Claim 1: Executive order (directives) is law

Source: Deputy Inspector General of Police Momodou Sowe

Verdict: The claim is false

On November 2, a local newspaper in the country published an article quoting the deputy inspector general of police Momodou Sowe saying executive orders are law.

Some observers expressed disappointment at such statement coming from a police chief. Gambia has just emerged from 22 years of dictatorship during which executive directives were frequently used by ex-president Yahya Jammeh to arrest, detained or make declarations such as turning the country into an Islamic State in 2015.

Claims

The deputy police chief Sowe told The Standard on the sidelines of a 3-week training for police officers on crime scene investigation, forensic imaging and sexual and gender-based violence at a local hotel in Bijilo that executive directives are law.

“Executive order only comes from the president and nobody else. Remember every Gambian votes in for the president and under the constitution the president has powers and when there are situations that he knows definitely require an executive attention, he has a constitutional mandate to give directives and whatever the executive says and does is law,” said Sowe.

“An executive order is a law whether or not it favours anybody. If the president gives directives, it is law and if he writes, it is law. These are some of the things that people do not understand because of the society that we have.”

The deputy police chief cited the introduction of Covid-19 emergency measures as a reference when the president announced restrictive measures including curfew and lockdowns to curb the spread of the pandemic.

Fact check

According to Section 7 of the Gambian constitution, the country’s laws are derived from the Constitution which is the supreme law, an act of the National Assembly and subsidiary legislations made under such Acts. Section 7 (b) adds “any orders, rules, regulations or other subsidiary legislation made by a person or authority under a power conferred by this Constitution or any other law”.

The proponents of the executive directives said the President is “person or authority under a power conferred by this Constitution”. However, Section 7 (b) is clear that any order, rules, or subsidiary legislation passed by the president must be authorised by the constitution or any other law. Which clearly means the president cannot, on his own, make any law.

And Section 100 (5) of the constitution also states how bills are enacted by the National Assembly and assented to by the president, strengthening the view that the president CANNOT make a law.

Meanwhile, a good test of this argument would be the ex-president’s directives in 2015, declaring Gambia an Islamic State. Despite the fact that this was an executive directive, his justice minister at the time, Mama Fatima Singhateh, confirmed to the Truth Commission that such declaration was illegal.

“…I had informed him (Yahya Jammeh) for a state to become an Islamic State, there are certain procedures that we must go through and that includes a referendum,” said Singhateh. When Jammeh issued an executive order banning female genital mutilation in November 2015, he had to send a bill to the National Assembly to enact a law to that effect.

This shows that an executive is not a law in itself, and that all orders emanating from the president or the presidency must have its basis in law.

Declaration of curfew or lockdowns

To support his argument, the deputy inspector general of police used president’s powers to declare a state of emergency. However, what Sowe fell short of adding was that the power to declared the state of emergency as did the president during Covid-19 pandemic was given to him under the constitution.

Section 34 of the 1997 constitution said “President may, at any time, by Proclamation published in the Gazette, declare that:

(a) a state of public emergency exists in the whole or any part of The Gambia;

(b) a situation exists which, if it is allowed to continue, may lead to a state of public emergency.

(2) A declaration made under this section shall lapse at the expiration of a period of seven days, or if the National Assembly is not then in session twenty-one days, beginning on the day on which the Proclamation is published in the Gazette unless, before the expiration of that period, it has been approved by a resolution of the National Assembly supported by the votes of not less than two-thirds of all the members thereof.”

Therefore, the powers the President has to declare state of emergency is given to him under the 1997 constitution. You will find adequate explanation of this emergency powers in this article authored by Dr Satang Nabaneh.

Conclusion: A president only acts on powers given to him by an established law. Every subsidiary legislation is only valid if it is derived from primary legislation or constitution. Executive order is therefore not law.

Verdict: The claim is false

Researched by Mustapha K Darboe