Coronavirus Public Emergency Is A Legal Necessity And Constitutional Imperative

by Alagi Yorro Jallow
Fatoumatta: President Adama Barrow made a televised broadcast, Friday, 27 March 2020 on measures being taken by his administration to contain the spread of the Coronavirus disease in the Gambia also as part of the national response to addressing the Coronavirus pandemic announced the restriction of movements in the Gambia by closing the land border and air spaces as well as suspended all public gatherings and public places.
Since then, some concerns have been raised about the legality and constitutionality of certain aspects of his pronouncements and actions, especially as they relate to restriction of movement and imposition of State of Public Emergency following section 34(2) of the 1997 Constitution for 21 days.
Fatoumatta: We support every measure taken to contain the Coronavirus pandemic, but such must be following the law. We applaud the executive working with the National Assembly in accordance with the laws of our land. Also, there must be measures put in place to address the financial consequences of the proposed shutdown of businesses, especially for small scale businesses, those who depend on daily earnings and the needy and vulnerable members of the societies to be affected.
Fatoumatta: Some Coronavirus lawyers have also been quoting the law and insisting that President Adama Barrow does not have the right to declare a Public Emergency, suspend all public gatherings, ban on the worship of public places and close of land borders as well as the closing of airspaces or government or ask people to stay at home restricting the movement of person s and goods.
You see: the psychological aspect of Coronavirus should be addressed! Law is made for man, not the other way round. Coronavirus is a threat to human existence. No responsible lawyer should insist on those rights that can accelerate the extermination of the human race. Whoever is not happy should go to the courts and test the law: there are enough laws and precedents to sustain a counter-argument.
Today, the Clerk of the National Assembly dispatch of a media advisory as follows: “This Office of the Clerk wishes to inform the general public that following the Presidential Proclamation declaring a State of Public Emergency following section 34 of the 1997 Constitution on Friday 27 March 2020 and the fact that the National Assembly is currently in its First Ordinary Session in 2020, the National Assembly will reconvene its sittings on Thursday 02 April 2020 at 10:00 am. The media dispatch adds, “During this period, the Hon. Attorney General and Minister for Justice will table a Motion seeking the approval of the National Assembly to extend the State of Public Emergency for 90 days,”. The media advisory concluded.
Fatoumatta: Once these rough edges are straightened, no lawyer can rightly argue that the steps taken by the President, as stated in his broadcast, are illegal and unconstitutional. There must be a published government instrument or executive order or regulation which will be published by gazette and made available to Gambians. Government business is a serious business.
Fatoumatta: The President has no powers to restrict the movement of persons without recourse to the National Assembly. The President has not invoked his powers under the 1997 Constitution to declare any State of Emergency, which must be approved by the National Assembly. The President has powers conferred on him under the Constitution to declare a State of Public Emergency as reflected in his speech of 27 March 2020 either for seven days or 21 days if the National Assembly is not in session.
Fatoumatta: We are running a Constitutional democracy, and it is illegal for the President to take over the affairs of the country without the express consent of the people of through their elected representatives.
Fatoumatta: The Presidential Broadcast contains clear and far-reaching orders and directives that do not only suspend constitutionally guaranteed rights to liberty and freedom of movement but also shut down businesses and economic activities for a fortnight, all in a bid to contain the spread of the deadly Coronavirus.
Expectedly, some Coronavirus lawyers have attacked the action of President Adama Barrow being illegal. They claimed that the President lacked the powers to restrict movements in any part of the country without the consent of the National Assembly that the President has breached the Constitution in the present circumstances.
Fatoumatta: It is essential to inform the discerning members of the public that the President did not make a declaration of a State of Emergency under the 1997 Constitution, which would have required the National Assembly. Even at that, the Constitution Section 34(2) of the 1997 Constitution permits a Proclamation of a State of Emergency to run for seven days without the approval of the National Assembly when the National Assembly is not in session as in the present situation wherein the National Assembly has shut down. It is clear from the President’s broadcast that what President Barrow sought to address is a Public Emergency occasioned by a dangerous and infectious coronavirus disease. The restriction of movement came on the heels of advice received by the President from the Ministry of Health and the focal agencies in the fight against the Coronavirus. It, therefore, becomes evident and apparent that the restriction order is part of a national quarantine measure.
The correct position remains that President Barrow acted rightfully under the powers conferred on him by the Quarantine Act. It is submitted that the Quarantine Act is special legislation, containing special provisions which empower the President to make regulations to contain and manage infectious diseases. It is a specific public health and safety legislation. It is not in doubt that Coronavirus is an infectious disease of a contagious nature which the President as rightly declared under of the Quarantine Act to be a dangerous infectious disease.
Fatoumatta: The Quarantine Act enables President Barrow to declare any part of the Gambia as an infected area. Section of the Act further empowers the President to make regulations to prevent the introduction, spread, and transmission of any dangerous infectious disease.
Furthermore, it is common knowledge that the Coronavirus is a global pandemic that is crippling nations and economies; therefore, stringent measures at the national level are required. This is not a situation whereby the Government is expected to wait to act first. International Treaties to which The Gambia is a signatory to recognizes the need to depart or derogate from fundamental rights (especially freedom of movement) obligations in deserving situations (such as public health) – see Article 4 of the International Covenant on Civil and Political Rights, Article 11 of the African Charter on Human and Peoples’ Rights It is also remarkable to note that the President has so far acted following the executive powers of conferred on him under the 1997 Constitution as well as the provisions of the Constitution which provide that the security and welfare of the people shall be the primary purpose of government. Fatoumatta: In the same vein, the 1997 Constitution requires the government to protect the environment and safeguard the water, air, and land of the country. This is not the time for technicalities or legal theatrics; instead, it is a time to stay safe and stay alive.