The Gambia’s quorum trap can lead to a bench he picks himself.
By Sarjo Barrow, Esq.
The Gambia Bar Association says Hon. Edrissa Faal was never qualified to be Chief Justice. Before the Supreme Court can decide if that is true, it must do something that sounds simple but is not: assemble a lawful panel to hear the case. That is where the trouble starts. Per Kerr Fatou, the State has asked four justices to step aside—Chief Justice Faal himself, along with Justices Cherno S. Jallow, Omar M.M. Njie, and Awa Bah. Under our Constitution, the Chief Justice normally decides who fills the empty seats.
Section 125(2) of the 1997 Constitution requires the Supreme Court to sit with an uneven number of at least five judges. Remove four and the bench cannot form on its own. So the recusal motion is not housekeeping. It quietly creates a quorum problem: a court asked to rule on its own head’s appointment without enough untainted judges to decide. The Bar Association calls the worry premature since no panel has been named and no date set. Perhaps. But the arithmetic is clear, and courts rarely benefit from facing a crisis by surprise.
Still, the Constitution leaves a door open. Section 125(1) lets the Chief Justice, in writing under his own hand, bring in a judge of the Court of Appeal to sit on the Supreme Court for a single matter, provided that judge is qualified for the higher bench. On paper, the shortfall is fixable. Temporary justices can be drafted to restore the five.
The catch is who holds the pen. The selection power belongs to the Chief Justice—the same man whose appointment is under challenge. Asking him to choose the bench means a defendant picks his own judges. If he recuses, the Constitution says who presides in his place (section 125(3)), but not who exercises the selection power, so the architect of the substitute bench goes unnamed when it matters most. The old rule is nemo judex in causa sua: no one should be a judge in their own cause. The danger is not only real bias but the appearance of it. As an English court put it a century ago, justice must be seen to be done (R v Sussex Justices, ex parte McCarthy [1924] 1 KB 256). The House of Lords once set aside its own ruling in the Pinochet case because a judge on the panel had ties to a party, Amnesty International—no proof of actual bias was needed; the appearance alone was enough (Pinochet (No. 2) [2000] 1 AC 119).
Other courts have faced this same issue and answered it differently. The United States Supreme Court cannot appoint a substitute justice. Its quorum is six (28 U.S.C. § 1), and when recusals drop below that, the law lets the lower court’s judgment stand as if the Court had divided evenly (28 U.S.C. § 2109). Nobody is brought in. The one exception is where a case cannot be heard unless interested judges sit. The common law “rule of necessity” makes them hear it, on the theory that a closed courthouse is worse than a conflicted one (United States v. Will, 449 U.S. 200 (1980)). When deciding if an interest is serious enough to push a judge off a case, the test is the objective risk of bias, not a confession of it (Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009)). So if this were Washington, no temporary justice would come to the rescue. The case would stall for lack of a quorum, or necessity would seat the very judges everyone wanted gone.
That leaves The Gambia with a few honest paths, each carrying a price. Build the substitute bench under section 125(1), and every ruling invites the question of who chose the judges. Obviously, Hon. Faal under the law. Invoke necessity, and allegedly tainted justices weigh the standing of their own Chief Justice. Or resolve the appointment through the political and administrative channels that produced it, so no judge is asked to bless or bury their own boss. Too late?
Each path protects one value by spending another—finality, independence, or the appearance of fairness. The bench will do what the law allows. Which of these prices the country is willing to pay is a question for its citizens, not only its lawyers.
