The judiciary in governance in the Gambia: the quest for autonomy under the second republic.

Author:Senghore, A.A.
Position:OTHER PAPERS - Report
 
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INTRODUCTION

The justice delivery system of a country is of paramount importance because it guarantees good governance, sustainable development and poverty reduction. (1) This view is contained in the executive summary of the former United Nations Secretary General's (Kofi Annan) roadmap for the implementation of the UN's Millennium Development Goals (or MDGs). In outlining measures that will help promote human security, Kofi Annan cited "[s]trengthening the rule of law and taking action against transnational crime" as being among the most important of such measures. Thus, for peace, security and political, as well as economic stability, to prevail in a country, its justice delivery system must be able to decisively answer the following questions in the affirmative:

* Is public hearing guaranteed?

* Are court proceedings conducted and completed within a reasonable time?

* Do independent and impartial tribunals established by law administer the justice system?

* Does the country's court system have efficacious means of enforcing its judgments and orders?

According to Brobery, (2) public hearing is important because it "connotes transparency, avoidance of corruption and [ensures] certainty." As for the independent tribunal question, this "entails a court system that is truly and meaningfully capable of operating without executive or legislative influences." On the reasonable time factor, Brobery argues that it "implies resolution of the dispute within the period that will not frustrate investment programs." Certainly if an intending foreign investor is a party to a dispute affecting his/her investment, he/she will not hesitate to go to another country if the dispute will drag on for many years without settlement. On the efficacious means question, no judiciary can be referred to as good and efficient if disputes that it can resolve expeditiously, cannot be enforced effectively because of endless frustrating motions, reviews and appeals. (3) Thus, like politicians who decide on policies and policy issues in the executive arm of government, the decisions of judges within the judiciary do have important consequences for society. Judges play the critical role of being arbiters between individuals and public institutions or public authorities exercising powers that may affect individuals. (4) On April 3, 2007, in Independent National Electoral Commission vs Alhaji Atiku Abubakar (Appeal No. CA/A/71//2007), a Federal Court in Nigeria ruled that the Independent National Electoral commission, a tool of the Executive, had no power to disqualify any political party from contesting an election. The Court held that such power is vested in the court as provided for in the laws of Nigeria--Section 32 (5) of the Electoral Act 2006, Laws of the Federal Republic of Nigeria.

Thus, the role of the judiciary to facilitate and control the process of the exercise of power by state agents for the good of society and also to prevent or remedy the incidents of abuse or misuse of power is crucial to the governing process. The judiciary, therefore, functions to ensure legality, fairness, accountability and objectivity in the process of governing. (5) Despite the availability of a plethora of literature addressing various aspects and issues of governance, law and justice in The Gambia, almost all of that literature tends to focus on issues other than the specific role of the judiciary, its performance and the problems it encounters in administering justice in governance in the country. Some of these studies have examined questions such as (1) the law and legal profession in serving the community; (2) crime prevention as a precondition for development of international human rights norms in The Gambian legal system; (3) good governance and poverty alleviation; (4) the challenge of law to development; (5) the law and the media; (6) the rule of law as a means of ensuring sustainable economic development; and (7) the Senegalese-Gambian relationship in the context of Gambian diplomacy. (6)

Some other studies have attempted to carry out an extensive analysis of the history and development of newspaper journalism in The Gambia, the media, press freedom and governance, military rule and democracy, as well as the prospect of democratization under Jammeh, and the history and practice of globalization in The Gambia. (7) There is also some literature on the progress and practice of good governance in The Gambia, as well as on the political history of The Gambia, covering issues such as the country's social and economic setting, constitutional changes, partisan politics, electoral politics, external relations, the 1994 coup and the Jawara legacy. (8)

Furthermore, views have been expressed on the juridical foundations of governance in The Gambia, both under the First and the Second Republic, institutions of the State, its sovereignty, citizenship, the judiciary as an arm of government and its structure, the position of the Attorney General as a political appointee within the judicial system, as well as public finance and local government matters in The Gambia. (9) These studies have produced useful information and detailed analysis of the various issues of governance. However, much of that literature does not specifically address the question of the judiciary, its role, performance and challenges in governance under the Second Republic of The Gambia. Thus, in an attempt to expand the realm of the existing literature on various issues of governance in The Gambia, the present study focuses exclusively on the judiciary, its performance and problems.

THEORETICAL AND CONCEPTUAL FRAMEWORK

The judiciary is that branch of government established to interpret and administer the law. Constituted by the courts and the judges, the Judiciary determines "disputed questions of fact and law in accordance with the law laid down by parliament and expounded by the courts." (10)

The phrase "Judiciary in Governance" refers to the composition, order of hierarchy and functions of the judiciary within the structure of government as well as the important role it plays and challenges it faces in the governance process. On the other hand, an autonomous or independent judiciary is one that operates to deliver justice without being hindered by any form of interference or pressure, political or otherwise.

For the Judiciary to be autonomous, it must be able to carry out its functions independently of executive and the legislative arms of the government. This principle of independence of the judiciary is one of the pillars of democratic Governance. (11) As for government; it means the machinery and institutional arrangement for the exercise of sovereign powers for serving the internal and external interests of the political community. The judiciary occupies a central position within the overall structure of that machinery and institutional arrangement. On the other hand, governance is the process, as well as the results, of making authoritative decisions for the benefit of society. (12) It means the act or process of governing, and specifically refers to authoritative direction and control. According to Mander and Asif, (13) "[g]overnance is a broader notion than government, state and regime and it is the interaction between formal institutions and those in civil society". In other words, the process of governing is specifically an act of making authoritative decisions and control, and the judiciary wields a considerable part of this authority. At common law, the judiciary is traditionally considered the safe protector and guardian of human rights. This is because, the role of the common law judge is essentially to interpret and enforce the law. This role of the judge under the common law system is extremely important to the process of governing because the law, whether the constitution or the ordinary law, is what the judges say, it is. (14)

Today, the judiciary is recognized as the third branch of government with the executive and the legislature being the first and the second estates respectively. Judges of the courts system act on behalf or in the name of the government of the day. Thus, if the maintenance of the state government on a daily basis is the sole function of the Executive, the authoritative interpretation and actual enforcement of the laws passed by the government's legislature is a sole function of the judiciary. Society cannot govern properly, smoothly and successfully in the absence of an independent, efficient, well-motivated and vibrant judiciary. According to the principle of separation of powers, the judiciary should carry out its functions independently of the executive and the legislature so that the former can effectively hold the latter to accountability. "Broadly speaking, there are three methods of ensuring governmental accountability" and the most important of these methods is its accountability to individuals through the courts. (15) This is a direct reference to the principle of judicial review of the executive, known as the supervisory jurisdiction of the courts over the administrative or the executive authorities. According to this principle, the courts have power to police the legality of decisions made by public authorities or executive orders of the government and also to determine the constitutionality or fairness and reasonableness of any legal authority or legislative instrument made by lawmakers.

For the purpose of this study, it would be appropriate to examine the composition and hierarchy of courts, the appointment of judges, their tenure and other matters of relevance to the judicature system in The Gambia. Thus, the section that follows looks into those issues.

The Judicature of The Gambia

Sections 120 to 148 of the 1997 Constitution of The Gambia deal with the structure, composition and jurisdiction of the courts in The Gambia. There are two main categories of courts in The Gambia, namely,

* The superior courts comprising...

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