Kemeseng Sanneh (Kexx)
The president during the opening of the legal year assured the population that his Government will come up with a new constitution.
“This is not going to a constitution that will empower one individual but a citizen constitution,” he said.
The president said over years, his government took giant strides to uphold good governance, democracy, and the rule of law, especially with regard to the separation of powers between the three organs of government, adding that they have accomplished a lot towards the establishment of justice and the provision of legal services through the Ministry of Justice.
President Bartow said in implementing the recommendations of the TRRC, his government is working with relevant stakeholders and partners to establish a prosecution system to impartially try the perpetrators of human rights abuses and violations mentioned in the TRRC report. He added that the Government’s would set up a Special Prosecution Office mandated to investigate and prosecute accused persons within its terms of reference.
He further stated that government would create a hybrid court to try perpetrators whose offenses amount to international crimes.
He points out that his government’s decision to establish an independent National Human Rights Commission to effectively advance human rights in The Gambia has already gained international approval.
President Barrow said the Access to Information Act raises the prospects for greater transparency and accountability in which the Government has facilitated the training of Record Officers from different Ministries for them to execute their mandates as required within the provisions of the Act.
“My Government understands the implications of misinformation and false news fed to the public, and we have full respect for freedom of expression and association under international law. As such, we should all take responsibility to willingly implement the Act and safeguard our democratic institutions. This is essential for sustained peace, order, and national stability,” he noted.
He revealed that in order to address the welfare of the sector personnel, Cabinet recently approved the long-awaited Judicial Officers Remuneration and other Entitlements Bill which the Ministry of Justice will present to the National Assembly soon, adding that that will lead to the first-ever legislation to regulate and protect the conditions of service of Judicial Officers, particularly Judges of the Superior Courts.
He also revealed that Cabinet approved the Legal Practitioners’ Amendment Bill and the Bill has provisions to guide the General Legal Counsel on free legal services for needy persons, as well as strengthening the regulation of legal practice and address the backlog of cases in the Judiciary and ensure equal access to justice, with the additional courts that operate within the Bundung Law Courts Complex.
The President said they have re-constituted the Judicial Service Commission, guided by the Constitution, and other responsibilities, to advise the President on the appointment of Judges and make recommendations on ways of improving the administration and efficiency of the Courts geared towards maintaining the independence of our judicial system.
“The security services have also made improvements on the execution of their duties, and they are aware of the need to operate under the rule of law. Correspondingly, there are ongoing efforts to guarantee the rights of prisoners and improve prison conditions to ease the rehabilitation and reintegration of inmates into society after imprisonment. The Government will pursue this further through partnerships with NGOs and train prisoners on rights issues and essential life skills,”
He said the approval of The Gambia Prisons Amendment Bill, 2023 is another big leap towards better prison management and good governance. Saying once enacted, the Act will establish The Gambia Prisons Services and The Gambia Prison Service Council to regulate the prisons, custody treatment, and prisoners’ rights in compliance with our obligation under international law.
“We have enacted other legislations, including the Disabilities Act and The Gambia Public Procurement Authority (GPPA) Act. To effectively fight corruption, the new Procurement legislation will complement the Anti-Corruption law, which is currently before the National Assembly,”
THE CHIEF JUSTICE
Justice Hassan B. Jallow
On his part, Chief Justice Hassan B. Jalllow did point out the size of the workload cases on the rise.
“In the year 2022, a total number of 11,568 new cases were filed across all the courts from the Supreme Court to the Subordinate Courts – the magistrates, Cadi courts Children Courts as well as the Specialized tribunals. This represents a significant increase of 30% on the 8882 cases for the year 2021. In 2022 the courts were able to dispose of a total of 6,800 cases representing 58% of the workload and an increase of 1,978 on the total of 4822 cases disposed of in 2021,” he said.
He said the majority of the case workload of the courts relates to civil matters, a significant portion of them being land disputes from the West Coast Region. Some of the land disputes involve communities, some emanate from the alleged activities of estate agents.
“Unresolved disputes over it can have an impact on communal peace and stability. Speedy resolution of land disputes is thus very essential. As is the speedy and fair resolution of commercial disputes for the economy,” he added.
He encouraged the government to establish a well-resourced Land and /or commercial Disputes Court as envisaged by the Judiciary Strategic Plan, adding that should be accompanied by the review and reform of the legal sector relating to the land to provide for a more efficient and effective system of land administration.
He said the estate agency sector remains unregulated and needs an urgent address for the enactment of laws that regulate the activities of estate agents including their registration, qualification, supervision, and discipline.
He expressed concern at the growing list of cases before the courts and the apparent lack or failure of efforts by parties to civil disputes to settle out of court before, or even during litigation, adding that Litigation in civil matters should be a last resort.
“The courts should only be called upon to settle civil disputes which the parties are unable to resolve,” he said.
He said serious efforts at out-of-court settlement should be deployed by parties to a dispute which he said does not appear to be the case in many matters currently before the courts.
“Accordingly the Rules Committee presided over by the Chief Justice and the President of The Gambia Bar Association has adopted an amendment to the Rules of the High Court which now make such efforts at out-of-court settlement mandatory and a condition precedent to the hearing of any civil matter,” he said.
He said the amendment to the Rules will be published and will come into force shortly, in order to strengthen the court connected ADR System, the USAID through the ABA as well as the Weinstein Foundation based in California USA will be providing training for a corps of mediators, arbitrators and conciliators to support the efforts at out of court settlements.
He appeals to all counsel and litigants to heed these new rules and comply with them, adding that it will save them, and save much time and resources.
He said the public concern at delays and the demand for the speedy disposal of cases is a concern and every litigant is entitled under the Constitution to have his or her case heard and determined within a reasonable time.
“Some delay is inherent in the system of justice and is often necessitated by due process and fairness requirements,” he said
He said the overriding goal of every court must be to avoid delays and to hear and determine cases within a reasonable time. He said judicial officers are required to observe punctuality and diligence and be at work on time to avoid unnecessary and prolonged adjournments of cases.
“Deliver judgment when the case is still fresh in your mind. Be guided by the three months target between last adjournment and delivery of judgment set by the Constitution as your objective. Above all demonstrate the highest standards of honesty, integrity, and fairness in your work,” he highlights
He said efficient management of criminal cases continues to be their major objective, particularly those accused who are in pretrial detention or remand. The practice instituted of setting aside specified periods of the year for all the courts to focus on criminal cases continued in 2022 with the holding of two such special sessions.
“I propose to supplement that practice with two additional measures to be promulgated in Practice Directions to be issued by the Chief Justice pursuant to Section 143 of the Constitution. Following consultations with relevant stakeholders, I will shortly be setting up a Judiciary Prisons Visiting Committee which will be mandated to visit and audit the remand wings of the prisons and also cases of prisoners on appeal every six months and to report to the Chief Justice on instances of prolonged detention and recommend remedial measures accordingly. The audit will assist in ensuring that accused persons do not linger in prolonged custody without being brought to court,” he promised.
He promised to issue a Practice Direction to Judges and Magistrates requesting them to consider and decide on granting bail or discharging the accused where the prosecution has failed to proceed diligently with a case ninety days after the institution of proceedings.
“This is intended to encourage prosecuting authorities to proceed more expeditiously and diligently with the cases of those charged and remanded into prison custody,” he said.
He further said that it is now proposed to provide a legal framework for the establishment and operations of the Judicial Training Institute as an autonomous body whose mandate will now extend to providing training for not only judicial officers but also for all legal officers and law enforcement agents in the public service, adding that the are looking forward to the early enactment of the legislation and the commencement of the Institute’s operations under a full-time management guided by a Board of Directors.
He said in the course of the new legal year their primary focus will naturally be on the core activity of the judiciary i.e the hearing and determination of cases fairly, efficiently, and expeditiously, and other matters that impact on the discharge of their mandate, improving the physical infrastructure of the courts, particularly with additional courtrooms, more office space and better storage for our archives and exhibits, the reform of our rules following the conclusion of the consultancy to review them, greater use of technology particularly in recording and transcription of court proceedings and in case management and they will continue to improve the capacity of our human resources through recruitment and training, better staff supervision and performance evaluation.
He promised that in the months ahead efforts will be made to fill the existing vacancies on the High Court bench with the recruitment of qualified and suitable Gambians.
He said in ensuring accountability for the crimes identified by the TRRC will create a substantial additional workload for our courts, adding that they need to strengthen the capacity of our courts to manage this workload quickly and efficiently.
“I propose therefore shortly to establish by Constitutional Order a Special Criminal Division of the High Court to hear and determine these cases as well as other serious criminal cases which fall outside the scope of the TRRC,” he said.
MINISTER OF JUSTICE
The Attorney General and Minister of Justice said since the publication of the White Paper on the TRRC Report, the Government is currently in the process of preparing its implementation plan which will be launched during the first quarter of this year in the form of an international stakeholder/donor conference.
He revealed that the Government has finalised consultations and has drafted the Victims Reparations Bill to create an independent body to administer reparations for victims.
He also said the government is similarly in the process of setting up an interim medical board to review and provide emergency medical care for victims of human rights violations particularly the victims of April 10 and 11.
Jallow said in the area of accountability and justice, the Government is currently working with ECOWAS towards setting up Hybrid Court for prosecutions, adding that while awaiting the launching of the implementation plan to guide the overall implementation process, the Ministry of Justice is actively implementing the White Paper, especially recommendations that do not require significant financial resources to implement.
“It is commendable to note that the Ministry is playing a key role in the prosecution of some of the Junglers in the United States of America, Switzerland, and Germany for the human rights violations they committed during the Jammeh regime,”
PRESIDENT, BAR ASSOCIATION
The President of the Gambia Bar Association, Salieu Taal, said the commemoration of the legal year is an opportunity for primary actors in the legal sector – The private Bar, State Law Office ( Ministry of Justice ), and Judiciary, to take stock, review and share their perspectives on issues that impact on the administration of justice and the rule of law, including challenges, shortcomings in the sector and chart a way forward for the year ahead to achieve our common objective of strengthening the rule of law and enhancing access to justice in an effective and efficient manner.
He said 2017 to date, the demand for justice through the courts has increased exponentially, which he described as due to the public’s increased expectation of the impartiality and independence of the judiciary following the 2017 democratic transition.
“It is fair to say, that from 2017 to date, the judiciary has delivered landmark judgments which among other things have reiterated the supremacy of the constitution, the limits of legislative authority, the limits of executive power, the enforcement of fundamental rights, limits of constitutional immunity to name some examples,” he said.
Taal said the road to justice is still a pipe dream for the average litigant in the Gambia and a long one for that matter High-profile cases tend to get expedited hearings and are concluded in relatively shorter period of time. However the majority of cases both civil and criminal can take an inordinate amount time to be concluded in our jurisdiction.
He said delays in the conclusion of cases is even more problematic in criminal cases especially in relation to accused persons charged with non-bailable offences or impoverished defendants unable to fulfil bail conditions.
“This continues to add to the backlog of cases in the court system. The private bar, Ministry of Justice, the police and the Bench all have a collective responsibility to do more in this regard to help expedite delivery of justice effectively and efficiently,” he said.
The President of the Bar calls on the continued investment in human and physical infrastructure which will greatly improve the delivery of justice and which will end the Judiciary’s expansion of the courts and recruitment drive. He also calls for the allocation of more resources to support the judiciary from the State and development partners.
He point out another challenge faced by litigants in the jurisdiction is the long delays and difficulties faced in the enforcement of judgments. He said the enforcement of judgments particularly in land matters is fraught with serious challenges and difficulties in the Gambia.
He further state that it is not unusual for litigants to have judgments and yet unable to enforce their judgments over a number of years after the exhaustion of all appeals, adding that the current state of affairs with regards to the enforcement of judgments is really deplorable and needs urgent attention.
“Non-enforceability or undue delays of the enforcement of judgment seriously undermines confidence in judicial processes,” he said.
He assured the Judiciary that the Bar as a stakeholder is looking forward to working closely with the judiciary in its quest to review the rules of courts to help ease the bottlenecks in the court system.
He said the judiciary has done well in terms of ensuring the representation of women at all levels of judiciary and hope the other arms of State will take cue from the the judiciary in this regard.
Salieu Taal said last year the judiciary and legal sector has come under enormous scrutiny and attention for many reasons. He said lately, the public’s confidence in the administration of justice has suffered a setback due to highly publicised cases which exposed the slow grind of our justice delivery system amongst other challenges.
“We believe that the Judiciary and Bar should do more to improve the administration of justice to enhance the public’s confidence in the legal sector. Whilst some of the criticisms are unwarranted and misplaced, it is my candid view that we can do much better by engaging in public education and engagement to inform the public of the workings and challenges of the legal sector,” he said.
He said the public and even the media need to be informed of the role of the bar and the bench as well as the court system, adding that the bar is committed to work with the Judiciary as stakeholders and partners to help educate the public on germane legal matters.
He said today 2023 the country still have the same 1997 constitution, the same criminal code, public order act, elections decree and draconian practice directions from the Jammeh era.
Taal said the legal order of the previous dictatorial regime is still intact yet to be supplanted after 6 years of our transition from a dictatorship in 2017, adding that the Gambia we decided is yet to be realised.
“It is really DISHEARTENING to maintain the arsenal of draconian laws the Jammeh era in our books under ur current dispensation,” he said.
He said as rule of law institution, the Bar is calling for the prioritisation of a new constitution to replace the 1997 constitution and the repeal of all the repugnant undemocratic laws that don’t conform to international human rights norms and values.
“We cannot speak of the rule of law if we continue rely on a body laws that are really designed for a dictatorship,” he said.
He emphasised that it is important to ensure that the TRRC implementation transcends partisan politics and the quest for justice after the truth seeking process is recognized as an integral part of coming to terms with our brutal past and saying no to impunity.
He concluded by calling on the President to personally champion the implementation of the TRRC recommendation to ensure accountability and reconciliation.
“Your Excellency, in Dec 2016 we turned to a new chapter when we decided to boot out dictatorship and tyranny under your leadership. The last leg of the journey to is to ensure that Gambians will Never Again be subject to such brutality and abuse by anyone or system. This we owe to generations of Gambians to come,” he concluded.