Should the National Assembly of The Gambia oversee subsidiary legislation? A critique of Standing Order

The article was published in June 2020 in the Loophole, the online journal of the Commonwealth Association of Legislative Counsel  (CALC).

Abstract

This article addresses the issue of whether subsidiary legislation should be subject to parliamentary oversight through a procedure adopted by the National Assembly of The Gambia under Order 80 of the latest edition of its Standing Orders. The procedure involves the publication in the Gazette for a specified time and laying before the Assembly of subsidiary legislation. The main thrust of the article is that National Assembly scrutiny of subsidiary legislation is a worthy initiative, albeit one that could be fraught with problems.

The most obvious impediment is that the procedure established by the Standing Orders conflicts with the procedure prescribed by the Interpretation Act. This raises the question of whether Standing Orders can abrogate or override primary legislation. The article examines how certain jurisdictions based on the Westminster parliamentary system have established a general obligation to lay subsidiary legislation before their Parliaments and posits that the challenges of implementing Order 80 are surmountable through respecting the hierarchy of laws and recognising the importance of parliamentary development.

The article is online.

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About the author:

Abubakarr Siddique Kabbah is the Principal Legal Draftsperson, Attorney General’s Chambers and Ministry of Justice of The Gambia. The views expressed in this article are solely his. They do not in any way reflect the views of the Attorney General’s Chambers and Ministry of Justice and he is responsible for any error or inaccuracy in the article.

The Draft Constitution of The Gambia and its impact on the criminal justice delivery

ABSTRACT

Following the defeat of former President Yahya Jammeh in the 2016 Presidential elections, the new Government of President Adama Barrow, in 2017, set in motion the process of promulgating a new constitution for The Gambia with the objective of installing good governance, protecting human rights and enhancing the criminal justice delivery system. The Draft Constitution has introduced several new provisions to achieve these objectives. This article focuses on one such provision and its overall impact on the criminal justice delivery system. The introduction of section 45 (5) in the Draft Constitution is meant, in effect, to alter and overrule the common law position on the admissibility of illegally obtained evidence. This article commences by providing a background on the Draft Constitution and proceeds to examine the current common law position on the admissibility of illegally obtained evidence and critically analyzed the effect of section 45(5) of the Draft Constitution on the criminal justice delivery system and concluded by making recommendations for stakeholders in the criminal justice delivery system.

 BACKGROUND

On 1st December 2016, Gambians went to the polls in what turned out to be a monumental defeat of the dictatorial regime of former President, Yahya Jammeh. The defeat of the strongman brought renewed hope to Gambians both home and abroad. In an effort to rebuild the foundations for good governance and restore democracy in the country, the new Government of President Adama Barrow “formulated a National Transitional Justice Programme to help restore democratic governance in the country. In this regard, the Government resolved to review the 1997 Constitution and draft a new Constitution to address the wishes and aspirations of Gambians.”[1]

In December 2017, the National Assembly enacted the Constitutional Review Commission Act with the mandate “to draft and guide the process of promulgating a new Constitution for The Gambia.[2] On the 15th November 2019 the Constitutional Review Commission published the first draft of the proposed Constitution and invited members of the public to make contributions with a view of further enriching the instrument. On the 30th March 2020, the final Draft Constitution was released to members of the public and on the 28th May 2020, the final Draft Constitution was gazetted in the National Gazette to kick start the process of promulgating the Draft Constitution into the Constitution of the Republic of The Gambia, 2020.[3]

 By far, the Draft Constitution appears to be the most consultative and participatory constitution in the history of The Gambia for it arguably represents, and captures the wishes and aspirations of Gambians both home and abroad.  Aside from its widely consultative and participatory nature, the Draft Constitution has introduced new provisions that are aimed at ensuring respect for the rule of law and human rights and enhancing the criminal justice delivery system. This article focuses on one such novel provision- section 45(5) of the Draft Constitution.

 The rational for focusing on section 45 (5) of the Draft Constitution instead of a wholesome commentary of the entire Draft, is that section 45(5) has a wide reaching implication on our criminal justice delivery system and therefore it is pertinent that this article bring its implication to the fore with the objective of raising awareness for stakeholders in the criminal justice delivery system.

 The implication of section 45 (5) of the Draft Constitution is that once adopted it will alter the long-held common law position on the admissibility of illegally obtained evidence and will in effect, introduce in our criminal justice system the so-called ‘Exclusionary Rule’ inspired by the Fourth Amendment to the United States Constitution.

The introduction of section 45 (5) in the Draft Constitution is meant, in effect, to alter and overrule the common law position on the admissibility of illegally obtained evidence.

Current common law position on illegally obtained evidence

By virtue of section 7 of the 1997 Constitution, the English common law rules form part and parcel of the corpus juris of The Gambia and consequently the common law position on illegally obtained evidence has since the enunciation of the rule been applied in our courts. Under English common law, the rule is that once a piece of evidence is relevant to a judicial inquiry, subject to certain procedural rules, it becomes admissible; and as Cross puts it, it is immaterial to the court the method or manner by which such incriminating evidence was obtained, although it may warrant punitive or remedial proceedings against those responsible for the illegality.[4]

 In dealing with illegally obtained evidence, the common law courts are usually confronted with two conflicting public interests- (a) the interest of the citizen to be protected from illegal or irregular invasions of his liberties by the authorities, and; (b) the interest of the state to secure that evidence bearing upon the commission of a crime and necessary to enable justice to be done shall not be withheld from courts of law on any mere formal or technical ground...”[5] In balancing these two conflicting interests, the common law courts adapted the attitude of admitting evidence regardless of how it was obtained. Emphasis therefore is placed on relevancy. This can be seen in the following cases. In Jones v. Owens,[6] Mellor J was of the view that if such evidence could not be used against the accused, it would be “a dangerous obstacle to the administration of justice”.  In R v. Leatham,[7] Crompton J went as far as to say that “if you steal it even, it would be admissible”. The Privy Council per Lord Goddard CJ in the Kenyan case of Kuruma Son of Kaniu v. R[8] reinforced the common law position and maintained that the test to be applied in considering whether the evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the court is not concerned with how the evidence was obtained.[9]

 In essence, the common law courts are more concerned with vindicating the truth with the aid of relevant evidence, rather than excluding such evidence on the ground that it has been improperly obtained.[10] However, in England and Wales, the introduction of the Civil Procedure Rules (CPR) in April 1999 and the effect of the Human Rights Act 1998, which incorporated certain Articles of the ECHR into English law has modified the common law position.  Rule 32.1 (2) of the CPR gives the courts of England and Wales discretion to exclude illegally obtained evidence.[11]

In the United States, where the rule originates, illegally obtained evidence and any knowledge gleaned therefrom, subject to some exceptions is excluded in criminal proceedings. Known in US jurisprudence as ‘the exclusionary rule’, it emanates from the Fourth Amendment to the US Constitution, which prohibits ‘unreasonable searches and seizures’. The exclusionary rule applies not only to the original evidence illegally obtained but also to copies and knowledge gleaned therefrom. The precedents have established that both the ‘primary evidence obtained as a direct result of an illegal search or seizure’ and ‘evidence later discovered and found to be derivative of an illegality, the so-called “fruit of the poisonous tree” are inadmissible in criminal proceedings.

Having determined the current position of the law as it relates to illegally obtained evidence, it is now apposite to examine the effect of section 45(5) of the Draft Constitution on the current law.

Section 45 (5) of the Draft Constitution

As indicated above, one of the new provisions in the Draft Constitution is section 45(5). The said provision, subsumed under the right to fair trial, provides:

“Evidence obtained in a manner that violates any fundamental right or freedom under this Chapter [Chapter VI] shall be excluded if the admission of that evidence would render the trial unfair, or would otherwise be detrimental to the administration of justice”.

The foregoing provision, contrary to the common law position, compels a trial judge to exclude any evidence proven to have been obtained in a manner that violates any fundamental right or freedom under chapter VI. It is worthy to mention at this stage that even though the provision, on a literal interpretation, seems to apply to both civil and criminal cases, the focus of this article however will be on the overall impact of the provision in the criminal justice delivery system. The propriety of extending the provision to civil cases will be the subject of a separate article having regard to the fact that even in the United States where the ‘exclusionary rule’ originates, there are authorities[12] to suggest that the rule does not apply to civil cases, with the exception of forfeiture proceedings.[13]  It is worthy of mention that this provision is a carbon copy of section 50 (4) of the Kenyan constitution, 2010.

Be that as it may, what can be gleaned from the provision is that, in the exercise of the power conferred on a court to exclude illegally obtained evidence, the court would resort in applying two tests to wit: (1) whether the admissibility of the evidence would ‘render the trial unfair’ and (2) whether the admissibility of the evidence would be ‘detrimental to the administration of justice’.

While this provision is desirable from a human rights perspective, it will have a great impact on the criminal justice system especially with law enforcement, having regards to the current or existing investigation techniques of law enforcement officers. In consonance with the common law position on illegally obtained evidence, investigators have adopted techniques, supported by extant laws, of obtaining evidence regardless of whether same was obtained lawfully or otherwise. Section 45(5) has therefore come to change the game for investigators and prosecutors alike.

New rules for investigators and prosecutors

The Criminal Procedure Code, the Police Act, the Drug Control Act, the Customs and Excise Act, the National Intelligence Agency Act, the Gambia Armed Forces Act and the Anti-Terrorism Act amongst others confer various powers of arrest, search and seizure, detention, investigations, and prosecutions of various offences on officers appointed pursuant to the foregoing regimes. The extent of these powers varies from one security outfit to another but common among these security outfits is the power to arrest, search and seize item from persons suspected to have committed an offence with the objective of using the seized items as evidence without a warrant.

 Very often and perhaps owing to the common law position towards illegally obtained evidence, searches done on the person of suspects or their homes are done in violation of their fundamental human rights especially the right to privacy. The current position of the law is that irrespective of the violation of a fundamental right, except torture, evidence obtained from a suspect once proven to be relevant would be admissible. However, if the Draft Constitution is adopted in a referendum, investigators must conform with the following rules during investigations:

 (i)            when a suspect is arrested on suspicion of having committed an offence, he or she must be reminded of his/her right to remain silent pursuant to section 45(2)(i);

(ii)          when a suspect is arrested for any offence, before he/she is interrogated with a view of obtaining evidence from him/her, the suspect must be informed of his right to counsel pursuant to section 45(2)(g); and

 (iii)          when a suspect is arrested and the investigators intend to search the home or premises of a suspect to obtain evidence that is intended to be used in evidence, the search must conform with section 43- right to privacy.

The violation of “ANY“ of the foregoing rules, will  render any evidence obtained from a suspect inadmissible if the admissibility of the evidence would ‘render the trial unfair’ or if the admissibility of such evidence would be ‘detrimental to the administration of justice’. It is glaring now that the game will change for investigators and prosecutors as the courts have now been empowered to toss out illegally obtained evidence and thereby hindering the pursuit of justice by victims of crimes.

In our criminal justice delivery system, the role of the investigator is perhaps more important than the role of the prosecutor. The prosecutor becomes seized of the file after investigations are supposedly concluded and his/her success or failure in the prosecution of an offence largely depends on the proprietary of the evidence obtained. There is a chain reaction when the investigator fails to comply with the rules itemized above- the evidence gathered of a fundamental right or freedom will get tossed out, then the case could fail as a result and the victim end up getting no justice and the confidence in the criminal justice system begins to erode. Reform therefore becomes pertinent.

Recommendations for reform

As the erudite Nigerian jurist Justice Oputa once expounded, justice is not a one-way traffic, neither is it a two-way traffic. It is a three-way traffic- justice for the accused who stands accused of a heinous crime; justice for the victim who wants vengeance; and justice for society whose social norms and values have been desecrated and broken. To ensure that justice is served, the institutions in the criminal justice delivery system have to engage in a reform to live by the new rule of section 45(5). Below are some recommendations for reform.

1. Training of criminal investigators

In light of the new rules expatiated above, crime investigators need to be trained and reoriented with a view of acquainting them with the new rules and the effect of non-adherence to same. As I highlighted above, there is now a consequence for not reminding a suspect of (1) his right to remain silent; (2) his right to counsel and (3) adhering to his right to privacy. These rights if violated will render any evidence obtained from a suspect inadmissible during the trial. And needless to say that when the most vital piece of evidence is excluded from evidence, the entire case may likely suffer. Therefore, training and reorienting investigators so that they can conform to the new rules becomes very important in this regard. 

2. Creating a synergy between investigators and prosecutors

As it currently obtains, there is a disconnect between the investigator and the prosecutor. In The Gambia, the procedural trajectory of a case commences from the alleged commission of an offence. The allegations sets in motion an investigation of the offence. Once the investigation is concluded, the case file to the office of the Director of Public Prosecutions (DPP) for legal advice and prosecution. Since the investigation is conducted solely by the investigator, who usually has a limited knowledge of the law and procedure and the basic elements of the offence required to prove the offence, the prosecutor’s case is therefore as good as the investigator. To obviate a scenario where an investigator does a shabby work of gathering the evidence, leaving the prosecutor with an uphill task in court with a pile of inadmissible evidence, it becomes important that a synergy is created between the investigators and the DPP’s office to facilitate proper guidance in obtaining the evidence and policing the manner in which the evidence is obtained. In light of the new circumstances, this synergy becomes even more important now especially with the attendant risk of having the court exclude relevant evidence.

3. Creating Rules and Procedure to test the admissibility of the evidence

While section 45(5) of the Draft Constitution has conferred discretionary power on the courts to exclude illegally obtained evidence, the provision leaves many questions unanswered. The adoption of section 45(5) of the Draft Constitution will immediately impact the dispensation of justice. How would a court determine whether the admissibility of a piece of evidence renders the trial unfair or be detrimental to the administration of justice? This is a question of law and fact. Since the answer to that question would require an examination of the facts surrounding the evidence, it therefore calls for the establishment of a trial procedure (mini trial) to test the admissibility of the evidence with a view of determining the manner in which it was obtained, in the same manner the voluntariness of a confession is tested before its admissibility or otherwise.

CONCLUSION

It is worthy to note that while the provision of section 45 (5) has in effect overruled the position of the common law, it leaves so many questions unanswered. For example, since section 45(5) excludes evidence directly obtained by the breach of the rights and freedoms enshrined under Chapter VI, what happens to evidence or knowledge gleaned from such violations? Would such evidence be subjected to the same test or would it serve as an exception?

 Further, would this new rule apply to evidence illegally obtained before the coming into effect of the Draft Constitution? If no, would the court then during trial segregate cases on the basis of when the evidence was obtained? Whatever the answer is, this would sure cause quite a conundrum for the courts.

In conclusion, from a human rights perspective, the provision is a welcome improvement on an accused person’s right to fair trial but from a law enforcement perspective; it has created a nightmare for investigators and prosecutors.

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About the Author

Abdulrahman Bah is currently the Director of Legal and Board Services at Gambia Revenue Authority (GRA). Mr. Bah was a former Public Prosecutor and State Counsel at the Attorney General’s Chambers, Ministry of Justice. He is also an Adjunct Lecturer at the Law Faculty of the University of The Gambia where he lectures the Law of Evidence. He holds a double Masters degrees in Intellectual Property and International Commercial Law. His research interest cut across, criminal law and procedure, law of evidence, IPR, tax law, and oil and gas law.

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[1] Report of the Constitutional Review Commission on the Draft Constitution for the third Republic of The Gambia, 30th March 2020

[2] Preamble of the Constitutional Review Commission Act

[3] Gazette No. 88/2020 dated 28th May, 2020

[4] Cross on Evidence (Butterworths, London, seventh edition, 1990)

[5] R v. Jacquith and Emode [1989] Crim LR 508

[6] (1870) 34 JP, 759

[7] (1861) 8 Cox CC498

[8] [1955] AC 197 at 203

[9] Supra

[10] Colson et al, “The Fruits of a Poisoned Tree- Use of Unlawfully Obtained Evidnece”, International Litigation Newsletter, Sept 2017

[11] Ibid

[12] See US v. Janis, 428 US 433, 454 (1976)

[13] Mejia v. City of New York, 119 F Suppl 2nd 232, 254, N27 (EDNY 2000)

Commentary on the Landmarks in the 2020 Draft Constitution of The Gambia

While the Final Draft Constitution generated many controversies from the public, it also lay before us tremendous opportunities to map out a durable constitutional compact from the ongoing transitional justice process. Former British judge, Lord Denning once wrote, ‘the law never stands still. It goes on space. You have to run fast to keep up.’ Inspired by this universal truth in the continuous evolution of the law, these essay series highlight some of the significant transformations that the Final Draft Constitution 2020 seeks to usher in Gambia’s constitutional history.

Following the defeat of President Yahya Jammeh in 2016, the country immediately embarked on a massive constitutional reform, citing the numerous amendments made to the 1997 Constitution since its adoption and the palpable desire to set the country on a secure constitutional democracy. After lengthy and unprecedented public consultations, the constitutional reform agenda gave birth to a long-awaited ‘New Constitution’, which was submitted to His Excellency President Adama Barrow on 30 March 2020 in accordance with Section 21 of the Constitutional Review Commission Act, 2017.

These essay series are intended as a modest contribution to the ongoing constitutional dialogue and to bring out the major landmarks in the Final Draft by identifying the significant additions from the perspective of constitutional democracy and human rights. By landmarks, I refer to those major additions that have immediate and significant ramifications on the existing state architecture from the legislature, the executive, the judiciary, and individual rights. These analyses proceed on the theory that the basic essence of a constitution is to prevent tyranny and ensure efficient delivery of socio-economic services, on account of the state’s central role of safeguarding the dignity of individuals. Equally, a Constitution must empower the government to effectively and efficiently deliver its functions to the citizens. The content of the Final Draft has ever since provoked different reactions, with mixed feelings of hope, national accomplishment, and skepticism. Some of my learned friends at the Bar have rightly described it as ‘a very ambitious constitution’ while few skeptics have described it as ’carbon copy’ of the 2010 Kenyan Constitution.

There seem to be some element of truth in all these reactions if one considers the lofty visions of the Final Draft and the obvious similarities, almost word for word in certain provisions, with the 2010 Kenyan Constitution. However, even though a Constitution is supposed to derive its uniqueness from the views and aspirations of the people, it remains an instrument of governance that is usually grounded in universal values and principles that cut across countries, people, geography, and time. Such values may include democratic pluralism, administrative fairness, separation of powers, transparency, accountability, and human rights. The importance of these values in the Final Draft should remind us of the consequences of their absence in the affairs of a state. One just needs to follow the testimonies of witnesses before the truth commission to appreciate the gruesome price paid by many Gambians in a state of constitutional disregard. Therefore, some of the values can be seen as responses to the recent past of the country.

In the interest of providing a counter to this ‘plagiarism of the Kenyan Constitution argument’, I must state that when position papers were submitted by individuals and organisations, some of these papers explicitly asked the Commission to adopt certain provisions from other Constitutions including the Kenyan Constitution. If the commission copied some of these sections, it was because the commission took into consideration the views of the Gambian people, as it is obligated to.  

It is only natural that I commence this reflection with  certain core values that underpin the Final Draft noting the fact that the framers have set the basic structures of the draft Constitution on certain core values. Foremost, the Preamble. It provides that we give ourselves and future generations ‘this Constitution as a beacon of hope, stability and national unity, progress, peace, and prosperity.’ Section 1 (1) maintains the democratic pluralism of The Gambia and beautifully put to rest the contentious secularism debate under sub-section (2) with the consequence of guaranteeing fair treatment of all faiths. In addition to these democratic values, Chapter 3 is dedicated to ‘national values and principles.’ It is my view that the inclusion of these values in the operative texts or provisions of the Final Draft indicates the real effects that are intended to bear on the conduct of the state and the people. They strengthen the guiding principles in the Preamble. This reflects a departure from the 1997 Constitution, wherein the national values are subsumed in the Directive Principles of State Policy with a caveat that they are not justiciable. However, section 11 of the Final Draft provides that national values bind all state organs, local government authorities, public officers, and all persons where they interpret, enact, or make public policy decisions.

On leadership, Section 24 of the Final Draft enumerates the virtues of ‘desirable leadership’ in public offices requiring a commitment to integrity, accountability, transparency, respect for the rule of law, dignity, and selfless service to the public interest. The rationale for the inclusion of these virtues in public administration means that the framers do not rule out the fact that the change of government in 2016 may not automatically end the complicit culture that transforms seemingly good leaders into unaccountable tyrants.

Professor Charles Fombad argues that to ensure that the good people put in public offices do not become the tyrants and dictators we abhor, constitutions must be devised that do not only promote constitutionalism but also guarantee accountability and responsibility. Therefore, the above principles do not only serve as benchmarks to ensure accountability of public offices, but they also impose constitutional commitments of selfless service by the leaders towards the general public from whom every leadership derives its legitimacy.

The next analysis will focus on the elaborate and extensive bill of rights in the Final Draft. It is often said that a bill of rights may occupy a small portion of a Constitution, but it has the potential to safeguard individuals from tyranny on the basis of universal standards and benchmarks.  

TYW and Law Hub Gambia Set to Host National Multi-Stakeholder Workshop on Constitutional and Electoral Reform Processes in The Gambia

Think Young Women and Law Hub Gambia, with funding from International Republican Institute, will host a two-day multi stakeholder workshop on constitutional, electoral reform and democracy building processes in The Gambia, from 13th to 14th November 2019.

On 3rd November 2019, the Chairperson of The Gambia’s Constitutional Review Commission (CRC) noted that the Commission is on track to deliver a draft constitution and report to the President. While the CRC Act 2017 clearly stipulates the timelines and activities of the CRC, it did not mention the timelines or specific activities relating to the legal processes that will take place after submission.

Currently, stakeholders involved in these processes are referring to the provisions of the 1997 Constitution relating to the amendment of specific constitutional provisions.  However, it is noted that the said 1997 Constitution is silent on how to handle a complete overhaul of the constitution.

 Given this background, the workshop will provide a platform for stakeholders to update themselves on the key legal processes and timelines for the next steps after the submission of the draft constitution to the President.  The theme of the workshop is #220Constitution: What next after the submission?’.

The workshop will serve as a forum for exchange of ideas and a mapping of strategies for the active and meaningful participation and engagement of all stakeholders in the processes which would ensue after the submission of the draft constitution and report to the President.

For more information, please contact:

Satang Nabaneh

Lead Facilitator

lawhubgambia@gmail.com

Published! The 2018 Global Review of Constitutional Law: The Gambia in Focus

Congratulations to Gaye Sowe, Executive Director – Institute for Human Rights and Development in Africa (IHRDA) and member of the Constitutional Review Commission; and Satang Nabaneh, Founder and Editor, Law Hub Gambia, whose chapter on The Gambia was published as part of the I-CONnect-Clough Center 2018 Global Review of Constitutional law. We are pleased to circulate this report published by the Clough Center for the Study of Constitutional Democracy

Abstract

This is the third edition of the I·CONnect-Clough Center Global Review of Constitutional Law ISBN: 978-0-692-15916-3.)

The 2018 Global Review assembles detailed but relatively brief reports on constitutional developments and cases in 65 jurisdictions during the past calendar year. The reports are authored by academic and/or judicial experts, and often the reports are co-authored by judges and scholars. The reports in this first-of-its-kind volume offer readers systematic knowledge that, previously, has been limited mainly to local networks rather than a broader readership.

The Gambia: In Focus

 With the peaceful transition after 22 years under an authoritarian regime that began in July 1994, 2018 saw the new government of The Gambia, headed by President Barrow, take measures to restore good governance, rebuild public confidence in key institutions, uphold human rights in the context of transitional justice. This is happening in two-fold: first dealing with past human rights violations and abuses; and second, ensuring that the governance architecture upholds the highest standards of respect for human rights, the rule of law and justice. This report looks at major constitutional developments and constitutional cases in The Gambia in the past year.

“Despite the excitement and enthusiasm that greeted the onset of multiparty democracy following decades of authoritarian rule, The Gambia’s democracy remains fragile. There are concerns regarding the absence of a comprehensive anti-discrimination legislation and existing repressive laws.”

Nabaneh & Sowe

Available SSRN: https://ssrn.com/abstract=3471638 or http://dx.doi.org/10.2139/ssrn.3471638

Suggested citation:

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Nabaneh, S and Sowe G ‘The Gambia: The state of liberal democracy’ in Albert R, Landau, D, Faraguna P, and Drugda Š. The I·CONnect-Clough Center 2018 Global Review of Constitutional Law (October 21, 2019), pp: 107- 111.

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You can download the whole report here:

Download The Gambia chapter.

Attempted removal of nominated NAM is constitutionally wrong - Both legally and politically

By all accounts, Yayha Jammeh was a dictator. He did not have respect for democracy. He seriously undermined important state institutions. The National Assembly, the citadel of law making, was at his mercy. The Judiciary was an unwitting accomplice. When Gambians voted to remove Jammeh from power two years ago, it was unprecedented. Gambians simply wanted change. Therefore, it is callous and an attempt to roll back the political gains we made in December 2016, when the President, Adama Barrow, ill-advised or acting without legal and political advice, attempted to remove Hon. Ya Kumba Jaiteh, a nominated member, from the National Assembly. This is relevant to our political discourse because it happened at a time when the we are trying to consolidate our young democracy. If we therefore, allow the President to violate provisions of the Constitution, or act outside the limits of his executive powers, then we will be setting a very dangerous precedent, the reversal of which may become insurmountable if the President becomes too emboldened. The more reason why it is important to restrain him now before it becomes too late to do so.

Many others and I ardently believe that the attempted removal of Ya Kumba Jaiteh by the President is unconstitutional and therefore ultra vires, outside the scope of his powers. However, some legal commentators on the other hand argue that his action is lawful. I wish to add to the debate and perhaps enrich the discourse and narrative regarding the issue of constitutionality, supremacy of the Constitution, sovereignty of Parliament and the separation of powers.

I shall argue that the attempted removal of a nominated NAM is not only legally and politically wrong, it is politically naïve considering our recent past. Firstly, I admit, I only recently found out that the Speaker of the Assembly is derived from the cohort of NAMs nominated by the President and not those elected by the people. This is a fundamental anomaly. Secondly, the idea that the President as the Head of the Executive, should personally choose the Speaker and ultimately determine who the Head of the Legislative branch should be, as well as believing that he has the legal power and political authority to nominate and remove a nominated member even after confirmation is patently absurd. It erodes and undermines the fundamental doctrine of the separation of powers.  

What is a Constitution? Professor Finer, in Five Constitutions (1979), defines it as:

“codes of rules which aspire to regulate the allocation of functions, powers and duties among the various agencies and officers of government, and define the relationships between them and the public.”    

Professor King defines writes that “A constitution is the set of the most important rules that regulate the relations among the different parts of the government of a given country and also the relations between the different parts of the government and the people of the country.”

With the exception of the United Kingdom, all other jurisdictions, like The Gambia, have these rules reduced in writing and codified into a single document. South Africa’s 1996 Constitution is hailed as one of the most progressive constitutions of the modern era.

The constitution is superior to Acts of Parliament or any other statutory or delegated legislation. Section 4 of the Constitution of The Gambia 1997 (Chapter II) explicitly provides that it is the “supreme law ….. and other law found to be inconsistent with any provision of this constitution shall, to the extent of the inconsistency, to be void.” This is not unusual in other constitutions. Section 2 of the 1996 South Africa Constitution states that “This Constitution is the supreme law of the Republic; law conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.” 

Section 91 of the 1997 constitution deals with the tenure of members of the Assembly. Section 91 (1) states that:

“A member of the National Assembly shall vacate his or her seat in the National Assembly –

(a)   On the dissolution of the National Assembly;

(b)  Subject to subsection (2), if any circumstances arises which, if he or she were not a member, would cause him or her to be disqualified for election as a member or nomination as a member;   

(c)   If he or she resigns his or her office as a member;

(d)  If he or she ceases to be a member of the political party of which he or she was a member at the time of his or her election;

Provided that nothing in this paragraph shall apply on a merger of political parties at the national level where such merger is authorised by the constitution of the parties concerned;

(e)   If, having been elected a member as an independent candidate, he or she join s political party;

Section 92 provides that “An Act of National Assembly may make provision for the recall of an elected member of the National Assembly …….”

It follows therefore that this provision does not even explicitly state how a NAM may be removed from the Assembly through the recall mechanism. It simply bestows on the Assembly power to do so, however, in ways and manner that the Assembly shall deem proper. The provision did not prescribe exactly how the Assembly should do this other than by means of recall supported by at least one-third of registered constituents.  In addition, section 92 states that the National Assembly “may make provision for recall,” which clearly means that the power to legislate in respect of the removal of an NAM through recall lies within the purview of the NA. That means, it is the National Assembly, in the exercise of its unfettered powers in respect of enacting laws, specifically deriving its powers from section 92(a)(b), that is tasked with prescribing the exact grounds for recall and powers and procedures that stem from a petition for recall. Section 92 does not say the National Assembly shall make provision for recall which would have been a mandatory and compulsory imposition on the NA to enact such law. The constitution thus, either deliberately or by default, but I lean towards a deliberate and intentional aspiration of the constitution that only the National Assembly should address the issue of recall and in ways and manner that it deems appropriate other than by petition by constituents.

I contend that the constitution implicitly recognises its own limitations in governing everything and therefore, allows the NA, in the spirit of sovereignty of Parliament, to be the master of its own destiny as the Chamber representing the people through democratic and parliamentary representation. This is because the constitution is acutely conscious of the importance of sovereignty of Parliament in a pluralist democracy and why it should be sacrosanct to preserve the integrity of Parliament and thus, interference with its members by means of removal unless in exceptional circumstances. It will be egregious to suggest that the constitution contemplated vesting such power as removing an MP in the President. It defeats the concept of the separation of powers and parliamentary sovereignty. Article 104(1) of the Kenyan Constitution 2010, this provision almost identical to ours, states that the electorate under Articles 97 and 98 have the right to recall their MPs, however, Article 104(2) states that it is Parliament that shall enact legislation to provide for the grounds on which a member may be recalled and the procedure to be followed. This is another manifestation of Parliament’s inherent power regarding the issue of the removal of MPs from the House.   

 Separation of powers

 Greek philosopher Aristotle, in his work Politics, stated “There are three elements in each constitution in respect of which every serious law giver must look for what is advantageous to it; if these are well arranged, the constitution is bound to be well arranged, and the differences in constitutions are bound to correspond to the differences between each of these three elements. The three are, first the deliberative, which discusses everything of common importance; second, the officials ……; and third, the judicial element.”

The great French legal philosopher Montesquieu in The Spirit of the Laws remarked “When legislative power is united with executive power in a single person or in a single body of the magistracy, there is no liberty, because one can fear that the same monarch or senate that makes tyrannical laws will execute them tyrannically.”

“Nor is there liberty if the power of judging is not separate from legislative power and from executive power. If it were joined to legislative power, the power over the life and liberty of the citizen would be arbitrary, for the judge would be the legislator. If it were joined to executive powers, the judge could have the force of an oppressor.”

“All would be lost if the same man or the same body of principal men, either of nobles, or of the people, exercised these three powers: that of making the laws, that of executing public resolutions, and that of judging the crimes or the disputes of individuals.”

 The rationale for this well-established principle of the separation of powers is to safeguard and prevent abuse of power. This takes us back to the issue of the head of the executive branch being vested the power to determine the head of the legislative branch. Theoretically, the idea of the President nominating five individuals to the Assembly makes a certain sense. Our NA, like any other Parliament, is partisan and MPs, for the most part, toe the party line or face the wrath of their party whips. The rationale of the President being given the power to nominate five individuals to the Assembly, is to curb that tribal politics in Parliament and at the same time enhance the expertise of the House.

The rationale is not for the President to nominate those he believes will further his personal or executive agenda, but qualified and capable Gambians who will serve the interests of the country and its people. Such individuals may be retired IGP, retired CDS, retired Archbishop or retired Iman Ratib, successful businessman, retired doctor, retired Headmaster or deliberately, to allocate all the five seats to women or youth as an affirmative action to increase their representation at the top of the pyramid of law making process. The idea is thus to maintain some form of equilibrium in the Assembly. They are expected to be independent and neutral and their overriding agenda is to serve the best interests of our country and nothing else. That is the idea and rationality of vesting in the President the power to nominate. Article 97(1)(c) of the Constitution of Kenya also provides for nominated members; twelve members nominated by the parliamentary political parties according to their proportion of members in the House. This provision of the Kenyan Constitution expressly states that nomination is to represent special interests including persons with disabilities and workers.     

Section 112(b) of the constitution, on the responsibilities of the members of the National Assembly stipulates that: 

“all members shall regard themselves as servants of the people of The Gambia, desist from any conduct by which they seek improperly to enrich themselves or alienate themselves from the people, and shall discharge their duties and functions in the interest of the nation as a whole and in doing so shall be influenced by the dictates of the conscience and the national interest.”

 Practically, in the Gambian context, largely because of the lack of political maturity and our culturally subservient nature to officialdom, and unfortunately the mediocrity of the types of Assembly we have (I wish to say here that the current House has some really impressive members and who are well intentioned), our own circumstances and context differ and the purpose of nomination by the President is nothing but self-serving and completely needless. In our context, simply because the President nominates someone into the House, the subconscious conclusion is that the primary allegiance is to the President and not the Gambian people. I hope therefore, in light of the recent debate and taking into account the conflicting interests of nominated members if we take into account the history of members nominated by Jammeh, the people in their consultations with the CRC, will express their disapproval and have this provision excused from our supreme law.

It is not in dispute that section 92 does not expressly articulate the removal of nominated members from the House. Was this omission by design or default? Can it be argued that constitution did not contemplate the removal of nominated members, save for the usual justifications such as bringing the Assembly into disrepute, criminal or moral culpability to the extent that it is reasonable to adjudge that a certain MP no longer has the moral authority or standing to continue to occupy a seat in the Assembly of the “Nobles”? If that were the case, I cannot think of anything more legal and lawful than the Assembly itself, passing a statute to determine how a nominated member may lose his or her seat in the House and the procedural requirements of any such law. This will be akin to the power vested in the Assembly under section 92 in relation to the recall of elected members. Perhaps, it may be that, derived from the rationality of the purpose of having nominated members, the constitution did not envisage the removal of nominated members because they represent not individual constituencies but the entire nation as their constituency. Even if we suppose that just like their elected cohort, nominated members may also be removed from the Assembly, nonetheless, in the absence of any express constitutional provision authorising such an action, then only the Assembly can pass laws governing this and how it will operate procedurally. Then the Supreme Court to have the power to determine its constitutionality. Certainly, it is not and should not be the concern of the President how any MP is to be removed from the House. The fact that the President believes that simply because he nominated, he has the legal authority to remove a person be nominated, reveals the fundamental flaws in the whole exercise. The President erroneously believes that as the nominating authority, in the absence of definite constitutional guidance on the subject, he has the legal authority to remove a nominated member from the Assembly.

In the absence of any express constitutional provision vesting in the President the power to remove, his power is limited to nomination and not more. Once a nominated candidate takes an Oath of office, he or she becomes a bona fide member of the Assembly and anything to do with his or her removal should then become an issue for determination by the Assembly itself and not the President. If the President were to be legally able to yield such power, it will not be far-fetched and irrational to foresee a situation where in every Parliamentary term, the President can nominate and dismiss as many NAMs as he pleases if the nominated members vote against his bills or become mavericks in the House. Can you imagine such a situation? That will not only be politically damaging and disruptive, it will undermine and weaken the very foundations and principles of the separation of powers and parliament’s sovereignty, never mind our democracy.  

The sovereignty of Parliament is common in most common law jurisdictions and beyond. Section 63(3) of the Constitution states that “A person elected as President may at any time during his term of office be removed from office if a no confidence motion is passed in the National Assembly supported by two thirds of the members of the National Assembly.” This is not unique. Article 95(5)(a) and (b) of the Kenyan Constitution gives the Kenya National Assembly power to review the conduct in office of the President, Deputy-President and other State officers and also the power to initiate the process of removing them from office; as well as the exercise of oversight of state organs. All over the world, it is generally the House that prescribes the grounds and process of removing members and such a power is not vested in the President.    

The Speaker of the House is a nominated member just like Ya Kumba Jaiteh. Section 93(3)(b) of the Constitution provides that the Speaker and the Deputy Speaker shall vacate their respective offices “if he or she is removed from that office by a resolution of the National Assembly supported by the votes of not less than two-thirds of all the members of the National Assembly.” I argue that in the absence of an express constitutional provision regarding the vacation of the other nominated members, it is reasonable and logical to take a cue from this section’s procedure and conclude that the vacation of all nominated members should be initiated and determined by the House and not at the temperament of the President. There certainly has to be a strong safeguard against executive encroachment on the Parliamentary terrain.      

According to section 76(2), “In addition to the powers conferred on him or her by this Constitution, the President shall have such powers and responsibilities as may be conferred on him or her by or under an Act of the National Assembly.” 

Section 77(2), regarding the executive power and the National Assembly, provides that “The National Assembly may request the President to attend a sitting of the National Assembly for the discussion of a matter of national importance”.

Section 77(4) states “The Vice-President shall answer in the National Assembly for matters affecting the President, and the President shall be entitled to send a message to the National Assembly to be read on his or her behalf by the Vice-President.”

By section 63(3), the National Assembly has the constitutional power to remove a President at any time by two thirds majority vote in the House. The fact that the constitution gives this power to the National Assembly reinforces the supremacy or at least the sovereignty of the House in our political matters. There is nothing, anywhere in the constitution that gives the President any power to remove an MP, be it elected or nominated. It is also clear from section 76(2) that apart from the Constitution, Parliament is the source of the President’s powers and responsibilities through laws that it may pass relating to executive powers. The President’s powers are either derived explicitly or to a lesser extent implied from the Constitution, and Acts of Parliament. It will be self-defeating and contradictory for the President to be given the power to nominate and remove MPs from the same Parliament that the President derives his powers.

Similarly, section 77(2) also gives the Assembly power to request the President to attend proceedings in the House in any deliberations of national importance. This provision states that the Assembly may, at its own discretion, invite the President if it deems it necessary. This lends to the argument that the constitution gives Parliament powers to exercise an oversight role over the Executive. There is no provision anywhere giving the President power to invite MPs to answer questions. That role is only limited to Parliament. The Assembly may summon the President, through the Vice-President, to answer questions before the House under section 74(4) and there is a mandatory and not discretionary duty on the Vice-President to answer any such questions or issues raised on matters relating to the President. This is the role of Parliament in the exercise of its political and legal accountability of the executive. All things being equal and for all intents and purposes, the constitution did not envisage the executive, the President for that matter, to have legal power and control over the Assembly because that will be a very dangerous precedent. To argue therefore that the President has the power to remove an MP from the House lacks any serious legal and political reasoning and judgment. That will be inconsistent with the letter and spirit of the constitution.     

The executive is central within the constitution. The fundamental role of the executive is making and implementing policy and that is important. Notwithstanding, the executive must be accountable insofar as the the exercise of its powers. This brings us back to the separation of powers. Conventionally, government, i.e the executive, is generally held accountable by legal means through the courts and political means by Parliament. The courts rely on well-developed principles of law to ensure good governance within the ambit of the law, e.g affected individuals may file claims against government for declarations or seek certiorari, mandamus, habeas corpus or judicial review proceedings etc. Parliament on the other hand, in carrying out political accountability, may require Ministers and senior government officials to appear before the House and justify their actions. This mechanism, although a clear paradox, raise the issue of the relationship and power dynamics between legal and political interpretations of constitutionalism.  

This allows the separation of powers to function without concentrating so much power in the hands of one organ of government. If there were only legal accountability, the Judiciary will be entrusted with unequal power and it may therefore abuse its power. That is the reason why Parliament is entrusted with power to hold the executive politically accountable. It will be irrational and illogical to conclude therefore that the President has both the legal and political power to remove a nominated member from the House. I am not naïve. I admit there is no absolute separation of powers in any democratic system. However, in the Gambian context, much like elsewhere, if the President were to have powers to remove MPs, that will be giving the executive unparalleled power. English Philosopher John Locke warned “it may be too great temptation to human frailty …. for the same person to have power of making laws, to have also in their hands the power to execute them, whereby they may exempt themselves from obedience to the laws they make, suit the law both in its making and execution, to make their own private advantage.” The concept of responsible government means powers of government are scrutinised by a mixture of forty-eight democratically elected and five constitutionally nominated Parliament to whom every member of government, including the President, is individually and collectively responsible.  

Some legal commentators argue that section 231 of the constitution gives the President power to revoke nomination. Section 231(1) provides:

“Where any power is conferred by this constitution to make any proclamation, order, regulation, rule or pass any resolution or give any direction or make any declaration or designation, it shall be deemed to include the power, exercisable in like manner and subject to like condition, if any, to amend or revoke the same.” ………

Section 231(2): “Where any power is conferred by this constitution on any person or authority to do so or enforce the doing of any act of thing, all such ….  

Section 231(5): “Without prejudice to the provisions of section 167, but subject to the other provisions of this constitution, the power to make any appointments to a public office includes the power to dismiss any person so appointed.”

Section 231(5) is primarily concerned with the appointment and dismissal of public officials. It will be useful to know what section 167(a) states and it is as follows: 

“power to appoint any person to hold or act in any office in the Public Service shall include the power to confirm appointments, to exercise disciplinary control over and to remove persons holding or acting in such offices and to re-appoint or reinstate any person appointed in exercise of the power in question unless such power is expressly or by necessary implication vested in some other person or authority;

 Section 167(b) provides that “power to remove an officer in the public service shall include power to require such officer to retire from the Public Service.” Effectively, both section 231(5) and section 167(a) and (b) are specifically limited to the appointment and removal of public officials, those who work in the Public Service. The next logical issue to address is whether NAMs are public officials and work in the Public Service.

Chapter XI of the constitution deals solely with the Public Service: Officers in the Public Service and section 166(1) in respect of Public Service states:

“Subject to an Act of the National Assembly, the Public Service of The Gambia shall comprise the civil service as established immediately before this Constitution comes into force and the offices declared elsewhere in this Constitution to be offices in the Public Service.”

 Section 166(3) states: “For the avoidance of doubt, it is hereby declared that an office in the public service includes the office of judge of a superior court, and of any other court the emoluments of which are payable out of the public fund of The Gambia, and the office of a principal representative of The Gambia abroad”

Section 166(4): “In this Constitution, an office in the public service does not include-

(a)   The offices of the President, Vice-President, Speaker or Deputy Speaker of the National Assembly, Secretary of State or a member of the National Assembly.”

It is as clear as blue skies that for the purposes of section 231(5) and section 167(a) and (b), a member of the National Assembly is not one who works for the Public Service or considered to be an official of the Public Service. Therefore, the appointment of any individual in the Public Service or the exercise of disciplinary control over such persons and to remove officials holding or acting in the Public Service does not affect NAMs in any way because they are not categorised to be working in the Public Service or considered Public Service officials. Consequently, NAMs are not caught by sections 231 and 167. Further, if NAMs were considered to be officials under the Public Service, this would have been expressly stated in section 166(3) but the fact that it is explicitly spelt out in section 166(4)(a) means that the constitution does not even remotely suggest for a moment that NAMs may be nominated and dismissed at the whims and caprices of the President.

Section 80 states that “Subject to this Constitution and any Act of the National Assembly the President may constitute any public office for The Gambia and make appointments to such office and terminate such appointments.” The caveat here is firstly, provided he acts within and as prescribed by the Constitution; and secondly, any statute passed by the National Assembly giving the President necessary power, may hire and fire officials deemed to be public officials and working in the Public Service pursuant to sections 231(5), 167(a) and (b). The Constitution is very clear on those deemed to be occupying public office. I would also like to point out that appointment is different from nomination. Generally, the appointing authority retains a residue of power to terminate appointment of the appointee. This is because appointment is concerned with giving; appointment into a political office or senior government position. Nomination concerns naming a person for a vacant post or office. It presupposes that once the nominee has been confirmed, the nominating authority no longer possesses any power to circumvent the post-confirmation process. This is the reason why the forty-eight elected and five nominated members must take their Oaths before the Speaker before formally assuming their seats and tenure as MPs as required by section 88(2) of the constitution.   

Role of Supreme Court

What is the role of the Supreme Court in this constitutional and political conundrum? It appears, from the face of it, that there is an impasse. This is the more reason why this is a test case to an extent and the outcome will have serious ramifications on the trajectory of our democracy or the lack of it. The Supreme Court has serious questions to ask and the answers are not only found in the constitution but in political conventions and normative practices elsewhere. If the Supreme Court were to hold that the attempted removal of Ya Kumba Jaiteh is unconstitutional, this will send a clear message to the President that he may not act as he wishes and that there are proper structures to check and balance the exercise of his executive powers. The outcome will be far reaching. On the other hand, should the Supreme Court decide that the attempted removal is constitutional, which I doubt in my own opinion, then the next logical consideration is whether it is politically expedient for the President to remove a nominated MP at his own behest without Parliament’s involvement? So the considerations here should touch on the issue of legality and legitimacy.

In this context, legality is concerned with the lawfulness of the attempted removal within the scope of the law. Legitimacy, which I believe trump legality, is concerned with the moral rights and political authority, in the spheres of our political dispensation so far as the exercise of executive power. I still believe that the main issues here are both legal and political and both are mutually interlinked and indivisible. If the Supreme Court were to hold that the attempted removal, and it is not a revocation of the nomination as that ship has sailed, the nomination stage lapsed immediately after she took her Oath before the Speaker in the House, is valid, the message to the President will be that he has a wide margin in terms of pushing the limits of his powers. This is dangerous. Power corrupts and uncontrolled or absolute power is a danger to any democracy and rule of law, most especially our democracy at its infant stage, having snatched ourselves from the wicked jaws of a brutal dictator just over two years ago.

On the issue of legality and legitimacy, I shall argue why I believe that legitimacy overrides legality. As controversial as it may sound, I still maintain that the attack on State House on December 30th 2014 to remove Yahya Jammeh was legitimate for the following reasons. Yes, the Jammeh government was clothed with legality because there were elections which he won, the fairness of which is another debate. However, the sovereignty of a nation lies in its people. There is an obligation on the state to respect the human rights of people within its borders. If a government then abuses the rights of its people systematically, then its loses its sovereignty and legitimacy to govern and therefore any attempt to remove its political leadership by coerce means is legitimate even if it is illegal. This is a new doctrine that Kofi Annan advocated. In 1999, during the Balkan crisis, while the Serbs were committing ethnic cleansing against the Kosovars, China and Russia in the Security Council vetoed the authorisation of the use of force under Article 42 (Chapter VII of the United Nations Charter). NATO, led by the U.S and U.K, intervened to avert a humanitarian catastrophe.

There was no dispute that the NATO intervention without express Security Council approval was illegal under international law. However, instead of wide condemnation, the intervention was hailed as legitimate by international lawyers and academics because the purpose of the intervention was to stop ethnic cleansing and thus, morality (legitimacy) overrode legality especially if legality was used as a pretext under the guise of territorial sovereignty under international law to commit crimes against humanity and ethnic cleansing of Kosovars. Therefore, since the Jammeh regime was brutal and destroyed all institutions of the state and abused the human rights of the citizens at a massive scale, his government lost all legitimacy and it was morally acceptable to remove him by use of force to restore human rights. The analogy is, legitimacy can prevail over legality.

Similarly, authority, I argue, is intrinsically associated with respect, which in turn creates legitimacy that results in power. It means therefore, that authority leads to respect which leads to legitimacy and that ultimately leads to power. Government must possess authority derived from the people in order for it to govern legitimately.  In contrast, power is the capacity to do things that one wants and for people to do those things even if they disagree or don’t want to. So while the President may use his power(s) to do what he wants, even if these are against the interests of the people, Parliament has the authority, derived from the sovereign will of the people who elected them, to resist the abuse of power through its oversight and political accountability roles. And the courts through legal accountability. It is therefore important to ask if the actions of the President are legitimate. Should the President be allowed to remove a NAM simply because he or she criticises or insults the President? There is nothing wrong with insulting the President. He or she is our servant. Once he or she decides to put himself/herself forward for election, by his/her own choice, then we the electorate should have every right to criticise without boundary. It is nonsense to put our political leaders on pedestals, like they are “Gods” or sacred supernatural beings.

For far too long, as a child, I used to hear that you don’t insult “mansa.” Actually, the real “mansa” is us who vote them in, the power resides in us the “people”. It is complete rubbish how we worship our elected officials in this country. I don’t know whether these are some of the colonial traits that we inherited but it needs to stop. If the President were to have the power to sack a nominated NAM on basis that he or she criticised, insulted or is a thorn to the President, then are we saying that once you are nominated, you are deprived of the right to critique the President or vote against his bills in the House? Ya Kumba Jaiteh is one of the most hard working and useful MPs. She is one of those MPs that puts the nation’s interest first in the House, hence the more astonishing why the President should even contemplate removing her. Perhaps she is just a ‘casualty’ in a bigger cold war at the helm. May be the President is sending a coded message, and one which is less to do with Ya Kumba but more to do with the fractured relationship between the one-time novice and his political mentor.      

Section 5(1)(a) of the Supreme Court Act gives the latter exclusive original jurisdiction for the interpretation or enforcement of any provision of the Constitution with the exceptions of sections 18-33 or 36(5) which relate to fundamental human rights and freedoms of which the High Court has original jurisdiction.

Section 5(1)(c) of the Supreme Court Act gives the Court the power to determine whether an MP was validly elected to or vacated his or her seat in the National Assembly.   

In Sallah v Clerk of the National Assembly (2002-2008) GLR Vol. 1, the Supreme Court stated:

“Every court, including this Supreme Court, is accountable to the people of the country for whom it provides services and on whose behalf the courts exist and operate. We administer justice to ensure the realization of the aspirations of the people…..”.

This assertion by the Supreme Court is in tandem with section 1(2) of the Constitution which states that “The sovereignty of The Gambia resides in the people of The Gambia from whom all organs of government derive their authority and in whose name and for whose welfare and prosperity the powers of government are to be exercised in accordance with this Constitution.” It means therefore that all the three organs of government “borrow” their power from the people and on whose behalf they exercise those powers. While the Constitution is supreme in terms of laws that govern us as enshrined in section 4, Parliament is sovereign because NAMs are representative of the people and the sovereignty of our country resides in the people.

The Supreme Court has a momentous task. They have to decide, in dutifully fulfilling the ideals and aspirations of the people, whether it is justice that the President should have the power to remove a nominated member from the House. I would have thought that wise counsel would have seen the President seek clarification on the issue from the Supreme Court first before attempting to remove a nominated member from the House. It shows bullishness and a lack of respect for both the House and the Supreme Court. The fact that the letter to Ya Kumba Jaiteh was not even on an official O.P letterhead implies how the President and his counsel of “wise men” judged the attempted removal as nothing more than trivial. Who dares question the President’s order? This is not a trivial issue and it should not be treated as such. Had the President notified the Speaker or the Clerk of the National Assembly of his lack of faith in a nominated member, and for any attempted removal to emanate from the House itself through notification by means of a petition by the MPs themselves, one could perhaps forgive him for at least allowing the House to decide the issue openly in the House.

Again, the President, despite strong public criticisms regarding the appointment of the former Vice-President Fatoumata Jallow Tambajang about her age, paid no attention almost as if he was oblivious to peoples’ discontent. The President thus has propensity to defy the people and the constitution. As far as I can remember, that issue was not brought before the Courts. May be this added another ‘feather to his bow.’ It reveals why we were complicit then and if we allow the same thing to happen again, we as a people, will let ourselves down and expedite the creation of another autocratic leadership. Did the Gambian people aspire that the President should have such powers in the absence of an express provision in the constitution in section 92?

There are serious political issues to consider and the decision will either shape the longevity of our democracy or accelerate its slow death. It also means that the primary duty of the Court will be justice as per the aspirations of the people. Justice is not an abstract concept. It’s relative and ought to be tangible. I hope the Supreme Court will not just gloss over the issue superficially but engage with the tough and difficult issues substantively and address them accordingly. The Court has the power to rein in on the executive and they should not hesitate to do so should they come to a conclusion that the actions of the President were ultra vires. Yahya Jammeh sent the Judiciary into abyss because it did not do enough to sufficiently insulate itself from his excursions. It should never allow that to happen again. Like the saying goes, the courts are the last bastion of democracy and hope. That trust in the Judiciary and the Supreme Court should not be lost on them.

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 Suggested citation: Abdoulie Fatty, Attempted removal of nominated NAM is constitutionally wrong - Both legally and politically, Law Hub Gambia Blog, 18 March 2019, at

Abdoulie Fatty is a lawyer at A. Fatty & Co. He previously served as Magistrate in Banjul. He studied in the U.K and was Called to the Bar of England and Wales. He has LLM in International Human Rights Law and Practice. He has strong interests in democratization, transitional justice, international law and human rights.    

Secularism as a tool for state neutrality

Jointly written by Maria Saine & Wilson F. Okoi, Barrister & Solicitor of The Supreme Court of Nigeria. 

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[Editor’s note: This is Part VI 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, Part II is available here, Part III is available here, Part IV is available here.and Part V is here.]

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Secularism is the legal assertion that a State remains neutral as relates to religious matters The state does not adopt any religion as it’s religious representation and more importantly, there exist a clear separation between government institutions and religious institutions.   It may please you to note that the idea of secularism is open to debate because it is considered polemic by many.

Proponents of the notion that The Gambia should be secular view that:

1. It allows persons from different religions to exist together at the least common denominator; ensuring all their beliefs and rights. This assertion is said to be true because there is no preference of religious beliefs over another, people are therefore not inclined to believe that the state has a superior notional interest in one religious belief over another.      

2.  Some others assert that secularism allows more rights and freedoms to women, who are generally attributed to submissive roles in various belief systems. This is a candid topic of debate for differing religions who are naturally accustomed to differing spiritual views guiding human behavior with humans and human behaviour with ‘superior spirituality’.

3. It is also strongly recommended that the practice of secularism protects and promotes government administration to function on the basis of rational discourse rather than religious dogma.

On the other end however, opponents of secularism assert that humanist and secularist take religious views ‘off the public sphere’. Opponents of secularism are of the opinion that a State should have a religious view. Such ideologist are of the opinion for a variety of reasons.

First, the polity are less conscious about religious matters in the public sphere. Indeed, this infers that the states polity identifies government institutions and a religious preference as one.  

Second, a preferred religion gets patronage from the State. This is argued to be a negative and positive. The State religion is the preference of the State and therefore enjoys privileges that other religions (not adopted by the State) will not be opportune to.  Looking objectively, it is therefore negative. But from a subjective stand point (i.e. the view of those in the preferred religion of the State), it is not only in tandem with the major mass of the polity it is also the way that life should be lived.

Third, indeed, religious persons in the polity will argue concerns over the ‘moral compass’ of the nation. This is essentially because of the belief in ‘natural/divine law’ on the legal jurisprudence of same, and/or the belief that religion equates to morality.

From the foregoing, it is evident that the decision of a State to adopt a religion as it’s religious preference is a major step that guides governmental administration.

In The Gambia, the practice of secularism and its constitutionality became a point of case law jurisprudence on the applicability of secularism in The Gambia. In the case of KEMESENG JAMMEH v THE STATE, the legal validity of the Constitution of the Republic of The Gambia, 1997 (Amendment) Act, 2001 was put to the litmus test to examine whether section 1(1) of the Constitution describing The Gambia as a secular state was made ultra voires. The Supreme Court held that section 1(1) of the Constitution and paragraph 13 of schedule II to the 1997 constitution contained in the Amendment Act (6 of 2001) were made in excess of the legislative powers conferred by the 1997 Constitution and are accordingly null and void.[1] Meaning, the amendment failed to pass through an act of referendum. Hence, unconstitutional.

From the train of thoughts above and in my humble opinion, it is instructive to assert the following observations succinctly:

·      Secularism represents how a polity should be/is governed.  

·      Secularism does not in any way or form, infer life without religion neither does it infer that one decides how to worship God.

·      The absence of secularism is the presence of Religious preference in a State.

·      The concept of (non) secularism is practiced variantly owing to factors such as geographical area, culture, population and, the advancement in technology/industrialization amongst others.          

In a sum, secularism is a practice that I believe should be embraced because it maintains the existence of neutrality and exudes the characteristics of an ability to accommodate the diversity in the way life presents itself; liberally.   The State considers the views of every one and no religious preference is an option. Indeed, and legally so, secularism is the best guarantee of freedom of religion/belief – but the enemy of religious privilege.

Suggested citation: Maria Saine & Wilson F. Okoi, Secularism as a tool for state neutrality, 1 February 2019, at https://www.lawhubgambia.com/lawhug-net/secularism-as-a-tool-for-state-neutrality.

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[1] Jammeh v Attorney General (2002) AHRLR 72 (GaSC 2001)

Was the recent Supplementary Appropriation Estimate 2018 presented by the Minister of Finance in accordance with the dictates of the law and Constitution?

[Editor’s note: This is Part IV 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, Part II is available here. and Part III is available here.]

Background

The Minister of Finance and Economic Affairs tabled a Supplementary Estimate[i] on the 11th of December 2018 before the National Assembly, seeking approval for additional payments from the Consolidated Funds amounting to D1,128,337,519.7. It is important to note that the Supplementary Estimate was for the period 1st January to 31st December 2018 and was made in the last quarter of the year, literally less than two weeks before the end of the 2018 budget year. Secondly, the request was in addition to the already approved budget of D19.74 Billion Dalasi for the financial year 2018, which was already exhausted as at the time of the 11th hour request.

The National Assembly after extensive deliberations and debate rejected the Supplementary Estimate in its totality and did not get to consider the Supplementary Appropriations Bill. Many reasons were advanced by members of the National Assembly, ranging from the timing of the submission of the estimates, the quantum of estimates (too high), exorbitant amount identified for non-priority sectors and to some, it was unconstitutional.  

The focus of the article is to examine the legal framework that govern the procedures, requirements and governance of Budget Supplementary Appropriation with a view to determine the legality and propriety of the Supplementary Estimate of 2018.The author shall review the current constitutional provisions and the existing laws that govern Supplementary Appropriation, to inform the discourse on this topic. To this end, the author seeks to establish whether the proposed Supplementary Estimate and Bill submitted to the National Assembly was in conformity with the supreme law of the 1997 Constitution of the Gambia and other enabling legislation, which derive their legal authority from the constitution? .[ii]

Legal Framework

 The governance and legal framework of Public Finance Management is provided for in chapter IX of the 1997 Constitution, the Finance Act of 2014 and Government Budget Management and Accountability Act 2004. The 1997 Constitution provides the primary legal framework for the management of Public Finance in Gambia and the relevant sections germane to the subject of this article are found in sections 150 – 154 which shall be discussed in below in detail.

For the purposes of this article, it is important to note that by law all budgetary appropriations are through the Consolidated Fund by virtue of section 150 of the Constitution. [iii]  Section 150 allows for separate accounts to be created in specific circumstances only by an Act of Parliament.[iv]

The specific provision that the governs the Supplementary Appropriation is section 153 (1) and (2) which is reproduced below:

 Section 153

(1) Subject to section 154[v], if in respect of any financial year it is found that the amount appropriated under the Appropriation Act is insufficient or that a need has arisen for a purpose for which no amount has been appropriated by that Act a supplementary estimate showing the sums required shall be laid before the National Assembly before the expenditure has been incurred. [Emphasis mine]

(2) Where a supplementary estimate or estimates have been approved by the National Assembly, a supplementary appropriation Bill shall be introduced into the National Assembly for the appropriation of the sums so approved.

The first limb of section 153 (a) provides the basis upon which a Supplementary Estimate should be approved by the National Assembly. In summary, there are two scenarios -

1.      Budget Appropriation shortfall (insufficiency i.e. under budgeted) or

2.     An unforeseen contingency need arises

 It is very clear from the wording of the provision that the section 153 is to be invoked only if there is a short fall and/or a need that was not envisaged at the time of preparing the main budget estimate. The operative words in the provisions are “need” and “insufficiency.” It is my view that a close look at the budget items comprised in the 2018 Supplementary Estimate could not have passed the “needs” or “Insufficiency” Test as prescribed by the Constitution. The specific line items that constitute the Supplementary Estimate have been exhaustively debated by the national assembly members prior to the rejection of the Supplementary.[vi]

It is my contention that section 153 (a) envisages and necessitates the creation of a Contingency Fund by a statutory enactment before a Supplementary Estimate can be presented to cater for additional expenditure for the reasons stipulated in the section. The purpose of the Contingency Fund as implied in the name is to provide/cater for unplanned/unbudgeted contingency expenditures as long the amount sought does not exceed 1% of the budget approved for that year. The provision thus sets a cap of 1% of the approved estimate for the year, which in my view restricts the use of Supplementary Appropriations for marginal budget over runs. To the best of my knowledge and information, our National Assembly as required by Constitution did not create a Contingency Fund, which is a condition precedent for the application of section 153.

In a nutshell, the Hon Minister cannot apply for additional funds to be appropriated to the Consolidated Fund in the absence of the creation of a Contingency Fund, which in essence would have been the source of the additional funding within the cap set by the Constitution. The Supplementary Estimate presented for approval is for the sum of D1,128,337,519.77, which by any stretch of imagination exceeds 1% of the approved budget of 2018.[vii] In fact it represents close to 17% of the current 2018 budget.

In the final analysis, the 2018 Supplementary Estimates should not have been presented for approval, given that the amount sought was in excess of the constitutional limit set. Secondly, it appears that the Minister of Finance already approved expenditures prior to coming to seek for the approval of the National Assembly. This, in my view is in contravention of the spirit and substance of section 153. The ultimate power to approve expenditure is the National Assembly and the Constitution makes it very clear that no expenditure can be appropriated without prior approval of the National Assembly. Finally, the National Assembly can only approve the Supplementary Estimate within the limits set by the constitution. In order words, the National Assembly Public Finance Committee should have advised the Assembly that the amount presented in the Supplementary Estimates exceeds the 1% cap set by the Constitution.

Conclusion

A review of the Constitution, the applicable legislation confirms that the Minister of Finance’s 2018 Supplementary Estimate is not consistent with the dictates of the Constitution and the enabling Legislation viz. Government Budget Management and Accountability Act 2009 and the Public Finance Act 2014.  The author reiterates that the application of the enabling laws mentioned above and any power purported exercised by the Honourable Minister or his predecessor are subject to the Constitution, which is the supreme law of the land.

The Supplementary Estimate 2018 dubbed SAB2018 has exposed a fundamentally flawed budgetary process that needs to to be overhauled and reset. The old ways of budgeting in the good old days is not longer acceptable in this era of transparency and probity. The Minister of Finance is our gatekeeper of our public funds and we expect him to ensure financial /fiscal discipline is enforced to the letter without fear or favour.

Thus, there is need for the National Assembly to seek independent legal advise on such legal matters to ensure they discharge their functions within the confines of the Constitution.  The fact that the National Assembly Public Finance Committees considered the approval of the Estimate with a 45% reduction is cause for concern, as that would have flouted our constitution. It is timely for the National Assembly to appropriate sufficient resources to establish its support services in the area of legislative and legal support inter alia.

The buck stops at the Minister of Finance who has a duty to restrain Executive financial indiscipline and maintain spending within the approved budget. The Minister of Finance, by extension the Government should not use the Supplementary Appropriation Estimates as an overdraft facility and expect our National Assembly to simply rubber stamp the excess spending retroactively. 

In the interest of the betterment of our country and judicious management of our scarce financial resources, I humbly make my little contribution on this very important topic.

Suggested citation: Salieu Taal, Was the recent Supplementary Appropriation Estimate 2018 presented by the Minister of Finance in accordance with the dictates of the law and Constitution?, Law Hub Gambia Blog, 20 November 2018, at https://www.lawhubgambia.com/lawhug-net/is-supplementary-appropriation-constitutional.

For the Gambia Our Homeland

Salieu Taal

Initiator/Co-Founder #GambiaHasDecided

Managing Partner, Temple Legal Practitioners

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[i] Supplementary Appropriation is governed by Section 153 of the 1997 Constitution which reads;

(1) Subject to section 154, if in respect of any financial year it is found that the amount appropriated under the Appropriation Act is insufficient or that a need has arisen for a purpose for which no amount has been appropriated by that Act a supplementary estimate showing the sums required shall be laid before the National Assembly before the expenditure has been incurred.

(2) Where a supplementary estimate or estimates have been approved by the National Assembly, a supplementary appropriation Bill shall be introduced into the National Assembly for the appropriation of the sums so approved.

[ii] Section 4 of the Constitution “ The Constitution is the supreme Law of the Gambia and any other law found to be inconsistent with any provision of this Constitution shall, to the extent of the inconsistency, be void.”

[iii] Section 150 of Constitution defines the Consolidated Fund

(1) There shall be a consolidated Fund into which shall be paid

(a)    all revenues or other money raised or received for the purpose of, or on behalf of, the Government

(b)    any other money raised or received in trust for or on behalf of the Government

[iv] This raises the issue of whether banks collection of taxes on behalf of GRA is within the law in the absence of specific legislation authorizing the collection of state revenue.

[v] Section 154 of 1997 Constitution

(1) An act of National Assembly may make provision for the establishment of a Contingencies Fund and for authorising the President to make advances from that fund if he or she is satisfied that there has arisen an unforeseen and urgent need for expenditure for which no other provision exists:

Provided that the President shall not authorize any expenditure from the contingencies Fund in excess of one percent of the estimates approved by the National Assembly for the current year before he or she has caused a supplementary estimate in respect of such excess expenditure to be presented to the National Assembly.

(2) Where any advance is made from the Contingencies Fund, a supplementary estimate shall be presented, and a Supplementary Appropriation Bill shall be introduced for the purpose of replacing the amount so advanced within ninety days of the advance being made.

[vi] See. Intervention of Sidia Jatta, PDOIS NAM, Sana Jawara etc Hansard Records

[vii] Budget Estimate for 2018 approved was D19 (Billion Dalasi)

The need for an independent Gambian judiciary

[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.]

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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.

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[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.