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On the need for a protection of legal practitioners’ act to The Secretary Gambia Bar Association

Sep 26, 2011, 2:42 PM | Article By: Halifa Sallah

The Central Committee of PDOIS has requested me to address this memorandum to you for the consideration of your august body. It is our conviction that the incorporation of fundamental rights and freedoms provisions in constitutions and our statute books is meaningless if those rights are not protected and enforced by courts.

Over the years human kind has come to acknowledge that the power to make, and enforce laws; prosecute and render judgment cannot reside in one person if justice is to be done and be seen to be done in a country. This gave rise to the doctrine of the separation of powers so that those who make the law, those who enforce the law and those who administer justice would have distinct powers and responsibilities. This is why the executive, the legislature and the judiciary have distinct functions and powers.

The law sees the need to offer special protection to each authority so that each would be able to exercise one’s powers without fear or favour, affection or ill will.

In fact Section 69 of the Constitution provides immunity to the President from civil and criminal proceedings and provides only one exception that is when it comes to declaration that his or her action contravenes the provision of the Constitution. Even there he or she is represented by the Attorney General and Minister of Justice.

Furthermore, section 113 of the Constitution states that “there shall be freedom of speech and debate in the National Assembly and that freedom shall not be impeached or questioned in any court or place outside the National Assembly.”

Section 114 adds that “without prejudice to the generality of section 113 no civil or criminal proceedings shall be instituted against a member of the National Assembly in any court or other place outside the National Assembly by reason of anything said by him or her in the National Assembly”

The members of the National Assembly are the voices and ears of the people. Any restriction of their freedom of expression would make them less effective and efficient in serving the interest of the people.

The third institution whose administrators are given immunity for the judgment they deliver in court is the judiciary. Section 123 of the Constitution states that “A Judge or other person exercising power shall not be liable to any action or suit for any act or omission by him or her in good faith  in the exercise of his or  her judicial function.”

These immunities are provided by the supreme law of the land not to make the executive, the legislators and the judges to be above the law; on the contrary, they are designed to enable them to conduct their duties in good faith  without inhibition or hindrance.  

It goes without saying that no judicial system could function under the principle of substantive and restorative justice without legal practitioners. In short ignorance of the law would have been an excuse if the person concerned had no right to the counsel of a legal representative who is well informed in matters of the law.

Legal practitioners are therefore interlocutors for justice to be done and be seen to be done.  This is why Section 19 of the Constitution states among other things that “Any person who is arrested and detained shall be informed …within three hours… of his or her right to consult a legal practitioner.”

Section 24 further buttresses the protective role of legal practitioners. The important portion reads: “every person who is charged with a criminal offence shall be permitted to defend himself or herself before the court in person or, at his or her own expense, by a legal representative of his or her own choice.” 

Suffice it to say that it is legal representatives who have access to prisoners and do assist them to appeal their cases. Without legal representatives the whole justice system in a country would crumble.

Legal representatives deserve immunities in whatever they do in good faith in defence of their clients. We would therefore appreciate it a great deal if the bar association undertakes to draft a protection of media practitioner’s Act that would guarantee immunities to legal representatives in the course of the performance of their duties.

Secondly, it is our view that the best way to combat words is to utilise words. This is why we would welcome your opinion on our plan to decriminalize provisions dealing with giving false information to public officers, sedition and libel. All those who are aggrieved by false information, prejudicial comments that are likely to bring hatred and contempt would be able to seek redress through civil litigation. We want to build an open society where freedom of expression, that is, freedom to give and receive information would be exercised without hindrance.

Section 25 of the Constitution makes it a right for a citizen to petition the president. We will ensure that all those who petition the president are immune to any form of prosecution.

Finally, there is need for the Gambia to elaborate a vision for its legal system. In our view, prisons in modern times are designed to rehabilitate those who need to be assisted to integrate into society to live productive and contributive lives after their incarceration. This is why the laws have given immense discretion to administrators of the Law to temper mercy with justice. The Criminal procedure Code provides administrators of the law with the following powers: 

Power to admonish and release

Section 266 of the Criminal Procedure Code reads:    ”In any case in which a person is charged with an offence under section 252, section 258, section 261, section 288 or section 290 of the Criminal Code or any offence punishable with not more than two years’ imprisonment and the court is of the opinion that the charge is proved, it may, if the person has not been previously convicted of any offence and if it thinks fit, having regard to the age, character, antecedents or physical or mental condition of the offender and to the trivial nature of the offence or any extenuating circumstances in which the offence was committed, instead of convicting him, admonish him and order his release.”

 Power to release upon probation instead of sentencing to punishment

Section 267. (1) adds that, “Where any person is charged with an offence not punishable with death and it appears to the court that the charge is proved but that having regard to the age, character, antecedents or physical or mental condition of the offender, and to the circumstances in which the offence was committed or to the trivial nature of the offence, it is expedient that the offender should be released on probation, the court may, instead of convicting and sentencing him at once to any punishment, order that he be released on his entering into a recognisance, with or without sureties, to appear for conviction and sentence when called upon during such period (not exceeding three years) as the court may direct, and in the meantime to keep the peace and be of good behaviour.”

In our view, what civilized humanity is advocating for is restorative and not retributive justice.

We therefore hope that your Bar Association would consider articulating a vision for the legal system in the Gambia which would serve as an ingredient for future policy making.

 While anticipating renewed cooperation

I will remain

Yours in the service of the Country,

Halifa Sallah

Secretary General

CC:Secretary General

Office of the President