Separation of Powers Under the 1997 Constitution: the Role and Functions of the Judiciary

Monday, July 20, 2009

"The Gambia shall be a democratic state dedicated to freedom, peace, progress, prosperity and justice. The Government, with due regard to the principles of an open and democratic society, shall foster accountability and transparency at all levels of government." Section 214, subsections 1 & 5 1997 Constitution of the Gambia  

The distribution of political power in a democratic state is determined by the Constitution, principally by the doctrine of the separation of powers. How and for what purpose political powers are utilised is a product of the dynamic interactions between the constitutional provisions and the capabilities and political predispositions of the incumbents. This is particularly true for the executive. The vast majority of modern constitutions embody the principles of the separation of power. The 1997 Constitution of the Gambia served as the foundation and basis for institutionalising the separation of powers among the legislature, executive and judiciary.

For example, the 1997 Constitution in Chapters VI, VII & VIII outline the functions of each institution and prescribe that the Executive, the National Assembly, and the Judicature function independently. The Constitution further provides for the separation of powers between the major institutions of governance, and explicitly states a commitment to decentralization of government functions, with a system of mutual and reciprocal monitoring between the legislature and the executive that further enhances the checks and balances in the governance processes. However, these constitutional provisions-and the governance structures-have not been systematically strengthened as a result there is a concentration of power in the executive branch. The concentration of power in the hands of few, or in some cases one individual, undermines the notion of separation of powers.

 In Africa the executive has historically been the most powerful institution of governance. The tendency of the executive to monopolize power and abuse discretionary authority has been universally observed throughout the ages. And in various manifestations and degrees, so have the other institutions of governance. There are several reasons why the executive tends to monopolize power and discretionary authority. The executive initiates and enacts laws, rules and regulations, and ensures their compliance. It controls administration of the country, and with the support of the civil service is the main provider of the public goods and services, including security and defense, and ensures law and order. It formulates and implements national policies; and it controls major material and financial resources, mobilizing people and providing employment. Clearly the executive has tremendous powers and discretionary authority at its disposal.

To ensure accountability and prevent abuses, its powers need to be constrained through checks and balances. These are essentially measures and mechanisms calculated to inhibit the tendencies for the excessive use of power and regulate the exercise of discretionary authority of the institutions of governance within the constitutional provisions and political culture of a country. Checks and balances are intended to constrain the dominance of one institution, the executive in particular, over the other institutions and agents of governance. In a democracy good governance requires enduring and dynamic checks and balances between all the major institutions of government and their respective agencies.

The establishment of a constitutional state in 1997 represented a legal watershed. The new legal order calls for an open and democratic society founded on human rights, sovereignty of the people and the primacy of the rule of law. In so doing the constitutional role of the courts was changed fundamentally - they are now required to declare invalid, legislation or conduct inconsistent with the Constitution. (Section 127(b).

 The vision of our Constitution is to establish an open democracy committed to social justice and the recognition of human rights. It seeks to improve the quality of life for all citizens and free the potential of each person. However it should be noted that while the majority of Gambians live in deep poverty, this vision cannot be achieved. Achieving the vision of the Constitution remains a challenge not only for the judiciary but for all Gambians. The challenge of poverty is a global challenge as are the recent threats to global financial systems.

Unfortunately the 1997 Constitution does not in my view sufficiently affirm the importance of international law in the protection and promotion of human rights. And the fact that the Constitution does not direct judges interpreting the fundamental Rights to have regard to international law and conventions mars the vision for universal justice.

As the role and importance of the Judiciary have increased, so have the scope of the responsibilities borne by judges and magistrates. The primary function of the judiciary remains the same - to decide cases brought before them impartially and according to the law. However it should be noted that most of the work performed by judges is not done in formal court sittings, but in chambers and after hours. Judicial officers may not initiate cases of their own accord, nor is it their function to provide advice on matters of public interest.

The authority and legitimacy of the judiciary to perform its function flows from the Constitution, but also from the fact that judicial officers perform their duties and conduct themselves in a manner that promotes the rule of law, enhances the reputation of the judiciary and does not bring the institution into disrepute. In considering the need to preserve the competence of judicial officers, it is important to underscore the need to introduce ongoing judicial education for all judges. In relation to the integrity of judicial officers, there is a need adopt  a code of conduct for judges, and a code of conduct for magistrates. It is a primary responsibility of judges to maintain, protect and enhance the status of the judiciary, through nurturing an institutional ethos committed to integrity and the values of the Constitution.

The primary function of the judiciary is to administer justice to all. To do so, courts need to be accessible, user friendly and efficient. It is a public secret that the Gambian courts are not achieving these goals sufficiently, therefore all stakeholders must commit to identifying the causes of such failures and to take prompt and appropriate steps to address them where necessary in partnership with the other arms of state.

In particular the question of delays in the commencement and conclusion of trials. It has been acknowledged that the reasons for such delays are multi-faceted and could not be laid at the door of any particular institution or practice. Furthermore there is a duty of care and abiding responsibility of individual judicial officers to treat litigants, lawyers, witnesses and all in the courts with courtesy and respect. In this regard, courts should be sensitive to the values and traditions of our society.

The establishment of the Supreme Court of the Gambia  and the expanded functions of the Judicairy made the need for transformation of these institutions more pressing. Presently there are 17 Judges 6 Gambians 3 males and 3 females. Similarly, the magistracy is now nearly 100% Gambian. Moreover more women have been appointed into the justice system since 1997. Progress has been made in the last 12 years in making the judiciary more representative of Gambia's people. However there is still more that needs to be done to reach the constitutional goal of a judiciary that is independent, efficient and effective. There is an urgent need to discuss ways in which the judiciary could be rendered more representative.

It must be emphasized that transformation of the judiciary involved far more than creating a representative bench. The Constitutional vision includes the acceptance by judges of the values and precepts of the Constitution as the founding principles of our legal order and the development of a culture of accountability in the judiciary where judges accept responsibility for the proper delivery of justice by the courts to all Gambians. In this regard it should be pointed out that an independent judiciary is an integral and necessary part of a democratic state.  One of the key roles of the judiciary is to guard against the abuse of power by the other arms of state. While affirming the importance of the principle of the independence of the judiciary in 1997 Constitutional order, all stakeholders must acknowledge the interdependence of the three arms of the state: the executive, the judiciary and the legislature and the need for the three arms to work in co-operation to promote the Constitutional vision.

An important aspect of this co-operative enterprise is the enforcement of court orders. While the government has in principle always accepted that orders should be enforced, there have been in practice some instances where orders have not been enforced. To strengthen the courts the government must ensure that all orders of the courts are observed diligently. Where orders of the courts are not enforced, not only is the authority of the judiciary undermined, but democracy itself is at risk. The 1997 Constitution provides for a single independent judiciary. The concept of a single judiciary meant that all courts must be independent, but does not mean that there would be no distinction between lower and higher courts. 

As an institution exercising public power, the judiciary must be accessible to public scrutiny. The role of the media is of special importance in communicating the work of the judiciary to the broader society. It has a particular responsibility for ensuring that criticism of the judiciary is fair and informed and that the reporting on proceedings is accurate. Of course there are difficulties faced by the media in reporting the sometimes arcane and technical work of courts and the responsibility that the judiciary bears in taking steps to facilitate the work of the media.

The remuneration and allowances of judges and magistrates have been significantly augmented. However in many instances, judicial officers are provided with only the basic facilities necessary for the performance of their functions. All judges have to tak, in long hand the submissions of counsel. The absence of essential facilities such as updated reference library and automated recording devices not only undermines the ability of the judiciary to perform their tasks, but also has a serious impact on the status of the judiciary. This in turn discourages appropriate candidates from seeking appointment to the bench.

A solution to such problems would be to make Section 144 subsections 1& 2 of the 1997 Constitution operational, which makes the Judiciary responsible for its own budgets and administration. The judiciary needs to have an effective say in the drafting of its budget and control over its expenditure. Such a solution would also enhance the independence of the judiciary. Until this happens, the vital importance of ensuring that judges and magistrates have the resources they need to perform their functions properly may be overlooked.

Almami Fanding Taal is Legal Practitioner with special interests in Human Rights, Media Laws, and Good Governance & Institutional Development