THE UNCONSTITUTIONALITY OF THE CRIMINAL CODE (AMENDMENT) ACT 2014 THE DIRE CONSEQUENCE OF UNCONSTITUTIONAL BEHAVIOUR

On 25 August, 2014, the National Assembly passed the “Criminal Code (Amendment) Bill, 2014”. This Bill was designed to effect three amendments – barring persons on government missions abroad from absconding, extending the law on homosexuality and prohibiting pornography. (See subsequent editions for the details of these amendments).

According to Supplement “C” to The Gambia Gazette No. 15 of 16th October 2014, this Law was assented to by the President on 9 October, 2014.

The question now arises: How are statutes enacted in The Gambia? The answer could be found in section 100 of the Constitution. Section 100 subsection (1) of the Constitution states: “The legislative power of The Gambia shall be exercised by Bills passed by the National Assembly and assented to by the President.”  This means that when the National Assembly passes a Bill it will only become law after it has been assented to by the President.

Can the President assent to a Bill at any time he/she wishes? The answer is in the negative. The President has only 30 days to do so. Section 100 subsection (3) of the Constitution states: “Where a Bill passed by the National Assembly is presented to the President for his or her assent, the President shall, within thirty days, assent to the Bill or return it to the National Assembly with the request that the National Assembly reconsiders the Bill; and if he or she requests the National Assembly to reconsider the Bill, the President shall state the reasons for the request and any recommendations for amendment of the Bill.” The use of the word “shall” means that it is mandatory for the President to assent to the Bill within 30 days after it has been passed. Since the Bill was passed on 25 August 2014, it means that the President must assent to the Bill by 24 September, 2014. He cannot do otherwise.

The consequence is that the validity of this Act can be challenged at the Supreme Court, or by the defence when a person is charged under this Act.

Needless to say, impunity and the rule of might can lead to one unconstitutional act followed by another. It creates uncertainty and arbitrariness in decision making.

A president who swears to defend the Constitution should be the last person to violate the constitution. As an elected leader entrusted with power to govern in accordance with the constitution, he/she should be the greatest defender of the Constitution.

What The Gambia needs is not impunity or the rule of might, but the rule of law and good constitutional behaviour.