By Kemo Conteh
Under its broader mandate to uphold the rule of law, the Bar can exercise an advocacy role by publicly reviewing and challenging appointments if it believes constitutional requirements have not been met.
A robust and balanced scrutiny of anyone appointed to the post of chief justice, the highest office of the judicial system, should seek more to safeguard the principle of judicial independence and less of any interpretation in opposition to the individual candidate to whom the post is awarded.
It must be acknowledged that reasonable legal disagreement exists in Pa Edi’s case, but just as the constitutional requirements have ultimately been determined to have been met through the proper legal process, there is as well, a compelling governance case for his appointment to the office.
In the broader governance argument about the future of the Gambian judiciary. The appointment of a Chief Justice is never simply about filling a vacancy. It is among the most consequential constitutional decisions the president makes. This office shapes the rule of law, investor confidence, judicial independence, constitutional development, and ultimately, public confidence in the state.
The retirement of Hassan Bubacar Jallow therefore represents not merely a personnel transition, but an opportunity to determine what kind of judiciary The Gambia intends to build over the coming generation.
Rather than asking only whether Pa Edi M. O. Faal possesses distinguished legal credentials, The Gambia should ask the broader constitutional question: what type of judicial leadership does The country require at this particular stage of its democratic evolution? The answer to this question lies in understanding the country’s current circumstances.
The Gambia is simultaneously undertaking democratic consolidation, implementing the legacy of the Truth, Reconciliation and Reparations process, modernising public administration, attracting international investment, strengthening constitutional governance and improving access to justice.
These developments require a judiciary capable not merely of deciding cases but critically, of leading institutional transformation in the judicial administration. In this context, the Chief Justice is much more than the country’s most senior judge. The office combines four constitutional functions.
First, it is the guardian of judicial independence. Second, it is the administrative head of the entire court system. Third, it provides intellectual leadership for the development of Gambian jurisprudence. Finally, it represents the Gambian judiciary before regional and international judicial institutions.
This means the appointment should be evaluated more against leadership qualities and less on seniority. One of the strongest governance arguments in favor of Pa Edi is that his professional experience reflects the increasing internationalization of modern justice.
Twenty first century courts no longer determine only domestic contractual disputes and criminal prosecutions. Increasingly, they confront cybercrime, cross-border commercial disputes, money laundering, international arbitration, digital evidence, constitutional litigation, transnational organised crime and disputes involving foreign investment.
The Gambia’s economy is becoming progressively integrated into regional and international markets. Consequently, the judiciary must increasingly understand international commercial practice while remaining firmly anchored in Gambian constitutional values.
Pa Edi’s extensive experience before common law courts and in international arbitration are directly relevant to that changing environment. His work, representing states and parties in complex international proceedings provides him exposure to legal issues that are significant for a developing country seeking investment while safeguarding sovereignty.
Equally important is the institutional perspective he could bring. The Gambian Judiciary continue to struggle with case backlogs, manual filing systems, inconsistent scheduling, limited judicial training, weak data management and inadequate performance measurement.
International experience can be valuable not because foreign systems should be copied wholesale but because it exposes judicial leaders to different administrative models.
For international credibility, development partners such as the World Bank, African Development Bank, and European Union often assess judicial effectiveness when supporting governance reforms. A chief justice like Pa Edi with extensive international and broad comparative experience will help strengthen confidence in the justice sector.
He could champion reforms such as electronic filing, digital case management, automated cause lists, judicial statistics, electronic filing, virtual hearing and online e judgements, judicial performance dashboards, mediation programs, specialist commercial courts and continuing judicial education.
These are more of governance reforms and less of legal or political reforms.
They directly improve citizens’ experience of justice, and in the pursuit of judicial independence, and as an accomplished diaspora lawyer whose professional reputation was largely built outside domestic political professional and institutional networks is a good pick. His career has never depended upon local patronage.
Some will say that independence depends more on conduct, and less on biography, but it is a thoughtful governance consideration that deserves examination.
In pursuit of judicial independence, constitutional democracies depend on rigorous scrutiny of appointments to the highest office. And in that respect, the Bar has an institutional responsibility to blow the whistle when it feels that an appointment does not comply with the Constitution.
These issues are both broad and deep and in context, the debate over Pa Edi’s appointment is an opportunity for us to reaffirm that constitutional questions should be resolved through legal reasoning, transparency and respect for institutions rather than emotion or political preference.
If there remains uncertainty concerning the interpretation of Section 139, the appropriate response is legal clarification in light of distinctions between distinguished advocacy and judicial experience.
Serving as a judge and serving as an advocate require different professional skills, and many common law jurisdictions have appointed eminent advocates directly to senior judicial office where they demonstrated exceptional legal scholarship, integrity, independence, judgment and administrative ability.
The real question therefore is not whether Pa Edi has previously worn judicial robes but whether he possesses the temperament, impartiality and institutional leadership required to lead the judiciary.
That is ultimately a question of merit rather than professional label. The governance case for his appointment is beyond the individual, to a description of the judiciary he could aspire to build.
And one might include reducing case backlogs through modern case management, introducing comprehensive judicial performance standards, strengthening continuing legal education for judges and magistrates, expanding alternative dispute resolution, improving court infrastructure and digital services, strengthening commercial justice to enhance investor confidence, deepening judicial ethics and accountability; improving access to justice for women, young people and rural communities, strengthening constitutional jurisprudence, and enhancing cooperation with regional and international judicial institutions.
This shifts the conversation from personalities to institutional outcomes. If the constitutional requirements have been satisfied and determined through proper legal process, Pa Edi’s combination of decades of advocacy before common-law courts, international arbitration experience, exposure to complex litigation and broad comparative legal experience makes him one of the strongest candidates to lead The Gambia’s judiciary during a period of democratic consolidation and institutional reform.
Neither law, nor governance takes absolute precedence in the realm of the state. In a constitutional democracy, governance must operate through law, while law exists to enable and regulate governance. However, from a national policy perspective, governance is the broader concept, and law is one of its principal instruments. Governance is the broader framework in the scheme of things, and it concerns how a country is directed, managed, and transformed.
It encompasses constitutional order, public administration, economic management, national security, justice, public service delivery, accountability, public participation, Institutional coordination, Policy formulation and implementation, Law is only one of the mechanisms through which these objectives are achieved.
For example, a government may decide that its national priority is reducing poverty, improving education, modernising agriculture, attracting foreign investment; or digitising government. These are governance objectives, but the law gives governance legitimacy, and it is the law that provides the legal framework within which these policies are pursued.
Thus, governance determines what the nation seeks to achieve, while law determines how it may legitimately be achieved. At the same time, governance without law becomes arbitrary. The rule of law ensures that government acts within constitutional limits, citizens’ rights are protected, public power is accountable, decisions are reviewable, and justice is impartial.
Without law, governance risks becoming authoritarian. This is why the Constitution is the supreme law. It establishes the institutions of governance and limits their powers.
If I were advising the President or Cabinet from a policy perspective, I would explain the relationship this way in descending order: National Vision, Governance Strategy, Public Policy, Legislation, Institutions, Implementation, Service Delivery and National Development.
Notice that law appears midway through the chain, not at the top. The Constitution, legislation and judicial interpretation are indispensable, but they serve the broader governance purpose of advancing the public interest while respecting constitutional constraints.
This distinction is directly relevant to the debate about appointing Pa Edi M. O. Faal. No governance objective can justify appointing someone who does not meet the constitution’s requirements.
If the discussion focuses only on legal qualifications under Section 139 of the constitution, it asks a necessary but limited question. Is he legally eligible? Once constitutional eligibility is established, a second and broader question arises: Who is best equipped to lead the Gambian judiciary in advancing good governance, strengthening the rule of law, improving judicial administration, and enhancing public confidence?
That is a question of governance rather than a purely legal one.
And in exploring the answer to this case the President has two responsibilities:
1. Ensure that the nominee satisfies the constitutional qualifications.
2. Among those who are constitutionally eligible, appoint the person best able to advance the national interest through effective judicial leadership in pursuit of the transformational and modernisation agenda of his government
These are complementary inquiries, not competing ones, In the governance hierarchy from the perspective of public administration and statecraft, I would express the relationship as follows: The constitution establishes the state and its institutions, governance sets the strategic direction for the nation within constitutional boundaries, law provides the enforceable rules that give effect to governance and protect rights.
Public administration implements those laws and policies. The judiciary interprets and applies the law, resolves disputes, and safeguards constitutional governance.
So governance is broader than law in terms of national management, but it is always constrained and legitimised by law.
From a national policy perspective, governance provides the overarching framework for achieving national development, institutional effectiveness, and public welfare. Law is an indispensable component of that framework because it gives governance legitimacy, predictability, and accountability. In the context of appointing a chief justice, therefore, the constitution’s legal requirements are the non-negotiable threshold.
If that threshold is met, the decision properly turns to governance considerations: who has the vision, integrity, administrative capacity, judicial temperament, and leadership to strengthen the judiciary as a cornerstone of democratic governance. That broader assessment is where questions of institutional reform, public confidence, efficiency, and long-term national interest become central.
Based on the text of Section 139 of the 1997 Constitution, and the publicly known facts about the professional career of Pa Edi MO Faal, there is a strong legal argument that he satisfies the constitutional qualifications for appointment as Chief Justice.
However, because the precise interpretation of Section 139 has become a matter of public legal debate, it cannot be stated as a definitive legal fact that the issue is settled. Ultimately, only the competent constitutional authorities, and if necessary, the courts, can conclusively determine eligibility. Here’s why.
Under the 1997 Constitution as amended, a person qualifies for appointment as Chief Justice if he or she is qualified to be appointed a Judge of the Supreme Court or has served as a judge of a superior court in a common law country for the prescribed period.
A person qualifies to be appointed to the Supreme Court if, among other routes, he or she has practiced as a legal practitioner before a court of unlimited civil and criminal jurisdiction in a common-law country for at least twelve years.
The critical constitutional questions therefore become, Has Pa Edi practiced before courts of unlimited jurisdiction? Were those courts located in a common law country? Has he done so for at least twelve years?
In applying these requirements, from publicly available record, he has practiced law for approximately 39 years, he has been admitted in California, practiced before California Superior Courts and United States federal courts, both of which are courts exercising broad civil and criminal jurisdiction within a common-law system.
He has also been admitted in England and Wales, another common law jurisdiction. He is additionally admitted to practice in The Gambia. His career includes extensive litigation in civil and criminal matters, together with international arbitration.
If these facts are accurate, and they are well documented, they substantially exceed the constitution’s minimum requirement of twelve years legal practice before qualifying courts. On that basis, he clearly satisfies the practitioner route to eligibility under Section 139.
The controversy appears to arise less from the duration or quality of his legal career and from differing interpretations of Section 139 and its application to a lawyer whose career has largely been outside The Gambia.
Questions about him raised in conversations include, whether practice in the United States satisfies the constitutional concept of a “common law country”, whether all aspects of his professional experience fall within the constitutional language concerning practice before courts of unlimited jurisdiction, and whether any additional constitutional considerations arise.
These are legal questions of interpretation rather than questions about his academic or professional accomplishments. On academic merit, Pa Edi’s credentials are unquestionably strong: Bachelor of Science, Juris Doctor, LL.M. in International Dispute Resolution, Called to the Bar by Middle Temple and Fellow of the Chartered Institute of Arbitrators.
Professionally, his experience spans decades of litigation, arbitration, mediation and state representation. From the standpoint of competence, experience and professional distinction, there is little doubt that he possesses qualifications associated with leadership of a modern judiciary.
And constitutional eligibility is not the same as suitability. It is important to distinguish two separate questions. The first is eligibility: Does the Constitution permit the appointment? The second is suitability, assuming constitutional eligibility, is he the right person to lead the judiciary? These are different inquiries.
A person may be constitutionally eligible yet not be the strongest candidate. Conversely, a highly accomplished lawyer cannot be appointed if the constitution clearly disqualifies them. Based on the constitutional text and the publicly available information about Pa Edi, I think there is a strong legal basis to conclude that he is constitutionally qualified under the practitioner route in Section 139. He has practiced for far more than the required twelve years before courts of unlimited jurisdiction in common law jurisdictions.
That said, because respected lawyers have publicly advanced differing interpretations of the constitutional provisions, I cannot responsibly present that conclusion as an indisputable legal fact.
In a constitutional democracy, a definitive determination belongs to the institutions charged with interpreting and applying the constitution, and ultimately, the courts, if the issue is litigated.
From a governance perspective, however, if the constitutional threshold is determined to have been met, the debate properly shifts from whether he may be appointed or whether his experience, independence, leadership, and vision make him the most suitable person to lead judicial reform in The Gambia. Those are policy and institutional questions that are distinct from the threshold legal inquiry.
In my view, the most persuasive argument that speaks directly to the country’s future rather than Pa Edi’s biography is not that he defended famous criminal cases. It is that The Gambia is increasingly exposed to international investment disputes, commercial arbitration, constitutional litigation, and transnational legal questions.
A chief justice with decades of experience in these areas could strengthen the judiciary’s capacity to deal with increasingly complex legal matters while maintaining fidelity to Gambian law.
