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LAW, JUSTICE AND GOVERNANCE by Hassan B. Jallow

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(A collection of selected papers)

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By Dr Cherno Omar Barry

BLURB

This book brings together a selection of fifty speeches, articles and papers by the author drawn from his long and diverse experience in governance matters. The common threads running through the book emphasise the need for good governance as the foundation for human development, the consent of the people as the source of the legitimate authority of government, the need for accountability of government and checks on abuse of administrative power, respect for fundamental human rights and freedoms, judicial independence, impartiality and efficiency and the recognition of government power as a means to the attainment of civil, political, social and economic justice.

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Excerpt

Chapter 12: HUMAN RIGHTS – BRIDGING THE GAP BETWEEN THE INTERNATIONAL REGIME AND THE DOMESTIC LEGAL SYSTEMS –

OPENING ADDRESS AT JUDICIAL COLLOQUIUM ON THE DOMESTIC APPLICATION OF INTERNATIONAL HUMAN RIGHTS NORMS, BANJUL, NOVEMBER 1990.

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(Notes: This address was given in his capacity as Attorney General and Minister of Justice – 1984-1994)

It is with great pleasure that I would like, on behalf of His Excellency the President of the Republic of The Gambia, Alhaji Sir Dawda Kairaba Jawara, to welcome our distinguished visitors to The Gambia on this occasion. We in The Gambia feel singularly honoured by your response to the invitation of His Lordship, the Chief Justice of The Gambia, to attend this Colloquium.

We feel honoured by your presence here, for the theme of your discussions has been of central concern to The Gambia Government as well as the Gambian people since independence. Since the attainment of sovereign nationhood, The Gambia, under the leadership of His Excellency the President of the Republic, has consistently adhered to a policy based on observance of a democratic and pluralistic system of government providing for constitutionally entrenched, enforceable and effectively enforced fundamental rights and freedoms, our commitment to the promotion and protection of these fundamental rights and freedoms, to the recognition of the dignity and inherent worth of the human being and to the rule of law spring from not only our belief in the inherent nature of these rights and freedoms but equally from the realisation that it is only within the context of such a policy that our society can hope to make any meaningful progress in the attainment of our drive to socio-economic modernisation.

Our commitment in this respect transcends our domestic sphere and has indeed become a cornerstone of our foreign policy geared towards the development of cooperative links with other States on the basis of sovereign equality of states and people and respect for the rights and freedoms and the inherent dignity of the human being, In this regard our collaboration with other friendly and equally concerned states have eventually led to the establishment of a Human Rights Unit within the Commonwealth Secretariat, the negotiation and adoption of the Banjul Charter on Human and Peoples’ Rights and the eventual establishment of the African Commission on Human and Peoples’ Rights. In this regard, too, we have spared no effort in adhering to all the major international instruments for promoting and protecting human rights.

I am advised that this is the third in a series of colloquia organised jointly with the Commonwealth Secretariat, the previous ones having been respectively held in Bangalore, India in 1988 and Harare, Zimbabwe in 1989. The theme of the colloquium i.e. The domestic Application of International human rights norms, its attendant problem and prospects is most appropriate for the consideration of a gathering of judges, whose responsibility it is in the final analysis to ensure that the norms and principles developed at the international level are indeed controlled and enforced at the domestic level. The theme is equally appropriate for a gathering of Commonwealth judges, whose proud and noble legal heritage of concern for the liberty of the subject and the maintenance of the rule of law has initially served as a wealthy source of inspiration for enriching the general principles of law recognised by nations as well as international customary law. These sources of public international law were, until forty-five years ago, the principal pillars for international human rights protection.

The development of human rights norms has witnessed some marked progress since the adoption of the United Nations Charter with its stated objective of promoting and encouraging respect for human rights and fundamental freedoms, as well as the Universal Declaration of Human Rights, itself a source of inspiration for many of our national constitutions and now regarded as having become part and parcel of the Corpus of customary international law. Since then the international community has elaborated binding legal instruments relating to civil and political rights, economic, social and cultural rights, the rights of refugees, victims of internal strife, victims of inter-state hostilities, the rights of women, minority groups, persons in custody, women, children, the independence of the Judiciary and the legal profession etc, in recognition of the important role these two institutions play in the enforcement of the rules which have been adopted. Concurrently with the flourishing of these norms has been the development of international machinery for the enforcement of such rights through a system of petitions, investigation, conciliation, publicity, adjudication, etc.

The universalist approach in the elaboration of norms and the development of mechanisms has been supplemented in a positive way by regional efforts as well. Africa has not lagged behind in this regard; after all, most African countries owe their independence to the renewed interest in human rights and the principle of the self-determination of peoples manifested in the U.N. Charter and the U.N, Declaration on Granting of Independence to Colonial Peoples and Territories. Independence African States have themselves also made some notable contributions to the development of human rights law, particularly with regard to the principle of non-discrimination, the right to development, and the further refinement of the principle of self-determination etc. The Law of Lagos adopted in 1961, the Principles Governing the Treatment of Refugees (1966), the Declaration on the African Legal Process and the Individual (1971) culminating with the Banjul Charter of 1981 are all significant landmarks in Africa’s contribution to international human rights law.

If today there are shortcomings in the observance and protection of human rights worldwide, it certainly is not for want of norms and principles elaborating the content of these rights, nor is it always governmental opposition, inactivity or disinterest that has set back the cause of human rights. ‘There are several other factors other than these which hinder the domestic application of the agreed international standards.

I believe chief amongst these has been the failure to increase public awareness of the content of human rights and the obligations of States in this respect either through general public information campaigns or through the incorporation of human rights in the training of public officials, particularly officials of the justice system, whose work directly impinges on the observance and protection of human rights.

The incorporation of human rights education in the basic training of lawyers and judicial officers, particularly within the Commonwealth, is more the exception than the norm. What little exposure there is, often is taught under Public or Constitutional Law, and human rights proper is regarded as an esoteric subject to be taught at the postgraduate level for those who are so academically inclined. We thus continue to produce people whose exposure to prevailing international human rights standards as at best cursory, and entrust them with responsibility for the domestic application of these standards.

About the Author

Hassan B Jallow

HASSAN BUBACAR JALLOW was born in Bansang, The Gambia. Educated at the University of Dar Es Salaam, Tanzania, The Nigerian Law School and the University of London, he has served his country as Solicitor General (1982-84), Attorney General and Minister of Justice (1984-94) and as Justice of the Supreme Court of The Gambia (1998-2002). Justice Jallow is currently the Chief Justice of the Republic of the Gambia since 2017.

He was elected by the UN General Assembly as an ad-litem Judge of the UN International Criminal Tribunal for the Former Yugoslavia (UN-ICTY) and has served as a Judge of the Appeals Chamber of the UN Special Court for Sierra Leone (UNSCSL) as well as a member of the Commonwealth Arbitral Tribunal. Justice Jallow is currently the Chief Prosecutor of the UN International Criminal Tribunal for Rwanda (UNICTR) with responsibility for investigating and prosecuting the principal perpetrators of the Rwandan genocide of 1994.  He was the Chief Prosecutor of the UN International Residual Mechanism for Criminal Tribunals established in 2012 by the UN Security Council to succeed the UNICTR and the UNICTY. He is also a co-Chair of the World Justice Project. He is also the author of several other publications, including the Law of the African (Banjul) Charter on Human and Peoples’ Rights, The Law of Evidence, Law, Justice and Governance: Selected Papers, Introduction to the Wird of the Tariqat Tidjanniya, and Prosecuting International Crimes: Recollections and Reflections. He holds the Commander of the National Order of the Republic of The Gambia (CRG) award. He is married to Aja Fatou Jaye Jallow, with five children.

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