The following is from Burning Issues (FOROYAA Publication) Friday, 16 February 2001 **************************** 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. ---------------------------------------------------------------------------- To unsubscribe/subscribe or view archives of postings, go to the Gambia-L Web interface at: http://maelstrom.stjohns.edu/archives/gambia-l.html You may also send subscription requests to [log in to unmask] if you have problems accessing the web interface and remember to write your full name and e-mail address. ----------------------------------------------------------------------------