He is sentinel in the public space, a voice for the voiceless, a conscientious and progressive interrogator of government policy and official conduct on the big issues of the day. Even without the many prompts urging a response to his rejoinder on my contention that the Constitutional Review Commission is unlawfully constituted, I accept a duty to grant audience to Madi Jobarteh (Madi) of TANGO when he knocks on my door.

And so I shall.

But first the unfortunate and unbecoming lamentations of the Honourable Attorney General and Minister of Justice (AG) on Fatu Radio’s “For the People By The People Show” of 10 June 2018.

I was informed of the AG’s assertion on the show that the Gambia Bar Association (GBA) submitted six names and mine was not included. A subscriber himself, I wonder what the AG meant knowing his communication on nominations to the CRC was at no time posted on the GBA email list.

As to ignoring the qualifications of the CRC members, that was information he may be privy to. It was not published for public information, and I had no way of knowing what credentials the several nominees brought to the table.

Pertinently, The Constitutional Review Commission Act 2017 (the Act) states:

4: Composition of the Commission

(1)  The Commission shall consist of:-

  • A Chairperson who shall be the Chief Justice or a judge of the superior courts designated in writing by the Chief Justice;
  • A Vice Chairperson who shall be a legal practitioner of not less than 10 years standing nominated by the Minister; and
  • Nine other members nominated by the President.

(2)  The President shall ensure that the members he or she nominates pursuant to sub-section (1) (c) are individuals of high moral character and integrity who have appropriate academic qualifications and experience in a relevant field of expertise.

5: Appointment of members of the Commission

(1)  Subject to sub-section (3), the members of the Commission shall be appointed by the President.

(2)  The President shall, in appointing the members, have regard to the geographical, professional, age and gender diversity of The Gambia.

(3)  A person shall not qualify for appointment as a member if he or she:-

  • is a serving member of any discipline force, whether in The Gambia or otherwise;
  • has been convicted of an offence involving dishonesty or moral turpitude;
  • is not a citizen of The Gambia;
  • is a member of the National Assembly; or
  • is of an unsound mind.

Going by Section 4 (2) of the Act, the President was placed under a positive obligation to “… ensure that the members he or she nominates pursuant to sub-section (1) (c) … have appropriate academic qualifications and experience in a relevant field of expertise”. What is the requisite level of academic qualification, what level of experience is anticipated, and what constitutes a relevant field of expertise. We don’t know how these expressly delineated criteria of “academic qualifications”, “experience”,    and “relevant field of expertise”, were present in nominees consequent upon the opaque processes employed by the AG in nominations he unlawfully conducted.

In any case I said nothing about the qualifications of the nominees singlehandedly selected by the AG. My argument that the CRC was unlawfully constituted is akin to a preliminary objection, i.e., that the process delineated by the Act was not followed in the nomination of Commissioners. There was never a need to deal with the substantive question of whether the Commissioners are qualified or not.

On the AG’s assertion that I attacked him personally, he could not have read my article and arrived at such a disturbing conclusion. If I never attacked Professor Babil Mansa, a man who deserved condemnation from rooftops across the country in light of the depraved manner he wielded the police power of the state, I wonder what the motivation would be to attack the Attorney General of a  democratically elected and properly constituted government.

What I must remind the AG is that the rule of law is not a mere mantra. It has meaning and the glaring favouritism and illegality on the face of his nominations is quite troubling. The AG did not even act at the outer extremes of permissible authority. He acted wholly outside the perimeter created by the Act.

All I said was that the AG acted unlawfully, outside the ambit of his legitimate powers and that as a consequence his nine extra nominations to the CRC were null, void, and of no effect. Whether or not he follows the law by rectifying his glaring procedural errors is a matter for him to ruminate over.

The bit about the Chief Justice as Chair of the CRC is rooted in separation doctrine and what delineations there are n the principle in the Constitution!

In any case, I stand by my contentions in their entirety.

Now to our all-Gambian sentinel of the public space!

Contrary to Madi’s assertion, I made no contention that “… the power to nominate the Chair and Vice Chair are vested in the Minister of Justice while the nomination of the other nine members are vested in the president as per Section 4 of the Act”. I reiterate that the only nomination assigned to the AG by the Act is “a Vice Chairperson who shall be a legal practitioner of not less than 10 years standing …”.

What I stated is that “…It is unclear where the selection of the Chief Justice as Chair of the CRC came from but in light of the topography of the Act, the fingerprints of the AG are all over it. On a plain reading of section 4 of the Act, it was a fait accompli without presidential input. An Attorney General ought not arrogate such power to himself”!

 

In the life of this government, the CRC is a one off. It is a centrepiece of reform, and the role of Chair is a level of appointment that is outside the competence of an Attorney General in light of the Constitutional provision on Commissions of Enquiry. The CRC is analogous to a Commission of Enquiry! However read, Section 4 (1) (a) is a categoric imposition whose plain terms exclude any presidential input and the compelling nature of this contention is unassailable when analysed in the context of sections 4 (1) (c) and 4 (2) of the Act.

 

This Act started life in the AG’s Chambers and if we don’t know how the Chief Justice was selected to Chair the CRC, the onus of clarification resides in the originator of the Act. Only the AG is privy to the information of how the Chief Justice or his designate came to chair the CRC.

 

On another point, Madi misread the import of sections 4 and 5 of the Act when he erroneously advanced the proposition of its silence on the process of nomination. With the permission of two of Gambia’s foremost Latinists, I take the opportunity to conclusively answer Madi with a Latin maxim on a canon of interpretation: Expressio unis est exclusio alterius.

This means that the “express mention of one thing excludes any other which otherwise would have applied by necessary implication with regards to the same issue”. The express mention of the President as the person vested with nominating the nine other Commissioners categorically excludes any role in that function by the AG. Madi in fact admitted it was the AG who wrote to TANGO and others: “I think it was therefore wise that the president did exactly that when the Ministry wrote to various stakeholders such as the Gambia Bar Association, TANGO, and the National Youth Council, as far as I know, to ask them to provide three names out of which the president would nominate one”.

It was not wise. It was utterly unlawful!

Now that our positions coincided on who conducted the nominations, the legal position as stated above is that the AG had no authority to nominate other than the Vice Chair. His other nine nominations including from Madi’s TANGO are ultra vires, i.e., beyond the AG’s powers, and therefore null, void and no effect.

Madi’s biggest challenge lies in my contention that the Judiciary’s role as interpreter of the law conflicts with a legislative function of such magnitude. I repeat that the departmental demarcations in the Constitution suggest that a sitting member of the Supreme Court must not Chair the CRC on separation of power principles.

 

Although not strictly a constitutional provision, the preamble offers a roadmap of how a particular nation intends to manage its public life with its supreme document as guide. It is like the mission statement of an organisation, an encapsulation of the values that underlie a particular system as are expressly articulated in the constitutional text. In our extant Constitution, paragraph 6 of the preamble states “… the functions of the arms of government have been clearly defined, their independence amply secured with adequate checks and balances …”.

 

Albeit a contested claim in light of Babil Mansa’s attitude to Gambian public life, the vision, i.e., that power must be separated, hollow as it may be, is clear from the layout of Chapters VI, VII, and VIII of the Constitution.The doctrinal principle that power ought to be separated is unassailable and Gambian public affairs must now conclusively reflect it.

 

I reject Madi’s understanding that I said “… the CJ will undermine separation of powers”, or that “…the CJ could undermine the independence of the CRC or cause undue influence in the work of the CRC”. A lawyer does not speak like that in relation to a sitting CJ. What Madi said is not objectively discernible from my argument and it is a case of my message getting lost in his translation.

In any case, years before anyone could have contemplated the CJ at the pinnacle of our judicial system, I wrote about his seriousness of purpose as an Attorney General under the PPP government and his larger visionary understanding of the public purpose of law.

My contention is simply that the CJ or his designee should not Chair the CRC as it is in conflict with the doctrine of the separation of power. If the composition of the CRC is judicially contested, a first instance venue may be the High Court on grounds that the AG acted unlawfully by circumventing the strictures of the Act. It is not beyond contemplation that a presiding judge may have his mind exercised by the thought of who may be affected by the outcome of such a challenge.

Another aspect of the conflict issue is that the Chair of the CRC may have occasion to deal with issues going to the new Constitution on interpretation and related matters.

In an academic analysis of the separation issues inherent in this kind of scenario, Patrick O’Brien (2016), Judges and politics: the parliamentary contributions of the Law Lords 1876-2009: “Influenced in large part by jurisprudence of the European Court of Human Rights on the right to a fair trial, the blended roles of the Lord Chancellor and the Law Lords had fallen under a shadow. In the McGonnellcase the Strasbourg court held that a judge in Guernsey could not participate in a decision in respect of which he had had a legislative role. For a New Labour government that came to power in 1997 determined to modernise the constitution, the argument that the historical practices worked was no longer enough. The judicial and legislative functions of the office of Lord Chancellor were removed by the Constitutional Reform Act 2005, leaving only the executive ‘justice minister’ function. The judicial peers were excluded from Parliament in 2009, to the evident dismay of some of their number, and a new Supreme Court was created”.

In McGonnell v The United Kingdom, the European Court of Human Rights held: “The Court thus considers that the mere fact that the Deputy Bailiff presided over the States of Deliberation when DDP6 was adopted in 1990 is capable of casting doubt on his impartiality when he subsequently determined, as the sole judge of the law in the case, the applicant’s planning appeal. The applicant therefore had legitimate grounds for fearing that the Bailiff may have been influenced by his prior participation in the adoption of DDP6. That doubt in itself, however slight its justification, is sufficient to vitiate the impartiality of the Royal Court, and it is therefore unnecessary for the Court to look into the other aspects of the complaint”.

 

Even a rudimentary understanding of the doctrine of separation will substantiate the contention that this type of law making is not a core function of the judiciary and must therefore not be chaired by the CJ or his designee from amongst the ranks of the active judicial bench.

 

I apologise that Madi’s vision was blurred by the flowers. Law is work but my academic bias lies in history – queen of the social sciences – and in contemporary and public affairs. May be I ought to prune the flowers somewhat and wonder whether my sentinel brother has a gardener in mind. I can do with a TANGO nominee who failed to make the CRC.

 

 

Lamin J. Darbo