darbo and jaitehNullifying the ‘constitutional’ demarcations: executive directives and the operational conduct of judicial officers.

From whatever perspective, it is perverse, absolutely wrong on all fronts, and an assault on the principle of judicial independence as that doctrine is ordinarily understood in any country whose public life is grounded in democratic institutionalism under the rule of law.

At paragraph 6 of the preamble of the 1997 Constitution of the Republic of The Gambia (the Constitution) the claim is advanced that “the functions of the arms of government have been clearly defined, their independence amply secured with adequate checks and balances …”. At substantive sections of the Constitution, similar and more specific claims are made about the operational independence of the courts. These claims are false and utterly nonsensical, not only because of how the Executive routinely nullifies Constitutional protections, but more fundamentally because of the deep architectural flaws embedded in our supreme document.

Undoubtedly, the Constitution permits the legal mismanagement of Gambian public life. With its hollow protections, it would still be an instrument of violence, if only potentially, even in the most benign of hands. As they say, the courts are placed in between ‘the rock and hard place’. This is perilous for Gambian public life!

There is no question that great decisions worthy of celebration emanate from individual members of the bench from time to time. As an institution, the judiciary – and by extension the courts – is far from independent even in that sacrosanct domain of operational matters. To be efficacious, the rule of law must be systemic, not individual. In a largely arbitrary public terrain, judicial officers must be shielded from even the threat of Executive reprisals.

In a country where high flying intellectuals and economically successfully middle class individuals toy with the false and rubbish notion of total disinterest in seminal public questions – politics, in short – it is not a compelling contention to expect that judicial officers must consistently remain the foremost exemplars of rectitude as if they live outside the ambit of human frailties, failings and concerns. When tragedy strikes, the brave and consistent adherent to the rule of law would be left to his own devices, to pick up the pieces, so to say, and negotiate his way around the powerful landmines of Gambian public life. Major assaults on what remain of the very fragile systemic integrity of Gambian polity passed into the annals of our public intercourse as a matter of course.

On 06 November 2015, His Worship Ebrima Jaiteh, of Brikama Magistrates’ Court, was arrested and detained at the Serious Crime Unit of Police Headquarters in Banjul. As of 1400 hours 09 November, he was still detained. His ‘serious crime’ was to terminate, on perfectly legitimate jurisdictional grounds, the case of Inspector General of Police v Saikou Conteh, and Kebba Conteh, Brk/Criminal Case No:90/13. The alleged offence at the heart of this particular prosecution occurred at Sukuta, Kombo North, West Coast Region.

Although Sukuta is politically and administratively under the purview of the West Coast Region, Brikama Magistrates’ Court can no longer exercise jurisdiction over cases from this sprawling community. By the Bundung Magistrates’ Court (Constitution) Order1997, issued under Legal Notice No. 3 of 1997, “… the Brikama Magistrates’ Court shall cease to have jurisdiction …” over “Sukuta, Sukuta Sanchaba …”. Avoiding the futile exercise of presiding over a nullity, His Worship Jaiteh ultimately struck out this particular case for lack of jurisdiction and discharged the accused persons “with immediate effect”.

It is instructive to note that this case commenced more than two years ago and for whatever reason remains undecided as of 29 October when His Worship Jaiteh terminated it on jurisdictional grounds. The IGP is free to reinstitute proceedings in light of the fact that the accused persons were merely discharged!

Instead of consulting with its legal advisers, the Executive simply invoked its police powers, completely unlawfully, by ordering the arrest of His Worship Jaiteh. For more than the Constitutional limit of 72 hours, he remained unlawfully detained even after a meeting with the Inspector General of Police (IGP) a few hours before the expiry of that time limit.

If my information is correct, and I have no reason to doubt it, His Worship Jaiteh is charged with neglect of duty and already appeared at the Brikama Magistrates’ Court, his place of work over the last seven months to answer the charge. Unless sense and legality prevails in Executive councils, his current judicial career may be regarded as virtually over, a big loss to Gambia for a magistrate so competent and productive, both intellectually and operationally. His sittings routinely commence as early as 0900, and almost always by 0930, and his decisions, as expected, are always reasoned.

The courts have an inbuilt checks and balances system via the general appellate mechanism. If the State was aggrieved by His Worship Jaiteh’s judicial decision, the lawful route of getting redress is to trigger the general accountability system of appeal by going to the High Court. On the facts, the Executive probably feels too big for that cumbersome process it sees as the puny citizen’s avenue for resolving public disputes. This mentality is perilous for the overall polity, including for the Executive itself.

With an IGP who is reportedly legally trained, and an Attorney General (AG) with many years standing as a Barrister, why was His Worship Jaiteh ever arrested over such a non-issue? Are these holders of high public office not aware that their employer has no legal permission to dance in such a prohibited public space? The courts are a judicial dancehall, not a playground for arbitrary Executive directives. If the Executive does not recognise this sacrosanct principle, the IGP, and the AG, are better off thinking about alternative avenues for paying for their livelihoods.

When he appeared at Brikama Magistrates’ Court, His Worship Jaiteh’s case was reportedly heard ‘in camera’, i.e., behind closed doors. There was no legal basis for this as the Constitution, at section 24(2), mandates that: “All proceedings of every court and proceedings relating to the determination of the existence or extent of civil rights or obligations before any other authority, including the announcement of the decision of the court or other authority, shall be held in public”. The proviso to this section has no application to His Worship Jaiteh’s case. His arrest and detention was widely reported and publicly discussed. It was fully in the public domain!

For present purposes, why should another magistrate be handed a ‘poisoned chalice’? Why should another judicial career be destroyed in making a magistrate preside over a baseless case fraught with such explosive political undertones? Due to the inherent unsoundness of the allegation against His Worship Jaiteh, this is a lose-lose situation for any magistrate who presides over the matter in that he would either be fired by the Executive, or his professional and general reputation would be in such tatters he would be effectively redundant. His judicial decisions may henceforth command no respect! It is both legally and morally wrong to assign this case to any magistrate.

Why are we in such a monstrous situation, and why do I contend that a magistrate could be fired for presiding over this baseless if politically-charged case?

As a national document, it is disturbing that the Constitution embodies immense potential for violence against the citizen, and of stalemate and paralysis in governance. A crisis, any crisis is therefore only solvable via the agency of raw power, not through the more sublime avenues of political and legal negotiation in a public environment equally responsive to the legitimate needs of all its members.

Unquestionably, the Judiciary is a victim of the legal centralization of national power in the Executive. By section 141 (2)(c) of the Constitution, “a judge of a Superior Court … may have his or her appointment terminated by the President in consultation with the Judicial Service Commission” (JSC).

To appreciate the subtle if legal subjugation of the Judiciary, to the Executive, it is vital to disentangle the architecture of the management structure at the former. At section 138(1) of the Constitution, the President has the legal authority to appoint the Chief Justice “after consultation with the Judicial Service Commission”. Second only to the Chief Justice in the administrative hierarchy is the Judicial Secretary, “who shall be appointed by the President on the advice of the JSC” (section 143(3)).

What is the basic appointing criteria regarding Superior Court judges other than the Chief Justice? Committed to leaving nothing to chance, the Constitution provides an explicit answer. “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 JSC” (section 138(2)).

Considering the ostensibly heavy consultation the President must engage in with the JSC in the appointing process of Superior Court Judges, and the Judicial Secretary, it is imperative that the composition of this central body on judicial appointment be properly scrutinised. In both appointments to, and removals from, the JSC, the President is the predominant player. “The members of the Commission, other than the members referred to in subsection (a) and (f), shall be appointed by the President in consultation with the Chief Justice and subject to confirmation by the National Assembly” (section 145(2)).

Continuing with 145(6), there is yet again a clear demonstration of the President’s stranglehold over the JSC. A member can be removed “for any other cause”! In reality, there is no ex officio member of the JSC considering that even the representative of the Bar must be nominated by the Attorney General, a Cabinet appointee who holds her position at the exclusive pleasure of the President.

As for the member of the JSC to be “nominated by the National Assembly”, the Speaker, a Presidential appointee who heads the Legislature, is duty-bound to facilitate that transaction. For any Party member of the National Assembly thinking of opposing the President’s choice for membership of the JSC, there is the threat of expulsion, and the small matter of 91(1)(d) of the Constitution to exercise a sobering restraint on any potential wild journey from sheepish compliance with “orders from above”, a widely appreciated euphemism for Presidential directives outside the ambit of lawful commands. As for JSC members coming under sub-sections (a), (b), (c), and (e), of section 145, the President has undiluted power over their fate.

No sensible system can so thoroughly subject the Judiciary to such total control by the Executive!

Clearly, our Constitution woefully failed to separate public power. Its design is maximally flawed if only because meaningful authority is almost exclusively lodged in the Executive at the expense of the other two branches. I accept that even where public power is properly balanced by the Constitution, there can be no serious answer to the thesis that law cannot self-implement. For efficacy, it must rely on a political system underpinned by the rule of law, i.e., by the separation of public power in a manner calculated to safeguard individual liberty. According to James Madison, a leading proponent of American federalism, “the accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny”.

Even without its inbuilt distortions, and regardless of how beautifully crafted and balanced, a Constitution that will continue to be either differentially applied, or not applied at all, presents a profound challenge to national cohesion and survival in that it serves the interest of a fraction of the overall polity, in this case the Executive. “At the heart of any failed state is a constitution that is not performing – either because the balances its drafters struck between competing demands on the document were wrong, or because the machinery, will and resources to make it work are woefully inadequate” (The Gazette 2012).

With all its flaws, the Constitution remains the supreme law of The Gambia. Poignantly, it also speaks directly to His Worship Jaiteh’s current difficulties. “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, except as provided in this Chapter, shall not be subject to the control or direction of any other person or authority” (section 120(3). Even on doctrinal considerations alone, the principle enunciated in section 120(3) is unassailable.

The arrest, detention, and reported prosecution of His Worship Jaiteh triggered by Executive fiat are completely unlawful. Although apparently speaking in the language of civil process, the Constitution grants express immunity to a magistrate acting judicially from all process, civil or criminal. “A judge or other person exercising power shall not be liable to any action or suit for any act or omission by him or her in good faith in the exercise of his or her judicial function” (section 123). His Worship Jaiteh acted properly in terminating – on legitimate jurisdictional grounds – the further proceeding of IGP v Saikou Conteh, and Kebba Conteh, at Brikama Magistrates’ Court. Bundung Magistrates’ Court is the proper venue!

There is widespread public sympathy for His Worship Jaiteh but alongside this sympathy is palpable fear for position, for freedom, for life. In a way fear pervades the fabric of Gambian public life, and fear is a legitimate and agonising human concern. A few days ago, a fellow traveller in the world of ideas sent me Dictator, the very latest Robert Harris book on ancient Rome. At page 436, timeless wisdom on the inevitable if paralysing ultimate reason for being fearful: At first I thought I would never recover from Cicero’s death. But time wipes out everything, even grief. Indeed, I would go so far as to say that grief is almost entirely a question of perspective. For the first few years I used to sigh and think, ‘Well, he would still be in his sixties now,’ and then a decade later, with surprise, ‘My goodness, he would be seventy five,’ but nowadays I think, ‘well, he would be long since dead in any case, so what does it matter how he died in comparison with how he lived?’.

Students both of history and contemporary affairs would have recognised the futility of managing a country’s public life by force and fear. It is like the proverbial collapsing of the support of the sky. Everyone suffers. And for those who are disinterested in politics, and are busy accumulating wealth and the purely epicurean pursuits of life, I counsel that you look around the world for your timeless lessons. Ask the formerly untouchable, and, or, indifferent of Libya, of Iraq, of Syria, of Liberia, of Sierra Leone, others. Politics encompasses and reaches into every aspect of life.

However viewed, His Worship Jaiteh’s arrest, detention, and prosecution is an assault on his human rights and dignity, a glaring abuse of Gambian judicial process, a perversion of the rule of law, an affront to the principle of judicial independence.

I condemn it unreservedly!

As our able magistrates’ would say at the end of their rulings or judgments, ‘this is my perspective’ on the disgraceful saga of an exemplary judicial officer, His Worship Jaiteh!

Lamin J Darbo

Ends

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