TAT commentary by Alf Soninke
I listened recently to The Final Take With MK, the regular online podcast by Sainey Marenah, where he interviewed Sarjo Barrow. After listening to the U.S.-based attorney, it dawned on me how heavily we in Gambia depend on Sarjo Barrow for the legal perspective on trending issues in Banjul.
Surely, our learned compatriots of the Gambia bar, with many years of learning and legal practice under their belt, must do better. Indeed, I feel that they should be more proactive in enlightening us on matters where we need the insights of a legal luminary.
In that Final Take With MK, the Gambian-American attorney commented on the recent matter of one Reni, said to be an associate and a suspected financier of Kebba Madi Bojang of the NDP (National Democratic Party).
Bojang, according to social media reports, has been able to acquire vehicles and motorcycles for campaigning by the NDP, after he declared his intention to participate in the December 5 presidential election.
Meanwhile, NPP president Musa Drammeh boasted on national television recently about the NPP achieving and doing far more and far better – in terms of acquired properties – than any Gambian political party, since the creation of the republic.
The occasion – as usual highlighted on GRTS TV – was the distribution of new saloon cars and pickups, as well as motorcycles to NPP militants.
Drammeh mentioned the acquisition of properties countrywide, such as the multi-million dalasi NPP regional party bureaus, including in Banjul, and the party’s new headquarters building in Bundung.
The man knows what he is saying, as he has been in the political arena since the first republic; and served as an MP for Sandu constituency, and a parliamentary secretary in Jawara’s government.
Drammeh spoke of the many vehicles the party owns since inception, plus hundreds of motorcycles bought to enable party workers to campaign countrywide.
Their duty, he added, is to spread the party’s recently unveiled manifesto, and campaign for the re-election of Adama Barrow in December 2026 for a third term in office.
In fact, the NPP leader, Adama Barrow, speaking at the same event, announced that his party will also procure and provide vehicles for the use of its coalition partners.
Then I recall an earlier TAT commentary, where I said that all indications are that the NPP is “filthy rich”!
Indeed, as the party’s President himself pointed out when speaking at the said event, the NPP is by far wealthier than any political party ever to rule in this country.
And, still thinking about claims seen on social media that the actions taken against the opposition party were “politically-motivated”, I wondered why the police got drawn into the Reni-NDP affair, and how state agencies became involved in the way we all witnessed!
Especially when it was public knowledge, and as widely reported, again on social media, that the newly registered UNITE party had also earlier acquired vehicles and motorcycles for the election campaign, without being publicly investigated – and persecuted?
And, so you also wonder why the police would go after the NDP’s suspected sponsor, but have not been reported to engage in a public probe of UNITE and the visibly “filthy-rich” NPP.
In any case, this latest development in the political arena highlights the issue of political party funding in Gambia, and the need to review the country’s electoral laws and strengthen the IEC in ensuring a level playing field for all politicians.
I started this commentary mentioning the Final Take With MK show with counsel Sarjo Barrow, and my expectations of Gambian lawyers.
The GBA recently held an “emergency meeting” reportedly attended by, among others, several senior counsel.
As an association, one would assume consultations among members – some of whom are constitutional and human rights lawyers, including past Justice Ministers – before it issued on their behalf that statement about Pa Edi Faal being deemed not qualified for appointment as Chief Justice.
We have not seen any dissenting statement from any GBA member, which suggests unanimity on its position.
However, the appointment was supported by the JSC, whose members – as spelled out in the Constitution – include the CJ as chairman – meaning that the outgoing CJ (Hassan Jallow) himself had approved appointing Faal as his successor.
Section 138 (Appointment of judges) states: “The President shall appoint the Chief Justice after consultation with the Judicial Service Commission (JSC)”.
The JSC members include another “judge of a superior court”, a “legal practitioner of at least 10 years at the Gambia bar, the PSC chairman, a person nominated by the National Assembly, and one person nominated by the President.
Which suggests that all these persons (beginning with the JSC chairman) and institutions endorsed Faal’s appointment.
Or is it possible that the JSC deferred to the President? After all, it’s on record that chief justices in this country have in the past been appointed based on the preferences of the President!
It is noteworthy that the Ministry of Justice and the Attorney General’s Chambers are not represented on the JSC!
Yet, crucial to this matter is the fact that the Justice Minister is the chief legal adviser to the President of the Republic.
In any case, there is this reality that the GBA stance pits it against the JSC!
And, since the lawyers are not speaking up, and just a few have been heard helping us to understand the issues (and confusing us?), it became imperative to look at the Constitution and, as a layman, to share with readers what I observed, as follows:
There is the much-cited section 139 (Qualifications for appointment of judges), which clearly states that:
A person “qualified for appointment as Chief Justice” must be someone “qualified to be appointed judge of the Supreme Court;
Has been a judge of a superior court in a common law country for not less than ten years;
Has held office as a judge of the Court of Appeal for five years;
Has served as a judge of a court in a common law country for five years.
Then the question arises: Has the appointee Faal ever “held office as a judge”?
Section 139 further states that he would qualify if Faal worked as a legal practitioner before a court in a common law country for not less than 12 years.
This requirement for practice in a common law country is also in the debate.
Section 139 (5) says a “common law country” “means”: “a country within the Commonwealth” or a “country outside the C/wealth prescribed by an Act of the National Assembly for this section the courts of which exercise a common law jurisdiction”.
Did the National Assembly ever produce “an Act” prescribing – “for this section” – “a country outside the C/wealth” where the courts exercise a common law jurisdiction?
If so, was America – where Faal is based and practiced for the past decades – “prescribed”?
In my view, this question and the answer to it are pertinent to the debate on Faal’s eligibility to be appointed as Chief Justice.
Now, the purpose of this article is to point out that journalists are required to use competent sources for the information they share with the public.
Thus, I endeavored to look at the Constitution and to share my thoughts on the relevant sections with the reader.
Ideally, our lawyers, as the real experts, should be taking the lead in enlightening us on legal issues such as this one.
They must never cede that space to journalists and PR hacks, nor to non-specialist persons parading as scholars and intellectuals.
