An executive order must be based on law. The Interpretation Act states very clearly that "government order means an order made by or by command of the President or by any other person under powers conferred by an Act of the National Assembly or any legislative authority." Cabinet is not a legislative authority.
In short, a law must empower the President and Cabinet to give orders. What is surprising is that no law was mentioned as the basis for changing the working hours. Secondly, even where a law empowers the President or Cabinet to issue a declaration, that order or proclamation cannot have the force of law unless it is published in the Gazette as subsidiary legislation.
In a word the Interpretation Act defines subsidiary legislation to mean "any proclamation, rule, regulation, order, notice, by law or other instruments made under any Act or by or under any other lawful authority and having legislative effect."
How then is the authority to communicate an order to the public? Is it by mere announcement in the media?
The law is not silent on this. The interpretation Act states that "subsidiary legislation shall be published in the Gazette and shall have force of law upon publication thereof or from the date named therein"
The president should communicate to the public through the Gazette.
It is incontrovertible that a decision that could have such far reaching implication should have been taken after thorough consultation with the stakeholders. A commission already exists that could have done so. There is no need to establish any other Commission.
In our view, the President should have liaised with the Public service Commission and give them the lead in determining any scheme or condition of service. It is the public service commission that is given the power or mandate under Section 174 of the Constitution to make provision for the overall Management and efficiency of the Public Service. It is further empowered to review terms and conditions of service and review the General Orders (GO) regulations and requirements of the Public Service.
We hope the Government will revoke its decision and hand over the matter to the Public Service Commission to investigate and make recommendation for the consideration of Cabinet after consultation with all stakeholders.
The fact that the announcements had to change in content confirms that the consultation was not thorough enough before taking the decision.
The first Public announcement on the change of working hours and days indicated that the President, after consultation with Cabinet has issued an executive decision to change the official working hours and days, from Monday to Thursday with effect from 1st February 2013. The working time is from 8am to 6pm.
The release added that schools, banks and all affected institutions are free to work on Saturdays to compensate for the loss on Fridays.
The second announcement stated that:
"Following the previous press release on the introduction of the four day working week for the public sector, which should take effect on Friday 1st February 2013, the office of the president wishes to inform the general public that the private sector and business community are exempted from these new working arrangements and are therefore, allowed to open for business on Fridays. A news release from the office of the secretary general says this new dispensation includes banks, hospitals and health care providers, Gambia Ports Authority, Gambia Revenue Authority and security services, among others.
This method of decision making does not show professionalism and cannot build confidence between the Public and the Cabinet. The arbitrary method of administration goes down to the local level. On Thursday evening this paper was informed that after the dissolution of the Councils no official letter was written to the councillors to hand over materials in their possession to any authority. Some people just went to the Councillor of Nyakoi Ward to say he should hand over to them. He is reported to have asked for authority. Instead of giving authority he was taken to the police station where he had to write a statement on a civil matter that had nothing to do with criminal offence. What if he hands over to people without authority and such people squander the resources, what would be the outcome of that? Let the rule of law prevail to avoid such confusion.