(JollofNews) – The desire to display unhindered adherence to the best practice in managing the affairs of the legislature has compelled me to address this open letter to you.
It is incontrovertible that every action and decision by law makers must be circumscribed by law. In short, law makers should not be law breakers.
It goes without saying that there is no other way of summoning elected National Assembly members to attend the first sitting of the National Assembly after an election except by relying on a legal instrument prescribed by law.
This is precisely the reason why I had to contact the appropriate officers prior to the first sitting of the National Assembly after the April 6 National Assembly Elections to find out whether the proclamation that The President of the Republic is required to make under Section 97 of the Constitution has been published in the Gazette for the general notice of the elected representatives as the legal instrument summoning them to attend the first sitting. I received assurance from official quarters that the proclamation would be Gazetted to give it legal effect.
On Tuesday 11th April, the Chief Justice appeared before the National Assembly to preside over the election of speaker as required by Section 93 of the Constitution and standing order No: 2.
In order not to allow any semblance of impunity to herald the birth of the National Assembly under a new political dispensation I asked the Chief Justice whether he was acting under the dictate of a Proclamation published in the Gazette to preside over the election of Speaker. His response eventually revealed that the proclamation to hold the sitting of the National Assembly was not published in the Gazette. It is at this point that I cautioned that the 11th April sitting was not being convened under the mandate of a law.
This has brought about a contention that should have compelled your office to do further legal research in order to establish the truth and further undertake to remedy any defect, without fear or favour, affection or ill will, if the observations I made are found to be factual.
The sitting of 13th April 2017 did convince me that your office and that of the clerk are not convinced that the Proclamation the President has the prerogative to make under Section 97 of the Constitution should be published in the Gazette.
It is therefore obligatory to stretch the debate beyond the confines of the National Assembly so that the public would know the essence of my contentions.
First and foremost, one may ask: When should the first sitting of the National Assembly be held after an Election?
Section 97 (1) “The first session of the National Assembly after a General election shall be held in such place in The Gambia as the
President may, by Proclamation, appoint.”
One may now ask: How are Proclamations classified under law and why is it necessary to publish them in the Gazette before they become law?
The answer is simple. A Proclamation is a subsidiary legislation. According to the Interpretation Act “subsidiary legislation” means any Proclamation, rule, regulation, Order, Notice, by-law or other instrument made under any Act or by or under any other lawful authority and having legal effect;”
The question now arises: Could a Subsidiary Legislation have the effect of law without being published in the Gazette?
The answer is in the negative. Section 11 paragraph (d) of the Interpretation Act states
“ Subsidiary legislation shall be published in the Gazette and shall have the force of law upon the publication thereof or from the date named therein:
Provided that a Proclamation may be published in such manner as the authority making it shall direct and upon publication the Proclamation shall forthwith have the force of law unless the Proclamation otherwise provides.”
There is no ambiguity in the law. It is as plain as noon day that all Proclamations must be gazetted to have the force of law.
It goes without saying that where law is evident common sense has no role to play in determining what proper or improper practice is.
Jurisprudence therefore demands that law makers put the dictates of law, conscience and the National interest before personal or partisan interest.
I therefore strongly recommend that the Proclamation be published and further given retroactive effect if the flaws are to be remedied for the sake of posterity. To err is human. To persist in error after it is identified is to gradually descend into the abyss of impunity which is the root cause of bad Governance.
While anticipating your maximum cooperation in ensuring freedom of speech and debate in the National Assembly so as to give the legislature the clout it needs to be an effective oversight institution that would foster a culture of Democracy , Good Governance, Due Process , the Rule of law and respect for Funder mental Rights and Freedom;
I remain
Yours in the Service of the People
Hon Halifa is making the “holders” of The National Assembly look infantile beyond inexperience;
Hardly surprising as most are “kids” still “wet behind the ears”
When is this government going to get going ?
Mike Scales, the Unfortunate answer is, don’t hold your breath. You won’t make it through the day.
OK, let us see what Halifa is saying:
“The first session of the National Assembly … shall be held … as the President may, by Proclamation, appoint.”
THERE IS NO DISPUTE THAT THE PRESIDENT DID MAKE A PROCLAMATION SUMMONING PARLIAMENT OVER GRTS, RADIOS, NEWSPAPERS, ETC!!!!!!!!!!!!!!!!
Halifa’s problem is how this was done.
HALIFA WANTED A GAZZETTING WHICH – HALIFA SAYS – IS REQUIRED BY LAW.
Says Halifa “How are Proclamations classified under law and why is it necessary to publish them in the Gazette before they become law?” “A Proclamation is a subsidiary legislation. … “subsidiary legislation” means any Proclamation, rule, regulation, Order, Notice, by-law or other instrument made under any Act or by or under any other lawful authority and having legal effect”.
DAMN! I am CONFUSED!
Halifa tries to help: “Could a Subsidiary Legislation have the effect of law without being published in the Gazette? The answer is in the negative.
“Subsidiary legislation shall be published in the Gazette and shall have the force of law upon the publication thereof or from the date named therein:
NOW HALIFA LOOK! NOTHING SAYS: “A PROCLAMATION shall be published in the Gazette”!!!!! AS HALIFA SAYS:
“Provided that a Proclamation MAY BE PUBLISHED IN SUCH A MANNER AS THE AUTHORITY MAKING IT SHALL DIRECT … ”
GOTCHA HALIFA! SPOKEN WORD ON GRTS, RADIOS, ETC ARE LEGALLY “PUBLICATIONS”.
Says Halifa: “There is no ambiguity in the law. It is as plain as noon day that all Proclamations must be gazetted to have the force of law”.
QUESTION TO HALIFA: WHY, HON. SIR, DID YOU ATTEND AN UNLAWFULLY GATHERING – AND TAKE AN OATH THAT MUST ALSO BE UNLAWFUL??!!
Come on Halifa, you are now a sworn MP (or NOT!). get on with the job and stop bleating.
Halake, Unpublished utterances are Unpublished Utterances. Not Publications. A President cannot Hide behind “Policy by Press Conference” or going to a Radio or TV. Station for a “Friendly interview with a “Friendly” Reporter.
My in law, why are you confused. It’s straightforward, isn’t it ? As the Hon. “Gentleman of the Day” has informed us, a “Proclamation” is a “Subsidiary Legislation” because a “Subsidiary Legislation” is defined as, “any PROCLAMATION, rule……..having legal effect.”
So, when the law says, “a subsidiary legislation shall be published in the Gazette…and…have the force of law thereof…..”, doesn’t that include Proclamations? Of course it does, and you know it.
“Provided that the publication may be published in such a manner as the authority making it shall direct…”, does not change the fact that it must be Gazetted before it takes legal effect.
My in-law, I want to provide the part of the argument that Halifa Sallah does not emphasise, the part that I think the people he criticises relied on. First, a couple of definitions.
A PROCLAMATION is: “a public or official announcement dealing with a matter of great importance, a clear declaration of something. Synonyms are decree, order, edict, command, rule, ruling, announcement, declaration, pronouncement, statement.
“PUBLISHING” is: “the action of making something generally known”. Synonyms for “publishing” are issuing, announcement, printing, notification, reporting, declaration, communication, proclamation, broadcasting, publicizing, advertising, distribution, spreading, dissemination, promulgation, issuance, appearance, emergence.”
HALIFA arrives at his conclusion by deductive reasoning, the premises of which can be argued “until the cows come home” (I am a Fulaman!). The CHIEF JUSTICE & THE SPEAKER can rely on an unambiguous and clear sentence which states that:
“A Proclamation MAY BE PUBLISHED IN SUCH A MANNER AS THE AUTHORITY MAKING IT SHALL DIRECT ”
So, if the “authority making” the proclamation “direct” that the “manner” of publication shall be through radio, television and newspapers, they are free to do so. And if they had chosen to gazette the proclamation, that too would have been fine, as Halifa’s deductive logic proves!
Clearly, those drafting the Constitution clearly provided for circumstances whereby a proclamation may not be gazetted.
I think the National Assembly needs a legal team to advise on legal matters, but do you think the intent of the Constitution is to allow the President’s proclamation to become law without being Gazetted, whilst it bars the National Assembly from passing bills into law, unless published in the Gazette? That would be extraordinary, I must say.
By the way, hasn’t the Gambia Government got an Official Gazette where matters requiring to be gazetted are physically printed? I think it does, so merely announcing a proclamation wouldn’t be sufficient to meet the legal requirement to publish in the gazette. The proclamation must be printed in the Gazette. That’s my layman opinion.
Here are some issues to focus on Hon Sallah:
1. Education for our children
2. Jobs Jobs Jobs
3. Power
4. Healthcare
5. Infrastructure
I am not impressed by your knowledge of the constitution or procedure of law. Those are internal matters that needs to be resolved privately within the Assembly. All we care about is peace prosperity and security. Hungry Gambians do not care about the minutia of the process, they want food on the table and a bright future for their children. Get serious guys and stop this bitter nonsense .
God Bless The Gambia
Dr. Sarr, I’m afraid you missed the point. Impunity begins with a drip, and then a flood. By then, it is too late for anyone to Mitigate the situation in a timely and effective manner. Hold them to Account, Hon. Halifa Sallah. Convenience has yet to produce Good Governance.
Gambian so called elites,
I pity our country.Why do we not focus on the substance rather than the person?. it seems some of us are blind and determined that this government is as perfect as the Almighty’s administration of the worlds. come on elites lets be realistic. if we think that the constitution is immaterial now after jameh is ousted. then ade we really serious about good govrrnance and democracry. When shall we be rational in our debates. All some of us see is the Barrow governemnt should not be criticised and doing so makes one an enemy of the government. The one good turn deserves another, The same people were referencing the constututional provisions flawted by Jammeh
Halifa having fought for justices and truth for the last 30 years and most especially during the political impasse when some of us lost total hope abd were jenepulating and others hiding under our pillow is now seen as a hater of progress and of the very adminstration in which he played the 90 minutes game. How ungrateful are humans.
if Halifa should close up and lets focus on work for food, schools etc . we are not lettered on the role of good governance in poverty reduction and sustainable growth. The politics is ovrr and we must learn to debate on substance that will move the gambia further snd any erring or deviation by the Barrow government should be whistle and corrected for our common good andvthat of our children
Nobody said the honorable NAM should not do what he is duty bound. What irritates me is the patronizing public BS. Do your job and do it well without public circus and attention . Technical matters belong in the Assembly chambers with leadership . If that chanel is already explored, the house rules are clear concerning such matter. The way Sallah is going about things is causing unnecessary acrimony and bad blood in the NA. My point is this old men need to grow up or get out. Gambia cannot squander this opportunity to grow and thrive refereeing old grudges.
My Good Doctor; for once I have an issue/ Once The NA” Do things behind closed doors” One important part of your democracy “Freedom of Information” is a matter of convenience/
I think a lot is expected of Hon. Halifa…and going by this { from the start} sends his friendly warning shot across the Bow. With Respect this is a publicly elected body. Discipline is part of this “Game”
I believe in transparency and I believe that Hon Halifa Sallah is duty bound to hold NAM and the leadership to the highest standard expected and deserved by Gambians. I think the house rules should be followed. I think that the issue here is motivation. If we allow Sallah and Darboe to derail our future because of personal ambition and animosity we shall all be found wanting. I love and respect the Hon NAM and I understand what he is trying to do.
I think it is important to note that these men have been in a psychological infirmary for 22 years and they have no clue what it is to govern. They are all learning together. My appeal is for the sake of Gambia work together absent your differences .
God Bless The Gambia
This is the era of transparency and we must not only cherish it, but we must also protect it by refusing to accede to the notion that National Assembly matters belong only to the National Assembly. Such an approach is, with all due respect, myopic. There is nothing wrong with Halifa’s open letter. He raised the issue in the National Assembly and he was effectively “brushed” aside. It is therefore only right that he should seek another way of addressing the issue so that the wrong can be righted for posterity and to avert potential legal challenges. That is what good governance is about and it is what makes a good government. I did not read any negative criticism in Halifa’s open letter; rather what I read is a call to uphold the tenets of the Constitution. As Buba rightly stated “we must learn to debate on substance” and I say we start doing so by not trivializing the tenets of our Constitution that we expect to protect us as a people.
I agree. No more hush, hush. We want openness and must insist on it.
Hon. Sallah will not be found wanting and he will not disappoint.
He is very clear on government and governance, and he has always propagated the rule of law and never hesitates to publicly point out actions of officials that infringe, or are at variance, with the rule of law.
I agree; they are like a pair of Sumo wrestlers thumping the ground with their feet.
If the “Sumo contest” is the “battle” of ideas, then that is good for The Gambia.
We want politicians to win support through the superiority of their ideas and policies; not what tribe they belong to; what their family history is or how philanthropic they were in the past.
These are, no doubt, personal attributes that should be cherished, but should not determine political support.
Unfortunately, that’s what many want: support politicians for “who” they are; not want they have or bring onto the table.
We must combat this type of politics and political support.
@Bax= I absolutely agree, our political support is usually base on clientelism. I would be glad to see this kind of support disappear.
Politics and religion there’s no difference, all boils down to beliefs!
The general consensus of “Jollof ” opinion suggests all are diligent and “in waiting”
“For never in the field of general consensus has so much been expected of so few”
This is truly sad. What is all these?
There is no doubt that Halifa is an intellectual; there is also no doubt that he played an immensely positive role in ushering in the new Gambian administration. For these, he earned the respect and admiration of all fair-minded individuals. However, his recent actions, not the least this letter to the new Speaker of the house, are beginning to put off a number of his admirers. It is not what he points out that is putting people off but the HOW of it.
Halifa, after all, is the ADVISER to the President on Governance. Supposedly, matters of this nature are first discussed and agreed with him before it is shared with the Public. Therefore, could he not give his CANDID advice to the president in a timely manner to avoid embarrassing situations like these? This is not the way to score points against perceived political opponents. Except the man is indirectly telling the Public that he is not always consulted by the president (meaning the appointment was just a PR stunt by the president) he cannot absolve himself from blame in some of these happenings. He has woefully failed in his capacity as an adviser to the president on matters of Governance.
Secondly, most of the new MPs, unlike Halifa, are first-timers in the House. Halifa would have done well by voluntarily organising a one-day orientation for them, in the spirit of patriotism and further strengthening our new democracy. Imagine the sort of goodwill and respect this singular act could have earned him even among his peers in Parliament which could give him leverage in the future. But he missed the opportunity because he is so preoccupied with pointing out faults thereby projecting himself, even if not overtly expressed, as the only capable guy. The electorate already knows Halifa is an intellectual of high standing; they also know he is capable as he had demonstrated that previously; yet they voted his “less intellectual” peers. That is a powerful message coming from those that really matter in the scheme of things – the voters. They have seen the intellectual PDOIS, yet they voted for considerations other than intellectual. So let us focus on what the voters want and stop fooling around.
Halifa’s blind supporters may argue that the Chief Justice and the Speaker should have known better. This argument would be baseless because being a legal mind does not necessarily guarantee a complete knowledge of Standing Orders in the House. Those with experience as previous representatives of their constituencies are in a better position to master these procedures. These same blind supporters still continue to ignorantly argue that the Parliamentary election were tribal based. It is either they are telling the rest of us that Metropolitan KMC is an entirely Mandinka settlement (reason why UDP, a supposedly Mandinka party, won here) or they are living in denial of the reality. Time to focus on nation-building and not personality cult-building.
Your response is quite sensible. I would more or less argumented likewise. I am currently in the Gambia and many people I spoked with- from taxi drivers to fishermen and market women within the KMC area, are relieved that the country is back on it’s feets. I haven’t heard any resentment against a tribe or a politician. There are no military roads blocks, no police molestings or cars without number plates. The situation with Senegal has improved so that basic products are available at reasonable prices. Finally, the people are also quite aware that undoing 22 years of tyranny coupled with mismanagement and bringing the desired progress won’t happen over a fortnight. They are in for a long haul. The important thing today in Gambia is no more Jammeh! Many could not still believe that they undid him. He embodies the Satan in the collective imagination. People are very relieved here.
Bernie, with all due respect, there’s a few things you need to understand here:
1. The difference of opinion on, and understanding of, the law as relates to a proclamation, between the Hon Speaker and Hon Halifa Sallah, is already a matter before the public, and of public interest, and so it should not be resolved in private;
2. The open letter to the Hon. Speaker, contrary to your view that it is political points scoring, is actually a way of engendering public discussion on the controversy, which can only strengthen our democracy.
Let’s get used to discussing non security related state matters in public. For too long, we have just been passive actors, only becoming active at elections time, and we know what that did to our governance system. Conducting state matters without following due process is a serious matter. Let’s not trivialise it. Let’s reach to the bottom of this controversy to establish the right interpretation once and for all.
3. You may not have heard it, but Hon. Halifa Sallah has already indicated that his advisory role to the President is now on a needs basis only, when the President seeks it. In other words, Hon. Sallah only advises the President on any matter that he (President) consults Hon. Sallah for advice.
Furthermore, the issue of concern here, is interpretation of the law, as relates to when a proclamation can have legal effect, and this has got nothing to do with the President.
4. I think you need to be careful with the way you express certain things, and unless you have proof to substantiate your claim that those throwing allegations of tribalism around are Hon. Sallah’s blind supporters, it is better not to associate him with these people.
I am certain that real and true “blind” supporters of Hon. Sallah will not play this tribal game, which has been well utilised by both accuser and accused camps.
Mr Bernie, probably you need to go back and read the article thoroughly before you throw out all your ammunition to someone who is standing for rule law. Both the speaker and the leader of UDP are professional lawyers. Is it not shameful that Halifa has to lecture them about the process of making a law. Those small things like gazetting are there for a purpose. We have waited for 22 years to set things right. Now is the opportunity to put proper functions to better governance.
Is Bernie asking for Halifa to hold the hands of the UDP “infants” ? Come now/ Surely Mr Darboe being a Lawyer and a Statesman is “The Man”
Anyway this could Constitute unfair conduct blowing down the ears of the “little ones “
The Pied Piper of Hamlin springs to mind/ lol
The Pied Piper played his pipe and the children followed never to be seen again. Bit like the Chi Bok students ?God bless ’em