A Usurpation of The Judicial Power
In Germany, the Nazis first came for the communists, and I did not speak up, because I was not a Communist. Then they came for the Jews, and I did not speak up, because I was not a Jew. Then they came for the trade unionists, and I did not speak up, because I was not a trade unionist. Then they came for the Catholics, and I did not speak up, because I was not a Catholic. Then they came for me … and by that time, there was no one to speak up for anyone.

Martin Niemoeller, Pastor, German Evangelical Lutheran Church

In the Germany of those years, all state atrocities were committed under color of law as decreed in that country’s constitution by Adolf Hitler – one of the twentieth century’s pre-eminent architects of modern day totalitarianism.

Sounds familiar? It certainly should in the Hitler-like totalitarianism that is the Gambia of His Excellency, Alhaji Dr Yahya A J J Jammeh: extra-judicial killings of alleged coup plotters; violent suppression of a peaceful student demonstration; detentions without charge; imprisonment without trial; criminal prosecution of civil disputes; confiscation of property without due process of law; uninvited night visits from state agents; and on and on the nightmares continue.

Frightening? Most certainly! In light of the teachings of contemporary history, I urge Gambians not to salivate for more blood from the fallout of the scam commission headed by the Honorable Justice M A Paul. And in the strongest possible terms, I urge Gambians to condemn Justice Paul and the process he led for the sham they represent.

If a Gambian is punished in the name of legality, that Gambian’s conduct must have truly triggered the legitimate response of our laws. In law alone lies the redemptive capacity of a people. In matters of public life, the rule of law must have the last word. Not Dr Jammeh. And certainly not the findings of a million commissions farcically created and illegitimately sanctioned under color of law.

In triumphalism worthy of a conquering warrior, Justice Paul boasted that his so-called anticorruption commission “bore equal powers and jurisdiction as the High Court” as “persons who are dissatisfied with the commission’s findings and recommendations, can appeal to The Gambia Court of Appeal which is higher than the High Court”. On its face, this assertion may constitute a possible, albeit extremely incompetent reading of section 202(2) of The 1997 Constitution of the Republic of The Gambia.

For starters, there is no categorical correlation between appellate jurisdiction and court level. In The Gambia, a dispute originating in a District Tribunal can bypass the Magistrates Court at the appellate level and go straight to the High Court. By Justice Paul’s analogy, the District Tribunal and the Magistrates Court must have jurisdictional parity. This cannot be right.







At a more fundamental level, section 120(2) of the Constitution vested the judicial power of The Gambia on the courts “and shall be exercised by them according to the respective jurisdictions conferred on them by law.” As unequivocally stipulated by section 120(1), those courts are: the Supreme Court; the Court of Appeal; the High Court and the Special Criminal Court; the Magistrates Court; the Cadi Court; and the District Tribunal. In so far as they purport to create another level of superior court in The Gambia, sections 200-206 (Commissions of Inquiry) makes nonsense of the universally accepted democratic constitutional principles of the separation of powers and the rule of law.

If a Commission includes commissioners who are unqualified to be appointed to the High Court, they should not be allowed to exercise the powers of that Court through the back door. Such illegitimacy is the clear intended consequence of the Paul Commission. As a superior court of unlimited original jurisdiction, the High Court was the proper venue for the trial of any allegations of corruption against public officials. Here of course any prosecution must be adversarial instead of merely accusatorial, thereby creating a field day for defense advocates. The available evidence will simply not sustain the charge against any of the victims of the Commission. The Commissions of Inquiry belong to a multitude of other sections in the Constitution which excellently manifest the totalitarian inclinations of Dr Jammeh, and the near worthlessness of our supreme legal document.

In character, our country's judicial system is unquestionably adversarial. Integral to such a system is the right of an accused to test the evidence proffered against him through cross examination in open court. There are rules controlling the admissibility of evidence, the competence of witnesses, and the guarantee, at least apparently, of the impartiality of a tribunal. A Commission of Inquiry that purports to equate its findings with a final judgment of the High Court without guaranteeing even a semblance of the procedural protections inbuilt in an adversarial process must be deficient in a major way. It was unacceptable that people who stood to forfeit their liberty and property were treated in such scandalously cavalier manner, i.e., processing four or more targets a day, notwithstanding the gravity of the possible outcomes. And to think that this sham process victimized state policy makers is a scandal in itself.

In so far as it falls to the Court of Appeal to pronounce on the validity of the Paul Commission's findings on appeal, that court is in quite a bind. With clear Presidential interest in the matter on one hand, and the howling dictates of justice on the other, the Court's plight is the functional equivalent of being trapped between the devil and the deep blue sea. I for one will entertain no sympathy for the Justices' agony. My sympathies are firmly on the side of justice as dictated by procedural propriety embedded in judicial precedent, if no other source.

Assuming the Paul Commission was a legitimate exercise in fighting corruption in The Gambia – and I contend that it is not – the use made of the findings was farcical in the extreme. Even as I do not challenge Dr Jammeh’s right to relieve his cabinet appointees implicated in wrongdoing by his Paul Commission, affected civil servants may only be suspended pending Court of Appeal determination of individual appeals. In other words, there is absolutely no justification in law for anyone adversely affected to be arrested and detained before the expiry of the three months allowed for lodging an appeal against the Commission’s findings. At the very least, Dr Jammeh’s legal advisers should have brought to his notice that there is an automatic suspensive period staying any execution of Justice Paul’s findings.





Although we must debate the issues within the constraints of the Constitution, it is not a document worthy of the least reverence. In ways both subtle and explicit, this supposed supreme law of our land shamelessly subjugated the National Assembly, and the Judicature, to the control of the Executive. In its present form, the document is incapable of promoting the rule of law in its major aversion to accountability as enshrined in the doctrine of separation of powers. As if the assault on that inviolable doctrine is not enough, the Constitution, even at sacrosanct sections dealing with fundamental liberties, allows its own provisions to be controlled by subservient legislation. This is nothing short of Dr Jammeh’s blatant strategy to micromanage the entire spectrum of national life from wherever the Gambia is governed these days.

When they came for Lamin Waa Juwara, Baba Jobe, and the Secretaries of State didn’t speak up, because they were not anti-APRC advocates for the rule of law. When they came for Baba Jobe, the Secretaries of State, convinced of their immunity from such base treatment, did not speak up. By the time they came for the Secretaries of State, there was no one to speak up for anyone. The intellectual and legal community in The Gambia must see the process for what it is – a futile exercise that attempts to cloth itself in judicial legitimacy, and must condemn it unequivocally. I call this advocating justice, not condoning corruption. We should all recognize that in a totalitarian system, no one is permanently safe.
Not even if you are the common judicial denominator in a recent string of egregious miscarriages of justice? You guessed right – not even if you are the very Honorable Justice M A Paul.

 Lamin J Darbo



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