May 6, 2013, 10:26 AM
In a letter addressed to the Attorney General and Minister of Justice, Lamin Jobarteh, and made available to this paper, the UDP leader, who is also a veteran lawyer by profession, said the publication, if it is true, is a violation of the Constitution of the Republic of The Gambia.
“I do not think it will be out of place for me to mention that with the publicity given to the indigenisation of the Bench, it is time that the Chief Justice of The Gambia (whether acting or substantive) should be a Gambian,” Darboe wrote.
According to him, “after forty-two (42) years of Republicanism, we cannot afford to have our third arm of Government headed by a non-Gambian”.
Below we reproduce the full text of Ousainou Darboe’s letter addressed to the Attorney General and Minister of Justice:
APPOINTMENT OF ACTING CHIEF JUSTICE AND CHIEF JUSTICE
Of the three arms of Government, the judiciary is accorded a status different from the other two arms namely, the Executive and National Assembly (the Legislature). Members of the National Assembly, except those nominated, are elected to represent constituencies. Its head, the Honorable Speaker, is elected by National Assembly Members. The President who heads the Executive arm of Government is elected by the majority of Gambians. The Executive and Legislative are headed by Gambians.
The Chief Justice who heads the third arm of the Government and other judicial officers are not elected; they are appointed in accordance with the constitutional provisions of regulating the appointment of Judges of the superior courts.
To my knowledge, there has not been a departure from the provisions of the constitution in the appointment of the Chief Justice and other Judges of the superior courts.
However, the story carried by Foroyaa in its Tuesday 4th December 2012 publication on the appointment of Honourable Justice Wowo as acting Chief Justice, if true, is a violation of the Constitution.
Section 140 vests in the President discretion to appoint the most senior judge of the Supreme Court to act in the office of the Chief Justice. Section 140 dose not vest in the President discretion to appoint an acting Chief Justice outside the ranks of justices of the Supreme Court.
I trust you as the Chief Legal Adviser to the Government will advise His Excellency that the word “may” used in Section 140 of the constitution does not grant him licence to appoint any Judge to act as Chief Justice. He may not appoint the most senior judge of the Supreme Court to act office of the Chief Justice, but he must appoint one of the justices of the Supreme Court to act in the office of the Chief Justice
Let the Executive and the Judiciary act in tandem in the observance of the provisions of the Constitution.
I do not think it will be out of place for me to mention that with the publicity given to the indigenisation of the Bench, it is time that the Chief Justice of The Gambia (whether acting or substantive) should be a GAMBIAN. After forty-two (42) years of Republicanism, we cannot afford to have our third arm of Government headed by a non-Gambian.
I salute the contribution to our jurisprudence by non Gambian judges, but the leadership of the judiciary must be placed in the hands of the Gambians. You will, no doubt, agree with me that the judiciary as an institution participates in the shaping and formulation of policies that must of necessity dovetail into the overall national policy. This is one of the reasons why the judiciary of The Gambia should now be headed by a Gambian - there is a pool of Gambian legal luminaries at the Bar and on the Bench who can head this very important institution.
I implore you as a member of the Judicial Service Commission and also as the Attorney General of this country to impress on His Excellency the absolute need to have the judiciary of the Gambia headed by a Gambian.
I make this appeal because I have no doubt that in the appointment of the substantive Chief Justice, the President will if properly advised, act in accordance with Section 138 of the Constitution.
Yours in the service of the Constitution.
A.N.M Ousainou Darboe