WHY THE RULE OF LAW IN THE GAMBIA?
By Lamin J. Darbo
Mr Chairman, members of the Executive, the general membership of Gambia United Society (“GUS”), ladies and gentlemen. I am deeply pleased to be accorded the great opportunity of an audience with one of the most successful Gambian organisations in the Diaspora. Congratulations are in order for the visionaries who conceived and delivered a charitable organisation that successfully marries entertainment with serious purpose. For your malaria project alone, the larger Gambian community is in no small measure indebted to the architects of GUS, as well as to all those who continue to support and nurture the organisation in different ways. No glory awaits a people without its dreamers. GUS provides demonstrable proof that life-changing ideas sometimes originate in the humble musings of quite ordinary people.
Mr Chairman, I thank you for ‘agreeing’ to grant me the insurance policy of an excuse should this encounter fell below your legitimate expectations. Even as I readily concede some level of procrastination, the flu has dominated my life the past week, and probably interfered with the task you so heedlessly assigned for tonight. In any event, I wonder if the ultimate product would differ significantly even without the intervention of the flu in my preparations. Never failing to appreciate that I am dealing with a credible civic organisation, as well as a segment of the intellectual leadership of the Gambia, I hope you accept my assurance that I approach tonight with due seriousness.
Notwithstanding, I am not in possession of any radical new discoveries to share on either the doctrinal principles of the rule of law, or its particular conception in the Gambia. I take as an article of faith that what I share is generally understood by virtually the entire adult membership of this distinguished gathering. In that sense, I view tonight as merely an opportunity to remind ourselves about Gambian public life and how its rejection of the rule of law as a principle of governance impacts us in our individual and collective capacities.
I am aware that GUS is a non-partisan charitable organisation and readily accept that orientation as a legitimate prerequisite to making any meaningful headway in its pressing civic purpose. I wish therefore to state that any pronouncements coming across as political are offered only in the context of incumbency in our public life. As the instruments of state power are located in the APRC government, any rule of law crisis in the Gambia is the proper and principal responsibility of the person on whose watch that phenomenon continues to crystallise. As my mother’s maiden name is Jammeh, you may take the view that I shouldn’t criticise my ‘uncle’. I pray the record reflect that my greater love for the Gambia override all other matters touching on the public life of our homeland, the only enclave in this wide world where our essential human dignity will ever be accepted as a given.
Even if I could not commit to a personal presence before this distinguished community, I would have shared my views through others if only as a reminder in underscoring the absolute importance of the rule of law in public life. The magic of the principle transcends geography and culture, is of timeless significance to humanity in general, and of ever greater urgency to us as peoples of the Gambia. In a Gambia where ability is the true measure of a citizen’s destiny, I am in no doubt that in this audience are many with talents to take our nation to soaring heights in the different facets of an integrated society and economy. In the United Kingdom (“UK”), those skills are likely to be undervalued, if not ignored altogether. Not that the UK is blameworthy in the sense it has a core constituency to satisfy. I mention this merely as a reminder that we reject the rule of law in the Gambia at our direct peril!
What then is the rule of law, and why should it matter?
I submit to you that in the global climate of our times, no society can even begin to approach purposeful existence in the absence of rules explicitly stated, understood, and applicable to all without distinction. Stated differently, I contend that no society can meaningfully endure in a climate where lawlessness pervades the spirit of its public life. And this, notwithstanding the abundance of requisite human and material resources for instituting a vibrant and integrated social and economic community!
As a concept, the rule of law is one of those political principles whose ostensible embrace by all shades of ‘leaders’ makes it susceptible to perverse interpretation and the confusion naturally attendant to that abuse. I shall not waste your valuable time by engaging in a purely academic discussion of what constitutes the rule of law. Suffice to say that as the sanctity and the dignity of the person is directly implicated, the rule of law is at heart a practical human rights concept open to objective validation, and as such, virtually any observer is capable of recognising its presence or otherwise in a particular jurisdiction.
Mr Chairman, distinguished ladies and gentlemen, I am happy to state that most of the thinkers who considered the principle accept that a cardinal precept of the rule of law advances the simple proposition that no person should be "punishable except for a distinct breach of the law established in an ordinary manner before the ordinary courts of the land". As the doctrine is substantive in nature, the point cannot be overemphasised that the rule of law is not about the promulgating process of law adhering to the formalistic niceties of bringing legislation to the statute books. A properly enacted law may nevertheless be declared invalid if it purports to transgress against a subsisting constitutional provision generally cherished as a fundamental norm in a pluralistic society. In the parlance of European jurisprudence in UK courts, a statute may be declared “incompatible” with European law, but only because this jurisdiction adheres to the principle of the supremacy of Parliament. If incompatibility is declared, Parliament is certain to revisit the law before it reaches a level of court that would vacate it as illegal. In the United States, the offending statute may be declared unconstitutional and of no effect at even the lowest level of the federal judiciary, i.e., the District Court.
Indeed the theme most central to the principle simply asserts that no person is above the law, that "every person whatever be his/her mark or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals". The unstated but clear assumption in the foregoing is that for the rule of law to obtain in a jurisdiction, there must be separation of powers in its public life. Simply put, the entity that promulgates a law should not at the same time interpret and enforce that law as that would be tantamount to legalising arbitrariness. In a system adhering to the rule of law, the judiciary is the ultimate arbiter of legality, the referee of the relationship between the state and the person. In sum, the state is incapable of demonstrating fidelity to the rule of law in the absence of an independent judiciary.
Although I would never have limited our discussion of the rule of law to the abstract, academic plane, I am happy GUS explicitly instructed that I approach the topic from the perspective of “the administration of civil society in … the Gambia”. I take it that the purpose of reminding ourselves about the vital significance of the rule of law in public life is for the immediate and extended audience to appreciate the genius of its moderating influence on the natural excesses of public power. We shall therefore provide a contextual dimension to the varied application of a doctrine that is principally responsible for the existence of a tremendous development gap between societies populated by the same humans. But for the absence of the rule of law in the Gambia, I am confident this audience would be much reduced, that the architects of GUS – in line with their public spiritedness - would likely be presiding over some variation of their respectable organisation within the borders of motherland dearest.
As residents of the UK, and knowing that some of our compatriots have found themselves in seemingly intractable issues with the Border and Immigration Agency of the Home Office, I suggest we examine a recent judicial demonstration of the rule of law in the immigration arena. Let us therefore remind ourselves of the deportation battle concerning Learco Chindamo, the Italian who was imprisoned - among other convictions at the Central Criminal Court in London - for the 1995 murder of head teacher Philip Lawrence.
At the heart of the matter is a European law which states that “a relevant decision (to deport) may not be taken except on imperative grounds of public security in respect of an EEA (European Economic Area) national who has resided in the United Kingdom for a continuous period of at least 10 years prior to the relevant decision”. Chindamo’s matter also implicated Article 8 (family life and privacy) of the European Convention of Human Rights, as incorporated into UK law by the Human Rights Act 1998 (“HRA 1998”). Having lived here for twenty years, the UK spectacularly failed in its attempt to deport him to Italy when released from prison. And this notwithstanding the might of the Home Office, the clout of anti-immigrant tabloids, not to mention emotive and misleading angles in the broadcast media!
Indeed, spokespeople for the Home Office went on a media blitz, on frenzied propaganda overdrive, if you wish. For Home Office Minister Tony McNulty, Chindamo’s crime was of such a “serious and heinous nature … the individual has forfeited any right to domicile in the UK”. There were ‘serious’ calls for the abolition of HRA 1998. In the calmer environs of the judiciary, cooler heads were more concerned with the dictate of law as it relates to this highly politicised matter. Without fanfare, a three-member panel of the Asylum and Immigration Tribunal, sitting at Field House earlier this year, simply concluded “the Secretary of State has not shown that the breach of the Article 8 right to family life that would be occasioned by the appellant’s removal to Italy would be proportionate”. And with that Chindamo stays!
Applauding the Chindamo decision in a Guardian column, Alice Miles argued:
But to draw the conclusion that “humanity” should therefore override the rule of law
is, however understandable, wrong. The rule of law developed to put humanity on a
legal equal footing; it is an attempt, however imperfect at times, to deliver humanity
objectively to everyone. The decision to allow Chindamo to remain in the UK is in fact
a perfect expression of that humanity, and I feel proud t live under a system that
ultimately took the decision to allow him to stay. The alternative – to allow subjective
feeling to overrule rational law – is to move back towards the days of crude local justice,
of public stocks and floggings and hangings …
As a justiciable dispute, the Chindamo case was within the competence of the courts to pronounce upon. In the performance of its proper constitutional function, the judiciary withstood the overbearing pressure of the political establishment, ignored the anti-immigrant hysteria fuelled by the tabloid press, and upheld the rule of law. And to think that this decision originated in a three-member panel of immigration judges conclusively confirms the inherent magic of the rule of law. More poignantly, the Home Office accepted defeat, even as it moved on to other schemes targeted at perverting the rule of law in the immigration arena. Those illegal activities, including a somewhat pervasive refusal to decide bona fide applications, sometimes for years, will ultimately be frowned upon when they reached the courts.
Reminding ourselves that the fundamental teaching of the rule of law rejects the arbitrary application of public power, let us analyse the operation of the principle in the Gambia. In the APRC’s 2001 election manifesto, Jammeh summarised his understanding of the relationship between the state and citizen thus:
the APRC regards human rights as indivisible and symbiotic in their relationship. We also
consider that the most essential human rights, in our present socio-economic circumstances,
are those which guarantee the basic necessities of life, such as food, shelter, education,
medical care, clean water and environment, work and the opportunity to live and develop
in a free society and in peace and dignity. The APRC pledges to work assiduously
towards making these rights accessible to all Gambians. The APRC also pledges to
uphold and defend the human rights and fundamental freedoms enshrined in Chapter IV of
the Constitution of the Second Republic, particularly, the right to life, personal liberty,
property, freedom of speech, association, assembly, movement, privacy, equality before
the law and freedom of a responsible press. We, as a people, must however know where
our rights end and where other peoples’ rights begin. The various rights and freedoms
must however be exercised with due regard to our duties to the state.
The above speaks volumes about Jammeh’s mindset and approach to governance. He regards the rule of law as merely subjective, and pays no more than insincere lip service to the principle. Notwithstanding protestations that his governing principles are fundamentally anchored in the rule of law, not to mention frequent pretensions of the same from his ever-changing army of policy level sycophants, the record is incapable of sustaining the propaganda.
Let us examine the reality around the rule of law in the Gambia.
For starters, Jammeh is on record as dismissing the existence of an independent judiciary “anywhere in the world." Consequently, he hires and fires Judges at all levels of our judicial system as he pleases. In similar vein, he commands absolute control over the appointment of the chairperson for the so-called Independent Electoral Commission. At section 91 (1) (d) of the 1997 Constitution of the Republic of the Gambia, Jammeh has explicit authorisation to fire an elected APRC member of the National Assembly through the simple fiat of expulsion from the party. With the security apparatus bowing to every whim of Jammeh, where in Gambian public life is the requisite sanctuary for protecting the dignity of the individual?
With no independent prosecuting authority, the judicial process is routinely misused as a theatre for abusing political opponents. When courts grant bail to ‘political’ defendants, the police would simply wait for the accused to emerge from the court chamber to be rearrested and ushered yet again into illegal detention. I state merely that the rule of law imposes an obligation on the executive to respect court orders.
Allow me, ladies and gentlemen, to introduce a 65-page report on the Gambia by the Human Rights Institute of the London-based International Bar Association (“IBA”). Entitled Under Pressure: a report on the rule of law in the Gambia, this detailed, authoritative report on the appalling human rights situation in our country directly addresses the topic of our discussion. In the words of the IBA, “the mission was prompted by concerns regarding the status of the rule of law, the independence of the judiciary and the ability of the legal profession to exercise its professional duties freely … The coup attempt in March 2006, which occurred subsequent to the decision to visit the Gambia, also raised concerns about the rule of law situation …”.
The “high level” delegation comprised: a Justice of the Constitutional Court of South Africa, the Deputy President of the Southern African Development Community Lawyers Association, a Programme Manager of the IBA’s Human Rights Institute, and the Parliamentary Legal Officer to Lord Lester of Herne Hill QC. Meetings were held with members of the executive, legislature, judiciary, representatives of the Bar Association, the international diplomatic corps and donor community, non-governmental organisations, and the media. The delegation visited the Gambia in June, and released its report in August 2006.
I list for you some of the findings of the IBA mission:
- … in practice many of the government’s actions undermined judicial independence and the rule of law, and its overall attitude to the judiciary was of great concern to the delegation
- there are grave concerns that the appointment of contract judges operates outside the constitutional appointment procedure, and that the role of the Judicial Service Commission in this regard is unclear and limited
- the failure of the government to follow the proper constitutional procedures in relation to the removal of judges … created an atmosphere in which judges are unable to operate freely for fear of having their contracts terminated, or not renewed, if they deliver politically unpopular judgments
- the delegation was concerned at the frequent disregard or delay in compliance with court orders by members of the executive, particularly those which are politically unpopular. It is apparent that the executive has on such occasions considered itself above the rule of law
- the government exhibits hostility and suspicion in its dealings with the legal profession and it was clear to the delegation that the government perceives the profession as an opposition force
- the delegation was concerned to hear reports of mistreatment of detainees, including floggings and prolonged solitary confinement
- the delegation was deeply concerned about the government practice of detaining individuals for long periods of time with charge, without access to family or legal counsel, or without bringing them before a court in order to ensure adequate judicial oversight
- the delegation was also concerned to hear reported comments by the president at the appointment ceremony of Justice Roche and Justice Agim of the High Court and Court of Appeal at which he said: “As long as you maintain the integrity and neutrality of the legal system and apply the laws to the letter, we have no business with you … Where you ruling is not based on any law, you are asking for trouble and I am not threatening anybody, I am talking to the judicial system as a whole”
The delegation made mention of the disappearance of Daba Marenah and others, as well as the suspension of the Gambia from the US Millennium Challenge Account.
In the absence of independent public institutions, there is little opportunity for civil society organisations outside mainstream government to play any meaningful role in public life. I remind you of the gruesome death of Finance Minister Ousman Koro Ceesay, of the April 10-11 student killings, of the shooting death of Deyda Hydara. In none of these cases was an acceptable investigation conducted. How about the firebombing and extra-judicial closure of the Independent Newspaper, of the arbitrary detention of Chief Manneh, and other journalists, not to mention political opponents, real or perceived? These, and numerous other tragedies, exemplified the height of impunity in our public landscape. The unmistakable message is that Gambians should concern themselves only with Jammeh’s “essential human rights”, or pursue the enjoyment of real fundamental freedoms and pay a heavy personal price, a message that exercises a chilling effect on civil society organisations, including the legal profession, the media, trade unions, and other non-governmental organisations.
Ladies and gentlemen, a casual survey of the skills pool in this audience conclusively demonstrates the pattern of migration to political climes of least threat to the sanctity of human dignity. I submit to you that adherence to the rule of law is the foundation upon which nations survive or collapse. Notwithstanding systemic “institutional racism”, you and I chose the UK knowing that but for the vagaries of random criminality, we are unlikely ever to experience state orchestrated disappearances, killings, unlawful detentions, and frozen opportunities for merely ‘thinking’ contrary thoughts. As there is no need to dilate on the proposition that no meaningful and durable security is possible in any public environment devoid of the oxygen of the rule of law, it is imperative that we address the question of how we order our public affairs along the lines of live and let live. Without security and the climate of certainty that comes with it, our individual and collective dreams - political and economic - may remain unrealisable. I consider that a terrible and tragic waste of the gift of life
I urge that you not embrace lawlessness in public life for reason of expediency occasioned by opportunism, but if you must, I offer the counsel of Martin Niemoeller, a pastor of the German Evangelical Lutheran Church in the Nazi era:
In Germany, the Nazis first came for the communists, and I did not speak
up, because I was not a Communist. Then they came for the Jews, and I
did not speak up, because I was not a Jew. Then they came for the trade unionists, and I did not speak up, because I was not a trade unionist. Then they came for the Catholics, and I did not speak up, because I was not a Catholic. Then they came for me … and by that time, there was no one to speak up for anyone.
With absolute dictatorship, and weak, practically ineffective civil society organisations, The Gambia lives rather dangerously. I therefore, challenge you to ponder whether The Gambia you would like to live in post-Jammeh is one based on the rule on law, or one focused on the irrelevant considerations of ethnicity, religion, or region. If the latter, then you are likely to be sorry one day! Just ask those who left their mansions in countries such as Liberia and Sierra Leone to suffer as refugees in London, and other western capitals.
In the meantime, I urge you not be ensnared into Jammeh’s policy councils unless you wish to be exploited and discarded, after knowingly participating in the lawless plunder of your motherland! Far better a foot soldier in the crusade for the rule of law in The Gambia.
Let the record reflect that views herein make no claim to representing those of GUS.
God bless GUS, and thank you for having Gambia at heart.
Lamin J Darbo, UK 30 December 2007. Speech to the Third Annual General Meeting of Gambia United Society (UK Charity No: 1111860), Regents Community Hall, Hackney, London