THE CHIEF JUSTICE MAY HAVE TO INTERVENE TO PREVENT THE UNSEATING OF AN ELECTED NATIONAL ASSEMBLY MEMBER THROUGH DENIAL OF BAIL

Section 91(g) of the Constitution states that, “A member of the National Assembly shall vacate his or her seat in the National Assembly if, without the permission in writing of the Speaker or reasonable cause, he or she is absent from ten or more sittings of the National Assembly during any period that the National Assembly is in session and continues to meet.”

The courts are courts of reason and justice. They are established to enforce the letter and spirit of the constitution. No court should exercise digression against the letter and spirit of the constitution. According to the constitution, the Sovereignty of the Gambia resides in the people of the Gambia from whom all organs derive their authority.

An elected National Assembly member derives his or her mandate from the people. He or she has a duty to attend all sittings of the National Assembly. To be prevented from attending a sitting of the National Assembly as a result of police detention or denial of bail for bailable offences is unreasonable and unjustifiable in a democratic society.

The constitution has protected National Assembly members from such arbitrary decisions so that they could perform their duty.

First and foremost, section 110 seeks to ensure that no one obstructs or impedes the work of a national Assembly member. It reads: “Any act or omission which obstructs or impedes the National Assembly in the performance of its functions or which obstructs or impedes any member or officer of the National Assembly in the discharge of his or her duties or affronts the dignity of the National Assembly shall be a contempt of the National Assembly and, in addition to any liability in respect thereof under the criminal law, the offender shall be liable to reprimand or admonition by the National Assembly, and if the offender is a member of the National Assembly, suspension or expulsion from the National Assembly.”

 

Section 116 ensures that no court proceeding interferes with National Assembly proceedings by categorically stating that, “Neither any member of the National Assembly nor the Clerk of the National Assembly shall be compelled while attending the National Assembly to appear as a witness in any court or place outside the National Assembly.”

In the same vein , Section 115 adds that, “No civil or criminal process issuing from any court or other place outside the National Assembly shall be served on or executed in relation to a member of the National Assembly while he or she is on his or her way to, attending or returning from any proceeding of the Nation.al Assembly.”

This simply means that no court process should prevent a national Assembly member from representing his or her constituency in any proceeding of the National Assembly. In a simple language one cannot keep a national assembly member under detention either by the police or the NIA or by the Court   for a bailable offence while proceedings of the National Assembly are taking place. This is the only way to safeguard the separation of powers.

In fact, the courts are properly guided by the constitution and statute to recognise the presumption of innocence and the mandate not to set excessive bail conditions.

Foroyaa is of the view that the National Assembly is not exercising its powers to ensure the immunity of its members from arbitrary arrest and detention.

The National Assembly has law making powers and is also empowered to make standing orders for the conduct of its own proceedings. The members could create the laws providing for immunities and the conditions under which they could be waived in accordance with the standards of best practice. Foroyaa will continue to follow the case of the remanded National Assembly member and the actions or otherwise of the National Assembly to safeguard the separation of powers.