By Lamin J. Darbo
Dismissed, expelled, and incredibly, absolutely no reason advanced. And this is the – rumoured and later confirmed – plight of Hon. Chief Justice Ali Nawaz Chowhan on 12 May 2015. Weeks earlier, the rumour mills were churning out the summary dismissal of Justice Edrissa Fafa M’bai, a Judge of the High Court, now reportedly resurrected and leapfrogged ahead of serving senior Justices to the presidency of The Gambia Court of Appeal. And weeks before that, it was Justice Penda Dibba, also rumoured to be unceremoniously shown the exit as a Judge of the High Court. Her dismissal remains unannounced, and as usual, unexplained. All three are members of the higher judiciary, top echelon practitioners in the most vital branch of any sensible, pragmatic, and future looking democratic system.
As is routine, life goes on, and affected individuals are left to their own devices, to pick up the pieces, so to say, and negotiate their way around the landmines of Gambian public life. Major assaults on the systemic integrity of Gambian polity passed into the annals of our public intercourse as a matter of course. And with it the delusion that ours is a country alive to its human rights responsibilities under the rule of law, assuming the Honourable Attorney General and Minister of Justice either understands or believes in her recent statement at the closing ceremony of the 56th Ordinary Session on the African Charter on Human and Peoples’ Rights in The Gambia on 07 May 2015. The denial persists, and the perpetual date with fantasy continues. What way to manage a collective space that is the public life of a country!
It is common ground that a judicial dismissal throws the target’s life into crisis, particularly in the case of a foreign-national, and especially where the termination is sudden, unexplained, and, in apparent violation of the legal mechanism for removing Superior Court judges. Under circumstances such as these, there is a nagging public suspicion of unjustifiability as against those entrusted with the application of public power, and who committed the actual dismissal with apparent disregard for due process of law. That cannot but offend the personal and public conscience regardless the unflattering antecedents of the judicial officer concerned.
But the central issue is deeper than mere summary dismissal and expulsion of a foreign judge, even with the obvious traumatic implications for those who found themselves in such isolation in a country that suddenly turns hostile. It is nevertheless a matter of legitimate debate whether any country is justified in treating its invited dignitaries so shabbily.
Of more profound significance however are the implications embedded in high judicial officers, tasked with the responsibility of peacefully negotiating all manner of disputes, and assumed as fearless in their personal constitution, meekly marching to the slaughter without a word in their own defence, be that about their innocence, or the arguable violation of their tenure as Superior Court judges according to The 1997 Constitution of the Republic of The Gambia (the Constitution). Where a particular dispute is between the over-mighty state and the comparatively puny individual, can realistic reliance be placed on the even-handedness of such an individual, whether he sits on the High Court, or the Supreme Court? This is not a question of mere theoretical import.
By virtue of their assumed general education and professional training, Superior Court judges are highly opinionated as can be gleaned from the tone of rulings and judgments emanating from the higher judiciary. If in matters directly touching their own lives they have nothing to say, and in circumstances where the public perception is strongly supportive of their innocence, that is a matter of great concern. When former Chief Justice Agyemang was summarily dismissed, she skipped the country in a manner worthy of James Bond. Why such conduct by a high judicial officer in circumstances where she could have relied on the backing, if only diplomatically, of her home government, and powerful international voices? And especially in circumstances where there was no public allegation of wrongdoing? If her opinion of the system she embraced in different judicial capacities over several stints of service was so low, why did she accept any appointment at all from that appointing authority? What implication for public perceptions of the integrity of decisions on bail applications and substantive judgments in the many political cases which come before the courts?
Professionally, I have negligible sympathy for Hon. Ali Nawaz Chowhan whose maiden, non-judicial remarks on appointment as Chief Justice were unsettling and indicative of his arguably partisan leanings. More recently, his ‘opinion’ maintaining the death penalty in the particular circumstances of the case of Colonel Lamin Bo Badjie & 6 Others and the State (SC Crim. Appeal No: 1-7/2011), a case involving neither “violence”, nor “the administration of any toxic substance, resulting in the death of another person”, was disappointing, misguided, and injudicious. He offered no personal thoughts on the thorny issue of the death penalty, relying wholly on the now discredited opinions of Sock, JSC, and former Chief Justice Hon. Emmanuel Akomaye Agim (pp. 81-84, and 89-90 of Judgment), but nevertheless authored the lead dissent on this full bench review of that case.
As recently as a few months ago, he issued a public statement on the 30 December attacks on the State House in Banjul. As the Chief Justice, this was needless intervention in a matter likely to reach the Supreme Court in the course of the legal dispute it triggered. Would the Chief Justice have recused himself in such eventuality? Unlikely! Can he impartially ventilate the issues that would likely come up for judicial determination? With his very public intervention in a live political dispute, even the appearance of impartiality would be suspect.
Only a week or so ago, he again dissented against the part-allowance of former Chief of Defence Staff, Lang Tombong Tamba’s appeal on the speculative grounds that he “had knowledge of the planned coup”. In the salient words of Lord Atkin in Liversidge v Anderson  UKHL 1,  AC 206, the former Chief Justice was clearly “more executive minded than the executive”. In a landmark dissent that now represents mainstream thinking on civil liberties, Lord Atkin contended thus: “In England, amidst the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that the judges are no respecters of persons, and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law”.
Nothing is therefore further from the reality than suggestions the Hon. Chief Justice was fired for the liberal regime he presided over, Gambia’s answer, if you like, to former US Chief Justice Earl Warren, the towering jurist who shepherded the seismic and justifiably celebrated transformation of Supreme Court jurisprudence on civil liberties, the man who presided over the dismantling of the Plessy edifice of de jure segregation in the United States. The former Chief Justice would be completely out of place should he found himself in the same room as the liberal vanguard of the Warren Court!
Why then was Hon. Chief Justice Ali Nawaz Chowhan fired?
Not for want of acumen in appreciating the terrain he must negotiate to survive. Except in an “interlocutory matter” which may be decided by a single judge, the ordinary bench of the Supreme Court comprises “five judges of the Court” (section 125(2) of the Constitution). The Court reaches its decisions by voting for or against a particular position, and it is not uncommon for a Chief Justice to find himself on the losing side. In a polity where the Executive is the predominant player, a Chief Justice who cannot deliver in key political cases will have to go. Notwithstanding his pro-government stance on the death penalty issue in the specific circumstances of Colonel Lamin Bo Badjie & 6 Others and the State (SC Crim. Appeal No: 1-7/2011), and the part-allowance of Lang Tombong Tamba’s appeal, he lost both battles. His gallant individual performance was simply not enough. He was outvoted, and delivered, albeit indirectly, to the abattoir. He was skinned alive and ejected from the luxurious, if unpredictable life and tenuous position of a Gambian Chief Justice. Hon. Ali Nawaz Chowhan should be more concerned with his record than the arguably unlawful summary dismissal and expulsion from our shores.
On any objective analysis, there can be no question regarding the cogency of the contention that the Constitution woefully failed to separate public power. Its design is maximally flawed if only because meaningful authority is almost exclusively lodged in the Executive at the expense of the other two branches. Even where public power is properly balanced by the Constitution, there can be no serious answer to the thesis that law cannot self-implement. For efficacy, it must rely on a political system underpinned by the rule of law, i.e., by the separation of public power in a manner calculated to safeguard individual liberty. According to James Madison, one of confederal America’s leading proponents of federalism, “the accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny” (The Federalist No. 47).
To effect a practical separation of public power in a democratic society, one branch of government cannot be legitimately vested with complete dominance over the others. Where power is properly separated, the hiring and firing functions across different branches of government must be decoupled to avoid a tyrannical application of public authority. Under both constitutional theory and practice in a proper system of democratic governance, the appointer can, nay, must become functus officio in cases where his hiring power traverses constitutional demarcations. In the context of this discussion, the Executive should have no authority whatsoever to either directly or indirectly fire judicial officers, be they Magistrates, or Superior Court judges.
But an arguable ambiguity is embedded in section 141, the key Constitutional provision on judicial tenure. At 141 (2)(c), “a judge of a Superior Court … may have his or her appointment terminated by the President in consultation of the Judicial Service Commission”. The key question is whether 141(2)(c) speaks to a specific or general power! In light of the undisputed fact that countless Superior Court judges suffered summary termination over the years, what removal mechanisms are envisaged by the Constitution?
According to section 141 (2) “… a judge of a Superior Court”:-
(a) may retire on pension at any time after attaining the age of sixty five years;
(b) shall vacate the office of judge on attaining the age of seventy years; or
(c) may have his or her appointment terminated by the President in consultation of the Judicial Service Commission
Contextually, the above section is exclusively age-related. If a judge refuses to retire upon reaching the compulsory retirement age of seventy years, the President can then terminate his appointment “in consultation of the Judicial Service Commission”. This appears to be the singular circumstance where the President is vested with the legal mandate to terminate the services of a Superior Court judge.
On the removal of former Chief Justice Abdou Karim Savage, questions were raised about the Constitutionality of his dismissal. Those who viewed his removal as unlawful because repugnant of the Constitution latched on to section 141(4), and the process delineated in subsections (5)-(9) as support. According to section 141(4), “the Chief Justice, a Judge of the Supreme Court, the Court of Appeal and the High Court and members of the Special Criminal Court may only be removed from office for inability to perform the functions of his or her office, whether arising from infirmity of body or mind, or for misconduct”.
On the face of it, section 141(4) provides the general basis for removing a Superior Court judge. But this general power vests authority in the National Assembly as stipulated in section 141(5)-(9) and excludes the Executive from any role in the removal of a Superior Court judge. Its trigger mechanism is vague and it is difficult to visualize how and from where the delineated process may be practically commenced in the ordinary run of events. Although the National Assembly is the implementing body of this impeachment-like process, some outside institution must originate the triggering “notice” to set the process in motion.
Regardless, a contextual reading of section 141 suggests that subsection (2)(c) speaks only to the very specific retirement age of a Superior Court judge. Any reading giving the President a general power of removing Superior Court judges would frontally collide with section 141(4), would be repugnant to the doctrine and actuality of the separation of powers, and would constitute a major affront to the rule of law. It should be pointed out that section 141(4) was a 2001 amendment and therefore a more compelling statement on the general power of removing Superior Court judges. In light of the “total incongruence” between it and 141(2)(c), the latter must be confined to its specific orbit of age-related terminations.
It is unclear what legal authority the President relies on for the routine summary dismissal of Superior Court judges but there appears to be no Constitutional donation of that power. What is more alarming than the unlawful Executive inroads in voiding Superior Court judicial appointments is the unquestioning obeisance of affected judges when shown the exit. Do the judges consider the law on tenure unclear or is it fear of standing up to the Executive behemoth that conditions their unanimous submissive response to blatant lawlessness!
I am not unmindful of the difficulties confronting judicial officers but the judicial oath and ethics are more compelling considerations than fear, regardless its source. Lord Atkin speaks to Gambia’s judges when he argued: “It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that the judges are no respecters of persons, and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law”.
When will the guardians of the rule of law stand up for themselves in defense of this most noble doctrine by challenging the routine unlawful dismissals of Superior Court judges?
Orphan status is utterly unbefitting of a learned branch of Government like the Judiciary!