By Bubacarr Drammeh, Esq., LLB, BL, LL.M.
A letter with referenced REF:ZA227/261/01/ (254) dated 25th October 2021 and addressed to the President of The Gambia Bar Association, with the caption RE: SUSPENSION OF SUPERIOR COURTS (3RD AND 4TH NOV. 2021), signed by Sheriff B. Tabally Esq, Master and Registrar reads as follows:
As you are aware that the judiciary is organizing DONOR CONFERENCE slated for the 3rd and 4th November 2021. Accordingly, by the direction of the Hon. Chief Justice, all court sessions/proceedings of the Superior Courts will be suspended for the 3rd and 4th November 2021. Any inconvenience as a result is deeply regretted.
The Chief Justice and his staff may think that the phrase “any inconvenience as a result is deeply regretted” is a magic sentence that will correct everything wrong with this unconstitutional act. Well, they are wrong! It is ludicrous that almost the entire justice delivery system of The Gambia “will be suspended” i.e., shutdown because of a donor conference—that the judiciary has no power organizing. When I first read this letter, I was appalled! I started thinking about that young Gambian in custody for the past seventy-two hours waiting for his day in court. Is a donor conference more important than his constitutional right to liberty? How about that Habeas Corpus petition that poor mother, wife, daughter, son, father, brother, sister, etc., has filed? Is a donor conference more important than the liberty of their loved ones? How about that young businessperson who has promised his/her investors that the long-awaited judgement will be delivered, and any further delay will erode any trust the investors have in him/her? What about the possibility of dark money being pumped into to our Judiciary? What about any potential conflict of interest? What about the independence of the judiciary? What about the integrity of the Judiciary? Are you kidding me! My head is spinning with what about this, what about that.
There is no doubt that the Chief Justice of The Gambia, under Section 121(1) of the constitution is the “the head of the Judiciary” and is mandated with the “responsible for the administration and supervision of the courts.” In performing such important constitutional responsibility, the Chief Justice has the power to “issue orders and directions.” However, this responsibility is not unfettered, it is “subject to the provisions of Constitution” and must only be exercise “for the proper and efficient operation of the courts.” This directive of the Chief Justice is against the provisions of the constitution, and it hinders the proper and efficient operation of the courts.
This directive violates the fundamental human rights provisions of the constitution specifically section 19(3)(b):
Any person who is arrested or detained- upon reasonable suspicion of his or her having committed, or being about to commit, a criminal offence under the Laws of The Gambia, and who is not released, shall be brought without undue delay before a court and, in any event, within seventy-two hours.
Thus, everyone who has been in custody and is due to appear in any of the Superior Courts will further be held in custody for at least another forty-eight hours because the Chief Justice ouster courts thereby derogating the fundamental rights of Gambians. The constitution in Section 35 has clearly stated when a derogation from fundamental rights could be “authorise”— organizing a donor conference is not one of them.
Anyone affected by this blatant disregard of our constitution should file a lawsuit against the Chief Justice as a person and the Judiciary as an institution relying on Section 19(6) which reads “any person who is unlawfully arrested or detained by any other person shall be entitled to compensation from that other person or from any other person or authority on whose behalf that other person was acting.”
Organizing a donor conference implies that the Judiciary needs funds to execute its functions. The financial independence of the judiciary is a core component of judicial independence. That is why the constitution provides in Section 144(1) that:
The Chief Justice shall submit the annual estimates of expenditure for the Judicature to the President for presentation to the National Assembly in accordance with this Constitution. The President shall cause the estimates to be placed before the National Assembly without amendment, but may attach to them his or her own comments and observations.
Thus, all the Chief Justice is required to do is to send his budget with whatever estimation he deems fit, not organize donor conferences.
I, respectfully, urge the Chief Justice to call off the donor conference and direct that all court sessions/proceedings of the superior courts resume immediately. I also call upon the President and members of The Gambia Bar Association to be more vigilant on such issues. We are in this together, and it is not rude or an act defiant to raise concerns with the Chief Justice especially when such acts violate the Constitution of the Land.