FOROYAA – BURNING ISSUES

Issue Number 97/2003, 18-21 December, 2003

Editorial

Zero Tolerance for Corruption or

Misconduct in the Courts

The Courts are the last sanctuary for justice. Members of the executive,
legislature and other sectors of the state are brought before the courts for
determination of innocence or guilt.

This is why those holding judicial office should be exemplary in their
conduct. The constitution has recognized the importance of judges in
promoting justice in the country.

This is precisely why it gives the National Assembly the power to impeach
judges who are guilty of misconduct. Judges therefore do not have the
absolute power to do whatever they want with impunity. Just as the members
of the National Assembly can be taken to court, judges can be removed from
office for misconduct if notice is given to the Speaker that is signed by
not less than a half of the members of the National Assembly for
investigation to be done on any allegation of such misconduct. If two thirds
of the members of the National Assembly support the motion a tribunal will
be set up to investigate the matter. Once the tribunal substantiates the
allegations a judge shall ease to hold office if two thirds of the members
support the motion.

There is no need for those who have evidence of misconduct of a judge to
think of the composition of the National Assembly. What is essential is to
have sufficient evidence of misdeed and forward it through a National
Assembly of one’s choice.

The mere introduction of a motion by a National Assembly Member for
signatures can have a corrective impact on our judicial system if there are
indeed legitimate grounds to request for parliamentary investigation.
National institutions should be tested. This is the way to know those who
are alert to their national duty and those who are not. It is unfortunate
that the National Assembly has been left to lie like a sleeping giant almost
indifferent to it’s important constitutional mandate to oversee that the
exercise of judicial functions is free from corruption and misconduct. It is
better to force the sleeping giants to become awake to its National Duty or
face the music in the next National Assembly Elections.


Halifa’s Letter to the Bar

Association & Human Rights Organizations

On The Preservation Of the Gambian Judiciary

Every public office must have integrity if it is to earn public trust.The
pillars of integrity of the judiciary are its independence, impartiality and
effectiveness in the administration of law and dispensation of justice.

All institutions, especially the executive arm of the state is expected to
strengthen the pillars of integrity of the judiciary.

This is precisely why section 120 subsection (4) states without any
ambiguity or equivocation that:-

"The government and all departments and agencies of the government shall
accord such assistance to the courts as the courts may reasonably require to
protect their independence, dignity and effectiveness."

In my view, the bar and the bench are irretrievably linked. Their conduct
determines to a large extent whether the validity of the decisions of a
court shall be called into question or not. When members of the bar and
bench lack trust in each other’s integrity, justice is imperiled and liberty
must become the casualty.

The objective of this memorandum is to draw your attention to the fact that
public concern is being expressed regarding the state of our judiciary. The
bar and the bench must be equally concerned.

I have addressed a letter to the Chief Justice on the issue of the Code of
Conduct of persons holding judicial office and the rights of accused persons
to have adequate time and facilities for preparation of his/her defence and
to have a legal representative of his/her choice.

It is necessary to restate the respective provisions of the constitution for
the consideration of the bar and all oversight institutions that are
responsible for monitoring the observance of human rights. In the past, it
was assumed that only the executive can violate human rights. The fact of
the matter however is, that even officers holding judicial powers can
violate human rights. This is why powers accorded to them are not absolute.
Such powers are circumscribed by law. It is common knowledge that the duty
of a judge or magistrate is to deliver justice without fear or favour,
affection or ill will. This is precisely why section 24 subsection (3)
asserts that:

"Every person who is charged with a criminal offence:

a) shall be presumed innocent until he/she is proved , or has pleaded
guilty;

b) shall be informed at the time he/she is charged, in a language which
he/she understands and in detail, of the nature of the offence charged;

c) shall be given adequate time and facilities for the preparation of
his/her defense;

d) shall be permitted to defend himself/herself before the court in person,
or at his/her own expense, by a legal representative of his/her own choice."

Infact, the constitution went as far as to assert that:-

"Where a person is charged with an offence which carries a punishment of
death or imprisonment for life, that person shall be entitled to legal aid
at the expense of the state."

These provisions are not designed to pamper criminals but to ensure that the
innocent are not banished because of haste, prejudice and inadequate
consideration of substantive evidence. Persons holding judicial office who
ignore these safeguards may end up convicting the innocent and thus put the
validity of their decisions into question.

A judge or magistrate who truly respects human rights must therefore adhere
to such safeguards in conducting any judicial proceedings. Any person who is
holding judicial office and who holds such safeguards in contempt must be
seen to be a square peg in a round hole in any modern judicial system.

In short, the judiciary is the ultimate protector and enforcer of human
rights. A whole justice system tumbles down if the ultimate protectors
become violators of fundamental rights and freedoms. A judge who resorts to
denial of the due process of justice as a remedy for delay is likely to
promote a miscarriage of justice.

Suffice it to say, the code of conduct for people holding judicial office is
constitutionally established to enable the public to know what to expect
from them. This also provides the basis to determine the misconduct of such
officers.

Section 222 subsection (1) states that:-

"A public officer shall respect and comply with the law and shall conduct
himself/herself at all times in a manner, which promotes confidence in the
integrity of public office."

Subsection (3) adds that "a public officer shall not, in the course of
his/her official functions and without lawful excuse do, or cause to be done
any action which is prejudicial to the rights of any other person."

Subsection (8) specifically refers to those who exercise judicial functions
and it reads:-

"A public officer who exercises judicial functions shall;

a) maintain order and decorum in judicial proceedings before him or her;

b) be patient, dignified and courteous to all litigants, witnesses, legal
practitioners and others in the exercise of such functions, and shall
require similar conduct from his or her staff and others subject to his or
her control.

c) Abstain from comment about the outcome of any pending or anticipated
legal proceedings in any court in The Gambia and require similar abstention
from his or her staff and others subject to his or her control;"

In my view, rumours alleging misconduct of some persons exercising judicial
functions are spread to the detriment of the judicial system of the country.
Such rumours should be put to rest and responsible members of the bar and
human rights organizations should prepare concrete cases for onward
transmission to the National Assembly.

As Minority Leader at the National Assembly, I have the duty to convey to
you that it is our responsibility to ensure that judges act according to
their constitutional mandates. Just as National Assembly Members can appear
before courts to answer to criminal charges judges can also appear before
the National Assembly for misconduct.

Section 141 subsection (4) of the constitution states categorically that:

"The Chief Justice, a Justice of the Supreme Court, the Court of Appeal and
the High Court and Members of the Special Criminal Court may only be removed
from office for inability to perform the functions of his/her judicial
office, whether arising from infirmity of body or mind, or for misconduct."

I am sure that you know that the National Assembly has immense powers in
sanctioning misconduct in the performance of high judicial functions and I
am more than willing to move motions reprimanding misconduct if the
allegations and evidence proferred are reasonable and justifiable in a
democratic society.

I am equally convinced that you would not want us to act on judges on
frivolous grounds. Any undue political encroachment on the functioning of
the judiciary would have an unsettling effect on the independence, dignity
and effectiveness of the judiciary. As professionals and human rights
defenders you should exercise caution, build up cases in good faith without
any xenophobic inclinations and forward your evidence to me or any of the
other National Assembly Members for consideration.

The procedure laid down by the constitution for impeachment of a judge is
clear. Section 141 subsection (5) reads:

"A judge may be removed from his/her office if notice in writing is given to
the Speaker, signed by not less than one-half of all the voting members of
the National Assembly, of a motion that a judge is unable to exercise the
functions of his/her office on any of the grounds stated in subsection (4)
and proposing that the matter should be investigated under this section."

Subsection (6) adds that:

"Where a notice of a motion is received by the Speaker under subsection (5),
the Speaker shall forthwith cause a vote to be taken on the motion without
debate"

Subsection (7) further indicates that:

"If such motion is adopted by the votes of not less than two-thirds of all
the members of the National Assembly –

a) The National Assembly shall, by resolution, appoint a tribunal consisting
of three persons, at least one of whom shall hold or shall have held high
judicial office who shall be the chairman of the tribunal;

b) the tribunal shall investigate the matter and shall report to the
National Assembly through the Speaker whether or not it finds the
allegations specified in the motion have been substantiated.

c) if the tribunal reports to the National Assembly that it finds the
particulars of any such allegation have not been substantiated, no further
proceedings shall be taken under this section in respect of that allegation;

d) if the tribunal reports to the National Assembly that it finds that the
particulars of any such allegation have been substantiated, the National
Assembly shall consider the report at the first convenient sitting and if,
on a motion supported by the votes of not less than two-thirds of all the
members, the National Assembly resolves that the judge be removed from
office, the judge shall immediately cease to hold office."

Subsection (8) adds that:

"Where a tribunal is established under this section in respect of any judge,
the judge shall stand suspended from office. The suspension shall cease to
have effect if the tribunal reports that none of the allegations against the
judge has been substantiated or if a motion for his/her removal from office
is not supported as provided in paragraph (d) of subsection (7)."

Subsection (9) concludes that:

"All proceedings in a tribunal under this section shall be held in camera
and the judge concerned shall have the right to appear and be legally
represented before the tribunal."

The National Assembly has immense powers to ensure that the integrity of our
judicial system is preserved. The time has come for national conscience to
be awakened. All people in position of authority must recognize the
sovereignty of the people. They must recognize the duty to exercise
authority to serve the public interest.

The duty of a judge is to deliver justice on the basis of truth, in good
faith and in the public interest. It is hoped that concerted action can be
taken to promote such judicial conduct

Yankuba Touray Removed

On Tuesday FOROYAA received information of the relief of Yankuba Touray from
office. Rumours of his arrest and detention were rife but when we got in
touch with him both on Tuesday and Wednesday, he denied this. The Police PRO
also said he was not aware of Yankuba Touray’s arrest but his office was
searched. When the former SoS was asked he said he did not know why he was
relieved of his duties. He also declined to make any comments.

Before being appointed Secretary of State for Communication, Information and
Technology, Mr. Touray was SoS for Tourism and Culture. Readers may recall
that in Issue No. 92/2003 we published that there were allegations of some
20 plots in the tourism development area (TDA) without the knowledge of the
Gambia Tourism Authority (GTA). The story also indicated that an auditing
firm was appointed to investigate the financial activities of the GTA.

Yesterday, Security Forces stormed the offices of the GTA and were busy
searching through files. Reports say that Yankuba is helping the Security
Forces in their investigations.

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