Gambia Bar Association Urges Errant Chief Justice to Resign

by editor | December 20, 2016 1:59 am

Following their unprecedented move last week urging defeated President Jammeh to gracefully exit the political stage later next month, The Gambia Bar Association has written to Chief Justice  E. O. Fagbenle, demanding his immediate resignation failing which, they will follow judicial proceedings against him. Fagbenle, is the only member of the Supreme Court after President Jammeh unilaterally sacked the rest of his Associate Justices without any recourse to law. The Gambian Bar Association alleges that the errant Chief Justice has been seen publicly meddling in partisan politics, engaged in campaigning and distribution of ruling party memorabilia to staff of the judiciary which violates the character and spirit of his office. Below is the strongly worded letter asking Fagbenle to quit his job without delay lest he faces judicial inquiry.

Dear Justice E. O. Fagbenle:

RE: RESIGNATION OF CHIEF JUSTICE

At an Emergency Meeting of The Gambia Bar Association (GBA) held on the 12th day of December, 2016, the members of the Gambia Bar Association unanimously passed a resolution and mandated the Executive of the Association to call for your resignation as the Chief Justice of The Gambia.

It was resolved by the members of the GBA that your conduct during the presidential campaign has brought disrepute to the Office of the Chief Justice.

The position of the Chief Justice is a constitutional position and as the Head of the third arm of Government, you are expected to maintain and uphold certain standards.  You have, in our considered view woefully failed to adhere to these standards.

Section 120(3) of the 1997 Constitution of the Republic of The Gambia provides that Judges and other holders of judicial office shall be independent and subject only to the Constitution and the law.  This provision is sacrosanct and as head of the judiciary and the administrative head of all judicial officers, it was your duty to ensure and maintain this independence.

We refer you to the following provisions of the Judges (Supplementary Code of Conduct) Act Cap 6:01:

Section 6(2): ​‘A Judge must strive to ensure that his or her conduct, both in and out of court, maintains and enhances confidence in his or her impartiality and that of the Judiciary.’

Section 8(1)​‘A Judge must –
​(a)​not participate in partisan or political activity or association; and
​(b)​on assumption of judicial office, cease absolutely and unequivocally ​a partisan political activity or association.
Section 8(2)​A Judge must avoid any public gathering if he or she considers that a mere attendance at the gathering might reasonably –
​(a)​give rise to a perception of an ongoing political involvement; or
​(b)​put in question his or her impartiality on an issue that could come before the court.’

Your recent conduct, particularly during the campaign period for the 2016 Presidential Elections is a violation of these provisions.

During this period you engaged in activities which in our considered opinion, compromised the independence of the Judiciary.  We highlight below some of your actions which we deem unacceptable:

1. You were seen during the campaign period and prior to campaign period openly attending political rallies of the APRC.
2. On the day of the nomination of the Incumbent President, you were seen in front of the court premises waving and dancing in support of the incumbent Presidential parade.
3. Several members of the Bar saw you wearing APRC apparel on the Court premises.
4. You were distributing APRC apparel to the Court staff and making preparations for the victory celebration of the incumbent President.

In addition to your conduct during the campaign period, you have throughout your tenure as Chief Justice acted to perpetuate the will of the outgoing President and in particular:

1. You interfered with judicial officials who were presiding over cases and caused them to be dismissed when they made decisions which were deemed to be against the State’s interest.
2. In the case of the State v Ousainou Darboe & Ors, you caused the Presiding Judge to expedite the hearing of the case and their conviction.
3. You transferred the case of The State v Lamin Sonko & Ors to the High Court sitting at Mansakonko.  There was no basis for the transfer of this case as the Mansakonko court had no jurisdiction to hear the case.  This action was calculated to ensure that the defendants could not get legal representation thus easing their conviction.  You further failed to respond to the letter from Counsel representing the Defendants protesting the transfer.
4. You gazetted new Rules for the Supreme Court without following due process.  You further failed to respond to the GBA when it protested this action.

For these and other reasons, the Gambia Bar Association does not have faith in your ability to discharge the function of Chief Justice and we believe that you are not a fit and proper person to hold the Constitutional position of the Chief Justice of The Gambia.

We thus urge you to resign from this position with immediate effect failing which the GBA will pursue all avenues to have you dismissed for misconduct under the Provisions of Section 141 of the Constitution.

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