By Sarjo Barrow, Esq.
On Friday, Edi M.O. Faal was sworn in as The Gambia’s new Chief Justice. Just hours earlier, the Gambia Bar Association had asked the Supreme Court to overturn his appointment, questioning whether he meets the requirements set out in the Constitution.
I have already discussed the constitutional requirements for this office and how they relate to Mr. Faal. Even though some criticize the Bar, it’s important to be clear: their lawsuit is not driven by malice. The only question is whether the appointment follows the Constitution. That’s what matters here.
The Pension He’ll Never Collect
I’ve seen it suggested that Mr. Faal walks into a windfall—a brief stint as CJ followed by a generous pension. This is not true, as the law does not allow for it.
The Judicial Officers (Conditions of Service) Act sets a vesting period. A Chief Justice can only get the main pension, which is 75 percent of their last monthly pay, after serving five years as Chief Justice. This does not include time spent as a lawyer or in other judicial roles. It must be five years as Chief Justice.
By all indications, Mr. Faal will fall short. He was reportedly born in 1954, which means he will reach the mandatory retirement age of 75 before five years pass. Because he has never held a prior judicial post, he also cannot reach the five-year mark the Act requires for a retirement gratuity. The result: no pension and no gratuity.
So, whatever one thinks of the appointment, this should be said in fairness to him: he is not here for the money. There is none waiting.
Vesting Isn’t Punishment—Ask America
Some will hear “no pension after serving as Chief Justice” and call it unfair. It is not. It is simply how a proper system works.
In the United States, federal judges can retire under the Rule of 80. This means a judge’s age and years of service must add up to at least 80, with at least ten years as a judge. If they meet this, they can retire on full salary. If they do not, they get nothing, no matter their reputation.
Like Mr. Faal, an American judge who serves only a short time does not get a pension. Requiring several years of service before earning a pension is not an insult to anyone. It is simply the cost of a benefit meant to reward a full career, not a brief appearance. But this comparison shows something unusual in our own system.
Why Is the Chief Justice a Special Case?
Reviewing the pension law, I noticed an anomaly worth closer examination.
Under the Act, all judges except the Chief Justice must serve at least ten years to get a pension. The pension amount increases with age at retirement: 50 percent at 65, 70 percent at 70, and 75 percent at 75. Only the Chief Justice can get the highest rate after five years, with no age requirement.
It raised the question: why is there an exception? The Chief Justice leads the judiciary, so it makes sense for the position to have the highest salary. But a pension is a reward for years of service. In that sense, a Chief Justice’s years should count the same as a High Court judge’s. In the United States, the retirement law treats all judges the same. The law applies to any justice or judge, with no special rule for the Chief Justice. This is a model The Gambia could consider.
If we decide to change how judges are paid, the Chief Justice’s pension should match the others. The Chief Justice can lead with salary, but when it comes to pensions, a judge is a judge.
Silence Is Not Disqualification
So much for the money. There is another criticism, and it is not about pensions. This one is directed at the Bar Association. Some people say the Association should not raise a constitutional issue now because it stayed silent during 22 years of dictatorship.
But the argument goes too far. It attacks the messenger instead of addressing the issue. Silence in the past does not strip anyone of the right to defend the Constitution today. And the history is more complicated than the critics allow: beyond the cases the UDP brought as a party, many of the important challenges to the old government came from Bar lawyers, sometimes acting as individuals rather than under the Association’s banner.
Justice Cardozo once warned against letting a criminal go free simply because the police had blundered. The same principle applies here. We do not wave through a possible constitutional breach just because the people raising it have an imperfect past. The real question is whether the Constitution was followed—and to say otherwise, that the Bar’s history lets the government ignore the Constitution, sets a genuinely dangerous precedent.
The Bigger Question: How We Pay Our Judges
Step back, and the debate about Mr. Faal points to something we rarely discuss: how we pay our judges.
Consider the numbers. The Chief Justice’s basic salary is D100,000, but the full package is D290,000. Basic pay is barely a third of the total. The rest is allowances—and allowances are where the tax advantages live. Income tax appears to fall mainly on the small basic figure; the gratuity is written into the law as non-taxable; and the pension is calculated on total pay, allowances included, not on basic salary alone.
This raises an obvious question: do regular civil servants like nurses, teachers, and clerks get anything similar? Their pensions are usually based on basic salary, which is the smallest part of the pay package here.
None of this argues against paying judges well. Independence has a price, and a bench that isn’t paid fairly is a bench exposed to pressure. But if we are opening this law, let’s do it in daylight, and ask the hard question while we’re at it: can we defend a structure of low taxable salary, generous tax-free allowances, and a pension built on the full package to every other Gambian who works for the state?
The court will decide who becomes Chief Justice. The rest of us should use this moment to address a bigger issue: how, and how fairly, we reward the people who judge us and, more broadly, everyone who serves the public. Maybe it is time for a single, uniform retirement package for all civil servants.
