By: Imran Darboe, Esq.
The appointment of a new Chief Justice has been centre stage in recent public discussion, and that is, in itself, a positive development. Refreshingly, provisions of the Gambian Constitution are increasingly being discussed beyond the confines of legal circles. Constitutional provisions that would ordinarily remain technical and inaccessible have become part of public discourse and that is desirable in any constitutional democracy. However, what is less encouraging is some of the unnecessarily polemical arguments being advanced from some quarters. Since it is a matter of constitutional interpretation and many non-lawyers have given their two pence, allow me to do the same from my own lawyerly viewpoint. But beyond the strict legal question, I also want to some broader commentary relating to the office and the manner in which it is filled.
The issue of constitutional qualification
Since the nomination (appointment, according to some media outlets) of Mr. Edi M. O. Faal, a distinguished US-based Gambian lawyer became public, the question of his eligibility and qualification has been a topic of contention. The relevant constitutional provision is section 139 of the 1997 Constitution, which sets out the qualifications for appointment of a Chief Justice. The section provides two possible routes. First, a person is eligible if they are qualified to be appointed as a Justice of the Supreme Court of the Gambia, or secondly, a person may qualify if they have been a judge of a superior court in another common law jurisdiction for at least ten years.
Since Mr Faal has not previously served as a judge in any circumstance, the second route is clearly unavailable. Therefore, the only remaining question is whether he satisfies the requirements for appointment as a Justice of the Supreme Court.
Section 139(2) provides two routes for qualification as a Supreme Court judge. A person must either–
- have been a judge of the Gambian Court of appeal or an appellate court in a common law jurisdiction for at least five years; or
- have practiced before a court with unlimited jurisdiction in civil and criminal matters in a common law jurisdiction for at least twelve years.
Again, the first option does not apply because Mr Faal has never served as an appellate court judge. Therefore, his eligibility rests entirely on whether his legal practice experience satisfies the second requirement. The crucial question then becomes, has he practiced before a superior court in a common law country?
Clearly, his qualification is not based on practice before Gambian courts. The argument for his eligibility has been primarily presented based on his extensive legal practice in the United States. This brings into consideration, section 139 subsection 5, which defines what constitutes a “common law country” for the purposes of s139 (the appointment of a CJ). The section provides two categories that qualify as “common law countries” –
- A country within the Commonwealth; or
- A country outside the Commonwealth prescribed by an Act of the National Assembly for the purposes of this section, the courts of which exercise a common law jurisdiction.
The first category clearly does not apply because the United States is not a member of the Commonwealth. The issue therefore turns on the second category.
The argument that has been advanced by many who have attempted to interpret s139, is based on the assumption that, because the United States is objectively recognized as a common law jurisdiction, experience gained there automatically satisfies the requirement for appointment as a CJ. However, that interpretation fails to grasp the actual meaning of section 139(5)(b).
The constitutional definition is not simply whether a country’s courts exercise a common law jurisdiction. The section creates an additional requirement. A country outside the Commonwealth must first be prescribed by an Act of the National Assembly for the purposes of section 139, and the courts of that country must exercise a common law jurisdiction. So, the phrase “the courts of which exercise a common law jurisdiction” does not stand independently. It qualifies the prior requirement, that the country must be “prescribed by an Act of the National Assembly.” In other words, the Constitution does not say that every country whose courts exercise common law jurisdiction automatically qualifies as a common law country. It says that the National Assembly may prescribe non-Commonwealth countries whose courts exercise a common law jurisdiction.
This interpretation is supported by the basic principle of constitutional interpretation which holds that every word in a constitutional provision must be given meaning. If objective common law status alone was enough, the words “prescribed by an Act of the National Assembly” would serve no purpose and would effectively be redundant. Therefore, the deliberate inclusion of that phrase suggests that the drafters intended an additional legislative safeguard before a non-Commonwealth jurisdiction could be recognized as a common law country under s139. consequently, unless there is an Act of the National Assembly prescribing the United States as a common law country for the purposes of section 139, legal practice or judicial service in the US does not satisfy the constitutional requirement, regardless of the fact that the United States is, in ordinary legal classification, unquestionably a common law jurisdiction. It goes without saying then, that if Mr Faal’s qualification for appointment as CJ rests primarily on his extensive and illustrious legal practice in the United States, he does not satisfy the requirements of section 139. The constitutional definition prevails over ordinary legal understanding, and I would presume that none of the proponents for Mr Faal’s appointment will argue that we discard the constitutional provisions of s139 in favour of the argument that he should qualify because he has had an illustrious legal career.
Beyond the Qualification
The legal question aside, those who support Mr Faal’s appointment have made a compelling argument that he brings extensive experience, professional accomplishments, and potentially a reform-oriented approach that they anticipate will greatly benefit the judiciary. Those are legitimate considerations and should not be dismissed. But there are also other considerations that deserve equal attention.
The position of CJ is not merely another judicial appointment, as it is one of the most consequential constitutional offices in the country (third highest I believe). As head of the judiciary, the CJ exercises administrative authority over the judicial system and the effectiveness of that leadership directly affects access to justice, court efficiency, judicial independence, and public confidence in the administration of justice. At the same time, he also presides over the Supreme Court, which is the final court of appeal in The Gambia. Its decisions establish binding legal principles for all lower courts and more importantly perhaps, the it has exclusive jurisdiction over constitutional interpretation and disputes concerning the Constitution. Questions relating to presidential elections, separation of powers, legislative competence, and fundamental rights ultimately place the Supreme Court at the centre of constitutional governance. A CJ is therefore not merely the head of a court. He or she is one of the principal guardians of constitutional supremacy and the rule of law. For that reason, while there is certainly a case for appointing a prestigious legal mind from outside the country, there is also a strong case for also recognizing the considerable talent and experience that already exists within the Gambian judiciary. The current Supreme Court of the Gambia includes highly respected jurists, including a King’s Counsel and distinguished judges with decades of legal and judicial experience, all of whom understand legal doctrine as well as the practical realities of the Gambian judicial system.
Since law does not operate in the abstract but rather, operates within institutions with institutional culture and history, a judge who has spent decades within the Gambian judicial system is better placed to understand the realities faced by magistrates and judges, the nuances of the laws, the expectations of litigants, the challenges of court administration, and the institutional strengths and weaknesses that require reform. That institutional knowledge has value beyond questions of competence. Moreover, appointing from within the existing judicial pool proves that excellence, integrity, and long service within the Gambian justice system (with all the sacrifices it carries) can lead to the highest judicial office, especially in a system where remuneration of judges is not all that, and the sacrifices are more than most lay people care to realize. Thus, to side-step local judicial talent in favour of external appointments, while equivalent or stronger domestic expertise exists, really signals inadequate regard to those who have spent decades building the judiciary. This is not to say that the argument that a Gambian from the diaspora may bring comparative experience, innovative reforms and a fresh perspective is not without merit. In fact, the issue is not whether international experience is superior to domestic experience, or vice versa. What matters is who possesses the qualities required of a Gambian CJ at this time, taking into account the extraordinary constitutional importance of the office and the specificity of the country’s justice needs.
The real folly of the matter
Given all the above considerations, and beyond the present debate over the merits of Mr Faal’s appointment, the most tragic issue, is the process by which a Chief Justice is appointed. That the President can handpick a single individual, subject only to consultations with the Judicial Service Commission that he is not even bound to take into consideration, without any other requirement for a transparent, competitive, or participatory selection process, is disheartening. For the president to have such virtually unrestrained power over the appointment of the person who will preside over disputes involving presidential power, electoral issue, executive authority, and other sensitive issues fundamentally weaken the very separation of powers that the judiciary exists to protect. While it may be arguable that the President can appoint the heads of executive institutions such as the CDS or IGP (although even these need some diffusion of that power), the judiciary is different. Its constitutional purpose is to act as a check on executive power which makes it difficult to justify a constitutional arrangement that allows the President alone to determine who will lead the very institution charged with reviewing his exercise of power. The appointment of a CJ certainly demands a more robust process that inspires confidence across society. This fact brings us back to the unfortunate failure of our constitutional reform process, and why it was so necessary. That is the conversation is something we must urgently have again.
