[Editor’s note: This is part III of our special series titled “Constitutional Review in The Gambia: Contemporary Discussions.” The introduction to the special series is available here, Part I is available here and Part II is available here.]

*Ordinary men and women need support in their fight to claim and protect their liberties, and their natural protectors are the courts.**[1]*

Introduction

I want to share with you my thoughts on judicial reform in The Gambia against the backdrop of constitutional review underway in the country. In The Gambia, it is agreed that the judicial system needs reform to make it more independent, accountable and able to deliver justice effectively and efficiently. This short article briefly discusses independence of the judiciary as guaranteed in the 1997 Constitution of The Gambia. Although a universally accepted definition of judicial independence is not available, there are three recognized theoretical constructs: impartiality, authority to have its decisions accepted by all, and free from undue influence.[2] Judicial independence is beyond mere de jure provisions that seemingly protect judicial independence.[3] Much as the constitutional guarantees are important, it also depends on a lot more than the mere letter of the law.

The conceptual background

The judiciary is the third branch of government responsible for the interpretation of the law. The principle of separation of powers as proposed by John Locke[4] and Montesquieu[5] dictates that the judiciary is independent of the executive and the legislature to allow for checks and balances. As the main check on an executive branch, a resolute judiciary is one which any ordinary citizens can protect his or her civil rights.[6] Judicial independence is recognized in many international and regional human rights instruments as one of the cornerstones of good governance.

It is beyond dispute that judicial independence is a prerequisite for a society to operate on the basis of the rule of law and is essential for the purpose of maintaining public confidence in the judiciary.[7] Fombad noted that, an independent judiciary is one that is:[8]

free to render justice on all issues of substantial legal and constitutional importance, fairly, impartially, in accordance with the law, without threat, fear of reprisal, intimidation or any other undue influence or consideration.

Judicial independence in the 1997 Constitution [9]

Sections 120 to 148 of the 1997 Constitution of The Gambia provides for the structure, composition and jurisdiction of the courts in The Gambia. Judicial power is vested in the courts.[10] Section 120(3) of Constitution states that:

In the exercise of their judicial functions, the courts, the judges and other holders of judicial office shall be independent and shall be subject only to this Constitution and the law and, save as provided in this Chapter, shall not be subject to the control or direction of any other person or authority.

The Constitution recognizes the widely acclaimed notion of judicial independence. Accordingly, the courts are not to be subjected to the control of any person or authority outside the judiciary. Section 120(4) further states that:

the government and all departments and agencies of the government shall accord such assistance to the courts as the courts may reasonably require to protect their independence, dignity and effectiveness.

This places a positive duty on all organs of the state to accord such assistance as the courts may require to protect their independence, dignity and effectiveness.[11] The head of the judiciary is the Chief Justice who is responsible for the administration and supervision of the courts.[12]

Appointment of judges and security of tenure

The appointment of judges in a transparent manner is of most importance to judicial independence. Section 138 of the Constitution mandates the President to appoint the Chief Justice after consultation with the Judicial Service Commission (JSC). Generally, the President appoints senior court judges on the recommendation of the JSC,[13] which is a weak provision as the President is not bound by the JSC’s views.

The JSC has the power to appoint magistrates and members of the subordinate courts.[14] The Commission is also mandated to appoint judges of the Special Criminal Court subject to the approval of the National Assembly.[15] The President has complete control over the appointment of the Chief Justice with the JSC having a mere consultative role.[16] The issue of possible excessive Presidential influence in the appointment of the judges arises.

The JSC consists of the Chief Justice; a judge of a superior court; the Solicitor General; a legal practitioner of at least five-years standing at the Gambia Bar nominated by the Attorney- General in consultation with the Gambia Bar Association (GBA); a presidential appointee; and one person nominated by the National Assembly.[17] The composition of the JSC envisages cooperation in the appointment of judges between the three arms of government and other stakeholders such as the legal profession. Though it might be timely not only limit the membership of the JSC to senior judiciary perceived as the “old boys club” considering the changing demographics of the legal profession in The Gambia. A more representative membership should possibly also include law lecturers designated by their peers as they are in the right position to evaluate the academic capabilities of prospective appointees. The objective should be to provide for a demonstrably independent body whose membership comprises the necessary range of expertise and experience.

Section 141 of the Constitution provides for both optional and mandatory retirements of serving judges. Section 141(2)(a) provides that a judge may retire after attaining the age of 65 years while section 141(2)(b) makes it mandatory upon a judge of the Superior Court to retire upon attaining the age of 70 which is now amended to 75 years.[18] These constitutional provisions are generous and can safeguard security of tenure.

However, section 142(2)(c) threaten this as it provides that judges may have their appointment terminated by the President in consultation with the JSC. The distinction between the use of ‘in consultation with’ and ‘upon the recommendation of’ would seem to indicate that the President is obliged to follow the decision of the JSC. Although, this has not been the norm.

The power of the President to appoint senior court judges and to terminate their appointments severely undermines the independence of the judiciary as it provides for unnecessary dependence on the executive.

Disciplinary and removal grounds

In addition to the power of the President to dismiss judges, section 141(4)(9) of the Constitution subjects dismissal by the JSC to the approval of the National Assembly. Section 141(4 to 9) provides a comprehensive and rigid procedure for the removal from office of a superior judge on grounds of inability to perform the functions of his or her office whether arising from infirmity of body or mind or for misconduct. A superior court judge may be removed from his or her office if notice in writing signed by not less than half of all voting members of the National Assembly, is given to the Speaker setting a motion that the judge concerned is unable to exercise of his or her office on any of the grounds cited above which should be investigated.[19] A tribunal will be appointed consisting of three persons who will further investigate the matter and report to the National Assembly on whether the allegations are substantiated.[20]

This section could have served as a safeguard against arbitrary dismissal of judges, as the procedure is very transparent. However, if the President’s party commands an absolute majority in the National Assembly such a scenario can be highly politicized. A politically motivated step to remove a judge will be possible. Interestingly, the JSC has never tabled the dismissal of a judge before the National Assembly for approval.

Conclusion and recommendations

The independence of the judiciary from the executive is essential to freedom. If the executive could have unfettered control over the appointment, promotion and dismissal of members of the Judiciary, it would be the unlimited master of the State. Judicial independence is best maintained by its formal constitutional entrenchment backed up by a commitment by all state organs to respect the rule of law and accord such assistance as the courts might require protecting their independence, dignity and effectiveness.[21]

Whereas, the validity or legitimacy of the Constitution procedures of the President’s appointments of senior judges may be legal, factors such as weaknesses in the appointment system of judges, unwillingness of the former President and by extension the executive to accept court decisions, politicalization of the removal process of judge which does not guarantee security of tenure, all serve as threats to judicial independence.

The constitutional appointment procedure for judges, given the dominance of the President and the executive over the appointments of the members of the JSC, the apparent lack of transparency with respect to the JSC processes, the absence of a clearly elaborated selection process and criteria for judicial appointments exposes judicial appointments to political influence. It follows that it is unacceptable to restrict the appointment process to the President.

In order to ensure general transparency with regard to the appointment of judges, the JSC should advertise judicial vacancies and conduct an open application process.[22] The JSC may consider various forms of evidence when evaluating a candidate, including application forms, references, background checks and, in some cases, written tests. An interview of shortlisted candidates prior to making the selection should be conducted and held in public. Such exposure to public scrutiny will reinforce transparency and be beneficial in The Gambian setting.

While the formal appointment of judges may still be vested in the executive, the proposed prior selection process with the JSC empowered to present the executive with a shortlist of recommended candidates should be undertaken. Alternatively, the JSC can present the executive with a single, binding recommendation for the vacancy in which the executive may have the legal power to reject the JSC’s recommendation with advanced reasons for doing so.

Additionally, in terms of the institutions responsible for removal decisions, it is recommended that the power of removal of judges be vested exclusively in the National Assembly as in the case of removal on the grounds to function or infirmity of body or mind and misconduct. Section 141 (2)(c) must thus be repealed which will ensure that the dismissal of judges is through a proper, transparent and rigid procedure that safeguards judicial independence. Alternatively, an ad hoc tribunal can be set up once investigation establishes the question of a removal, or establishment of a permanent disciplinary council established for that purpose. The Constitution should set the bar fairly high on the substantive grounds and mechanisms for removal of judges.

Given the lack of trust in the judiciary due to the actions of the former regime, the key to fostering and establishing rule of law in The Gambia is to ensure that the judiciary is not only independent but appears to be independent to gain the confidence of the Gambian people. Since the new government came into power, there have been considerable effort on their part in appointing Gambians at all levels of the judiciary. Departing from the style of the former regime of foreign appointments to the position of chief justice, President Barrow appointed a Gambian, Hassan Jallow, former prosecutor of the International Criminal Tribunal for Rwanda in Arusha, Tanzania. Following this, numerous appointments took place including at the level of the Supreme Court.[23]

Moving forward and solidifying The Gambia’s new democracy equates to strong courts that can keep the country on track so that we do not regress. The courts can assert their own autonomy and rebuild their legitimacy. As judicial independence is integral to the rule of law, which is a necessary presupposition for the protection of individual rights, it follows that judicial independence is integral to the assertion of human rights.[24] There is an indispensable link in the machinery for securing individual protection against states’ human rights abuses.[25] Thus, the Gambian courts can ensure democratic accountability by enforcing separation of powers within the branches of government. As well as, develop and protect core human rights thereby enhancing accountability between the citizenry and the government.

Suggested citation: Satang Nabaneh, The need for an independent Gambian judiciary, Law Hub Gambia Blog, 14 December 2018, at https://www.lawhubgambia.com/lawhug-net/independent-gambian-judiciary.

[1] A Chaskalson quoted in Lord Lester of Herne Hill ‘The Challenge of Bangalore: Making Human Rights a Practical Reality’ (1999) 47 Commonwealth Law Bulletin 50.

[2] C Fombad ‘A preliminary assessment of the prospects for judicial independence in post-1990 African constitutions’ (2007) Public Law 235.

[3] R. Howard & H Carey ‘Is an independent judiciary necessary for democracy?’ (2004) 87 Judicature 189.

[4] J Locke Second Treaties on Civil Government (1764).

[5] B de Montesquieu Spirit of the laws (1748).

[6] As above.

[7] S Rugege ‘Judicial Independence in Rwanda’ presented at the Judicial Independence and Legal Infrastructure: Essential Partners for Economic Development conference (28 October 2005).

[8] As above.

[9] See ‘The Gambia: Commentary’ in R Wolfrum, R Grote & C Fombad (eds.) Constitutions of the World (Oxford University Press, 2017) 30-32.

[10] Section 120(2).

[11] C Fombad ‘A preliminary assessment of the prospects for judicial independence in post-1990 African constitutions’ (2007) Public Law 244.

[12] Section 121(1).

[13] Section 138(2).

[14] Section 147.

[15] Section 134(3).

[16] Section 138(1).

[17] Section 145 (3).

[18] S Nabaneh ‘New Gambia and the Remaking of the Constitution’ International IDEA ConstitutionNet 16 March 2017 http://www.constitutionnet.org/news/new-gambia-and-remaking-constitution.

[19] Section 141(5).

[20] Section 141 (8).

[21] J Hatchard, M Ndulo & P Slinne Comparative Constitutionalism & good governance in the Commonwealth: An Eastern and Southern Africa Perspective (2004).

[22] See 2010 Kenyan Constitution.

[23] G Sowe and S Nabaneh ‘The Gambia: The state of liberal democracy’ in Albert R, Landau, D, Faraguna P, and Drugda Š: The I·CONnect-Clough Center 2017 Global Review of Constitutional Law (July 19, 2018) 100.

[24] CJ Warren ‘Does judicial independence matter?’ paper presented at the Victoria Law Foundation Week Oration (27 May 2010) 6.

[25] LC Keith ‘Judicial independence and human rights protection around the world’ (2002) 85 Judicature 195.

[Editor’s note: This is part II of our special series titled “Constitutional Review in The Gambia: Contemporary Discussions.” The introduction to the special series is available here and Part I is available here.]

Judicial inquiry into Economic, Social and Cultural Rights (ESCRs) across the world has increasingly taken center stage in human rights discourse. In many cases relying on the progressive interpretation of ESCRs, courts have in numerous occasions found states actions inconsistent with domestic, regional and international standards relevant to the progressive realization of ESCRs. However, the major challenge courts face in addressing human deprivations have been largely due to the absence of normative domestic constitutional benchmarks to assess and measure states’ compliance with their international obligations. This has compelled courts to go beyond their traditional roles of merely interpreting positive law to venture into uncertain paths in their quest to protect and enhance human dignity. Thus, they became forums for constitutional dialogue and deliberative democracy. To that end, they have ordered: the halting of eviction orders on the basis of the right to adequate housing; states to reinstate social welfare benefits; states to reinstate essential medical programmes for the poor and required children from minority groups to be provided schools and deprived communities to have access to clean water.

On the other hand, courts in some jurisdictions declined any invitations for the enforcement of ESCRs on the basis that the content of such rights are notoriously uncertain and in avoiding ‘’purely political’’ decisions which are reserve for the executive, they have shied away from ESCRs. This school of thought is probably a steadfast servant of Lon Fuller’s polycentric effects theory. The pursuit of that theory is obviously not the essence of this contribution.

Therefore, this paper seeks to draw the attention of stakeholders in the constitutional review process to avail ESCRs their rightful constitutional positions in the new constitution as for the legitimacy of any government will be severely tested if it turns a ‘’blind eye’’ to the dire socio-economic conditions of its people. Equally, the enjoyment of ESCRs goes to the heart of human dignity which is the foundational basis for the enjoyment of all rights. The Gambia over the years relegated ECSRs as mere policy aspirations that were only pursued to meet political ends. The 1997 Constitution of the Gambia contains a bill of rights guaranteeing a limited number of ESCRs. These rights include the right to primary education, to property, and the right to join trade unions. Thus, those rights that are expressly guaranteed in Chapter 4 of the Constitution can be enforced through a judicial process in terms of article 37. Fundamental rights such as the right to food, shelter, clean water, adequate standard of living only form part of the National Objectives, and as such makes it difficult for individuals and stakeholders to hold the government of the Gambia accountable for ESCRs violations through the judicial process.

What is required of the Gambia under international human rights law is to make efforts for the progressive realisation of ESCRs. This requires the Gambia to move as expeditiously as possible towards the full realization of ESCRs, bearing in mind that certain ESCRs cannot be achieved in the short term. In General Comment No 3, the UN CESCR posits that these steps must be deliberate, concrete, and targeted as clearly as possible. It further emphasized that there are certain ESCRs that impose immediate obligations that are capable of immediate application. Thus, irrespective of resource availability ‘minimum core’ of ESCRs should be guaranteed. Therefore, guaranteeing ESCRs in the New Constitution will not only be symbolic in translating the political commitment/will to reality, but also ensure the prioritization of ESCRs in resource allocations, and will allow courts to ensure accountability for any violations. For the courts to go to the theater there should be adequate ESCRs sign posts in the New Constitution giving them directions.

To be continued…

Suggested Citation: Sainey Bah, Making Economic, Social and Cultural Rights a Reality in the ‘’New Gambia’’: Lessons from the 1997 Constitution, Law Hub Gambia Blog, 6 December 2018, at https://www.lawhubgambia.com/lawhug-net/newgambia-economic-social-cultural-rights.

Ordinary men and women need support in their fight to claim and protect their liberties, and their natural protectors are the courts.[1]