The Gambia Bar Association (GBA) is deeply concerned and troubled by the statement made by the Deputy Inspector General of Police (DIG) published in the Standard Newspaper dated 2nd November, 2021 captioned – Deputy IGP says executive orders are considered laws.
According to the standard newspaper article, Deputy IGP was quoted as follows “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 he says and does is law” . He was further quoted as stating “ An Executive Order is law whether or not it favours anybody. If the President gives directives, it is law and if he writes, it is law ”.
For the record, it is important to categorically state that the statements ascribed to the DIG in the Standard Newspaper report are not consistent with the 1997 Constitution and the applicable laws of the land. For the benefit of the public, it is important to make it unequivocally clear that Presidential Directives or Executive orders in our jurisdiction do not have the force of law nor are they based on any constitutional authority. The President as the head of the Executive, like the other two arms of Government, can only exercise powers conferred by the Constitution and the applicable laws of the land as set out in the Constitution. Let me take this opportunity to remind the DIG and by extension The Gambia Police Force, that the Constitution is the supreme law of the land in our Republic as provided for in section 4 of the 1997 constitution which states “This constitution is the supreme law of The Gambia and any other law found to be inconsistent with any provision of the Constitution shall, to the extent of the inconsistency, be void”. Section 7 of the Constitution sets out the sources of law and 7 (b) in particular states (b ) Any Orders, Rules, Regulations or other subsidiary legislation made by a person or authority under a power conferred by the Constitution or any other law.
The combined effect of sections 1, 4, and 7 of the Constitution is that a President or any authority or person acting on his behalf can only exercise powers conferred by law. Furthermore, any powers conferred to the executive shall be exercised within the limits set by the Constitution.
The Gambia Police Force is a statutory institution established by section 178 of the Constitution and the Police Act 1950 as amended. Pursuant to section 6 of the Police Act, “the Inspector General of Police shall be command, superintendence and direction of the force”. The law therefore clearly stipulates the command structure of the police and that orders to the police can only emanate from Inspector General of Police as the highest authority in the police command structure. Therefore, the Gambia Police Force as a law enforcement authority established under the Constitution, is legally obliged to exercise its functions strictly within the confines and limits set by the Constitution as well as its governing statute, the Police Act. The Police Force as a rule of law institution governed by law can and should only carry out lawful orders. Any police officer who follows an executive directive/order that is in violation of the law would be held accountable and not immune from legal responsibility for their actions.
It is rather unfortunate that the second most senior police officer can make such an erroneous statement to trainee police men and women. It is rather unfortunate that the Gambia Police Force has not taken any steps to rectify such a serious misstatement of the law by a senior member of the force.
It is important that the police leadership proactively ensure that the police force and its members have a clear understanding that they are a national police force serving the citizenry in accordance with the laws of the land. The police as a law enforcement authority should under no circumstances carry out any orders, instructions or directives from the President or any person acting on behalf of the executive if the same is not backed by the force of law. As we forge ahead to build and consolidate our nascent democracy premised on respect for the rule of law and good governance, the police as the guarantors of our peace and enforcers of the law are expected to be guided by the laws of the land without fear or favour consistent with democratic norms and values.
The erroneous statements emanating from or ascribed to the second most senior Police officer in the country is reminiscent of the type of mindset that enabled the previous regime to use the security services as a tool to oppress and brutalise the citizenry. As we have transitioned into a vibrant democracy and about to go to the Presidential elections, it is important for the police remain loyal to the constitution and abide by their oath of office.
I wish to reproduce the oath of office of the Police as a reminder of the sacred duty the police owe to the citizenry. Section 9 of the police act states as follows;
“A superior police officer and a Sub-Inspector shall on appointment take and subscribe the following oath-
I……………………,do swear that I will well and truly serve the Republic of The Gambia in the office of ……………without favour or affection, malice or ill-will, and that I will cause the Republic’s peace to be kept and preserved ; and that I will prevent, to the utmost of my power of all offences against the same; and that while I shall continue, to hold the said office or some other office in The Gambia Police Force, I will, to the best of my skill and knowledge, discharge all the duties thereof faithfully according to the law – so help me God ”. My emphasis
For the Gambia Our Homeland.
Gambia Bar Association