By MALICK J.O JOOF
“If one man can be allowed to determine for himself what is law, every man can.”
This article reiterates the spirit of the 1997 constitution of the second republic of The Gambia with regard to the independence of the judiciary. The independence of the judiciary in any country contributes and shapes the notions of democracy and equality. For the proper dispensation of justice and the adherence to the spirit of the constitution, the principles of separation of powers and the rule of law there must be an independent judiciary. The undue interference by other organs of government, in particular the executive branch, poses a serious peril to the administration and dispensation of justice in any democracy, particularly in Gambia. The independence of the judiciary, as far as it goes, extends to both institutional and functional independence. The right to a fair trial is guaranteed under the constitution of the Gambia. That been said, its observation cannot be a reality in the absence of an independent judiciary.
Fifty-one years had gone after the attainment of independence and the erosion of British colonization and exploitation. It wasn’t until April 24 1970 that The Gambia was considered fully independent from the Queen of England. A new and first Republic was born in the name of The Republic of The Gambia. This brought light into the lives of many Gambians, young and old.
This historic achievement also recognized the forbearing and unremitting efforts of the fathers of the nation. The agitation and struggle for independence was amongst the toughest tasks they handled in the name of the nation. The corollary of their struggles, and for our beacon of hope, provided for us that
“… very person in The Gambia is entitled to … fundamental rights and freedom … whatever his race, origin, political opinion, color, creed, or sex, but subject to respect for the rights and freedoms of others and the public safety…”
We graced the growth of the first Republic that stumbled and crumbled like any young republic.
The 1970 constitution gave the people of The Gambia hope and provided for the protection of our God-given rights and freedoms. These provisos can be found in Chapter III of the said constitution. The said constitution further provided for the establishment of a judicial branch of government, the Adjudicator as contained in Chapter VII. This chapter mandated the Judiciary, inter alia, to interpret the laws of the land and hear legal matters concerning the PEOPLE, without ill will, fear or favor. The independence and impartiality of the judiciary was so and duly established under that chapter.
The first republic became history on July 22 1994 when the military junta led by Lt. Col. Yahya Jammeh deposed the democratically elected government of Sir Dawda K. Jawara as the first president of the first republic. The ambitious and young soldiers promised to establish ‘a government for the people.’ The 1997 constitution of the second republic is evident. The preamble, amongst others, provides that
“[w]e the people of The Gambia have accomplished a great and historic task. We have had our say on how we should be governed. For this Constitution contains our will and resolve for good governance and a just, secure and prosperous society.”
The 1997 constitution, like the 1970 constitution, brings light to the lives of many Gambians that the “… constitution contains our will…” and therefore, “[t]he sovereign people of The Gambia … endorsed the change of government on 22nd July 1994 ….”
History and time have proved the government wrong and defiant of the constitution and the sovereign will of the PEOPLE.
However, a plebiscite was conducted in 1996 for the adoption of the constitution. It was finally adopted and it entered into force on January 16 1997. The constitution contains a very important provision. To many, the failure for the observance and enforcement of this provision intercepted the purpose of the constitution to “…resolve for good governance and a just, secure and prosperous society.” This, as far as we know, is the spirit of our constitution; a mere anthology of wishes.
The following excerpt precisely explains the spirit of a true constitution.
Constitutions are not “living documents” as is contended by some ignorant and verbose commentators. Because a Constitution defines the structure, powers, and limitations of the government, such elements are fixed, except as such may be altered by the amendment process. When a Constitution includes language that protects personal liberties (sometimes called “natural rights” or “God-given rights”), these provisions must remain in effect, and remain fixed as they are for all time. They are not subject to modification by amendment because no one, not even our fellow Citizens, has the authority to deprive us of our liberty…”
The 1997 constitution is the fundamental law of The Gambia, The Grund Norm, and “it sets the tone, the spirit and the framework from which all other laws and the form of government draws [their] legitimacy…” At the same token, it is the compendium of the second republic’s misconceptions of democracy and good governance.
Section 4 provides that “[t]his 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.”
To be guided by time and more than two decades of historical facts, executive proclamations and declarations had on many occasions render section 4 a nullity. If a supremacy clause in a constitution doesn’t have any effect in the midst of political inappropriateness, the question to be asked is what would happen to the constitution in Toto.
To ensure a fair dispensation of justice and the observance of the rule of law, there must not be a disregard to constitutional provisions. The judiciary as per the constitution is the beacon of hope where the people look up to for the fair determination of their causes. “The Constitution is not an instrument for the government to restrain the people, it is an instrument for the people to restrain the government.”
THE INSTITUTION OF THE JUDICIARY
Chief Justice Marshall reiterated that “[i]t is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.” What Marshall CJ meant to say is purely simple. In the course of executing its duty, the judiciary should and must be at will, guided by the constitution and the principles of justice and the rule of law, to state what the law is without ill will, fear or favor.
The judiciary is an institution established by the constitution to interpret the laws of the land. The same law that establishes it, gives it interpretative authority, also characterizes it as independent and impartial. Regardless of the nature and weight of the document that guarantees the independence of the judiciary, the independence of the judiciary should be guaranteed for the fact that it is necessary in a democracy and for the proper administration of justice.
In his introduction to “How to Treat Allegations of Bias or Impartiality”, Dotse JSC, enunciates the constitutional principles of the independence and impartiality of the judiciary. He states thus:
“Section 24 (1) of the Constitution of the Republic of The Gambia 1997 […] provides as follows: –
“Any court or other adjudicating authority established by law for the determination of any criminal trial or matter, or for the determination of the existence or extent of any civil right or obligation, shall be independent and impartial …”
From the above constitutional provision[…], it is clear and apparent that the philosophical underpinnings of the Constitution[…] of the Republic of The Gambia … in so far as [it] relate[s] to the adjudicatory authority of the Courts established under the … Constitution[…] or other laws are founded on the following principles:-
- Independence of the decision making process
- Impartiality of the judicial system,
iii. Fairness of the system and
- Early and or expeditious trial
What shall be noted is that, it is now the norm that determination of all disputes, both civil and criminal between individuals within a state, or between the state as against individuals or between citizens of a state are dealt with by recognized judicial institutions created under the various constitutional and legal establishments for that purpose.
In the Republic of The Gambia, judicial power is vested in the courts created under the Constitution and the said power shall be exercised by the courts according to the jurisdictions conferred on them by law.”
The above constitutional provisions also reiterate the fact that the other two branches of government should refrain from infringing the independence of the courts and the holders of any adjudicatory authority created by or under the Constitution of the Republic of The Gambia.
In support of this assertion, section 120(4) stands to facilitate the independence of the judiciary. It states that “[t]he Government and all departments and agencies shall accord such assistance to the courts as the courts may reasonably require to protect their independence, dignity and effectiveness.”
Section 123 also provides that “[a] judge or other person exercising judicial power shall not be liable to any action or suit for any act or omission by him or her in good faith and in the exercise of his or her judicial function.”
In the course of time many Justices of the superior courts were relief of their services for reasons not quite known to the public. Magistrates are being harassed, assaulted and arrested for conducts that are within their judicial power, or for ruling against the state.
It is noteworthy to understand that “… the protection of human rights is dependent on the guarantee that judges will be free and will reasonably be perceived to be free to make impartial decisions based on the facts and the law in each case, and to exercise their role as protectors of the constitution, without any pressure or interference from other sources, especially government. This basic premise is crucial to the maintenance of the rule of law.”
U.S. Supreme Court Justice Felix Frankfurter alluded that “[t]here can be no free society without law administered through an independent judiciary. If one man can be allowed to determine for himself what is law, every man can. That means first chaos, then tyranny.”
As much been said to that effect, judicial partiality is, more often than not, triggered by the executive organ of government. Its massive influence and political power render the judicial organ of government its marionette. The president under the constitution has the mandate to appoint and dismiss judges. If the power given to the president to appoint and dismiss judges is not checked through the mechanism of checks and balances, it may result to nefarious decisions as we’ve seen in the past.
The constitution provides in section 138 that
“(1) The Chief Justice shall be appointed by the President after consultation with the Judicial Service Commission.
(2) All other judges of the superior courts except the judges of the Special Criminal Court shall be appointed by the President on the recommendation of the Judicial Service Commission.
The Judicial Service Commission (JSC) was established “… to appoint persons to hold or act in any office to which this subsection applies shall vest in the Judicial Service Commission.” It is also mandated “… (a) to advise the President in the exercise of their powers relating to the appointment of judges; (b) to make recommendations as to the terms and conditions of service of judges and other judicial officer and officers and staff of the courts; (c) to make proposals to improve the administration and efficiency of the courts …”
Material to this discussion is the autonomy, if any, of the JSC in advising the president in matters of or relating to the appointment of judges. The independence, if not functionality, of the JSC as per the above is a big question.
It is important that the citizen do not lose confidence in the judicial and political systems. Once this happened, there will be an affront to the ‘… grand secret of liberty and good government” for which our constitution is established to achieve.
It is noteworthy to say explicitly that ‘… the exercise of governmental power, which is essential to the realization of the values of [our] societ[y], should be controlled in order that it should not itself be destructive of the values it was intended to promote.’ We should be cognizance of the fact that ‘’[a]ctions by other branches of government which undermine the independence of the judiciary therefore attack the integrity of our Constitution.’’
“Judicial independence is valued because it serves important societal goals – it is a means to secure those goals. One of these goals is the maintenance of public confidence in the impartiality of the judiciary, which is essential to the effectiveness of the court system. Independence contributes to the perception that justice will be done in individual cases. Another social goal, served by judicial independence is the maintenance of the rule of law, one aspect of which is the constitutional principle that the exercise of all public power must find its ultimate source in a legal rule.”
As Dotse JSC alluded infra, “…judicial independence involves both individual and institutional relationships: the individual independence of a judge, as reflected in such matters as security of tenure and the institutional independence of the court or tribunal over which he or she presides, as reflected in its institutional or administrative relationships to the executive and legislative branches of government.”
The quest “for peace and stability in our society and … good governance” cannot be achieved “[u]nless the government subordinates itself to the law, and to the sovereignty of the people through the constitution …”
The government’s subordination to the law and the free will of the sovereign people will strengthen democracy and the rule of law, hence the independence and impartiality of the judiciary and the fairness of the system.
Further, the right to a fair trial ‘… represents one of the most fundamental guarantees for the respect of democracy and the rule of law…’ A person charged with a criminal offense (and a plaintiff or petitioner in civil suit) shall be afforded a fair hearing within a reasonable time. Sub-section 3 of section 24 states that ‘[e]very person who is charged with a criminal offense, shall be presumed innocent; shall be informed at the time of charge the nature of the offense charged; shall be given adequate time and facilities for the preparation of his or her defense; shall be afforded facilities to examine witnesses called by the prosecution [and] examination of witnesses whom the accused person called to testify on the same conditions as those applying to witnesses called by the prosecution; except with his consent, the trial shall not take place in his absence.
The most important component of the right to a fair trial is the independence of the judiciary, particularly independence from the Executive and the Legislature. “Usurpations are guarded against by a division of the government into distinct and separate departments.” If such division does not exit, the recourse to a court of law will be of little use, if not of no use.
Judicial independence does not only mean autonomy in legal proceedings. It includes, but not limited to, the conditions of services and tenure; manner of appointment and dismissal, the degree of stability and logistical protection against outside pressure and harassment.
The doctrine of separation of powers has little if no application in Gambia. In the anatomy of the principle, separation of powers starts from institutional separation. In Gambia, the Attorney General who is the principal adviser of the president in legal matter doubles as the minister of justice. The powers of the Director of Prosecution to initiate criminal action under section 85 of the 1997 constitution is subject to the approval of the Attorney General. This, however, may result to selected, eye-marked, and malice prosecution of individuals critical to the government; so to mention the dissidents and opposition militants.
It is an established norm and trite law that fundamental human rights are interdependent. The enjoyment of one right is contingent on the promotion, protection, and fulfillment of the other. The proper dispensation of justice in any democratic society is largely dependent upon the recognition of the rights of all persons as equal before the law.
The protection of the rights of all persons as equal before the law is fundamental in a democracy. The equality before the law doctrine lays the bedrock for the guarantee of the right to a fair trial.
The right to a fair trial does not focus on a single issue, but rather consists of a complex set of rules and practices. The right to a fair trial is interpreted as the rights that an accused person must enjoy throughout the determination of his or her cause. In addition, these rights are established and sanctioned by legal principles and procedures.
The constitution of the right to a fair trial includes and not exhaustive to, inter alia, the right to a humane treatment at the point of arrest, the right to presumption of innocence, the right to be informed of your crime within three hours in the language you understand, the right to be brought before a court of competent jurisdiction within seventy-two hours, the right to equal protection of the law, the right to be heard and public hearing, the right to be heard by an independent and impartial tribunal, the right to a counsel of your choice and effective defense, the right to legal aid as the case may be, the right to an expeditious trial, the right not to be tried in absentia without consent, the right to appeal, the right to have you conviction and sentence review by a higher tribunal etc.
- Black, C. H., LLD, Handbook of American Constitutional Law Fourth Edition, West Publishing 1927.
- Constitutionalism and The Rule of Law in Indonesia
- Daniel, C.P., Q.C. and Joanne, L., The Rule of Law and The Independence of The Judiciary, World Conference on The Universal Declaration of Human Rights, Montreal, December 7, 8 and 9 1998.
- Outline of The US Legal System, Bureau of International Information Programs. United States Department of Justice 2004.
- Rozakis, C., The right to A Fair Trial in Civil Cases, Judicial Studies Institutes Journal [4:2]
- United Nations Basic Principles on The Independence of The Judiciary
- United Nations General Principles on Fair Trial.
- Ville, M.J.C., Constitutionalism and The Separation of Powers Second edition 1998
- Federalist Paper No. 1
- 1970 Constitution of the First Republic of The Gambia
- Valente V. The Queen  2 S.C.R
- 1997 Constitution of the Second Republic of The Gambia
- Re Provincial Court Judges,  2 S.C.R 673