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 31st 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 27th 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 1st Respondent and the Attorney General as 2nd 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.
