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You cannot fail until you quit: The Gambian judiciary’s attempt at a second bite at the apple

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By Ousman Ceesay,
Seatle Washington

I remembered the old adage “you cannot fail until you quit” when I read the Judicial Officers Remuneration and Other Entitlements Bill, which was tabled in the National Assembly by the Justice Minister, Dawda Jallow. It lays bare the judiciary branch’s attempt at a second bite at the apple.

Anyone remotely familiar with the draft constitution that failed in the National Assembly will quickly realise that the provisions in the new bill have their roots in the draft constitution. The stand-alone bill is what I will call the draft constitution’s provisions for the judiciary on steroids. It has everything they wanted and lost when the draft was defeated and more, lending credence to the aforementioned adage.

The draft constitution was the product of extensive consultations and participatory processes that aimed to reflect the wishes and aspirations of Gambians both at home and abroad. It was intended to usher in a new era of democracy, good governance, separation of powers, rule of law, human rights, and national unity. However, it was rejected by lawmakers with one contentious issue taking the spotlight for its rejection: the provision that sought to impose a two-term limit on the presidency, with retroactively for the current president.

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The judiciary branch had a significant role in drafting the constitution, and this is not lost on anyone paying attention to the draft’s generous provisions for the judiciary. It proposed several reforms and benefits for judicial officers, such as enhanced salaries, allowances, pensions, and entitlements; improved conditions of service; security of tenure; and judicial independence. The argument then and now is that the provisions were meant to attract and retain qualified and competent judges and magistrates, as well as ensure their impartiality and integrity in dispensing justice.

It is safe to say that the justice minister’s presentation of this new bill to the national assembly is an attempt to revive the cherished entitlements that the judiciary lost with the draft. The Judicial Officers Remuneration and Other Entitlements Bill 2023 will make provision for improved salaries, allowances, pensions, and other entitlements for judicial officers that disappeared like fart in the wind with the rejection of the draft constitution.

I referred to the bill as the draft constitution’s provisions for the judiciary on steroids because

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it goes beyond what was proposed in the draft constitution. For example, the legislation stipulates that the chief justice and judges will receive compensation for various incidental expenses, such as telephone and robbing allowances. Additionally, judicial officers assigned outside Banjul, Kanifing, and the West Coast region will be entitled to a special allowance.

In addition, judicial officers who participate in overseas meetings, conferences, or seminars related to the administration of justice will be eligible for a per diem allowance at the same rate as high-ranking government officials. Retired judges may also be eligible for additional benefits and allowances, as determined by the Judicial Service Commission in consultation with the minister of finance.

The bill also stipulates that a judge who retires after serving for at least five years will be entitled to a pension equal to or three-quarters of their final salary. A judge who retires after serving for at least ten years will receive a full salary pension. The pension of a retired judge will be adjusted as the salary of a serving judge increases. If a judge dies while in office, their surviving spouse will receive a lump sum equal to one-half of their annual salary. These are generous entitlements and benefits for an indebted nation like ours, considering that a substantial amount of our national budget is spent on debt servicing with its attendant high interest rates.

The bill has been met with mixed reactions from different stakeholders. Some have welcomed it as a necessary step to improve the welfare and morale of judicial officers. They argue that the bill would enhance judicial independence and accountability, as well as attract and retain qualified and competent judges and magistrates. Others have vociferously criticized it as an extravagant and unjustified attempt to reward and appease the judicial branch, which has been accused of being biased, corrupt, and complicit in aiding Jammeh’s 22-year tyranny. They contend that the bill would create an elite class of judicial officers who are detached from the realities and challenges faced by ordinary Gambians. They also question the timing and motive of the bill, which comes amid political tensions and uncertainties relating to the National Assembly’s Toyota Prado gate.

The fate of the bill remains uncertain as it awaits its second reading in the National Assembly. Whether it will pass or fail depends largely on how much ruckus the public creates.

Regardless of the eventual outcome, the bill stands as evidence of the unwavering determination of the judiciary branch, which has not abandoned its pursuit of improved compensation and privileges. It also highlights the possibility of pursuing constitutional reforms through alternative avenues, even following the rejection of a comprehensive draft constitution. The bill exemplifies the saying, “You cannot fail until you quit”

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