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Monday, July 22, 2024

Judicial Officers Bill: Defending the indefensible

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By Madi Jobarteh

I have read the submission that GMC leader Mai Ahmad Fatty advanced in justification of the current bill intended to provide the salaries and benefits of judicial officers. Mr. Fatty did not waste time in quickly making comparisons with other countries to argue that what is in the bill is not strange given what obtains in other countries. Further, Mr. Fatty went on to harp on the role, value and position of the judiciary in a society, noting that, “the Judiciary is best placed within the scheme of governance as the last bastion of hope for the citizen, the ultimate frontier of offense in defense of the sovereignty of the ordinary person.”

I have no doubts that no Gambia denies the fact that judges and magistrates deserve good salaries and benefits. People do recognize that the tenure of a judge is not usually long hence it is necessary to provide them reasonable remuneration to enable them to live a decent and dignified retirement life. But such incentives should be rational and contextualized. The idea of incentives for judges should not appear like grabbing public wealth anyhow to shower on few individuals in a country where poverty is rife, not to mention the sickening salaries of other workers as well. All workers deserve remuneration that should be able to give them a decent standard of living both in their active and retirement periods.

Therefore, the issue I have with this bill, and the frustration most Gambians have expressed, is that the incentives are outrageously too high, and thus not justified given the economy, the performance of the Judiciary and the ethics of it all. In his piece, Fatty referred to judicial independence for which he justified “satisfactory financial remuneration”.

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The fact of the matter is, as it stands judicial officers are among the most well paid officials by Gambian standards – in the past and in the present. They enjoy immense privileges and powers. It is not the case that judges and magistrates are poor and living desperate lives in this country. The people who enjoy the highest standard of living in this country are them. The need to ensure good pay for judges must also be guided by the need not to create an insidious imbalance within the same system such that some are more equal than others.

Secondly, judicial officers nor anyone need a high pay in order to uphold the principle of independence, integrity and professionalism. One has a choice to be a judicial officer or not. But so long as one decides to serve justice, one has a moral, legal and professional responsibility to uphold the values of that profession. We are not paying judges and magistrates so that they can demonstrate independence and integrity. No one can pay or buy principles. Judges, like police officers, doctors or ministers, NAMs and indeed all workers should self-consciously be honest, and shun corruption. Otherwise, the corruption in the entire civil service is justified because of their generally low pay. But evidence has shown that those who in fact get higher pay are sometimes the most corrupt and unethical.

Thirdly, Fatty mentioned the incentive regimes of many countries to justify this bill. The point one must put to Fatty is that the salaries and benefits of judges in each and every country across the world differ. So, the issue is not how much does one country pay or not. Rather the focus must be on a principle. That is, judicial officers deserve good pay like all other workers. In fact, Fatty buttressed this point in his piece when he said, “It is also implicit that such consideration can be made and implemented independent of similar consideration for other public sector employees.”

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Now, that is the crux of the matter. While judges and magistrates enjoy good salaries by Gambian standards with other incentives, most of the public sector workers of the Gambia are poorly paid even by the same Gambian standards. In that case, what justification could there be to increase judicial officers’ pay outrageously? We cannot refer to low salaries as the justification for lack of independence or corruption. Whether low or high salaries, public officials must uphold the rule of law and the values and standards of their profession.

The other issue that concerns Gambians is the performance and delivery of the Judiciary. For example, since 2017, one had expected that there will be system change across State institutions. In the Judiciary alone, apart from the Gambianization of the judges and magistrates, the delivery of services and quality of facilities in this sector leaves much to be desired. Courthouses are generally poorly equipped, small and lacking in the necessary technology and other facilities to make them more efficient and friendly both in the delivery of justice and access by citizens.

My expectation is that lawyers like Mai Ahmad Fatty would have stood up to demand that the Chief Justice and the Ministry of Justice modernize court facilities, digitalize court proceedings and services to effectively guarantee access to justice and justice delivery. But go to Brikama High Court, not to mention other high courts across the country, and one wonders if human beings use those places. Apart from limited courtrooms, the Judiciary is also beset by a limited number of judicial officers, hence causing delays in court processes, hence delaying the delivery of justice.

Why is the Chief Justice and the Minister of Justice more interested in salaries and benefits to the total neglect of the structures, facilities, services, processes and the tools in the houses of justice? Therefore, I think Mr. Fatty is merely engaged in false equivalences and illogicalities by comparing the Gambia with other countries as if people are unthinkingly opposed to better remuneration of judges. Look at the US, for example, to see the speed with which major cases are decided such as the George Floyd trial. Does this happen in the Gambian Judiciary? No.

Fatty made mention of the US where he said, “Rule 80 which is governed by provisions of 28 U.S.C. ss371, at age 65, a judge could retire on his or her current salary, and do not pay taxes for social security and Medicare.” What Fatty did not say further is that in that same provision, a judge at 65 must first serve for at least 15 years first before one enjoys this benefit.

In Ghana, Section 155 of the Constitution deals with retirement of judges. In it, a judge can retire at the age of 60 or above. In addition to the gratuity paid to him, he is also paid a pension equal to the salary of the post from which he retired. But the section went further to state that such a judge must have first served for at least 10 years as a judge of a superior court, and/or served for 25 years in the public service out of which he must have served at least 5 continuous years as a judge. Furthermore, the section states that, “upon retirement under this clause, he shall not hold any private office of profit or emolument whether directly or indirectly.”

But in the Judicial Officers Bill, Section 17 states that a judge can retire at 65 years after serving for only five years to enjoy full retirement benefits! The bill did not bar a retired judge from holding any private office afterwards as the Ghana Constitution did. Thus, if Fatty was honest enough, he should have challenged this bill that it does not meet the standards of neither Ghana nor the US which are few of the examples he used as reference. Certainly, the US has a lot more resources to offer than the Gambia. But if the US is putting up such a high standard before one enjoys benefits why should the Gambia lower the standards? It is in place to do contrasts and comparisons, but when one does so, one should not be selective but to consider all factors.

This Judicial Officers Bill is irrational, unjustified and unethical, which is meant to only cater for the personal needs of judges while ignoring national interests. As a nation we cannot be eager to serve the interests of a few individuals and ignore the best interests of the country. No judge is living in poverty or desperation in this country simply because their current incentives and benefits are poor. Rather, they enjoy the best standard that the country has to offer.

The incentive regime in this country is scandalously discriminatory, fraudulent and unjustified. There is a need for a comprehensive review of the entire incentive regime so as to ensure that salaries and benefits are performance-based, fair and rational. We cannot continue to pay public officials when they do not perform and deliver to the needs of citizens. Above all, the national cake is not meant to share only among the minority public officials at the top while the vast majority of our citizens in our villages and towns are lacking in basic social services. Since Independence, public officials have hijacked the State and public wealth only to serve themselves greedily to the total neglect of the interests and rights of citizens. It must stop.

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