By Bubacarr Drammeh

In recent weeks, there appears a consensus amongst Gambians that the 1997 Constitution is the Supreme Law of the land to which all activities of the government must derive their authority or be consistent. As this intensive scrutiny of executive power is unprecedented; it is nonetheless, one of the great products of the New Gambia transforming our country before our eyes. Citizens now pay meticulous attention to the government’s adherence to proper procedures, due process of the law, official conduct, and do express their divergent views on them. Prior to President Barrow coming into office, the vast majority of citizens gave into his predecessor’s pathological disrespect for constitutional governance. Abuse of the laws was normalized as government officials and civil servants were hired and fired without regard to due process and procedure. Almost everything was done to satisfy one man — Yahya Jammeh — as if the country was operating under an absolute monarch.

With change of government and newfound freedoms, Gambians are determined to end tyrannical governments by being on constant vigilance for, advertent or inadvertent, deviations from the Constitution. As such, every conduct of President Barrow’s administration is viewed through the prism of the Supreme Law of The Gambia. Whereas many of President Barrow’s actions have been scrutinized for their consistency or lack thereof with the Constitution, one that received no attention, but confounded the constitutional crisis that preceded his assuming the helm of affairs of the state was the appointment of the Chief Justice of The Gambia. The appointment of Mr. Hassan Jallow as Chief Justice could, procedurally, be inconsistent with the Constitution and to that degree of inconsistency is unconstitutional.

Section 138 of The Constitution that provided for the appointment of the Chief Justice states that “The Chief Justice shall be appointed by the President after consultation with the Judicial Service Commission.”

The language of the section is concise and precise. The President consulting the Judicial Service Commission (JSC) is a condition precedent to the appointment of the Chief Justice. Thus, the President must consult the Judicial Service Commission before appointing a Chief Justice. Even though the President is required to consult the Judicial Service Commission, he is however not required to act in accordance with the advice of the Judicial Service Commission under Section 231(4) of the Constitution. The section provides thus:

Where under any provision of this Constitution any person or authority is authorised or required to exercise any function after consultation with any other person or authority, the person or authority first referred to shall not be required to act in accordance with the advice of that person or authority.

Thus the only obligation placed on the President is the obligation to consult the Commission. Failure to consult as stipulated is a violation of a Constitutional provision as any action that stems from such a violation is a nullity. If the President consulted the Commission but refused to accept their recommendation, such action is in line with the Constitution of the Gambia.

The natural question that follows is, was the Judicial Service Commission properly constituted prior to appointment of Chief Justice Jallow? If YES, was the Judicial Service Commission consulted? The answer to the former question can be found in the Constitution. Section 145 (1) provided for the proper establishment of the Judicial Service Commission thus:

There shall be a Judicial Service Commission which shall consist of –

(a)  the Chief Justice, who shall be Chairman; 


(b)  a judge of a superior court; 


(c)  the solicitor General; 


(d)  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; 


(e)  one person appointed by the President; and 


(f)  one person nominated by the National Assembly. 


Section 145 (2) The members of the Commission (other than the members referred to in paragraphs (a) and (f) of subsection (1) shall be appointed by the President in consultation with the Chief Justice and subject to confirmation by the National Assembly

There was no newly constituted Judicial Service Commission after the fall of Ex-President Yahya Jammeh’s government. The Judicial Service Commission composed by the previous regime was believed to still be in place. The Gambia Bar Association has questioned the composition of the Commission. However, it was not until recently that the Bar Association filed a formal complaint. The Bar Association contended that the Commission was improperly composed and therefore an unconstitutional body. On March 31^st 2017, The Gambia Bar Association released a document captioned WHY THE GAMBIA BAR ASSOCIATION CHOSE TO BOYCOTT CERTAIN COURTS? The document stated in Page 3 thus:

The composition of the JSC from 2009 to date has not been in line with the Constitution. Former President Jammeh had handpicked one lawyer to sit on the Judicial Service Commission thereby depriving the GBA oversight of its activities.”

Currently there is a pending lawsuit against the Judicial Service Commission and the Attorney General in the High Court of The Gambia initiated by the Gambia Bar Association.

The Court in its erudite ruling —delivered on the 27^th April 2017— on the preliminary objection raised by Counsel for the Respondents—Judicial Service Commission and Attorney General— on Page 6 held thus:

“ I am of the ardent view that the Applicant, being [an] Association of Legal Practitioners whose aims and objectives include defending and upholding freedom, justice and the rule of law in The Gambia and also maintaining and defending the independence of the judiciary [is] not mere [busybody] with misguided or trivial complaints of administrative error. I am also of the considered view that on the material available, and without going in depth prima facie, the Applicant [has] made out an arguable case for the granting of leave for judicial review.”

The Gambia Bar Association is competent to challenge the validity or otherwise of the composition of the commission. One of its objectives is to ensure that the government observes due process provided for by our laws. Holding the government accountable to those standards, the citizens expect the highest standards. The Association has been called a toothless bulldog by Gambians within and outside the country in the past. In this era of freedom and democracy, the Association has been vigilant and has shown no sign of being lethargic. If the Bar Association prevailed that the Judicial Service Commission constituted by Ex-President Jammeh was not properly constituted, then it is my humble opinion that the appointment of Chief Justice Jallow on advice given by such a Judicial Service Commission is unconstitutional. As it follows, that commission lacks the legitimacy to carry out functions stipulated in the constitution. One cannot put something on nothing an expect it to stand. A wrongly constituted Judicial Service Commission is unconstitutional, thus lacks the legitimacy to carry out the functions mandated by the constitution.

On the other hand, if President Barrow has not consulted the Judicial Service Commission prior to the appointment of Chief Justice Jallow, then he has failed to observe the procedure stipulated in Section 135 of the Constitution. This in my humble opinion renders the appointment of Justice Jallow as Chief Justice a nullity. It is trite law that when there is a procedure for conducting an act specified in the statute, a departure from that procedure renders that action a nullity. It is my view that the ongoing suit in the High Court of The Gambia by the Gambia Bar Association with the Judicial Service Commission as 1^st Respondent and the Attorney General as 2^nd Respondent will ultimately determine the constitutionality and unconstitutionality of the appointment of the Chief Justice. The Commission summoned by the Former Chief Justice Fagbenle to re-new the appointments of the judges whose appointments the Bar has challenged, is the same commission that was in place prior to the appointment of Justice Hassan Jallow as Chief Justice of The Gambia by President Barrow.

It is my humble view that the Bar Association should also challenge the constitutionality of the appointment of Chief Justice Hassan Jallow since the Commission —the Bar Association alleged was not properly composed from 2009 till date— presided over the renewal of or renewed the contract of High Court Judges —which they have no power to do—, was the same commission in place when Chief Justice Hassan Jallow was appointed. The ‘integrity,’ ‘honour,’ and ‘independence’ of the Association as the bulwark “to defend and uphold freedom, justice and the rule of law in The Gambia;” “to maintain and defend the honour, independence and integrity of the legal profession;” and “to maintain and defend the independence of the judiciary” are at stake. Less the Gambia Bar Association wants to be eternally condemned as the political hack against President Yahya Jammeh or are being xenophobic to aliens, it must challenged every appointment to our courts that was made while the alleged improperly composed Commission was functioning.

Note: Section148 provides that the Judicial Service Commission may by rules or otherwise regulate its own procedure and that it may, subject to its rules of procedure, act notwithstanding any vacancy in its membership or the absence of a member. Provided that any decision of the Commission shall require the concurrence of a majority. My research revealed that the Commission is yet to come up with such rules

I understand the Barrow government’s preference to deal with the atrocities committed
by the Jammeh regime through a Truth and Reconciliation Commission (“TRC”)
mechanism, rather than engage in piecemeal prosecution of individual criminals. The
TRC would require fewer resources; and depending on its terms of reference, it could
be very effective.

 
But is a TRC the way to go in the current Gambian dispensation? Does the
government’s desire for reconciliation trump crime victims’ and society’s right to demand
that criminals be punished? In the Gambian context, is there truly a risk that the society
will disintegrate once the government starts punishing certain criminals through the
regular courts?

 
In my humble opinion, the government needs to take these factors into consideration
and convincingly address the citizens, especially the victims, before going the TRC
route. I respectfully urge our government to make a strong case to the Gambian people
if it wants to go against international norms as articulated under the Rome Statute, and
advocate for the non-prosecution of certain crimes (such as the massacre of our
children on April 10 and 11, 2000). Yes, it could be argued that TRCs were effectively
used in South Africa and elsewhere. But those countries had unique circumstances that
invited the use of TRCs. If you have a legal system that is in tatters (due to war for
example or a repugnant system like Apartheid), it makes sense to bypass the courts
and set up commissions to handle certain crimes or to prioritize reconciliation over
prosecution.

 
In The Gambia, the government needs to explain to the victims why it makes sense to
not prosecute people who ordered the massacre of innocent and defenseless children.
And not have senior government officials wine and dine with the criminals. How does it
help assuage the victims and the larger society if criminals are celebrated in our society
or given a mere slap on the wrist for murdering defenseless children? Ordinary citizens
deserve an explanation from the government if it wants to lower the bar and absolve
murderers simply because they appear before a commission of inquiry. I, for one, will
not want to be a proud member of a society that condones mass murder. And I have not
heard a single victim of the Jammeh regime indicate a willingness to reconcile with
criminals who have not been punished for their crimes.

 
If the government is concerned about being accused of engaging in selective
prosecution in order to settle political scores, then the April 10 and 11, 2000 Massacre is
a perfect case to bring before the courts. Judging by the names of the deceased

victims, it appears the victims came from a cross-section of the society. Baboucarr
Badjie, Wuyeh Fode Mansally, Momodou Lamin Njie, Calisco Prera, Karamo Barrow,
Reginald Carrol, Omar Barrow, Momodou Lamin Chune, Lamin Bojang, Ousman
Sabally, et al., represent all tribes, religions, and economic backgrounds. Even the most
biased observers cannot claim that it is unfair to prosecute the perpetrators of the April
10 and 11, 2000 Massacre.

 
When crime victims and society at large demand justice, they are not only seeking
acknowledgement and monetary compensation from the state; they are also asking that
the perpetrators be held accountable and punished. As I keep saying – and will not be
tired of repeating – civilized societies must never allow certain heinous crimes to go
unpunished; not in the name of national reconciliation, nor out of a false hope that
treating criminals with mercy somehow deters crime. The culture of impunity must be
eradicated in our society.

 
If the government wants to argue that rendering murderers scot-free would help national
reconciliation and give us a more cohesive society, some of us have to push back on
such a notion. While I recognize that we must discourage a culture of revenge in our
society, it needs to be pointed out that this argument suggests that there is a faction of
our society that condones mass murder. The argument, taken to its logical conclusion,
wants us to believe for example that if the government were to prosecute former
president Jammeh and his cohorts for the massacre of our children, there will be some
from the society who did not partake in this heinous crime who will be prepared to bring
chaos in the country in order to defend Jammeh. I cannot accept that argument. I
believe we are from a civilized society and the overwhelming majority of the citizens will
never condone impunity for such a callous crime.

 
By calling for retribution, the victims and society at large are not seeking to fulfil a desire
for revenge. Criminals owe a debt to the whole society and not just to their proximate
victims. Therefore, it is every citizen’s legitimate duty to demand justice for the victims
and our society. And the government in whom the power of the people is vested should
ensure that criminals are punished appropriately, pursuant to the laws of the land.
Otherwise, there could be vigilantism and chaos in the society. To me, this is a bigger
concern than the fear that Gambians are going to rise up to defend criminals. Gambians
are very fair and will not defend criminals if they know that the criminals’ due process
rights are being respected.

 
When the government punishes criminals for their behavior, the punishment serves a
dual purpose: it deters the criminal from repeating the behavior and it also serves as a
deterrent to others in the society who might have contemplated committing such a

crime. Are there situations where the government, for the greater good, could decide to
exercise leniency on criminals? Absolutely. As I argued before, even in the most
sophisticated legal systems, certain situations warrant bargaining with less culpable
criminals in order to get to the real culprits. This massacre, is not such a situation.
I think what the citizens will have a problem with is when commissions are used as a
substitute for regular courts in order to avoid punishing criminals. That is exactly what
Jammeh did when our children were gunned down in broad daylight on April 10 and 11,
2000; and he was roundly condemned by most Gambians. It pains me to even think that
our current government is capable of taking the same route that Jammeh took.

 
If our prosecutors feel overwhelmed, they should consider referring Jammeh to the ICC.
But I have confidence that the current system can handle Jammeh and his cohorts. I
also have confidence in the decency of the Gambian people. Gambians are not going to
come out en masse and plunge the country into chaos because they want to defend
murderers, who are not being railroaded through the regular courts.

Muhamad Sosseh, Esq.
Washington, DC

April 29, 2017

By Madi Jobarteh

I wish to join Mr. Ernest Mendy of the Gambia Revenue Authority to request Pres. Adama Barrow to withdraw the decision to maintain ‘Travel Clearance’ for public officials. During the dictatorial regime of Yaya Jammeh this practice was introduced so that public officers of a certain rank would have to obtain an approval from the president or vice president in order to be able to travel out of the Gambia. It does not matter whether such travel is for official or personal purposes or if the Gambia government or the official himself was to finance that travel. Therefore this was a very arbitrary practice, which effectively restricted the movement of public officials regardless of their situation. That is abuse of power!

 
As Mr. Mendy rightly said this was a costly practice on public officials. I will also add that it was a costly practice on the government as well. There were many useful meetings and conferences for which public officials were to attend but they could not simply attend because it was either too late to get the clearance or the clearance was not approved. Some of these conferences were no cost to the government yet that official could not attend when that conference could have been beneficial to the institution and the Gambia. It also meant that there were travel clearances approved which were of no use to the Gambia. Hence this practice is not cost-effective and also a burden on both the person and his or her institution.

 
The idea of the travel clearance must first be understood in its proper context. During the APRC Tyranny, Yaya Jammeh had no work but to defraud and enslave the Gambia in any imaginable way possible. To be able to do that he had to have effective control over each and every Gambian institution. Hence the travel clearance was merely a tool in the hands of Yaya Jammeh to micromanage so that he could have the feeling of power and control as he liked. He did not care if such measures were harming or benefiting the Gambia.

 
Secondly this travel clearance also reflected a situation in which Yaya Jammeh never trusted his ministers, permanent secretaries and officials down the line. Hence for him unless he had direct access and control of every aspect of life in the public sector he considered himself weak and threatened. Otherwise which president in the world other than Kim Jong Un of North Korea would busy himself or herself with the traveling of public officials? The president is expected to have lot more important issues to focus on than about which pubic official is traveling to where and when and why. What then is the purpose of the ministers and their permanent secretaries and their directors?

 
Pres. Barrow needs to realize that we do not need that strong man mentality of Yaya Jammeh. Rather what we need are strong institutions operating along the lines of transparent, accountable and modern rules and processes. We expect Barrow and his team to inject such values and standards into our institutions to ensure that they operate efficiently and effectively than seeking to poke their noses into every little business of public institutions. That does not generate confidence and excellence. In the long run it will cause abuse and waste of public resources.

 
I therefore join Mr. Ernest Mendy to demand that such draconian and inefficient methods of public sector management be abandoned immediately. We have well trained public managers in our public sector who should be able to manage these issues. If there are genuine concerns that Barrow has, we expect him to introduce better modern management techniques and procedures that will ensure that there is no abuse of travels, and if they happen perpetrators are brought to book.

 
After all, we also have the PAC and PEC of the National Assembly to better scrutinize the activities of public enterprises and institutions. These institutions also have boards of directors to play an oversight function. Hence these are the structures Barrow needs to address to awaken them to their national duty. The managing directors, permanent secretaries as well as the ministers are all structures that should play their functions effectively to ensure that travels are not abused. They are closer to the issues to make better judgments than the president or the vice president.

 
What we need in this new Gambia is for the Barrow Administration to ensure that institutions have strategic plans, work plans and budgets to guide their operations. We need results-based management systems including effective monitoring and evaluation structures and tools to ensure value for money and more importantly change that we desire. In essence we need to promote the supremacy of institutions that are knowledge-based, transparent and accountable. Hence the idea of travel clearance is not only crude and backward but it is also inefficient and costly.

 
Let us tell the government to support the building of institutions than to hand over unnecessary and huge power to one person simply because he or she is the president. When we do that, we do not only fail as a nation, but we also endanger that president and perpetuate corruption. The travel clearance was severely abused in the past, as there was no accountability again as soon as the Office of the President approves it. When that approval was obtained, no minister or permanent secretary can do anything about it but to fund it, regardless. Hence it undermines the functions of ministers and permanent secretaries while public money is being wasted in broad daylight.

 
Therefore let Barrow hand over the management of ministries, departments and agencies to their respective heads and boards to run. Let him trust them. Let him remind them of their duties. Let him ensure openness and accountability. But he cannot run these institutions for them. His role as president is to ensure overall efficiency, accountability and results through his Cabinet. No to Travel Clearance!

God Bless The Gambia!

By Madi Jobarteh

Follow Up on Njundu Drammeh’s Conversation with Pres. Adama Barrow

 
Introduction

 
I refer all to read the great conversation Njundu Drammeh has opened with Chief Servant Adama Barrow today January 25. I have picked up one piece of that conversation to also elaborate for the attention of Team Barrow and the entire Gambian people.

 
Since Ghana became the first independent African country south of the Sahara in 1957, the bane of African governance and development continues to be the inability to create a robust modern democratic dispensation. Consequently coups, corruption, poverty and civil war became a major feature of independent Africa until today.

 
Contrary to previously held notions that only dictatorship could produce development, it is now clear that ultimately it is in fact good governance that ensures sustainable development and durable freedom in society. For example, we have seen how the Soviet Union collapsed after building one of the most advanced societies in the world where homelessness and illiteracy were almost eradicated. Yet after 70 years it imploded. Yet in another scenario, the United States continues to flourish after 240 years despite its many social and economic inequalities. The only explanation for these two scenarios is the lack and the presence respectively of a modern democratic statecraft.

 
For that matter, the issues Njundu raised are of significant importance for the Gambia and Africa. This is why I have identified four issues for further elaboration because I feel what Gambia needs is a modern democratic statecraft. I hold the view that the creation of such machinery should be the defining criteria for Adama Barrow and the transition. A modern democratic state is built on four foundations: Institutions, Transparency, Accountability and Empowerment of the people.

 
1. Institutions

 
Development thinkers and human rights defenders have now concluded that the difference between societies in terms of ensuring durable human development and the protection of human rights lies in functional institutions. In essence, thinkers have found out that since the industrial revolution to date, the major inevitable reason why nations fail or progress lies in the creation of inclusive institutions. Hence the best foundation that Team Barrow can put in place is to ensure that the Gambia has institutions that are inclusive, transparent and accountable.

 
There are uncountable lessons for us to learn in terms of institutions. Because when you critically analyze dictatorship, it shows that in fact it is a situation where an elected president deliberately personalizes or disregards institutions just to ensure that his whims ad caprices are done. This was what Yaya Jammeh did as we saw how he would hire and fire as he liked. Secondly institutions operate on the basis of processes, which are spelt out in the rule of law in the constitution. Hence we had seen during the APRC Tyranny how these rules of law and processes were diverted, ignored and broken. It is when institutions and their processes based on the rule of law are broken and subverted without redress that impunity prevails.

 
Hence the lessons Barrow has to learn and the legacy he has to build is to ensure that public institutions are protected from direct political interference. He has to ensure that these processes and the rule of law are respected. This means therefore public officials who work in these public institutions are protected from undue control. He must ensure that professionalism and knowledge guide the operations of these officers and institutions, which must not be politicized. If Barrow can ensure that then he would have given birth to a new Gambia.

 
2. Transparency

 
In order to ensure that institutions are functional and inclusive means therefore they must be transparent. This means public officials who work in the institutions must know the laws, rules, and terms of reference of their institutions. They must know the powers, aims and objectives of these institutions as well as their values, mission and vision. This also means the general public must know the functions and the powers of public officials and institutions so that the people would know how to engage them. In that case when there is abuse of power or corruption the public would know and be ready to expose them.

 
Therefore public institutions must be ready to share information with the general public about what they do in order to enable the public to also play their role in ensuring performance. If people do not know the role and powers of a public institution and officers, then it means the public would not be able to know if that institution is indeed performing their obligations or not. Without such information it also means the public would not know what to expect from that institution.

 
To do this efficiently, Barrow must ensure that all public institutions have channels through which they will share information about their functions, laws and powers as well as their work. Communication is the heart of transparency and therefore necessary avenues must be created for that purpose. Thus public institutions must have communications officers as well as social media platforms, newsletters and create feedback mechanisms as well as conduct periodic press briefings. This way the public would know what these institutions and officials are doing or not. These pubic institutions would also get necessary feedback from the public about them.

 
3. Accountability

 
The heart of development and human rights protection is accountability. Without accountability we would not be able to know if public institutions are performing or not. Accountability tells us whether we are making progress or we are failing. Accountability tells us if there was violation of human rights and redress or not. To enhance accountability, transparency is fundamental. Furthermore, accountability requires the creation of clear methods, tools and processes to ensure performance and justice delivery. Thus Team Barrow must ensure that a clear system of accountability is in place. Without a robust system of accountability, Barrow could find himself between DK Jawara or Yaya Jammeh or worse.

 
Section 17 of our Constitution already establishes the foundations for accountability. It has identified the foremost accountability institutions as the Office of the President to be followed by the National Assembly and then the Courts. The constitution states quite clearly that it is these institutions and the agencies below them that have the primary obligation to protect the rights and fulfill the needs of the citizen. These rights and needs have been spelt out in Chapter 4 of our constitution.

 
The task facing Barrow therefore is to ensure that the necessary mechanisms are put in place to make sure public institutions especially under the Executive perform those obligations. For example, PURA is an accountability institution just as the police or Women’s Bureau as well as the Food Quality and Safety Board among many others including the ministries. As Njundu noted, these state agencies must each develop their strategic plans, which are monitored to ensure that they implement them. This requires the Barrow Administration to develop the necessary reporting processes where these public institutions and officials report and obtain feedback.

 
The National Assembly must also strengthen its committees especially the PAC and PEC to ensure that public institutions report on time thoroughly. They must not only look at compliance in terms of how they abide by procurement guidelines or implement activities according to an action plan, rather more importantly they must also focus on results and the change that should have been created. We do not need only be told that there was no unapproved spending and that all activities were implemented on time. Rather we need to hear whether those resources and activities have in fact brought about an improvement in the lives of citizens.

 
4. Empowerment of the People

 
The biggest resource therefore that Team Barrow has is the Almighty People. That is, do we have an informed citizenry that know their rights and also understand the obligation of the state and its processes? In order words if our citizens lack the necessary civic education or political awareness, then we would only have a dormant population. Such a population only worships the government and leaders thereby giving rise to dictatorship, corruption and abuse.

 
What Barrow needs therefore is a population that is politically informed and active. He needs a citizenry that understand that public institutions and public servants are there to serve the people. Such a population will hold the state to account and demand transparency and openness. It is such a population that will not tolerate abuse of power but will compel the state to perform to the best of its ability.

 
For that matter therefore, Team Barrow must create the necessary avenues and tools to ensure that our general public is informed of the functions and powers of the State. The National Council for Civic Education must be empowered to intensify civic education. The public media must be an avenue for that purpose while private media must also be engaged to allocate a percentage of their airtime to public service dedicated to civic awareness. Above all, Barrow must reject sycophancy from any quarter but demand that the rule of law and accountability prevail at all times.

 
Conclusion

 
All human beings have a tendency to be liberating or oppressive. Those with power have a greater tendency to be corrupt, oppressive and exploitative. History has shown until today that what therefore restrains individuals especially public officers is the rule of law and functional institutions. The example of that is currently unfolding before us in the United States. It is clear that Pres. Donald Trump has severe tyrannical tendencies. But we have seen how the institutions of America under the control of empowered public officials and an informed citizenry are restraining him.

 
The lessons therefore are that had Trump been the President of the Gambia, it is clear that he would have become a classic dictator. Similarly if Yaya Jammeh was the President of the US, it is clear that he would have been a classic democrat. What is responsible for that is the presence of institutions that function according to the rule of law in the US while the Gambia lacks such institutions. The task therefore is for Barrow to create those institutions in order to create a modern democratic state.

 
Team Barrow must realize that they face history at this time. Since independence in 1970, the Gambia never had a regime that has deliberately created the necessary institutions and processes to ensure that there is an informed and an empowered citizenry. We have not created the conducive environment in which institutions will be inclusive, transparent and accountable. Consequently, our entire state machinery and its officers have only produced more poverty than created prosperity and liberty. The question Barrow faces now is can he ensure the creation and functioning of inclusive institutions for the first time in our history? Time will tell.

God Bless The Gambia