In Federalist No. 78, Alexander Hamilton, its attributed author, argued thus:

Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

Without question, The Federalist, popularly known as The Federalist Papers, presents a compelling case for US federalism, and it remains a vital tool for appreciating the philosophical underpinnings of the Constitution that brought such magic to the land called America. Federalist No. 78 remains a masterful presentation of the timeless attributes of a meaningful judiciary. Premised as it is on a true separation of powers  - a doctrine rejected in Professorland – our Judiciary is in no position to protect what “political rights are guaranteed” in The 1997 Constitution of the Republic of The Gambia (the Constitution).

In so far as it effectively collapsed both Legislative, and Judicial authority in the Executive, the Constitution allocates public power in a rather disturbing manner. When the mechanism of government is perversely designed, what government produces cannot but be perverse. For example, the Constitution permits His Excellency Sheikh Professor Alhaji Dr Yahya Jammeh (the Professor) to fire every single elected APRC member of the National Assembly (NA) if he so wishes. He is only required to expel the elected member from the APRC. The power is actual, not merely theoretical (see section 91(1)(d)), and the President will use it if he felt sufficiently threatened by his party's parliamentarians. Any such action may trigger a constitutional crisis, and a possible political struggle, but with national power so heavily centralised, the bet should be on the Professor emerging victorious.

On a straight application of the doctrine of separation of powers, the Professor can have no authority to fire a member of the NA. However, we are dealing with explicit Constitutional text, and the authorisation is therefore beyond legal reproach in that it overrides mere arguments on political doctrine. With section 91(1)(d)) as backdrop, it is unlikely that any National Assembly Member would actively pursue a course of action likely to attract the displeasure of the Professor. This reduces the NA to a rubber stamp, making the passage of laws at odds with fundamental Constitutional dictates a mere formality. What is likely to happen to those laws when they lie at the heart of sensitive political disputes for judicial resolution remains the paramount concern of Gambians committed to the rule of law.

Although the landscape is mixed, judicial decisions in political disputes, either at the level of the magistracy, or the higher courts, heavily tilt toward unjust outcomes, a  differential application of justice wholly attributable to the enervating political control of the Judiciary. Even where major miscarriages of justice routinely emanate in judicial decisions, there were, and will always be, decisions worthy of a place in the global annals of the finest instances of courage in politically controversial cases. The resolve to terminate the High Court trial of Ousainou Darboe on murder allegations, and at the prosecution phase of the case, was a brave and brilliant decision by the Judge concerned. At the other extreme were the travesties that sent the likes of Lamin Waa Juwara, and Baba Jobe, to prison for an unproven seditious allegation on the one hand, and an essentially civil dispute on the other. More recently, the imprisonment of the GPU Six on alleged sedition, and criminal defamation, underscores the disturbing political control of the Judiciary.

To properly appreciate the institutional impotence of the Judiciary, readers may be interested to know that this supposedly fully one third of our constitutional edifice generates enough funds to pay for its entire operation. The incomprehensible aspect of its destitution, and the Judiciary is destitute, lies in the fact that it has absolutely no meaningful control over either the funds it generate, or its constitutional allocation through the national budgetary process. Every butut it generates must be paid to the Accountant General’s Department, and its payment request for even a packet of duplicating paper must be routed through that unaccountable cashier. Considering the Professor’s staple challenge for his detractors to show him a jurisdiction anywhere in the world with an independent judiciary, there are hardly any surprises in the way our Judiciary continues to be managed.

On the significance of an independent judiciary, I refer again to Hamilton’s perspective in Federalist No. 78:

… though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that "there is no liberty, if the power of judging be not separated from the legislative and executive powers."² And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments …

In Gainako’s locus of temporal operations, and regardless whether a dispute is private, or public, the Judiciary, especially at the federal level, may generally be regarded as a guarantor of “justice for each and every” American. As in Professor land, the nature of public power, especially of the Executive type, lies at the intersection of law and politics, and the balancing act, in some instances, can be quite fine. If, as in The Gambia,   there was no rule of law in the United States, the matter of Terri Schiavo (Schiavo), a severely brain-damaged Florida woman, would have been decided differently in light of the manifest inclination of political authority.

Schiavo’s husband went to the Florida State courts to have her feeding tube removed on grounds she would not have liked to live the undignified life called a ‘persistent vegetative state’. Against the strong protestation of Schiavo’s parents that she could recover, a view not supported by prevailing medical opinion, the courts agreed with the husband and ordered the removal of her feeding tube. In defiance, and for the purpose of legislatively staying a Florida State District Judge's order, and have the feeding tube reinserted, Governor Bush of Florida engineered, and shepherded, what came to be known as “Terri's Law”, through the Florida Legislature. On a legal challenge, the Florida Supreme Court declared the law unconstitutional and had it vacated. The US Supreme Court declined to hear the appeal of Florida, and Governor Bush, was decisively defeated.

As if the legal position was not adequately amplified at the State level, the monumental machinery of federal political power sprung into action at both legislative and executive levels. Against the backdrop of his right wing social values, then President Bush – the Governor’s elder brother - signed a Congressional bill transferring jurisdiction from the Florida courts, to the federal judiciary, i.e., to a US District Court in Florida. Accepting the thinking of the State courts, the Federal court ruled against reinserting Schiavo's feeding tube, and on appeal, the Atlanta-based 11th Circuit Court of Appeals affirmed. Without comment, and for the second time, the United States Supreme Court declined to hear the matter, the feeding tube was removed, and Schiavo died within weeks.

In light of the fact that the United States is a secular society, the religious aspects of the matter must be disregarded in favour of principle of the rule of law, and its integral doctrine of the separation of powers. As a justiciable dispute, the Schiavo matter fell within the competence of the courts to hear and decide. In the performance of its constitutionally assigned function, the judiciary, at both levels of the US federal system, withstood the overbearing pressure from state and federal politicians and upheld the law.

As these seminal decisions originated in single judges, the Schiavo case stands as a brilliant confirmation of the proper limitations of accountable public power. Even more poignantly, state and federal politicians graciously accepted defeat and moved on. They fought an intense fight, but when all was over, they embraced the result and implemented the judicial order. In Federalist No. 78, Hamilton was prescient when he said that for the system to work, the judiciary “… must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments”.

It is precisely because a Schiavo-type decision is not possible in the Professor’s Gambia that our Judiciary can be in no position to perform its requisite role as a buffer between an over-powerful state, and the feeble citizen. Encouraging as it may be that increasing numbers of Gambians are ascending the higher bench, the fact of ever tighter political control over the Judiciary remains.  In an exhaustive 2006 in-country study of conditions in The Gambia, the Human Rights Institute of the London-based the International Bar Association (IBA) paints a gloomy picture of our entire political system. Without prevarication, the IBA was upfront in articulating that its Gambia “mission was prompted by concerns regarding the status of the rule of law, the independence of the judiciary and the ability of the legal profession to exercise its professional duties freely …”

 

In Under Pressure: a report on the rule of law in the Gambia, the IBA dealt with an issue at the heart of true justice, especially in disputes where the state has a direct political interest. In pertinent part, the IBA highlighted the shortcomings in our judicial system:

 

Principle 11 of the Basic Principles on the Independence of the judiciary provides that theterm of office of judges, their independence, security, adequate remuneration, conditions of service, pensions and the age of retirement must be specified by law. Principle 12 further specifies that judges, whether appointed or elected, must have guaranteed tenure until a mandatory retirement age or the expiry of their term of office, where such exists. Tenure is important as it enables judges to decide cases free from concerns or government influence related to job security. Short term periods of tenure or contract which are subject to renewal, seriously undermine the ability of a judge to decide cases freely by exposing them to the possibility of improper influence from the executive branch. Unless judges have some kind of long-term security of tenure guarantee, there is a serious and real risk that they may be vulnerable to inappropriate influence in their decision-making. This is of particular importance to judges when adjudicating on constitutional or politically sensitive cases.  Proper security of tenure is also essential to maintain public confidence in the judiciary.

 

I merely list some of the other findings of the IBA:

 

-          … in practice many of the government’s actions undermined judicial independence and the rule of law, and its overall attitude to the judiciary was of great concern to the delegation

-     there are grave concerns that the appointment of contract judges operates outside the constitutional appointment procedure, and that the role of the Judicial Service Commission in this regard is unclear and limited

-          the failure of the government to follow the proper constitutional procedures in relation to the removal of judges … created an atmosphere in which judges are unable to operate freely for fear of having their contracts terminated, or not renewed, if they deliver politically unpopular judgments

-        the delegation was concerned at the frequent disregard or delay in compliance with court orders by members of the executive, particularly those which are politically unpopular. It is apparent that the executive has on such occasions considered itself above the rule of law

-         the government exhibits hostility and suspicion in its dealings with the legal profession and it was clear to the delegation that the government perceives the profession as an opposition force

-          the delegation was concerned to hear reports of mistreatment of detainees, including floggings and prolonged solitary confinement

-          the delegation was deeply concerned about the government practice of detaining individuals for long periods of time with charge, without access to family or legal counsel, or without bringing them before a court in order to ensure adequate judicial oversight

-          the delegation was also concerned to hear reported comments by the president at the appointment ceremony of Justice Roche and Justice Agim of the High Court and Court of Appeal at which he said: “As long as you maintain the integrity and neutrality of the legal system and apply the laws to the letter, we have no business with you … Where you ruling is not based on any law, you are asking for trouble and I am not threatening anybody, I am talking to the judicial system as a whole”

 

In the IBA’s findings lies the rationale for activist Gambia’s colourful, if justified language of describing some jurists as mercenary judge. A jurist on short term contract is unlikely to be a positive agent for justice, and virtually all foreign judges are on short contracts of less than three years. As most foreign judges are reluctant to leave The Gambia, the constant potential of that materializing on no notice exercises a ‘sobering’ influence in their judicial deliberations.  

 

Clearly, 2009 conditions are no better that what obtained in the Professor’s Gambia of 2006, and a lack of fidelity to the proper principles of the rule of law remains at the core of reasons informing our national stagnation. As criminal conduct may not be legally punishable absent the requisite criminal mind, I contend that enduring development is different from its material manifestations. Consequently, I accept that the University of The Gambia represents a material manifestation of development. Similarly, I embrace the view that the Kombo Coastal Road network manifests a material element of development. Ditto the Banjul International Airport terminal, and other projects that, in the estimation of the Professor’s ardent fans, makes him the most eminent of builder statesmen in Africa.

 

Our problem, and it is quite serious, lies in the appalling human rights situation and its attendant “human capital flight”, ‘staples’ of our public life sufficient to place The Gambia light years away from development under any proper appreciation of that term. The argument that our prevailing political and economic circumstances expel critical human capital in great numbers is quite compelling. As the exclusive allocator of national resources, a government hostile to legal transparency and accountability must necessarily foster corruption and concomitantly persecute the non-conforming political activist. It is not obvious that many a principled person would readily embrace a self-cannibalising socio-political system. Without institutions to nurture and underpin professionalism in public life, no enduring development is possible as unavoidable macro-level failure negatively and directly affects micro-level activity.

 

In the absence of independent public institutions, there is little opportunity for civil society organisations to play any meaningful and positively enduring role in public life. I simply highlight the gruesome death of Finance Minister Ousman Koro Ceesay, of the April 10-11 student killings, and of the shooting death of Deyda Hydara. In none of these cases was an acceptable investigation conducted. How about the firebombing and extra-judicial closure of the Independent newspaper, of the disappearance of Chief Manneh, the unlawful incarceration of the GPU Six, and the generally hazardous climate for political opponents, real or perceived? These, and numerous other tragedies, exemplified the height of impunity in our public landscape. The unmistakable message is that Gambians should concern themselves only with the Professor’s “essential human rights”, or pursue the enjoyment of real fundamental freedoms and pay a heavy personal price, a message that exercises a decidedly chilling effect on civil society, including the legal profession, the media, trade unions, and other non-governmental organisations.

 

On current realities, our ‘judicial system’ is in no position to “enhance an independent justice system that guarantees true justice for each and every Gambian”. Ours is fundamentally a political struggle, and until we can institute a government for all Gambians, we remain within striking distance of state collapse and civil chaos. As recognised by the United Nations in the Preamble to  the Universal Declaration of Human Rights, “if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, … human rights should be protected by the rule of law”. Words for the Professor to ponder!

 

As for those who counsel that we pursue the perpetrators of atrocities instead of the Professor, I suggest they work extra hard to gain a proper handle on the locus of our national tragedy. No Gambian security officer will come near the editorial team of GON without “orders from above”!

I recommend Federalist No. 78 for all of political Gambia.

Happy third to GON

Happy birthday from the land of HM Queen Elizabeth II

Lamin J Darbo