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Thursday, December 2, 2021

Compulsory membership of the Gambia Bar Association: An assumption taken too far

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By Lawyer Ibrahim Jallow, Esq.,

The Gambian Bar Association (GBA) has, until recently, been regarded as the Association for all legal practitioners in The Gambia. In fact, it has been assumed that its membership is automatic on all lawyers in The Gambia upon enrolment at the Supreme Court of The Gambia. This assumption is sometimes taken too far by some lawyers to suppose that the membership of GBA is compulsory on all lawyers called to the Gambian Bar. One wonders the specific aspect of human rights or constitutional law jurisprudence this assertion is anchored on! GBA performs certain roles, no doubt, and its existence is acknowledged or recognized in some statutes in The Gambia. Perhaps, this acknowledgment and recognition of the GBA in those statutes make lawyers forget that GBA is just an Association with the same legal consequences as any other Association registered under the Companies Act, or what makes GBA different? Like every other Association (professional or otherwise) registered or incorporated under the Companies Act, no statute establishes GBA. It therefore goes without saying that the GBA and its members are governed among themselves by the GBA Constitution. But what has happened over the years that the assumption that membership of GBA is automatic and compulsory on all lawyers has been taken for granted? What is the status of the GBA and why do lawyers, the learned men, take it hook, line and sinker that its GBA membership is automatic and compulsory on them? If we are to separate the myth from the reality, the Legal Practitioners’ Act which regulate legal profession in The Gambia did not established the GBA or any other Association of lawyers.

Admittedly, there are references to the existence of the GBA in a number of statutes, the question is: does a mere fact of reference to an Association in a statute, without more, makes it acquire a status higher than that of any other Association with similar registration? We suppose that the mere references to or acknowledgement of its existence in those statutes notwithstanding, GBA is still an Association as its name simply implies, “Gambian Bar Association.” Thus, the reality is that GBA is an Association and it is a myth to regard it as a regulatory body in the legal profession. After all, it is the “Gambian Bar” lawyers in The Gambia are called to and not the “Gambian Bar Association” (GBA). Lawyers need to get the difference between the ‘Bar’ in the ‘Gambia Bar’, the profession to which lawyers are called; and the ‘Bar’ in the ‘Gambian Bar Association’, the voluntary association of lawyers. Getting this difference will assist lawyers a great deal to stop assuming that all legal practitioners in Gambia are called into the Gambian Bar Association thereby supposing that the membership of GBA is automatic and compulsory upon enrolment. If we will be sincere with ourselves, automatic and compulsory membership of NBA is not supported by any law. Notwithstanding that this myth has existed for so long, the stark reality is that GBA is not the only professional body or association of legal practitioners in the legal profession in The Gambia. Bodies like The Gambia Law Society and the Female Lawyers Association exist within the legal profession.

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Thus, the assertion that membership of the GBA is automatic upon enrolment or that its membership is compulsory is a wrong assertion. In fact, it is an assertion that is inconsistent with all known human rights instruments/conventions nationally and globally. Indeed, it is an assumption taken too far! How can compulsory membership of GBA pass the test of section 4 of the 1997 Constitution for its obvious inconsistency with section 25 of the 1997 Constitution? How can compulsory membership of GBA be justified in the face of article 10 of the African Charter on Human and People’s Right, an human right instrument that has been ratified and domesticated? Or how can we situate such compulsory membership under the Universal Declaration of Human Rights (UDHR) when article 20 of the same UDHR prohibits compulsion of membership of an association or trade union? Or can we say such compulsory membership is in line with article 22 of International Covenant on Civil and Political Right (ICCPR)? Therefore, it is not only legally wrong to suppose that membership of GBA, an association, is compulsory on all lawyers in The Gambia, it is an aberration to human rights and constitutional jurisprudence to hold such view/opinion. Exactly where do lawyers in The Gambia get it wrong? Doesn’t the right to freedom of Association enshrined in section 25 of the 1997 Constitution include the right to choose not to join a particular association? Is it not ironical that the GBA Constitution itself does not support the assumption that its membership is automatic and compulsory?

This cumulated in the African Commissioner’s case of CIVIL LIBERTY ORGANIZATION (IN RESPECT OF NIGERIA BAR ASSOCIATION) VS NIGERIA (2000) AHLR 186 (ACPHR 1995). In that case, it was contended on behalf of Nigerian Bar Association before the African Commission that section 10 of the African Charter gives the right to freedom of association, that freedom of association is enunciated as an individual right and it is first and foremost a duty of the State to abstain from interfering with the free formation of associations. It was further contended that there must always be a general capacity for citizens to join and or not to join, without State inference, an association in order to attain various ends. It was further argued on behalf of and in favour of Nigerian Bar Association that in regulating the use of this right, the competent authorities should not enact provisions which would limit the exercise of this freedom and that the competent authority should not override constitutional provision or undermine fundamental rights guaranteed by the constitution and international human rights standards. The African Commission agreed with this argument and held that there was a violation of articles 6, 7 and 10 of the African Charter.

Now, is compulsory membership of GBA consistent with article 10 of African Charter? I ask again, by insisting that membership of the GBA is automatic and compulsory on all lawyers in The Gambia, is tantamount to projecting the exact opposite of what the law stand for? Or can anyone tell us or explain to us how foisting compulsory membership of GBA on all lawyers in The Gambia is consistent with article 10 of the African Charter, article 22 of ICCPR, Article 20 of UDHR and section 25 of the 1997 Constitution? Lawyers are presumed to be learned in law, but how exactly do we end up tolerating this automatic and compulsory membership of GBA this long? Each time we assume or suppose that membership of GBA is automatic and compulsory we are actually spiting directly on the face of human rights and constitutional jurisprudence. If man is free to associate, why shouldn’t he be free to dissociate? Let this resonate across the length and breadth of all lawyers that the right to freedom of association carries with it the freedom and privilege to choose not to join a particular Association.

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Any person that is dissatisfied with the alleged peddling of sectional interests in an Association, have the rights with the aim of protecting his or her interests to disassociate as encapsulated under section 25 of the 1997 constitution. The rumblings especially by those newly call to the Bar with regards to their legal rights to practice after been call to the Bar and the discriminatory huddles and restrictions and barriers place on them along their legal careers etc. leave much to be said by concerned lawyers, and concerned citizens. Why should you impose hardship on others which was not imposed on you when you were in their positions? Why should you use the law as a disguise to block the progress of your fellow citizens? What has been happening recently has exposed the inability of those in charge to manage the heterogeneity of lawyers as well as their various interests.

As lawyers who have undergone training towards ensuring the promotion and protection of Human Rights and liberties, it is expected of them to live above sentiments, and discrimination on any basis, including forcing idiosyncrasies of few on others, if at all lawyers should always be seen to be practicing what they preached. It is no longer gainsaying that a group of lawyers can freely join any Association for the protection of their rights and interests as citizens of The Gambia pursuant to the above cited law. The constitution remains the supreme law of the land to which all other laws including the Legal Practitioners’ Act are subject. Therefore, the rights and interests of all lawyers as citizens should be taken into account when amending the Legal Practitioners’ Act on the basis of non-discrimination and equality before law. The respect for Human Rights and to ensure the rule of law, has been the guiding principles for modern social systems to an extent the UN in the preamble to the Universal declaration on Human Rights conscientiously state that: “Whereas, it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that Human Rights should be protected by the rule of law”. In the light of above, the Chief Justice of Nigeria Tanko Muhammad on the 25th November, 2020, at a Book lunched in honour of Yusuf Ali (SAN) titled “Two decades of Forensic Advocacy at the Inner Bar” said: “the fundamental issues of the rule of law and the basic human Rights would be promoted and defended at all levels of society. For tyranny to succeed, you must first eliminate good lawyers.  … there is a need for cerebral legal practitioners to emerge in order to resist tyranny and expand the frontiers of legal jurisprudence”.

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