Generally, strong democratic institutions and transparent legal procedures are vital to the rule of law, judicial independence and political governance. The exercise of independent judicial power by the judiciary is critical to the rule of law and may have profound political effects on governance.
The recurrent measure by the Gambia Bar Association (GBA)to boycott court sessions presided over by Nigerian born judges have raised crucial questions about the judicial politics of Nigerian dominance and its impact on judicial independence and the rule of law in contemporary Gambia.
For example, in 2006, the GBA carried out a long boycott of a High Court Judge, Justice Paul – a Nigerian. In December, 2016, the GBA urged its members to boycott the Supreme Court predominantly made up of Nigerian judges, convened to determine the election petition filed by the APRC party against the results of the December 1, 2016 presidential election in the Gambia (GBA, 12 December, 2016) and called for the resignation of the Nigerian born Chief Justice (GBA, 19 December, 2016). And this March, the GBA has again called for the boycott of three (3) High Court Judges from Nigeria. These measures turn more on the broader notion of judicial politics of Nigerian dominance in a polarized Gambia judiciary, and provide a rare opportunity to assess its impact of the judicial independence and the rule of law.
2. Origins of the Judicial Politics of Nigerian Dominance in the Gambia Legal Sector
The Judiciary is a very powerful institution in governance and this explains why politicians devote a lot of effort to the selection of judges. Conceptually, judicial politics refers to the politicization of the judiciary and the decision making process of the courts in ways that favor executive preferences. The GBA ignited a debate on whether the role of the judiciary in governance in cotemporary Gambia can be understood without a comprehensive understanding of why key legal actors in the Gambia legal sector were/are predominantly from Nigeria and how they interact with other political institutions.
The Gambia has a rich pool of indigenous lawyers of impeccable character whose legal expertise spreads across diverse areas. However, Gambian legal experts are reluctant to serve the Ministry of Justice and the Judiciary of the Gambia.
This has created capacity deficit in the legal sector and informed the need for the Gambia to look elsewhere for legal expertise. Judges in the Gambia were appointed on contracts from other African Commonwealth countries, mainly under the UK Department for International Development/Commonwealth Secretariat (‘DFID/CS scheme’), and Ghanaian and Nigerian technical assistance schemes. Generally, these legal experts were ideally selected from amongst the bench and the public bar in the sending states, but the legal experts from Nigeria were subsequently also tapped from the private bar. The commonwealth experts gradually shrunk in size as the Gambia increasingly showed preference for, and reliance on Nigerian legal experts.
Overtime more Nigerian lawyers were recruited outside the technical assistance scheme, both from Nigeria and locally in the Gambia, to serve as State Law Attorneys and Magistrates. Additionally, two Nigerian lawyers; Christopher Mene and Emmanuel Chime were enrolled as members of the Gambia Bar Association through a contentious process (Mene & Chime v General Legal Council (1997-2001) GR, 969).
With this growth in size, the Nigerian legal-judicial fraternity (Judges, Magistrates, State Attorneys, and Private Legal Practitioners of Nigerian origin working in the Gambia) in the Gambia sought to obtain and retain control over the legal sector by forming a strategic entente with the influential and notorious National Intelligence Agency (NIA).
The NIA was the ear and the eyes of the President, and the President relied heavily on information fed to him by the NIA. With the support of the NIA, the Nigerian legal-judicial fraternity effectively purged the entire legal sector of indigenous Gambians and other nationals who held contrary views.
A controlling influence over the NIA by the Nigerian legal-judicial fraternity assured and enhanced their effective control over the Gambia legal sector. As a consequence, many Gambians were dismissed from the Judiciary and the Attorney General Chambers.
Over time, key positions in the Judiciary and the Attorney General Chambers were occupied by Nigerians. For example, between 2009 and 2012; both years inclusive, the Chief Justice, the President of the Gambia Court of Appeal, a majority of High Court Judges, several Magistrates, the Director of Public Prosecution, the Director of Civil Litigation and International Law, and the Director of the Special Litigation were all Nigerians. Indigenous Gambian legal experts increasingly became conscious and suspicious of this dominance by the Nigerian legal-judicial fraternity, and the politics of survival ensued.
To understand the extent to which this increasingly strong Nigerian legal-judicial fraternity undermined judicial independence and the rule of law in the Gambia, it is important to scrutinize briefly some of the recognized or perceived problems inherent in the Gambian judicial appointment system as it now functions. This will assist in understanding the urgent need for reform.
3. Appointment Procedures for Judges
Usually, judicial independence is enhanced by a series of internal institutional measures ranging from credible appointment procedures, to satisfactory remuneration, and secured tenure. In The Gambia, the appointment mechanism for judges of the superior courts under the Constitution is the establishment of a Judicial Service Commission.
The main structural causes against an effective appointments process is related to the composition of the Judicial Service Commission itself. According to section145 (1) of the Gambia Constitution, the Judicial Service Commission consist of – the Chief Justice, who shall be Chairman; a judge of a superior court; the Solicitor General; a legal practitioner of at least five years standing at The Gambia Bar, nominated by the Attorney General in consultation with The Gambia Bar Association; one person appointed by the President; and one person nominated by the National Assembly.
This composition of the Judicial Service Commission is heavily skewed in favor of the executive, and does not present strong guarantees for judicial independence. First, since the Chief Justice and the Solicitor General are appointed by the President of the Republic, it follows that three out of the six members of the Commission are directly appointed by the Executive. In addition, the only executive consultation required under section 138(1) of the Gambia Constitution for the appointment of the Chief Justice is with the Judicial Service Commission, but the actual level of consultation that occurs or which is legally required is unclear.
Furthermore, by virtue of section 231 (4) of the Constitution, the President is not bound by the views expressed by the Judicial Service Commission. The tendency is that the President will simply handpick a compliant Chief Justice who can do his bidding.
By the same logic, since the Attorney General is not bound by views expressed by the Gambia Bar Association, a less suitable legal practitioner may be nominated. Again, the nomination of a Superior Court judge is usually at the instance of the Chief Justice, and there is no laid down rules on the selection process. In the circumstance, the choice of Chief Justice would greatly influence the choice of nominee for the Commission.
The choice of Chief Justice is also crucial to the institutional leadership of the judiciary and is a critical factor in establishing and strengthening judicial independence and the rule of law.
An important feature of leadership relates to the public perception of the independence of the judiciary. In this regard sections 6(2) and 8(1) of the Judges (Supplementary Code of Conduct) Act Cap 6:01, Laws of The Gambia, 2009 are immediately relevant. As the face of the judiciary, the Chief Justice must strive to ensure that his conduct, both in and out of court, maintains and enhances confidence in his impartiality and that of the Judiciary. The Chief Justice must not participate in partisan or political activity or association, and must avoid any public gathering if he considers that a mere attendance at the gathering might reasonably give rise to a perception of an ongoing political involvement, or put in question his impartiality on an issue that could come before the court.
By section 138(2) of the Constitution, all other judges of the superior courts are appointed by the President upon the recommendation of the Judicial Service Commission.
Accordingly, as Chair of the Judicial Service Commission, the Chief Justice plays a vital role in the appointment of judges of the superior courts, and holds multiple important roles in the day to day running of the courts - the transfer of judges to specific divisions of the courts, the supervision of case allocation, and the allocation of administrative responsibilities to judges.
Statutorily, the Chief Justice is also the Chair of the General Legal Council with powers to moderate the admission of legal practitioners to the Bar as well as the power to discipline them.
In the exercise of these statutory powers as the Chair of the Judicial Service Commission and the General Legal Council, the Chief Justice can influence the direction of the judiciary in important ways. Therefore, the leadership culture of the Chief Justice would help entrench judicial independence and the rule of law or enhance the politicization of the judiciary.
A transparent internal judicial culture is critical to consolidating judicial independence, but under the influence of the judicial politics of Nigerian dominance, procedures were routinized in a ways that were not transparent.
For example, during the tenure of Chief Justice Agim, he conceived and enabled a politicization scheme that sought to perpetuate a strong Nigerian dominance in the Gambian judiciary.
As part of this process, Nigerian based lawyers from the same ethno-political circumscription with Agim were appointed to serve as Magistrates and Judges, while others were appointed to serve at a specifically created ‘Special Litigation Unit’ at the Attorney General’s Chambers.
Yet, others, who were engaged as in-house solicitors in the Gambia were enrolled as legal practitioners. Sensitive and high profile cases were assigned to these judges and prosecuted more often by the State Law Attorneys from the Special Litigation Unit or other State Law Attorneys from Nigeria.
In furtherance of this scheme, former Chief Justice Agim – a Nigerian; frequently assigned the administrative oversight of the judiciary to Justice Joseph Wowo; a Nigerian Judge of the Gambia Court of Appeal, even when there were more senior indigenous Gambian judges serving at the Gambia Supreme Court.
Thus, in the absence of Chief Justice Agim, the indigenous Gambia Justices of the Supreme Court were placed under the administrative purview of a Nigerian Justice of the Court of Appeal. While some saw this as an affront to disrepute the indigenous Gambian judges, others saw it as a succession scheme to ensure the appointment of Justice Wowo as the next Chief Justice.
Upon his resignation in 2012, former Chief Justice Agim surreptitiously handed over the judiciary to Justice Wowo as Acting Chief Justice of the Gambia, bypassing clearly laid down constitutional provisions to the contrary. This in turn, generated internal institutional conflicts and divisions, leading to the eventual prosecution and conviction Justice Joseph Wowo for usurping the functions of the Acting Chief Justice of Gambia (The State v. Joseph Wowo & Anor - Crim. Case No: HC/468/13/CR/178/AO 09/01/2013)
Under the leadership of another Nigerian - Chief Justice Fagnbenle, and under very questionable circumstances that tend to lend more credence to the judicial politics of Nigerian dominance, Justice Edrissa M’bai, an indigenous Gambian, was replaced as President of the Gambia Court of Appeal by a less experienced and junior Nigerian counterpart.
More Nigerians of the same Yoruba ethnic origin with Chief Justice Fagnbenle were also increasingly appointed to the superior court bench.
The judicial politics of Nigerian dominance was enhanced by the fact that the selection and appointment procedure for Superior Court Judges is too secretive, with little public knowledge and scrutiny of the process. Section 139 of the Constitution requires only that justices must be or have been Superior Court judges, or legal practitioners, qualified to practice before similar courts, of at least five years, eight years, and twelve standing respectively for High Court, Court of Appeal and the Supreme Court.
4. Removal Procedures for Judges
Security of tenure is central to judicial independence. To buffer judges from the demands of everyday politics, their tenure is secured under section 141(1) of the constitution by guarantees against unjustified removal.
However, the same constitution provides under section 141(2) that the tenure of office of a judge can be brought to an end at the instance of the executive, albeit, in consultation with the Judicial Service Commission or through a rigorous parliamentary process under section 141(5).
But extant data show that, recourse has never been had to the parliamentary process. Rather, all removals have been at the instance of the executive.
By subjecting the appointment and removal of judges of the superior courts to the executive domain, the Constitution provides the platform for executive purge of the judiciary. This window was exhaustively exploited by the Nigerian legal-judicial fraternity in the Gambia to consolidate their hold on the judicial sector in the Gambia.
Under the heavy influence of the Nigerian legal-judicial fraternity, the NIA issued damaging intelligence reports advising the President of the Republic to dismiss progressive judges and magistrates for not being ‘loyal’ to the system.
For example, in 2009, under the manipulative influence of the NIA, Justice Agim was appointed outside the technical assistance scheme as Chief Justice of the Gambia to replace the indigenous Gambian Chief Justice Abdul Karim Savage. Progressive and activist judges like Justice Moses Richards and Justice Almami Taal of the High Court were tagged and dismissed for not being ‘loyal’. In 2014, the much respected Ghanaian born Chief Justice Mabel Agyemang was dismissed barely six months into her appointment for introducing reforms that sought to strengthened judicial independence and the rule of law. In 2015, Pakistani born Chief Justice Eli Nawaz Chowhan resigned on grounds of executive interference, while two permanent Justices of the Gambia Supreme Court (Gibril Samega Janneh and Raymond Sock, JJSC) were dismissed for not being ‘loyal’ to the system.
The resignation and dismissals came shortly after these judges of the Supreme Court handed down a landmark decision acquitting the former Navy Commander who had been jailed on treason charges.
Executive interference in the judiciary is compounded by the recent executive approach to tap from the superior court bench to service other sectors of government. For example, between 2012 and 2014 four superior court judges (L. Jobarteh (J), A. Joof (JCA), M.F. Singhateh (JCA) and Mahoney (J)) were appointed from the bench to serve as Attorney General and Minister of Justice. Chief Justice Agim is credited with the introduction of this system when he recommended the appointment of Justice Lamin Jorbateh as Attorney General and Minister of Justice.
5. Impact on the Rule of Law
Predominance of regular law and equality of all before the law are the benchmarks of the rule of law. As such, the justice system must operate to ensure a fair, rational and predictable application of the law.
However, the judicial politics of Nigerian dominance established a multitude of invisible normative and regulatory orders which overlapped with, and undermined the regular legal order to produce a bifurcated legal order with an untouchable Nigerian legal-judicial fraternity on the one hand, and their vulnerable Gambian counterpart on the other hand.
This bifurcation entrenched and enhanced an uneven or differential application of the laws between these two groups. Members of the Nigerian legal-judicial fraternity were selectively protected and shielded from the normal application of the law.
As such they were impervious to the ordinary judicial or administrative control of the system. Conversely, indigenous Gambian legal-judicial officers were rigorously prosecuted and convicted for similar offences.
For example in 2012 a Gambian born lawyer – L.K Mboge was vigorously prosecuted, and convicted by Magistrate Alagbe Taiwo of the Nigerian legal-judicial fraternity on charges touching on forgery (See Judgment in Criminal Case No BMC/CC/14/11 of 21/02/2012). However, Barrister Emmanuel Chime who was indicted by the Tax Commission for having filed forged papers in his tax declarations; had the adverse findings against him arbitrarily dropped after lobbying and pressures from the Nigerian legal-judicial fraternity.
Secondly, a leaked audio tape heavily implicated Barrister Christopher Mene in the malpractices that resulted in the trial of Attorney General and Minister of Justice - Lamin Jobarteh, but Barrister Mene was suspiciously protected from prosecution.
Thirdly, available facts revealed that Barrister Uzoma Achigbue - a Nigerian, was heavily implicated in the case against the management staff of the Asset Management and Recovery Corporation (AMRC). In this case, Abdoulie Tamba, Yusupha Jaiteh and Abdoulie Dibba, were tried and convicted by Justice Emmanuel Amadi of the Nigerian legal-judicial fraternity for issuing loans without the required collateral.
However, impeccable evidence shows that the impugned transactions occurred at a time when Barrister Achiqbue was the Legal Officer of AMRC charged with the responsibility to ensure that all such transactions were properly secured. However, he too was protected, while the unsuspecting vulnerable Gambians bore the brunt of criminal prosecution.
6. Impact on Judicial Independence
Conceptually, judicial independence in contemporary legal discourse is seen as the autonomy of the courts from other actors, to the extent that the courts are able to act sincerely according to their own judgments.
However, when courts are treated as political players this will lead politicians to make political appointments, to offer personal or institutional rewards for judicial conduct that is politically desirable and to impose penalties for decisions that are politically unacceptable, and this makes it easier for the executive to use favor seeking judges to harass its opponents.
The GBA affirms that, the Nigerian born Chief Justice Fagnbenle interfered with judicial officials, and transferred cases to specific courts with a view to predetermine their outcome, but also that he caused the dismissal of judges who handed down judgments which were deemed to be against the State’s interest (GBA, 12 Dec, 2016).
This routine of judicial politics led to the appointment of Judges and Magistrates of Nigerian origin whose ethical and intellectual distinctions were not the main criteria for selection. Accordingly, these Magistrates and Judges were often seen by the public as mere adjuncts to the executive.
The frequent dismissal of Gambian Judges and Magistrates under the influence of the Nigerian legal-judicial fraternity led to the more qualified indigenous Gambian candidates expressing disinclination to accept appointments for fear of being ultimately tagged and dismissed. This exacerbated the capacity deficit of indigenous Gambian in the public legal sector.
These dismissals are sometimes preceded with arrests and detentions, and this breeds insecurity of tenure and compromises judicial independence.
By allowing Judges to be recruited from the superior court bench to occupy the political office of Attorney General and Minister of Justice, Judges are tempted to compete and seek for executive attention and favors, and this erodes the independence of judges in crucial ways.
The judicial politics of Nigerian dominance in the Gambia judiciary has received heavy criticism from various circles, as the single most destructive factor that has adversely affected judicial independence in contemporary Gambia.
According to Sidi Sanneh the erosion of judicial independence in Gambia started with the replacement of the Commonwealth-sponsored judges by freelance-judges and magistrates from Nigeria. A.A. Senghore compliments this view when he asserts that all the controversial court judgments that have attracted wide criticism have been handed down by non-Gambian; mainly Nigerian judges who have occupied and dominated the Gambian judiciary (Press freedom and democratic governance in The Gambia: A rights-based approach, (2012) 2 AHRLJ 508-538).
Several meaningful attempts to stem the tides have been ruthlessly crushed. For example, in 2010, Jainaba Bah Sambou was dismissed as Solicitor General following her sincere efforts to introduce reforms that would have reversed the trend.
The trial of Solicitor General Pa Harry Jammeh, Attorney General Lamin A.M.S. Jobarteh, and Secretary General Office of the President Dr Njogu L Bah was intrinsically linked to a strong determination by the trio to resist the surreptitious assumption of the Office of Acting Chief Justice of the Gambia by Justice Joseph Wowo.
By subjecting the appointment and dismissal of judges to the executive domain by the Constitution, the inclination towards a politicized judiciary is high. This, in turn, may be critical to judicial independence and the rule of law because even the most determined and independent-minded judge can be stymied by a powerful executive.
A stronger approach would be first, to reform the composition of the Judicial Service Commission and make the appointment process of its members more credible, and secondly to reform the appointment process for judges of the superior courts.
On the establishment of a strong institutional culture, there is urgent need to create a transparent institutional culture of fairness and social cohesiveness; particularly a strong sense of collegiality within the judiciary. This is critical for the establishment of a strong institution. The yoke of the Nigerian legal-judicial fraternity must be busted. Gambian legal experts must be encouraged to sacrifice to serve their Country as Judges, Magistrates and State Law Attorneys.
On the reform of the Judicial Service Commission, the lone representative of the Bar Association must be nominated directly by the Gambia Bar Association to dilute and avoid any possible executive interference with that process. The superior court judge must be appointed based on clearly identified guidelines with preferences to seniority. The National Assembly nominee must equally be selected based on his demonstrated interest and passion for justice and should preferably be tapped from the civil society or the clergy. The direct appointment by the President should be replaced by the Director of the Law School or the Dean of the Faculty of Law.
On the reform on the appointment procedure of the Chief Justice, and judges of the superior courts, the Judicial Service Commission should be required to advertise vacancies and call for applications. The Judicial Service Commission provides a shortlist of appoint-able candidates for the office of Chief Justice from which the President can select a preferred candidate.
A different type of safeguard is a requirement that the appointments of superior court judges are subject to ratification by the legislature. To be meaningful, this process of legislative scrutiny must be properly structured, preferably with the matter being considered by a fully representative and suitably qualified parliamentary committee.
Whichever approach is adopted, the necessity to select judges who are perceived to have the right values and beliefs towards the rule of law and good governance is crucial. It is essential that candidates for judicial appointment are professionally competent persons of proven integrity who enjoy the confidence of both the governors and governed.
Judge Emeritus Emmanuel Nkea, a Cameroonian, served as Head of The Gambia's Special Criminal Court under President Yahya Jammeh.