How Yaya Jammeh Is Able To Manipulate The Judiciary
By: Wandifa Sanneh (Nyancho)
The appointment of Nigerian prosecutors Akomaye Agim as Chief Justice, Wowo and Emmanuel Fagbenle as High Court Judges constitutes a pernicious regression to the administration of justice in The Gambia. To add salt to injury, the recent appointments of Nigerians as Principal Magistrates of all Magistrates Courts throughout The Gambia concludes the ultimate colonisation of our judiciary by Nigerian mercenary lawyers. Let’s remember that they are the ones controlling the prosecuting team at Ministry of Justice as well as principal advisers to the Attorney General. The Director of Civil Litigation is also a Nigerian, as well as the ones drafting our laws. They command our sovereign fate by law, thanks to principal conspirators Yaya Jammeh and Justice Minister Marie Saine Firdaus.
Agim initially surfaced on the scene around 2001 as Director of Public Prosecutions, Attorney General’s Chambers. His stint at this post, according to members of the Bar Association, witnessed some of the worst prosecutorial indiscretions in Gambian history, and the banishment of legal ethics from the halls and corridors of state justice. He is also on record the most powerful DPP in Gambian history, conned his way to become President of The Gambia Court of Appeal (thanks to Shiekh Tijan Hydara); and now as head of the Judiciary and the most powerful judicial officer of the Nation’s highest court of law.
Jammeh was so thrilled with Agim and Fagbenle that he placed them on private legal contracts after the Nigerian Government refused to let them stay under bilateral protocol and complaints from concerned Gambians, with all manner of benefits, perks, monies, you name it to serve his personal interests in the law courts!
Emmanuel Fagbenle succeeded Agim as the Director of Public Prosecutions until his recent appointment to the bench, and continued the gross manipulation of Gambian law. He doubled as the special confidant to former failed SoS Shiekh Tijan Hydara, then to current SoS the meek and boneless Marie Saine. He reportedly acted as the defacto Minister of Justice, writing speeches and legal opinions for Cabinet which were later presented by both Hydara and Marie Saine as their own, especially due to Hydara’s legal intellectual mediocrity. I can predict here that Fagbenle will eventually be elevated to the Court of Appeal by his confederates. Judicial sources disclosed that with the appointment of Almamy Fanding Taal as High Court Judge, Fagbenle shall be elevated to the Court of Appeal where Jammeh wants him to be. This meant that even if Gambian judges at the High Court ruled against government, such decisions would be reversed in favour of Jammeh at the appeal court where he fixed his minions. Clearly, Jammeh is playing chess with our justice system.
At the magistrates’ courts level, Jammeh made sure that the principal magistrates who assign cases are all Nigerians. This means that any case in which Jammeh has an interest shall be assigned to a specially selected magistrate in that jurisdiction to make sure that a verdict dictated from State House is obtained. This is why all principal magistrates in The Gambia are Nigerian mercenaries, and does not include a single Gambian, although qualified Gambians are serving. Gambians are playing third fiddle in our judiciary as second class citizens. Judicial sources also revealed a stinking corruption web being operated by the Nigerian mercenary judges. Revelations include bribery, forgery, religion cultism, money laundering involving other Nigerians, and using government judicial stationery for dubious purposes.
I must say that am not able to confirm this, but lawyers I spoke to named two Nigerian judges that they claimed are “very approachable”, a euphemism for a corrupt judge. Most members of the Bar also spoke of the increasing infiltration of the NIA as non legal judicial staff to closely spy on judges, lawyers, litigants, and to send fillers about radical lawyers and Bar Association activities. Sources told me that they are all Jolas, and include process servers, registry clerks and drivers. They are the sort of junior level staff. Leading targets of their spying are Mai Fatty, Ousainou Darbo, Lamin Camara and Bory Touray. There is a perpetual atmosphere of pernicious tension in the judiciary. At least lawyers said that they keep informal information system among themselves of emerging trends, and feeding indirect foreign contacts.
Let me revert to the issue of the mercenary judges. Firstly, the appointments are unconstitutional. Gambian law states that one can only be appointed a chief justice after consultations with the Judicial Service Commission (JSC). My research proves that none of the members of the JSC were consulted by the President prior to the appointment of Agim, and none of them were involved in the process of the judicial appointments. At all material times, Yaya Jammeh unilaterally usurped the legal functions of this very crucial legal institution through wanton desecration of relevant constitutional provisions.
In the case of a high court judge, the President could only appoint on the recommendation of the JSC. In other words, before appointing a Chief Justice, Jammeh must consult the JSC as a sine qua non, and in the case of Fagbenle and Wowo, he has to receive prior recommendation from the JSC. That is to say, legally on his own, Jammeh is not permitted by law to even consider appointments to the high court, let alone appoint unilaterally. However in these cases, Jammeh neither consulted nor received recommendations, acting ultra vires – in excess of powers conferred on him by Gambian law.
Yaya Jammeh proved that he was the law and the constitution does not exist for him. This singular act, to the exclusion of a multitude of violations, renders him unfit to remain President. It earns him the ignominious title of Criminal-in-Chief (CIC).
Technically, members of the JSC are ‘not subject to the direction or control of any other person or authority’. That is to say, under Gambian law, they are supposed to be independent from all and sundry, subject only to the law and their conscience. In reality this cannot be practical under the existing Constitution promulgated by A(F)PRC, and it was intentional. At the time of the drafting of the 2nd Republican Constitution, Jammeh knew that he was going to perpetuate himself in power by crook and hook, and he was smart enough to appreciate that the greatest threat to his hegemony is an independent judiciary. He therefore coerced the drafters of the supreme law to contain all judicial appointments within the powers of the Presidency, but make it look as if in theory the JSC was independent of him.
The drafters manipulated legal encryption in such a manner that only a very keen legal eagle eye would discern the fraud. Well, in the process of researching this article, I had the benefit of talking to such a prominent legal shark to enable me expose Jammeh’s legal barracudas. He shared with me the apparent innocuous provisions that actually asphyxiate judicial appointments.
Let me say here that my research proves that there are at least three ‘constitutions’ (documents) in circulation and all claimed to be authentic. Also due to the profuse frivolity with which the sacred Document has been amended over time, the Sections quoted here while correct in all versions, may differ as to precise sectioning, so bear that in mind.
Section 148 of The Gambian Constitution makes it appear as if the JSC is independent and not subject to executive influence. Let us dissect if this is really the case. To do so, let us inquire as to how its members are appointed, and by whom. The constitutional capacity to appoint or dismiss are enormous tools in the hands of a dictator like Jammeh and it is used for destructive effect.
JSC is a nine member body established by Section 145 of the Constitution and they are as follows:
1. Chief Justice as the chairman
2. Judge of a superior court (could be any judge from the high court, court of appeal or the Supreme Court).
3. Legal practitioner of not less than ten years in the Bar (could be any lawyer who graduated ten or more years ago as a lawyer).
4. Two (2) persons exercising jurisdiction in a subordinate court (could be any two magistrates)
5. Chairman of the Public Service Commission (PSC).
6. A non judge or lawyer who must be an employee of the judiciary (could be a court messenger, driver or cleaner). The law did not specify the qualifications of this appointee from the judiciary nor did it specify how he was to be selected from among the non legal staff of the judiciary. Leaving it open legally means any non legal employee, including a watchman could be eligible for appointment to the Judicial Service Commission.
7. Nominee of the National Assembly (cannot be an MP and so could be the Speaker’s watchman). The law specifically states that members of parliament are not eligible for appointment to the JSC, presumably to preserve the separation of powers. However, all MPs can do legally is to nominate, not elect or appoint, and they could nominate any individual, including an armed robber. This to my mind is because there are again no criteria as to the basics of such a nominee. Therefore, the National Assembly could nominate the Speakers door man, and in law such nomination would be appropriate.
I also discovered what appears to be a hiatus, and I believe it may be intentional. I am advised by my legal contact that a nomination is an incomplete process in that it is only a step towards an appointment or some final confirmation. If a nomination is not further acted upon, it remains an inchoate act, which cannot stand by itself without a substantive confirmation of some sort. That leads to the question who then appoints the nominee of the National Assembly to the JSC. That situation is not provided for in the law, and I am again advised by my contact that this is the correct legal position. It would have been neater to make provision for the National Assembly to ‘elect’ representative instead of the word ‘nominee’. I can then safely say that a gross anomaly exists in the composition of the JSC itself.
I am advised that by providing for a nomination, the Constitution envisages a two tier process – one who nominates, and the other who confirms such nomination. The absence of clear legal barometer or guideline jets the whole issue into a humongous confusion, and is evidence of the confusion of the drafters in securing coerced tyrannical objective against the dictates of clear conscience.
According to my legal contact, the ‘nomination’ proposed by the Constitution with reference hereto is radically different from that envisaged in matters of nominating a non-elected Member of Parliament. The President has the power to nominate to Parliament, and by similar reading to the JSC. Both the Legislature and the Judiciary are equal, but separate arms of government. In both situations, the President is a single authority. In the case of the National Assembly, thirty five individual members in a corporate act must nominate one person to the JSC. Unlike the National Assembly and except in very rare situations, the Constitution accords customary powers of appointment to the President to Boards and Commissions. In this ‘nominating’ situation by the President, a single act suffices as opposed to the two tier phenomenon envisaged in the Assembly’s or similar cases.
8. One person nominated by the President (could be his shoe-shine boy). The Constitution again is silent on the qualifications or criteria to be used in determining this nominee of the President. Further there is no guidance as to this specific nominee of the President. I can say par argumendo, that this is also an abnormality which is subject to gross abuse.
It can be asserted that the nominees (numbers 8 & 9 hereinabove) and currently serving as members of the JSC are ineligible by law from serving. This makes the composition of the JSC legally incomplete, rendering it incapable of making any legally proper decisions.
These are the majesties constitutionally charged with upholding judicial independence, the welfare of judges, the appointment and supervision of persons administering justice in The Gambia.
Except the 9th person above who is directly nominated by the President, at first glance it looked as if all other members are selected outside of the influence of the President. In fact this provision looks so innocuous and so distanced from the President that one wonders. In reality, it contains the lethal sting. Interestingly the draftsman played with apparent public naivety to achieve executive judicial autocracy in 1997 - the object of every dictator.
Let us now dissect the constituent elements of the JSC.
1. The Chief Justice who is the Chairman is appointed by the President under Section 139 (1) of the Constitution.
2. The 2nd Member is a judge of the superior court who must have been initially appointed by the President as a judge under Section 139(2).
3. The 3ed Member is a legal practitioner of ten years experience whose mode of selection is not specified by the law, and should represent the Bar but often represents the interests of the President.
4. The 4th & 5th members are persons with jurisdiction in a subordinate court, which includes a lay magistrate (magistrate without any formal legal training), who are in turn appointed by the President’s personal appointees (JSC).
5. The 6th member is the Chairman of the PSC, who must have been appointed to that post by the President prior to his appointment to the JSC.
6. The 7th member is a non legal staff of the judiciary who must have been appointed to that post by the President’s personal appointee (Chief Justice) prior to his appointment to the JSC.
7. The 8th member is a person nominated by the National Assembly who cannot be a Member of Parliament, often one appointed under the authority of the Chairman of the PSC at number 5 hereinabove.
8. The 9th member is directly appointed by the President again, and can be any person, including a beggar in the street since there is no constitutional standard set.
Clearly, it can be seen that all members of the JSC are appointed by the President, and that explains why he hires and fires judges without referring to them as required under law. Normally, the President should not be able to appoint judges without consulting the JSC, but in practice he never consults them. The process is coordinated by the Minister of Justice with no input from the JSC, and according to my research sometimes even the Minister of Justice is not involved, limiting the process to Yaya Jammeh and whoever is serving as his Secretary General. In effect, the constitutional duties of the JSC has been substantially submerged into that of the Justice Minister, and the Presidency, leaving the JSC barren of all functions but ceremonial, to give a cloak of legitimacy.
There is remedy under law for the President’s transgression against the law here. It is the province of the JSC to refer unconstitutional acts with respect to the judiciary to Parliament so that a violation of the law could be established. If this was the case, an impeachment motion is put into process. In practice this has never happened and is unlikely under Yaya Jammeh. Further, any ordinary citizen with evidence of breach of the law against the President could forward such to Parliament for President’s removal process to commence.
It is time for us Gambians to compel Parliament into taking such extraordinary process or to test their guts. I am advised that should Parliament refuses to act upon a Petition containing prima facie evidence of President’s breach of the law, an Order of Mandamus could be obtained from the courts against the institution. If Parliament flouts the Order of the Court to impeach the President, constitutional crises would envelop our country which would rob Yaya Jammeh of all legitimacy to rule. He would be subject to all perils of ex-communication. To avert this possibility, Jammeh made sure that no such Judge who would issue the writ would be appointed to the bench. This partly explains the invasion of contracted Nigerian mercenary judges of The Gambia’s judiciary.
I would advocate a submission of a Petition to Parliament knowing that they would renege, and then go to court to secure a writ of mandamus. A judge may decline to issue, and would make landmark jurisprudence as to the ratio decidendi of their declination, all the way to the Supreme Court.
Although this is an article written in my personal capacity as a private citizen, and the views expressed are attributable solely to me, I am convinced beyond a shadow of doubt that a newly elected democratic government such as GMC or the like shall repeal these obnoxious provisions as part of the first order of legislative business. An independent judiciary is the greatest bastion against dictatorship, and the best evidence of democracy and good governance. The character of any judiciary is a transparent indicator of the political philosophy of the leadership of any given country.
It is my opinion that a GMC government going by its prominent leader’s (Lawyer Mai N.K Fatty) well known human rights credentials, appears to have the capacity and the aptitude to restore fairness and constitutionality in The Gambia Judiciary. The ultimate solution to achieving legality is for us to remove Yaya Jammeh by all legitimate means necessary and practically support a pro-democracy, pro-human rights candidate.