Cherno S Jallow, QC

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Cherno S Jallow, QC, is the director of Policy, Research and Statistics in the Financial Services Commission of the British Virgin Islands (BVI). Until his current position, Mr Jallow was the BVI’s Attorney General for seven and a half years. Previously, he worked in the Gambian Justice Ministry in Banjul. By turns, he became a state counsel, assistant legal draftsman, legal draftsman, parliamentary counsel and head of the legislative drafting division. In this exclusive interview with Cherno Baba Jallow and the My Basse’s (online portal) editorial board, he talks about his childhood and upbringing, days at the Justice Ministry, the mechanics of legislative drafting, his tenure as the British Virgin Islands’ attorney general, among other issues.  

 

Tell us a little bit about yourself: where you were born in The Gambia and what schools you attended.

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To begin with, I’m a sixties child, born in the village of Old Yundum, Kombo North. My father (deceased in 2007) was from Old Yundum and my mother from Brufut. When my parents decided to register me for school, I was transferred to my grandparents in Brufut since it was quite a distance from Old Yundum to the nearest primary school for me to be walking to and fro each school day. Going to Brufut also afforded me the opportunity to regularly attend Qur’anic school under the teaching of my grandfather. By the time I got to Primary Five, I had completed reading the entire Qur’an and lent support to my grandfather in guiding other students through with their Qur’anic reading. After completing primary school in Brufut, I gained admission to Armitage High School in Georgetown (now officially Janjangbureh) and from there I proceeded to St Augustine’s High School in Banjul where I did my A’ Levels. I taught for two years at Sukuta Junior Secondary School and then attended the International Islamic University in Malaysia where I pursued an undergraduate degree programme in Law, a programme that combined both the Shari’ah Law and the ‘modern’ English Law. After university I returned home in 1988 and joined the Attorney General’s Chambers and Ministry of Justice as a state counsel. I subsequently proceeded to the University of the West Indies, Cave Hill Campus, in Barbados, where I pursued a certificate programme in Legislative Drafting and then returned there in 1992 to pursue a Master’s degree in Legislative Drafting and Public Law which I completed in 1993. I then returned home to my job at the chambers.

 

What was it like growing up? Any fond memories?

I may be called old-fashioned, but when I see how quickly modernised children are becoming these days, it makes me reflect on the days I was growing up and wonder how much they are missing on important aspects of cultural development. I grew up believing that the one thing that we must as a people cherish, the one thing we must not allow anybody to take away from us, is our culture, our way of doing things which is unique to us whether as tribal groups or collectively. So my fond memories essentially revolve around our different tribal drumming and dancing, the “Kankurangs”, “Kumpos” and male circumcision periods which were always special. I enjoyed the fact that almost all children growing up at the time belonged to one traditional Quranic school or another and the ceremonies that followed one’s completion of the entire Qur’an. Those were always proud moments. They enabled us to come together as youths, get to know each other, attend to each other and help each other on the farms. Those friendships nurtured years ago continue to date and we still reminisce about the old days in many proud ways.

 

What was your role at the Gambian Justice Ministry?

As I already indicated, I started working at the Ministry of Justice as a state counsel. In that capacity I was engaged in criminal prosecution and rendering legal advice to Government Ministries and departments. I rose through the ranks, first as assistant legal draftsman and then as legal draftsman and eventually as parliamentary counsel and head of the legislative drafting division. In these roles my focus changed to legislative drafting and I was involved heavily in the drafting of laws for enactment purposes. While I still retained some civil litigation and prosecution work, more and more those roles lessened.

 

How is legislative drafting done? What is the process like?

A draftsman generally drafts bills on the basis of developed policy and on instruction. The President’s Office and the various ministries would decide on the policies and the laws they want drafted on a specified measure and instruct the Attorney General accordingly. The latter would then advise his drafting team to undertake the drafting proper. Upon completion of a draft bill, the bill would be sent to the instructing ministry or department for review and comments. The bill is then finalised and transmitted to the office or ministry concerned. From then onwards it is for the responsible Minister to seek cabinet support and approval of the bill before being sent to parliament for enactment purposes. Once the bill is enacted, it is transmitted to the president for his consideration and assent. However, during the period of military administration this procedure was shelved as the constitutional parliament had been dissolved. While we continued to receive drafting instructions, the draft legislation was promulgated by decree and therefore only required the signature of the chairman of the military junta.

 

What was the most challenging part of your work at the Justice Ministry?

I think the diverse work I was engaged in was broadly challenging and actively engaged my thoughts. The most challenging period for me was the advent of the military coup in July 1994. The country was faced with a new status we did not contemplate and the question was how best we could help in ensuring continued respect for the rule of law and retaining the human rights chapter of the 1970 Constitution. We debated this in the chambers and considered the Ghanaian and Nigerian models, but rejected both as too radical and not protective of the rights and freedoms of the people. So I drafted Decree No.1 of 1994 which effectively abolished the 1970 Constitution, save in certain respects which included the human rights chapter and, if memory serves me well, the part on the judiciary. This approach was essentially a compromise position whereby the new status quo would be recognised while at the same time giving credence to the cherished rights and freedoms of the people and ensuring continued recognition of the importance of and respect for the rule of law. This was accepted by the military junta and Decree No. 1 was enacted. Unfortunately, this was not for long, as a foreign team brought in to assist in augmenting capacity to cope with the work load of the time advised that a human rights chapter had no place in a revolution and should therefore be revoked. They were listened to and all our efforts to maintain The Gambia as a beacon of respect for human rights and the rule of law faded. I was so distraught by this and the fact that it appeared that the Gambian legal minds were not being listened to that I refused to draft the amendment to Decree No. 1 to completely abolish the 1970 Constitution in its entirety. To this date I still regret ever having participated in the discussions and endorsed the idea of bringing in a foreign team to assist us with the work load we had to deal with.

 

Do you also have any regrets about drafting Decree No. 1?

No, I don’t. You see, one has to understand that back in July 1994 we were faced with the difficult issue of constitutionalism. The constitutionally elected government had been dislodged from power and a new power superimposed on the country. Members of the elected government, including the president, had either fled the country or were arrested and incarcerated. There was a lot of uncertainty and the primary concern for us at the chambers was how best we could facilitate and ensure stability in our country, being fully aware of what was at stake. A power vacuum in government was not the answer in as much as we regretted the overthrow of the constitutionally constituted government. So we found ourselves in a conundrum, but realised at the same time that as civil servants we had to work hard and advise on how best to resolve the conundrum. We believed we achieved that within the framework of Decree No. 1. In my personal view, the interference with Decree No. 1, especially in relation to the human rights chapter, was the beginning of many problems to come. We had demonstrated excellent leadership within the Chambers headed by Amie Bensouda, the solicitor general and Acting Attorney General in the aftermath of the coup. We advised to the best of our conscience and training and in the interest of our country, even when that meant some authority not being happy.  

 

You are a Queen’s Counsel, and your name is often followed by the initials ‘QC’. What does it mean to be a Queen’s Counsel?

The title of Queen’s Counsel or QC, otherwise referred to as Silk because the bearer of the title wears a silk gown, is essentially the highest professional achievement for a legal practitioner; in some countries the title takes the form of Senior Counsel (SC), President’s Counsel (PC), etc. In my case, the title was conferred by letters patent issued on behalf of Her Majesty in the United Kingdom. It is conferred in recognition of distinguished service in the legal profession. A QC is given precedence at the Bar. In the simple traditional sense, a QC is required to represent the Crown whenever called upon to do so and does not charge a fee. Of course, that tradition has since modernised and QCs do charge fees for services they render.

 

How did you get interested in law as a profession?

Up until I got to the sixth form, I was not really sure of what I wanted to focus on as a career. Close to completing my A’ Levels I started edging towards teaching or law. I taught for a while and decided in the end that law should be a more exciting and challenging career for me. I then pursued my first law degree programme and the rest has been history since then.

 

Having studied Shari’ah law, what is your view of the Cadi courts in The Gambia? Some people have called them ‘useless’, say, in family estate disputes, since they can be overruled by a higher court.

Frankly speaking, I cannot claim to know the structure of the cadi courts within the current judicial framework as I understand that there have been some reforms in that regard since I exited the system. My view, however, is that a cadi’s court must be given a clear judicial mandate to adjudicate on specified matters (in an Islamic State that will cover practically everything). Those matters should be appealable to a higher court that is constituted by persons learned and thoroughly knowledgeable in Shari’ah. The higher court may, of course, allow or dismiss appeals or remit matters back to the cadi’s court. The flaw will occur if the higher court is not properly constituted by the right caliber of trained personnel. I believe that the cadi’s courts could be made more efficient and effective to properly adjudicate on certain matters and that would decrease the work load on the regular courts. 

 

From 1999 to 2007, you served as the British Virgin Islands’ Attorney General. How did you land the job?

I received an offer around mid-1995 from the BVI Government to take up employment as parliamentary counsel. At first I was not really sure I wanted to leave The Gambia for an overseas appointment, more so for the fact that I was at the time engaged in the process of drafting the Election Decree in preparation for the transition to civilian rule and I wanted to complete that process. By the beginning of September 1995 I was edging more towards accepting the appointment offered – the catalyst being the urging of a former Professor of mine who knew the challenges I was facing, especially since the amendment to Decree No. 1. In October 2005, after I had completed the drafting of the Election Decree, I took up appointment as Parliamentary Counsel in the Attorney General’s Chambers of the Government of the BVI. After a while I effectively became the No 2 officer within the Chambers after the Attorney General. When the-then attorney general demitted office in October 1999, I was appointed to act in that office. Then in February 2000 I was confirmed in the position.

 

What was the experience like?

I was Attorney General for seven and a half years and the experience was very good. I functioned independently in the performance of my duties as attorney general and politicians knew where the line was drawn in our relationship and we respected each other. It was my role to facilitate the workings of government and lend maximum support to the government of the day and the legislature within the remit of the law, in addition to directing and undertaking prosecutorial matters. The best aspect of my experience as attorney general was the ability to discharge my responsibilities without political interference; even where my views were differed from, they were nevertheless respected. I will always be grateful for the opportunity to have worked with two separate governments that recognised and supported my work as attorney general. There is great value to national development in having an independent and unbiased office of attorney general.

 

To be continued

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