fifty percent of the persons who are entitled to vote in the referendum must vote and at least seventy five percent of those who voted must support the Bill.
If a Bill is supported the Commission must issue a certificate indicating compliance with all the constitutional procedures which must be presented to the President with the Bill for his assent which must be done within seven days for the amendment to take effect after publication in the Gazette.
Power belongs to the people. PDOIS will leave no stone unturned in doing its duty to raise the awareness of the people and organise them so that they would be conscious of their transformative powers. The type of people we have will determine the type of society we are going to live in. We are all in it together. Together we will make history in rejecting any attempt to use death as a punishment for crimes which entitle a person rehabilitation and in refusing for “Money–cracy” to prevail over democracy.
The people will prevail since they possess superior power. This is the verdict of history and it is irrevocable.