The following is from Burning Issues (FOROYAA Publication) Friday, 16 February
2001
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Letter to the Attorney General On Chieftaincy Elections And the Independence
of The Judiciary

Mr. Attorney General, principles of justice are meant to guide practice.
Principles that are not backed by practice become void. This is precisely
the reason why we considered it necessary to address this letter to you
after listening to views expressed by the president during your swearing in
ceremony as Attorney General and Secretary of State for Justice.

It is important to set certain principles straight since they help us to
establish a foundation for a just and democratic order. A just society in
modern times must have a legal foundation. Just principles ought to be
converted into just laws that are supposed to guide the practice of human
beings in a society. Such just laws must have the backing of institutions
through which their enforcement becomes possible. This is precisely the
reason why judicial system is established to ensure that just laws are given
practical effect through their proper  administration and dispensation.

In the president's speech, he indicated that  there is no country in the
world where there is independence of the judiciary. Apparently, the
president is oblivious of the true meaning of the independence of the
judiciary and the principle of the separation of powers. A failure to fully
grasp the meaning of the two principles can lead to malpractices and gross
interference with the system of justice in a country. It is therefore
necessary to highlight what must already be obvious to you. This conception
that we are to highlight should be applied in reviewing the plans of the
government to amend section 58 of the constitution which deals with
Chieftaincy Elections.

Mr. Attorney General you would agree with us that the judiciary is not an
arm of the government but an arm of the state. The executive, the
legislature and the judiciary are all arms of the state. In modern times
government is conceived as the executive arm of the state, the cabinet
members run the day to day affairs of the different departments of state.

The principle of the separation of powers and establishment of independent
arms of the state becomes absolutely essential in a sovereign Republic. The
reason for this is simple. In a sovereign Republic  authority is vested in
the people. All must combine to manage the affairs of the nation.

Since all cannot be at the same place at the same time to make decision
responsibilities must assigned to some by others. This is the essence of
representation. It enables some to exercise the collective will of the
people to safeguard the collective interest. This is why the constitution of
a sovereign Republic establishes the structures through which the people can
entrust the collective power or will to few people to exercise it to promote
their general welfare. Since representatives are embodiment of the
collective authority or will of the people., since they are trustees of
collective authority and prosperity they should neither be corrupt nor abuse
power. This is why such public trustees must be accountable or answerable to
some authority that is independent and separate from them, in order to put
abuse of authority or corruption in check. The constitution of a sovereign
Republic stipulates where the authority of given representatives and public
servants begins and ends. It tries to ensure a balanced and proportionate
allocation of authority while providing adequate safeguards against
misrepresentation and maladministration. This is what has given rise to the
principle of separation of powers and independence of the judiciary. The
independence signifies a division of labour to ensure that the collective
interest of the people are safeguarded. Hence as long as each branch
performs its function to safeguard the interest of the people according to
law the institution will automatically function in a harmonious manner.

Where there is an overstepping of bounds established by the constitutional
guards and fences, the harmony is disturbed and constitutional means of
redress must be resorted to to undo the disturbance.

This is precisely the reason why the actions of the President can be
subjected to review by the supreme court. The constitutionality of laws made
by the legislature can also be subjected to review by the supreme court. In
the same vein, the conduct of judges can be subjected to review by a
tribunal established by the National Assembly.

Mr. Attorney general, if the separation of powers and the independence of
the judiciary were not entrenched then the action of the President to remove
the chairman of the IEC would not have been questioned and subjected to
judicial review.

In fact section 120 (2) of the constitution states categorically that "The
judicial power of the Gambia is vested in the court and shall be exercised
by them according to the respective jurisdiction conferred on them by law.
Subsection (3) adds that "In the exercise of their judicial functions, the
courts, judges and other holders of judicial office shall be independent and
shall be subject only to this constitution and the law and , save as
provided in the chapter, shall not be subject to the control or  direction
of any other person or authority."

Subsection  (4) adds that "The government and all departments and agencies
of the government shall accord such assistance to the courts and the courts
may presumably require to protect their independence, dignity effectiveness.''

The independence of the judiciary is therefore affirmed in section 120 of
the constitution. It is therefore necessary for the president to know that
if he is to lead a sovereign Republic he must take time to grasp the
principle which govern the existence of a sovereign Republic. It is your
duty to give him wise counsel so that he will not state  what contradicts
the instruments he has sworn to defend.

In the same vein, Mr. Attorney General the constitution district tribunals
to be part of the judiciary. The chiefs are the presidents of the district
tribunals. Section 120 subsection (1) states categorically that:
 The court of the Gambia are:
(a) The Supreme Court comprising;
(i) the Supreme Court,
(ii) the Court of Appeal,
(iii) The High Court and the Special Criminal Court and
(b) the Magistrate Court, the Cadi Court, District Tribunals and such lower
courts and tribunals as they may be established by an Act of the National
Assembly."

The colonialist had no respect for the principles of separation of powers
between the executive and judiciary. Through the provinces Act they made
chiefs,  law enforcement officers and magistrates at the same time. They
made commissioners to preside over appeals from District tribunals. The
governor could fire chiefs and remove them from office. One would have
thought that the Local government reforms would have separated the judicial
and executive functions of the chiefs, ensure appeals from District
tribunals to high courts in every division, establish a jury system for the
district tribunal or transform it into a Cadi court with civil jurisdiction
in areas of marriage and inheritance.

The election of chiefs could have started the basis of the reform.The Local
Government Act which could have ensured that the removal of a chief from
office could only be done after a tribunal is established to review
allegations. Once elected the chief could simply carry on the function of
the President of  district tribunals and dispose of all the other executive
functions.

We hope that it is clear that the proposed amendments which will allow the
president to appoint and remove the president of the District tribunal would
constitute to encroachment in the independence, dignity and effectiveness of
the judiciary.

Africa became independent to do away with the colonial yoke. The former
government should have dismantled the old colonial structures but did not.
The present government is showing through the amendments that it aims to
strengthen the monarchical powers of the governors. This is a step backward.
We hope you will convey this fact to the president and members of the
cabinet so that they will change their minds.

History will not vindicate those who prepare to drive the country back to a
monarchical past rather than shape her democratic future. Those who take
steps backward instead of forward are are indicted by history. To whom much
power is entrusted  much wisdom and sound judgement is expected. History
will be the final judge.

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