Mar 19, 2013, 10:08 AM
Your Excellency, The Vice President, Ajaratou Dr. Isatou Njie-Saidy, Your Excellencies, Members of the Diplomatic and Consular Corps, Honourable Speaker and Members of the National Assembly, My Lord Chief Justice, My Lords, Your Worships, Honourable Attorney General and Minister of Justice, Honourable Ministers, Chairman and Members of The General Legal Council, Vice Chancellor of The University of The Gambia, Director General, Lecturers, Staff and Students of The Gambia Law School, Dean of the Faculty of Law, University of The Gambia , President and Members of The Gambia Bar, My Learned Friends, Distinguished Guests, Ladies and Gentlemen
It is a great honour to be the Guest Speaker and to deliver the Keynote Address at this most historic ceremony.
After serving as a member of the Steering Committee for the Establishment of the Law Faculty of the University of The Gambia, the Vice Chancellor and Academic Community of the University gave me the honour to deliver the Inaugural Lecture to the First Class of Law Students of the University. Our subject on that occasion was LEGAL REASONING: THE EVOLUTIONARY PROCESS OF LAW. That was in August 2007 at the beginning of their studies for the LLB Degree. In September 2010 the General Legal Council also honoured me with the appointment as “Consultant for the establishment and operation of The Gambia Law School and preparation of the admission requirements, study curriculum and programme of training of law graduates for qualification as barristers and solicitors of the Supreme Court of The Gambia”. That was upon their graduation with the First LLB Degree of the University of The Gambia.
In August 2012 and on the invitation of the General Legal Council, I gave an address to the First Class of Students of The Gambia Law School at a dinner hosted by the Council. The subject of my address was THE ROAD TO JUSTICE. That was at the end of their professional legal training at the Law School. They are here today to be called to The Gambia Bar and be admitted as Barristers and Solicitors of the Supreme Court of The Gambia.
I congratulate you all on your admission to our honourable profession which, as you are aware, has traced its origin to the dawn of civilization. By virtue of your membership of the profession, society all over the world expects from you certain standards of behaviour, which could be summed up in the word DISCIPLINE. There are two types of discipline. The one which is self imposed and the other which is super imposed. Both are relevant to your behaviour as members of the honourable and learned profession.
Many of you have come here with your parents or guardians, husbands or wives, who we now charge to fill the gaps in my address as they watch you step out into the world as Legal Practitioners. I congratulate them for the interest and devotion shown to you. These are hard times and those of them who can afford should continue to render assistance to you. I also equally enjoin you not to forget or ignore them in their old age. Those who have observed the rules have found themselves where they ought to be – on top of the profession. This is what we require of you. I wish you severally and collectively a successful career at the Bar.
On the invitation as the Guest Speaker, His Lordship the Chief Justice/Chairman General Legal Council/Director General of the Law School, the Honourable Justice Raymond C. Sock, was kind to give me the liberty to speak on any subject of my choice. I am touched by the gesture and humbled by his kind words and sentiments.
To the First Class of Law Students of The University of The Gambia, my inaugural lecture was “Legal Reasoning: The Evolutionary Process of Law.” To the First Class of Students of The Gambia Law School it was: “The Road To Justice.” Today, to our First Law School trained Barristers and Solicitors of the Supreme Court of The Gambia, my address will be: LAW AND LAWYERS IN A CHANGING SOCIETY.
Your Excellencies, Honourable Speaker, My Lord Chief Justice, My Lords, Honourable Attorney General and Minister of Justice, Distinguished Guests, Ladies and Gentlemen.
“The Law is the bedrock of a nation; it tells us who we are, what we value… Almost nothing has more impact on our lives. The Law is entangled with everyday existence, regulating our social relations and business dealings, controlling conduct which could threaten our safety and security, establishing the rules by which we live. It is the baseline.”
I have taken the foregoing from the book, JUST LAW, published in 2004 by one of my favourite authors, Baroness Helena Kennedy, QC, woman activist and Chair of the British Council. I wish only to add that the Law is the life blood of a nation.
Sometimes I feel alarmed at the all encompassing functions of the law. I feel alarmed because I am overwhelmed at the sheer awesomeness of the responsibility we all must bear by dint of our calling. For the work we do is a calling, a vocation. Members of the public may admire our black gowns and horse-hair white wigs. Or they may be turned off by them. They may even scoff at them. Students may engage in debates as to whether our robes and wigs are the relics of colonialism or whether the time has come to discard them. But these are not our concern today.
We are the priests and priestesses, the ministers of the law. When a man (or a woman) is ill, he needs a doctor. The doctor diagnoses, prescribes, operates and does whatever else that is needed to save life. The patient lives and he is happy to have the gift of life and good health.
The same man (or woman) suddenly finds himself on the verge of losing his house or is it his job? He may instead find he has been badly cheated in a business transaction or that he is a victim of domestic violence, or negligence or even that he is locked up on some trifling accusation. He needs a lawyer and he needs the court. Where he cannot brief a lawyer, who will sort through the maze of his problems, he begins to see that his life has no value or meaning. He finds out soon too that his tablets, injections and surgery can only translate to good health and life when there is value added.
As ministers of the law we are equipped to add that value, to give meaning to the lives of people through legal advocacy and the application of the law. The right to life is as much as the right to access to the law. For the role we play in sorting out the lives of people and making these lives meaningful; for constantly staving off human tendencies to resort to a hobbesian state of nature; for often finding that the saving of situations that are important to the individual would rest in the actions we take, I come to the conclusion that we are called to leadership.
When I dwell on leadership in this sense, I do not refer at all to the issues of governance. I see the leadership roles that Lawyers must play in ensuring that the day-to-day affairs of persons, natural and artificial persons, are regulated by proper conduct. I see the Lawyer’s role in even family relationships such as maintenance of children and custody matters. I see the hope in the eyes of an anxious client who has come to his Lawyer. I can almost touch the optimism of the client who has briefed his Lawyer and who sits quietly waiting as papers are drafted for filing or a letter is being written.
In his eloquent address to the 5th Commonwealth Law Conference in Edinburgh, Scotland, in 1977, Sir Shridath Ramphal, Secretary General of the Commonwealth and former Minister of Foreign Affairs and Justice of Guyana, and an eminent jurist in his own right, was appealing to professional colleagues like us in the Commonwealth to place our talents at the service of social justice and social change in both the national and global contexts when he said and I quote: “Our societies look up to us as community leaders, as opinion formers, as advisers, and as members of a profession with a belief in justice, not only for advice but also for practical leadership, not only for mere preservation of the status quo, but for making it worthy of survival, not for observance of rituals but for constructive innovation”.
Our distinguished Commonwealth jurist, in his book, “ONE WORLD TO SHARE” also points out: “The point I want to make is that particularly because for most of us our inheritance from the Common Law of England and from the English Legal System is so substantial, we need to watch out for myths of legal homogeneity, to be on guard against a psychology of legal dependency, to be mindful and proud of our inheritance, including those from within our own societies, and to be certain of the intrinsic worth of an outward looking philosophy of legal development”.
Your Excellencies, Distinguished Ladies and Gentlemen, please allow me in a brief digression here to recall some of my own experiences as a Lawyer in a changing society. As a Travelling Magistrate in 1977 I faced a problem in Mansakonko. The two mothers-in-law of a young man and his wife fought whiles the couple was away in the farm. The matter was reported to the police. They investigated but could not establish assault by one or the other. They charged the two old women with “affray”—i.e. fighting in a public place.
The case attracted a great deal of public interest as well as concern in the area. People came from all over the place: Jarra, Kiang and Baddibou. As I used to do, I went through the case files and studied the charges and witness statements in each case and this particular one gave me cause for concern. In the end, and before I went into court I sent my driver to Pakalinding and buy me half a pound of kolanuts.
I went into court with my half a pound of kolanuts neatly wrapped up in dry kolanut leaves inside a piece of brown paper. I took this case last. When it was called, the two old, very old grey haired ladies stood up. The charge was read out. I did not allow them to make their plea. I stood up and looked out into the crowd of people in the court room. I asked whether there were any elderly people from Jarra, Kiang and Baddibou. They stood up. I selected two from Jarra, two from Kiang and two from Baddibou. I invited them to join me at the table. They did. The two old ladies were still standing in the well of the court. I could hear some sobbing—deep cries—in the court room by their married son and daughter. I was still standing as the six elderly men joined me at my table, facing the gallery.
I pulled my table drawer and brought out my small bundle of kolanuts. I slowly untied it, spread out the dry kolanut leaves and held out the kola nuts with both hands, and started pleading with the two old women until my tears started dropping on the kola nuts. Suddenly, both old women took off their head ties, knelt and hugged each other, sobbing, there in front of us all in the Court Room. And that was my judgement.
If I had heard that case as I was supposed to do using my honours Law Degree from the University of London and Barrister-at-Law from the Inns of Court School of Law, our own English law based Criminal Code and Criminal Procedure Code, I would have destroyed that young family and brought more shame to two old women already deep with remorse. I abandoned the law and remained an African.
I thereafter took the two old women and their married son and daughter back to the village, a few miles away. You can imagine the crowd. The whole village came to their compound. I called for the Alkalo and Imam of the village. After the usual Fatiha prayers I told them that I was the Magistrate from Banjul but was a child of the neighbouring district of Niamina and felt that this matter could and should have been resolved at the village in our own African customary way or at worst not beyond the Seyfo of the district. For four Wednesdays thereafter I visited them after my court sittings in Mansakonko just to see that the cherished family peace was restored. And every time I did they gave me a big calabash full of “dempeteng.”
Many years later, a similar case happened in Basse, before the Travelling Magistrate, Mr. King. He came from Sierra Lone. An old woman reported to the Police that her goat was missing—suspected stolen. The police investigated and found that the goat was stolen by her son, a young man. He was arrested. He confessed. He was taken to court and charged with stealing. The matter came before Magistrate King. He pleaded guilty to the charge. There was no need to call witness evidence. Therefore the mother, though in court, was not called to give evidence. There was no need to. The police gave the brief facts of the case.
Magistrate King convicted him and sentenced him to prison with hard labour in Georgetown. The mother cried out. But Magistrate King could not then do anything about it. He has already passed sentence. He was therefore functus, as we Lawyers would say. The old woman had lost her goat and as a result her son was going to prison. This is law. But this is not African. I refused it in Mansakonko more than twenty years before.
And this reminds me of a much earlier situation in Kerewan. I hope that there are no Baddibunkas here present. I had learnt from observation during the early days of political activity in this country that the Baddibunkas may be afraid of the Police—but certainly not the Court. I was the Travelling Magistrate from Barra to Mansakonko, looking very young. I wanted to make sure that I and the Court were respected. After hearing a particular case at the Kerewan Magistrate’s Court for a while I looked at my watch and saw that it was about two O’clock in the afternoon. I first said it in English and the Interpreter announced it in Mandinka that I was rising for thirty minutes to go and perform my “Salifana” prayers. I rose and took my small prayer mat from the vehicle and went to the stand pipe near the Commissioner’s office and started taking abolution. I could hear some people in the crowd speaking to one another saying: “Hei, mosi sila nying jojo lade; jojo menka kitio deng ko abita salifana salola. Mo sa hakilotu.”
I knew my message was well understood. I performed my prayers and went back to court with the assurance of a great deal of respect from the Baddibunkas. I can go on and on to show that we Africans have it in our tradition to run our lives, our families and our societies in peace and harmony.
In 1963 I was posted to Georgetown as Executive Officer of the Area Council. I was a bachelor at the time, only 22 years old, and lived in what was/is called Boraba Government Quarters on the eastern part of the town. On e Mr. Johnson, who was a Clerk in the Commissioner’s Office, and his wife also lived in the same quarters, a few houses away. I was then studying for the University of London General Certificate of Education at the Advance Level in Economics and British Constitution by correspondence tuition with Rapid Results College. After work and on Saturdays and Sundays I would sit by my window reading and often observed Mr. and Mrs. Johnson come out of their quarters, sometimes one running after the other and when caught up would hug and kiss. Sometimes one would hide behind my fence playing the hide and seek game. When either was found out by the other, I could hear their cheerful loud laughter. They were very happy. I admired them. I would stand up and put the book I was reading on my chest and say to myself “whenever and whoever I marry, we will live like Mr. and Mrs. Johnson.” That was in 1963.
In 1978 I was Senior Magistrate, Banjul. My good friend and brother, Mr. Antouman A.B. Gaye was the Principal Magistrate. He assigned a maintenance case to me. It was a Mrs. Johnson suing Mr. Johnson for the maintenance of their children. The names only reminded me of the happily married role model Johnson couple of the Boraba Quarters Georgetown. “Perish the thought,” I quickly felt and said to myself: “No, it cannot be; it is impossible.”
But it was. I was shocked to see from my office window the same Mrs. Johnson walking up the stairs of the court. A little later, Mr. Johnson also arrived. I wandered what on earth had gone wrong. They were ushered by my clerk, Mr. Jaiteh, to my office where maintenance cases and other family matters were heard-–not in open court. We stole blushing looks at one another. Their running after each other, and hugging and kissing, and playing the hide and seek game, and the cheerful laughter of the happily married Mr. and Mrs. Johnson of the Boraba Staff Quarters in Georgetown—my all time role model couple in 1963—came fresh in my mind like Shakespeare’s Othelo and Desdemona. I could not think of anything else—only the Mr. and Mrs. Johnson of Boraba.
I thought of a plan. I first sent Mr. Njai, the Court Interpreter to Mr. Gaye’s office where all the volumes of the Laws of The Gambia were kept and to bring me volume 13. I knew that Mr. Gaye was already in court and that there was no volume 13 and that Mr. Njai would therefore take time trying to find the said volume. The last volume was 9. After waiting for some time I complained about Mr. Njai’s failure to bring me volume 13 and thereby wasting the time of the court. I instructed my Court Clerk, Mr. Jaiteh, to quickly fetch volume 13 and to come back with Mr. Njai for the court to sit and hear the urgent matter before it. I knew that Mr. Jaiteh, like Mr. Njai would not find volume 13 which there was not. For some time neither of them came back not even without volume 13.
I apologized to both Mr. and Mrs. Johnson for what I called a most unsatisfactory situation and pointed out that I myself would fetch volume 13 and bring both the clerk and the interpreter for the court to sit and hear their matter the same day. “There will be no adjournment,” I emphasized and left them in my office. But I did not close the door; it was left a little ajar. They were now alone. Some 30 minutes later I came back with both Mr. Jaiteh and Mr. Njai but without volume 13. What did we find? We found something greater than whatever volume 13 could have been. We found Mr. and Mrs. Johnson holding each other’s hands and saying; “Na you do am.” “No, na you do am” and smiling from ear to ear. The Mr. and Mrs. Johnson I knew in Georgetown came back alive—very much the same as I used to see them some 15 years before.
When we all took our seats I looked at them smiling—all of us smiling—and I quietly pointed out that there was no volume 13 of the Laws of The Gambia. The idea was to leave them alone to themselves to see what will emerge. And that what emerged was what we were all looking for: not volume 13. It was a joyous moment and they left holding hands as they walked down the court stairs—just as I used to see them do at our Boraba Staff Quarters in 1963. Three days later, they both came with their children to my office and said that they were separated for more than a year before appearing before me and to thank me for putting the family happily together again. That was in 1978. In 1989, eleven years later, their eldest daughter became my secretary at my Fana Fana Chambers.
But I could not do the same a year later. As Principal Magistrate in Banjul a case of fraudulent false accounting was brought before me. The young man charged with the offence came from my village. In fact his father was so fond of me as a child that when my father put me in School at Dankunku and I daily used to walk the four miles alone from Sambang to Dankunku, his father instructed him to be going with me. When we got to the School he would sit outside and wait for me until after school and we would walk back home to Sambang. Eventually, he joined the school as a pupil.
He, it was the same young man, who many many years later was brought before me—now Principal Magistrate—charged with fraudulent false accounting in the Agriculture Department at Yundum, where he held the position of Senior Accounts Clerk. I pleaded with the then Chief Justice, Sir Philip Briges, an English man, to recluse me from the case on family grounds. He refused. I heard the case. I convicted him. This is a part of what I said when passing sentence on him and openly crying in court:
“Mr. Mamudou Barry, you are convicted on all the counts of the charge against you.
Yes, Mamudou, I know you. You are my brother—all the way from our little village, Sambang, in the Niaminas. I sent you to school in the early 1950s. Despite of all that, however there is a duty I owe to my country. It is a heavy duty, at times most unpleasant, just as it is for me at this moment in time—having to pass sentence on my own brother from the village.
But I have sworn to do justice to all manner of people without fear or favour, affection or ill will. I intend never to quake or quiver from that duty much less to a brother who has brought such dishonour and disgrace to our family and friends.
I feel that the rampant rate at which this get-rich-quick fraudulent squandering away of State funds is now going is both alarming and abominable and the attitude of this Court is that such offenders who are mortgaging the future of this country for their own individual selfish ends should be so punished in such a way that others will be deterred from the practice.”
That was on the 21st day of June 1979. I could not go back to the village for some time. They could not easily understand or accept why and how a son of the village could send another son of the village to prison. The family Jali, Demba Jankh M’Boob heard the news in Sokone, Senegal, that I have sent a son of the village to prison. He quickly travelled to Sambang and at an assembly of the village, under the Bantaba Bentengki tree he asked: “is it true that FaFa sent Mamudou to prison?” The sad answer in a chorus was “Am na de!” “Dagala de!” “Doi na warr de!” Then he moaned “Is the world coming to an end?”
From Sambang he came to Banjul. With the assistance of Mansour Njie he had a radio programme in which he played the Khalam and sang the family tune: “M’Bai yau linga jomba barina” which he followed with “Janga jangano kusa janga moka da nga ber sadara.” It was when I heard this on Radio Gambia that I knew that Demba the family Chosaan Jali was in town. The next day I tendered my resignation from the office of Principal Magistrate, Banjul, and established Fana Fana Chambers. That was in December 1979.
More recently, a visiting Ivorian gentleman who was driving on the Coastal Road hit a man who was insane and killed him. He was taken to Wellingara Police Station where he reported himself and told the police what had happened. He was detained. Police investigation commenced. On the second day he was very uncomfortable, worried and nervous. He was visiting for the first time and this had happened to him. He has never had any brush with the law or cause to be at any police station anywhere in the world including his own country, Ivory Coast. And this has now happened to him in a foreign country. He was almost a nervous wreck. His Gambian host called me on the telephone and asked if I could meet this man, his Ivorian guest, at the police station and advise him as Solicitor.
I went to the Wellingara Police Station, met the Station Officer who later introduced me to the man. He was very excited to see me, a lawyer. He told me what had happened and how the deceased suddenly ran onto the road and that before he saw him or knew it he had been hit. He cried and wept profusedly. I advised him to calm down and that we would do everything we legally can to represent him in court. “Court!”, he exclaimed. “God forbid!” “God forbid!” he said in Manlinke. He wanted me to get him out of the police station immediately. I pointed out to him calmly but firmly that that was not possible; that the police must do their investigation and, most likely, take the matter to court. I asked if he was a Muslim and he confirmed that he was. I gave him my string of prayer beads and suggested to him to recite “Subhanallah, wal-Hamdulillah, wa-lailaha illallahu, wallahu Akbar” as many times as he could. He held the string of prayer beads in his right hand and just looked at me—not quite sure whether to smile or to cry. About 25 minutes later I told him that I would come back the next day. I left. One hour later, his Gambian host who had earlier asked me to go and meet this Ivorian guest at the police station called me on the telephone and enquired what wonderful thing did I told his guest at the police station. I tried to explain. But he pointed out to me that the man had called him to ask if I was an Imam or a Lawyer and that he, the Gambian host was very pleased with his guest’s impression of me.
A few years earlier, a priest, whose twin brother was at one time the Dispenser at Dankunku and used to write letters to me for my father when I was studying law in England came to me at Fana Fana Chambers and instructed me to file a suit for him against his church. From what he had told me and the documents he produced, it appeared to me that he had a good cause of action. I asked him to give me a few days to study the matter and give my advice. He felt satisfied and left. There were some clients waiting to see me. I locked myself in my office for 25 minutes pondering over the matter. I said to myself, “Me, a Muslim, acting for and filing a suit by a priest with a good cause of action against his church”—and felt an existentialist dilema. Suddenly, a good idea came to mind: to consult the grand old gentlemen; Mr. S.H.M Jones and Dr. S.J. Palmer, both resident at Atlantic Boulevard, and well known mentors to me. They were very pleased and informed me that they, in fact, belong to the same church. Mr. Jones had, in fact, taught the priest in school. They had a meeting with the priest and with the church and were able to resolve the matter amicably and to the satisfaction of the priest.
These were some of the challenges, difficulties, frustrations and agonies in my life as a Magistrate. There were more as State Counsel; as Defence Counsel or Private Practitioner, or as Attorney General and Minister of Justice.
But there were ecstasies including great honour, pride and privilege. On 8th May 1982, thirty months after my resignation from the office of Principal Magistrate, Banjul I was appointed Attorney General and Minister of Justice of The Gambia. Less than a year later in April 1983 the President of the Republic conferred on me one of the highest Honours----The Insignia of Commander of the National Order of the Republic of The Gambia “for his dedication to the law, commitment to its revision and reform to reflect the realities of our changing society and to improving the efficiency of our legal system.” This was a part of the citation that was read out at the Investiture Ceremony at the State House Garden in Banjul.
I became the first Attorney General and Minister of Justice of The Gambia to appeal a case to, and appear before, The Judicial Committee of The Privy Council in London, and we won. In the course of my public service as Attorney General and Minister of Justice, I participated at the highest level in decision-making which gave me first hand experience of development, legal and political problems and issues in developing countries.
I also represented this country, led delegations, addressed and participated in many international conferences including Commonwealth Law Ministers’ Conferences in Colombo, Sri Lanka in February 1983; United Nations Law of the Sea Conferences in Montego Bay in December 1982 and Kingston, Jamaica in April 1983; Socialist International Colloquium on “Socialism, Democracy and Development” in Dakar, Senegal in December 1983; United Nations Africa Regional Preparatory Meeting and Inter Regional Preparatory Congress for the Seventh United Nations Conference on the Prevention of Crime and the Treatment of Offenders in Addis Ababa, Ethiopia in December 1983 and Budapest, Hungary in June 1984.
There is no greater glory, honour and privilege in a lifetime. In the preface to my book, IN THE SERVICE OF MY BELIEFS, I declared: “For all these I thank Allah the Almighty for having provided me the opportunity to serve my country in the offices I was privileged to have occupied and also for having guided and protected me during this period. I am also grateful to the mass of my fellow country men and women for their support and sympathy and for having made it all so worth the while. I therefore remain on my stand a proud son of this land: unbowed, uncowed, unrepentant and untroubled either by hopes or by fears and still less by regrets.” You also are bound to face many similar situations of agony and ecstasy in your life in the law. I advise that you must be strong, courageous and resolute in whatever you do but always remain attached to the community, loyal to its values and integrated in its social system.
Professor Anthony Allot, Professor of African Law, University of London, and the most renowned leading expert on African Law points out in A FIRST BOOK OF AFRICAN LAW thus: “The legal scene in post colonial Africa is reminiscent, if you will permit the fancy, of a wide beach from which the tide has receded. The eye notices, stranded upon the shore deposits of extraneous material left behind on the ebb of colonial overrule. Here one sees substantial portions of the English, French, Belgian, Portuguese, Spanish or other laws turn away from the main body of the indigenous system as the fundamental and general law of the country and the regulated continuance of traditional African law and judicial institutions.”
In his published epock-making BBC documentary, THE AFRICANS: A TRIPLE HERITAGE, the veteran anthropologist and leading Africanist, Professor Ali Mazrui, also points out: “Before European colonisation there were indigenous African justice systems in which the protection of the innocent was the main focus rather than the punishment of the guilty: victim-focus rather than villain-focus. There was a decisive shift from focus on the victim of a crime to focus on the suspect or culprit. Africa’s indigenous justice systems also shifted from emphasis on shame to emphasis on guilt. Shame is a subjective state of mind which implies a state of unease and internal anxiety about something which has gone wrong. Guilt, especially in Western terms, is an objective condition which can be ascertained by the law of evidence and which can be measured in terms of degree”.
“The colonial justice system substituted prison sentence to compensation. It also substituted guilt ascertainment for shame arousal. Third, it substituted strict personal responsibility by the culprit for collective family and social responsibility for violations committed by a member of the group. The substitution of a cage for the villain in place of compensation for the victim, the insistence on objective guilt instead of subjective shame, the focus on personal individual accountability for collective responsibility have all resulted not only in escalating crime and violence in our cities and urban areas but also in the relentless decay of our present legal systems and structures of law enforcement institutions. How do we evolve these pluralistic, conflicting and competing legal systems, concepts, principles and reasoning into a holistic harmonious whole capable of absorbing the shocks due to the African colonial experience and of meeting the ever-present challenges of rapidly changing social needs?”
An integrated and planned justice system does not aim at the preservation of criminal responsibility, ingredient of offences, and defences. Rather, it ensures the universality of its principles. The concept of criminality among a people envisages a general revulsion of the proscribed conduct as one reprehensible to the society mores and deserving general condemnation. Consequently, where the declared objectives of a justice system is the disregard of immanent attitudes and accepted mores the resulting formulation of theories of responsibility, ingredient of offences and defences, cannot but be based on values outside the cultural milieu. This is precisely the effect of the inherited laws in many, if not all, African countries. We are now faced with the unenviable task of reordering our societies, through proper planning and execution of criminal justice policies, to reflect societal values. The ideals of reasonableness, legitimacy of conduct, and sense of moral culpability can only be examined within the context of the values of society.
It is therefore naïve to assume that an alien morality can satisfy the sense of justice of a people especially where these values are in essential and fundamental respects opposed to theirs. Hence in the formulation of criminal justice policy nothing but the cherished values of the people should form the substratum. If a contrary attitude is adopted, there is no doubt that the perennial problems of cultural pluralism which is the bain of the criminal justice systems in the developing African countries will continue to cry out for appropriate and deserving solution.
The legendary African scholar and jurist, Professor T.O. Elias, in one of his many ground breaking masterpieces entitled THE NATURE OF AFRICAN CUSTOMARY LAW, which is a required textbook for the University of London LL.M course in African Law, observed and I quote: ‘Whereas African Law strives consciously to reconcile the disputants in a law suit, Western Law often tends to limit itself to the bare resolution of the conflict by stopping at the mere apportionment of blame as between the disputants: judgement by agreement intended to restore and preserve the social balance and not judgement by decree intended to enforce the legal rights of one party to the complete and permanent exclusion of the other, whatever the effect on the social equilibrium may be.’
The object of litigation in African legal reasoning therefore, is not punishment but settlement of disputes; not a declaration of strict legal rights, but reconciliation. The tender of amends by the wrong doer implied an apology for the wrong done; its acceptance meant forgiveness and forgetting. This method would tend to adjust disturbances of the social equilibrium, to restore peace and goodwill and to bind or rebind the two disputing groups together in a give-and-take reciprocity – unlike the Western method which tends to widen the gulf between the two groups by granting ALL THE RIGHTS TO ONE OF THEM TO THE EXCLUSION OF THE OTHER, because it would, in general, concern itself with facts and legal principles and take no cognisance of social implications.
In the vast majority of cases, the general atmosphere of the African judicial process is not one of enforced awe or solemn resentment but one of peaceful debate of the issues dividing litigants in the sure belief that some kind of acceptable solution will be found out of the elders’ fund of wisdom and sense of justice. Generally, it seeks to state and enunciate the norms of social behavior expected of right-minded members of the community, to condemn departures from these objective standards, and to praise such acts as tend to maintain and enhance the general well-being of the community; to make peace, to effect a reconciliation if necessary by making one to pay a fine or compensation to the other, but always by the gentle process of argument and persuasion leading gradually and inevitably to a verdict that is at once clear and fair.
And running through it all is the transparent duty to reconcile disputants with each other, to reincorporate the minor criminal in society at large, and to show the necessity for elimination of the malefactor and the antisocial, in the earnest endeavour to do justice, fairplay and equity. It is this motive to do equity that is the most characteristic of the African judicial process and reasoning. Aristotle, the master who knows, could have been speaking of African legal reasoning when he said in THE RHETORIC. “It is equity to pardon human failings, to look to the law giver and not to the law… to wish to settle a matter by words rather than by deeds; lastly, to prefer arbitration to judgement, for the arbitrator sees what is equitable, but the judge only the law, and for this an arbitrator was first appointed, in order that equity may flourish”. It remains to conclude that in this sense the African judge in his reasoning is, and must, remain an arbitrator.
It is on this indigenous African system of dispute settlement i.e. arbitration, conciliation and reconciliation that a Nigerian student wrote his Ph.D Thesis in an American University that the Americans have adopted and renamed and popularised as Alternative Dispute Resolution (ADR) when in fact ADR is truly and simply African Dispute Resolution: it is not alternative, it is African!
Although it is the national policy in many African countries to promote unification of laws the effect of which would be to eliminate internal conflict problems, it would appear that the attainment of this goal in common law countries is not an immediate possibility. Choice of law problems will therefore continue to puzzle the courts and legal advisers for some time to come.
There are, however, three major possibilities for the course of legal development in Africa. First, the pluralism of law may continue, either purposely adopted by the authorities or simply persisting in the absence of any change of policy. A second possible policy is the selection of one of the plural legal systems and structures to the exclusion of the others. This might be the non-indigenous law – or some other foreign legal system – or the selection of one or more of the indigenous legal systems.
The third possible policy for the course of legal development in Africa is the fusion of the elements of the plural legal systems. The future of the African legal systems therefore will probably combine Western derived legal principles with indigenous legal doctrines so modified and developed as to fit the changing needs of society. A directed evolution of the institutions of indigenous law is therefore necessary if fusion of this element with the advanced legal doctrines of Western hue is intended to constitute a national legal system.
Lines of development in the past have, however, demonstrated the potentialities of African customary law for the future. While economic development would be fostered if brought under one unified general system of law for a country, the law established should have full regard for the traditions, family and personal law of the society concerned. Questions of family relations, marriage, divorce, and succession are so essentially personal that they must, in a large part, continue to be governed by the customary law of the community. It may therefore be stated that the third possibility – fusion of indigenous and non-indigenous laws – should be the guiding policy, expressed or unexpressed, for most of the African states.
It is, however, impossible to exaggerate, that the urgent need for law reform and development in Africa cannot be met by a series of national efforts however praise-worthy each of these may be. The artificiality of existing national boundaries, their lack of rational relation to significant ethnic groups or to viable economic units and also their very intransigence, all these factors strongly suggest that national efforts toward law development at the national level need to be supplemented by transnational programmes. The argument for uniformity or at least harmonisation of laws is compelling and some measure of success in this direction might also provide some impetus for the creation or recreation of transnational courts and the better coordination of criminal justice systems across national boundaries.
Almost by definition, the Africa Region is a region of new nations which must tackle and accomplish several urgent tasks all at once. The compelling goal is modernisation with its many pathways some obvious, others baffling and obscure. The more obvious ones are education, health, economic development, improvement of communication and so on. These have received and are receiving much scientific and institutional provision. Less obvious, more baffling and even more challenging are those pathways leading to the establishment of that stable legal and political order within which the desired and needed modernization to cope with the minimum standards and norms of the United Nations and/or the African Union can take place.
This is the province of law, and in this province it is urgent that a radical transformation should occur both in the provision for research and in the consequent output of systematic and constructive thinking. Far more than the developed and established nations, the African states require the services of the most skilled, perceptive and sophisticated machinery of law reform and law development that can be contrived. For we in the Africa region, have less time in which to achieve comparable viability in our institutions of law and government. We have a greater need to avoid unnecessary mistakes, being less able to afford them. Like the advanced nations from which we have inherited dominate features of our legal systems, we are confronted with the problem of keeping the law abreast with the time. And our adolescent need for stability and national unity faces us with many additional problems of institution building and law development.
Somehow, therefore, massive scientific help must be brought to bear on the problems of institution building and law development in Africa. An urgent need exists for achieving the capacity to point more assuredly toward the acceptable solution of pressing political problems; for speaking helpfully, persuasively, and effectively to the emotions, passions and reasons of the leadership of Africa.
Your Excellencies, My Lords, Distinguished Ladies and Gentlemen
There is urgent need for the establishment of a LAW COMMISSION FOR AFRICA, constituted on lines similar to those of The United Nations Economic Commission for Africa, and working closely with it and supplied with full time staff specifically devoted to this task. Ideally, such a LAW COMMISSION FOR AFRICA would be served by three or four Regional Research Institutes, themselves based on smaller institutes of legal research in each state. Tasks awaiting such a Law Commission include:
undertaking the promotion of systematic research into the many common legal problems that confront most African states, not least of which is the establishment of viable constitutions.
2. acting as the technical agency for any future organisation that may be set up to promote uniformity of laws as between states in matters where uniformity is desirable and practicable and assisting generally with the work for modification and restatement that is under way in some countries.
3. serving as a coordinating centre and clearing house of information regarding law reform activities in different countries, how particular problems have been solved in foreign legal systems, and providing facilities and assistance for projects for reform in particular countries.
The thrust of my argument is the strongest possible plea for collaboration in the establishment of some such LAW COMMISSION FOR AFRICA. Massive and concerted work by legal scholars on the intangible infrastructure has been urgently needed since days before independence. In the field where many common problems challenge combined thinking and action, it remains true to say that most of the ongoing work proceeds in isolation and does not measure up to need. For the most part, we have yet to take the necessary steps away from the starting point, inherited from the colonising power, on the road to integrated national systems and to international harmonisation in appropriate spheres.
In justification of this plea we need only to remember the impressionistic profile of the colonial legal impact and legacy that we have been discussing in this lecture, raising questions and thereby indicating areas that demand thoughtful action based on systematic research.
I do not think we can talk about “Law and Lawyers in a Changing Society” without discussing the concept of human rights and freedom of speech in Africa. In an address to the Oxford University Africa Society in March 1977, our distinguished Commonwealth Secretary General declared: “On the issue of human rights let me be content with words which represent my most profound conviction and the principles for which I believe the Commonwealth stands on this most vital matter; let us establish as axiomatic the universality of human rights; that human rights are not divisible; that they cannot be apportioned between states and amongst peoples; that the dignity of man is everywhere affronted when the human personality is anywhere degraded; that justice must be given a world-wide dimension if injustice is not to debase our civilization and threaten the peace of the world”.
We must, however, agree with Professor Claude Ake when he said in a Paper presented at the “International Conference on Human Rights: The African Concept” held at the University of Port Harcourt, Nigeria, in 1987 that “the African society is a network of relations and of mutual obligations which impose responsibilities based on duty, trust and a sense of community. There must therefore be a unique direction in which human rights laws ought to go in Africa; that human rights laws in Africa must be built on principles quite different from those existing elsewhere; that human rights laws in Africa must be built on African principles”.
It is argued elsewhere, however, that human rights as understood imply a society which is atomised, individualised; a society based on permanent conflicting interests. The individual is conscious of his separateness and wishes to maintain it, while society, on the other hand promises to uphold this separateness.
Such values are alien to the African society. We Africans lay emphasis on the collective rather than the individual, and the individual claim is not usually allowed to override that of society. The African society promotes harmony rather than competing interests and the individual tends to consider obligations to others as having a higher status than his own claims against them.
In recent years, serious strides have been made to enact human rights laws in Africa, the most remarkable being the African Charter on Human and Peoples’ Rights, 1981 (popularly known as the Banjul Charter) which came into force in 1987. While the Charter follows the usual pattern on human rights enactments, especially the European Convention on Human Rights, it contains major innovations. The concept of duties is introduced, for the first time. The whole of Part One (Articles 1 – 29) deals with “rights and duties”. There is a “right to develop” Article 22(1) and a “right to international peace and security in Article 23(1). I find it fascinating and African the duties imposed on the individual to his family, to the society, the state, to Africa and to the International Community (Articles 27 – 29). The impact of the Charter on African states including the question whether the socio-political and economic climate in Africa is favourable for the implementation of the Charter is still being discussed and studied by eminent scholars and jurists both in and outside Africa. In practical terms, however, we now have the ECOWAS Community Court in Abuja, Nigeria, and the African Court on Human and People’s Rights in Arusha, Tanzania.
The African concept of human rights should therefore go beyond the concept that “every person is free or has the right to dine at the Paradise Suites Hotel”. What right is this to anyone who cannot afford to do so. Our concept of human rights makes sense only if it also includes the ability to do those things that we are entitled to have.
On freedom of speech I will content myself with John Stuart Mill when he said that “The liberty of the individual must be thus far limited; he must not make himself a nuisance to other people.” Mill, who read Wordsworth disagreed with Jeremy Bentham on the hedonist utilitarian philosophy of “the greatest happiness of the greatest number” or that “push pin is as good as poetry. He said that “it is better to be Socrates dissatisfied than a fool satisfied”. Freedom of expression does not include the freedom to shout “FIRE”! in a crowded hall or say anything which might bring mischief in society.
In the biography of Viscount Buckmaster entitled AN ORATOR OF JUSTICE we read the speech on “The Romance Of The Law” he delivered to the American Bar Association, when he said “Our profession is the greatest to which man’s energies can be called. We are servants in the administration of justice. It is therefore a profound mistake to think that a Lawyer should be a man who by any device can secure victory in Law Courts for his clients. Every Lawyer down to the youngest junior ought to remember that he, in his small degree, is assisting in something more than merely settling a quarrel between two people. He is a minister of justice”.
“What are the qualities he should possess”? “He should have a sense of honour. He should have courage undefeated and faith undefiled and he should be ready to ignore at once all popular applause and popular abuse. He should remember that when the sound of public approval tickles the ears of any man, whether a Judge upon the Beach or a Counsel at the Bar, when he is flattered by the passing breath of popular favour, the administration of justice at once becomes in great danger. No fear of ill-informed censure should influence his courage. No hope of unearned praise should give him any pleasure”.
You may say to me, in all the difficult conditions of life, do you really think that such a standard as you put forward is a standard that can be obeyed? My answer is, ‘Yes’, and I say more, If we read the splendid biographies of Lawyers we will find people who are notable examples of the way in which it has been carried out. I will come back to this later. But it must be admitted that it is not the common view of Lawyers, and I think we ought to face the common view in order that we may show by our conduct that we belong to an honourable profession.
You may remember that Thackeray described a great Lawyer in these terms: “He was a man who had laboriously brought down a great intellect to the comprehension of a mean subject, and in his fierce grasp of that, resolutely excluded from his mind all higher thoughts, all better things; all the wisdom and philosophy of historians; all the thoughts of poets, all wit, fancy, and reflection; all art, love, truth altogether, so that he might master that enormous legend of law. He could not cultivate a friendship or do a charity or admire a work of genius or kindle at the sight of beauty. Love, nature, and art were shut out from him”.
What a libel on a great profession to which Thackeray had once himself been apprenticed, and how utterly false! It would be more true to say of Lawyers that, so far from this narrow outlook on the world, there is no horizon too large for us to gaze at, and that the subject of our work is one which, as it includes the greatest of all things, the study of human life, so it gives the greatest scope to the noblest powers of the intellect. What is the subject of a Lawyer’s work? For this I would use the words of Juvenal: “Whatsoever it is that men do, their hopes, their fears, their anger, their pleasure, their vagaries, their delights, all of these things form the medley of our briefs”.
There is no learning that comes amiss to us. The most erudite, scientific work is a matter with which we may have to deal. There is no phase of all the many mysteries of the human heart which may not be the subject of the case we have to consider. There is no form of knowledge that is alien to our perfect equipment, and the man who confines himself to a meaner view is debasing a great profession.
Shakespeare also had something to write about Lawyers. The character, “Dick the Butcher” drunkenly proclaimed in HENRY VI PART II; “The first thing we do, let us kill all the Lawyers”. Hamlet in the graveyard scene, held up the “skull of a Lawyer” and asked Horatio, “where be his guiddies now, his guillities, his lassies, his tenures and his tricks”? But nothing dramatises the struggle in Shakespeare’s England for supremacy between the Common Law Courts and the Equitable Court of Chancery more than the oral advocacy in JULIUS CEASAR particularly the funeral orations by Brutus and Mark Anthony over Caesar’s corpse, or Portia’s ruling in the case of Shylock v Antonio in THE MERCHANT OF VENICE.
Even the Bible refers to Lawyers. In Mathew 22 verse 35: “Then, one of them, who was a Lawyer, asked him a question, tempting him saying, Master, which is the great commandment in the law?” Jesus, all Christians will know, replied that “thou shall love the Lord, thy God will all thy heart, soul and body”. The Lawyer was a Pharisee. The same account is narrated in Luke 10 verse 35. When Jesus said in Luke II verse 46: “Woe unto you also, ye Lawyers? For ye lade men with burdens grievous to be borne, and ye yourselves touch not the burden with one of your fingers,” he was not admonishing solicitors, attorneys or barristers as we know it, but rather the religious teachers of the day as Luke 12 verse 44 shows: “Woe unto you, scribes and Pharisees, hypocrites” as well as Luke 8 verse 30: “But the Pharisee and lawyers rejected the counsel of God against themselves, being not by him”.
In Islamic literature we are told that the position of a Judge was one of the highest of state and society, guaranteeing the one engaged in it prestige, and glory. The Caliph Saidina Usman once sent for the pious Abd Allah Ibn Umar and asked him to hold the position of Judge but he apologised. Saidina Usman asked him, “Do you disobey me”? Abd Allah Ibn Umar answered, “No, but it came to my knowledge that Judges are of three kinds: one who judges ignorantly: he is in hell; one who judges according to his desire: he is in hell; one who involves himself in making IJTIHAAD and is unerring in his judgment. That one will turn empty-handed, no sin committed and no reward to be granted. I ask you by Allah, exempt me”.
Saidina Usman exempted him after he pledged never to tell anyone about it, for he knew Abd Allah Ibn Umar’s place in the hearts of the people and he was concerned that if the pious and virtuous knew he had refrained from holding the position of Judge, they would follow him and do the same and then the Caliph would not find a pious person to be Judge. However, we Muslims are made to believe that an upright Judge receives the blessings of 60 years worth of pious worship for every just decision he gives.
I would therefore like each and every one of us, in glorifying and ennobling our profession, to refute the calumnies to which we are often unfairly subjected; that the law is a narrow subject of study and that success in it depends upon trickery and devise. It is nothing whatever of the kind. Knit, as you like, law with history and it becomes life, life in a movement advancing from a continuous past to a continuous future. The story and development of the laws of any society are the surest possible means of determining the progress that is made along the great path way of civilization.
A member of the Bar must also be prepared to accept a brief pro bono public … for public good … that is without charging any professional fees. It will do damage to the image and the interests of the profession were we to be seen as “no fee, no work” lawyers even where the public interest or justice demands that a particular person should be assisted professionally.
Furthermore, no member of the profession should refuse a case for which he is properly briefed, for which he is available and which is within the area of his expertise or practice in the profession. We cannot refuse the instructions of a client simply because we don’t like him, his race, or tribe, his politics, religion, sex or for fear of the authorities. We should remember Sir Hartley Shawcross’s famous warning as Attorney General of Great Britain, (popularly called, “The Shawcross Doctrine”) when he heard that certain English barristers were reluctant to accept the brief for the defence of Jomo Kenyatta in Kenya on criminal charges of managing the Mau Mau brought against him by the British Colonial Government. To the eternal credit of the legal profession in Nigeria, Chief H.O. Davies and Chief Kola Balogun flew to Kenya and joined Denis Pritt QC in the defense. That is a tradition noble and sacred. It is profound misconduct not to observe it.
In 1792, prosecution was brought against Tom Pain because he published a book known as THE RIGHTS OF MAN. The great advocate, Erskine, was sent the brief to defend. The then Prince of Wales to whom Erskine was legal adviser viewed Erskine’s acceptance of the brief with disfavor and cancelled Erskine’s retainer. Erskine was unmoved and said in a statement that has become a credo for all Lawyer “From the moment that any advocate can be permitted to say that he will and will not stand between the Crown and the subject arraigned in the Court where he daily sits to practice, from that moment, the liberties of England are at an end”.
These things ought to be known and ought to be remembered. They ought to form part of the teaching, training and practice of every Lawyer. Our studies are not merely a collection of rules out of black books and ancient, musty documents. The men who ennobled our profession, who have shown the heights to which it can be raised; they also form a part of our teaching, and the history of their lives should be studied and mastered by every Lawyer. So taught what a study it is! There is nothing comparable to it in the world.
On ‘The Romance of the Law’ our distinguished English jurist points out …’ “Suppose we look back to the pages of history and glance for a moment down the vast corridors of time, what is it that we see? Race succeeds race, and dynasty follows dynasty like shadow pictures of a moving film; conquerors, with their great armies fill for a moment the spot of light, and pass away, to be followed by line after line of captives in chains; by the spectres of famine and disease and the havoc and horror that have always and forever will follow the panoply and pomp of war. The painted glory of kings and emperors brightens for a moment the passing show, and they too pass away … out of the darkness into the light, and out of the light back to the darkness again.”
“Is there then nothing in all this mutability of things that can stand secure? Is there no single true ideal that makes life worth the living through? My answer is, “Yes”, there is the spirit of justice, and it lies with us (Lawyers) to see that that shall be preserved and shall remain.
He states: “To the Romans justice was a goddess, and surely she may without treason to our faith remain a goddess still; the goddess whose symbols are known to all; a throne that tempests cannot shake; a pulse that passion cannot stir; eyes that are blind to all feelings of favour or ill-will, and the sword that falls on all offenders with equal certainty and with impartial strength”.
This, then, is she to whose service you have just been called in this solemn ceremony and to which we are committed and dedicated and in the temple that holds her shrine all we, who study and practise the law and speak its language, can gather together as one congregation and worship side by side as we have done in this historic ceremony.
J. W. Davies, a past President of the American Bar who later became Ambassador to the Court of Saint James in London brilliantly defended our profession when he said: “True, we build no bridges. We raise no tower. We construct no engines. We paint no pictures. There is little of all what we do which the eyes of men can see. But we smooth out difficulties; we relieve stress; we correct mistakes; we take up other men’s burdens; and by our efforts we make possible the peaceful life of man in a peaceful state”.
Law is an indispensable machinery of all governments whether democratic, dictatorial, or monarchical. All systems of government do pay homage to some form of legal norms. Which other profession is almost always given a seat in the government of almost all nations? Let us imagine a society without law and therefore without Lawyers. I am right, am I not, that if Lawyers did not exist it would be necessary to invent them.
This great honour carries with it very grave and great responsibilities. We must carry cross with crown; we must carry pain with palm; we must carry our gall with our glory. My Learned friends, let us never forget that being Lawyers, we have an enduring responsibility.
In one of his great books, LANDMARKS IN THE LAW, Lord Denning, Master of the Rolls, quotes the celebrated speech of that distinguished English jurist and advocate, Henry Lord Brougham, when he said: “It was the boast of Augustus … that he found Rome of brick, and left it of marble; but how much nobler will it be the Sovereign’s boast when he shall have it to say that he found law dear, and left it cheap; found it a sealed book; left it a living letter; found it the patrimony of the rich … left it the inheritance of the poor; found it the two-edged sword of craft and oppression … left it the staff of honesty and the shield of innocence”.
Your Excellencies, Distinguished Ladies and Gentlemen,
If we can achieve a programme of law reform and development including the successful setting up of a Law Commission for Africa, it will be the boast of us all, and even much more of all African Bar Association, Law Faculties, Law Societies and Law Schools when this generation of Africans and even much more the generation of Africans yet to come, shall have it to say that we found Africa of brick and left it of marble, found law dear, and left it cheap; found it a sealed book, left it a living letter; found it the patrimony of colonial craft and oppression, left it not only the inheritance of the poor, not only the staff of honesty, not only the shield of innocence, not only the dynamic spirit of the sovereign republican aspirations of the African people but also the renaissance of our peoples and their contribution to the great civilisation of the universal.
Your Excellencies, Honourable Speaker, My Lord Chief Justice, My Lords, Honourable Attorney General and Minister of Justice, Distinguished Guests, Ladies and Gentlemen,
As a young man, I saw visions, visions of a new Africa with a glorious tradition and historic past rising up again to the challenges of our times; visions of a mighty continent emerging again from the great schemes of the world with love of freedom in our sinews to suffer wrong no more and to rewrite the history of our ancestors.
Yes, as a young man I saw visions. I have no doubt that as an old man I shall dream dreams. I believe that I shall dream my dreams amidst the protection of the law and the security of justice for the weak, the meek and the poor. And I pray that we guard our laws and keep our faith that there is continuing progress, peace and prosperity for all, in this our beloved country, The Gambia. God bless The Gambia. I thank you all.