By Madi Jobarteh
A Bar association is not merely a voluntary association of lawyers. It is also an integral part of the State and a mechanism for the delivery of justice to citizens. Hence a Bar association is a human rights protector and a defender for the respect for the rule of law. For that matter a Bar association is a guarantor of peace and security as well as development in a civilized democratic society. Without an effective and vibrant Bar association, the independence of the Judiciary will be stifled leading to a weak justice delivery system. This is a recipe for disaster.
To understand the role and value of the Bar association one has to understand the nature and operations of a constitutional democracy in a republic such as the Gambia. The basis of a constitutional democracy is founded on the principle of separation of powers between the Executive, Legislature and Judiciary. This principle is spelt out in a constitution that sets the necessary checks and balance in terms of a set of rules and processes, which altogether constitute the rule of law. It is these checks and balance system based on the rule of law that ensures transparency and accountability of the State. It is this rule of law that therefore not only restrains public officers and state institutions from abusing their powers but also ensure that they perform their duties diligently. By acting within their powers and performing their duties, the State therefore ensures that the rights and needs of citizens are protected and fulfilled.
The Judiciary is the third arm of the State that is responsible for interpreting the law to ensure that actions and decisions of the State and private citizens are in line with the constitution or not. Hence the Judiciary serves to ensure that no one takes the law into their own hands to do as they wish. This is why a key right of every citizen under Section 24 of our Constitution is that one is innocent until proven guilty by the courts. For this matter, the Judiciary or the courts ensure accountability and redress in a democratic society. In fact in many parts of our Constitution, the right of citizens to go to court to restrain the government has been guaranteed.
But in order for the Judiciary to function efficiently to ensure access to justice, there must be lawyers to defend individuals who are in conflict with each other or with the law. This is why Section 19 of our Constitution says anyone arrested must have access to a lawyer. These lawyers are those that constitute the Bar association. The Gambia Bar Association is the only civil society organization mentioned by the Constitution under Section 145 as a member of the Judicial Service Commission. This commission plays a key role under Section 147 in ensuring an efficient delivery of justice and better administration of the courts. It plays an advisory role to the president on matters of law and justice such as appointment of judges. It also conducts public sensitization about access to justice and administration of the courts.
Therefore the Bar association is an integral part of the governance and development process of the Gambia. By delivering justice and ensuring the sanctity of the Constitution, the Judiciary therefore has become the heart of good governance and sustainable development. An efficient Judiciary means citizens will have confidence in the political system to protect their lives, rights and properties. A corrupt and weak Judiciary means there will no peace and development in that society. We have seen how Yaya Jammeh had used the Judiciary for that purpose. In the final analysis, the efficiency or weakness of the Judiciary lies with the role played by the Bar association, hence the Bar association largely determines the quality of our democracy.
Therefore to ensure an efficient Judiciary, hence better governance and development, the critical body in that scheme is the Bar association. For far too long, the Gambia Bar Association did not play its rightful role, as it should. It has hopelessly watched as the Executive flouted the independence and professionalism of the Judiciary. The hire and fire of judges by Yaya Jammeh, and the flouting of court orders by the NIA and APRC elements was a common practice. Unlike many other societies, where the Bar has been in the forefront of the promotion and protection of democracy, in the Gambia the Bar was completely subdued and useless.
However the Gambia Bar Association redeemed itself for the first time on 12 December 2016 when it became the first Gambian civil society organization to unequivocally and strongly condemn Yaya Jammeh for his attempt to reject and annul the election results. That was an historic and a bold step demonstrating what a true Bar association must do in such situations. We could all recall when the Pakistani Dictator Pervez Musharraf sacked Chief Justice Choudary in 2007 thus triggering the Pakistani Bar Association to launch a massive protest that led to his overthrow.
Now that the Gambia Bar Association has redeemed itself, it is necessary to remind them that this must continue. The Bar Association must henceforth become the true voice and conscience for democracy in the Gambia to ensure the protection of rights and the adherence to the rule of law. We expect the Bar will now lead Gambians to stand against any abuse of power and the flouting of the rule of law by the Government and indeed any entity in the Gambia. We expect the Bar to ensure and protect the independence of the Judiciary and the security of tenure of judges and magistrates. We expect the Bar to provide honest and clear advice to the Chief Servant to ensure the effective and efficient management of the courts and just delivery of justice. This is what we expect the members of the Bar to do.
We do therefore wish to see our lawyers in the Gambia Bar Association only interested in making money out of poor and oppressed people. Many of our lawyers indeed profited from the APRC Tyranny by taking up cases for which they knew they could not win because the entire Judiciary was in the hands of Yaya Jammeh. Yet they charged huge sums of money from poor folks only for those poor folks to lose their cases before mercenary judges and sent to prison. Those lawyers and the Bar association instead should have led Gambians to condemn the abuse of the Judiciary rather than condone and allow a corrupted Judiciary to prevail. We need lawyers who have conscience and a sense of justice and patriotism and are prepared to stand with the poor masses to ensure democracy prevail in our motherland.
Let us remind the Gambia Bar Association that more than ever before the Gambia needs them more today. Let them work with Chief Justice Hassan Jallow to ensure a truly independent, just and efficient Judiciary. But more importantly let them protect the sanctity of our Constitution and the rule of law as set out in the supreme law. Let the Gambia Bar Association lead and join citizens in holding the Gambia Government to account to prevent abuse of power and disregard of the rule of law but to ensure a just and efficient delivery of justice.
God Bless the Gambia.
