The
recently published ‘Proposed Draft Constitution of the Republic of the Gambia’
is, by all account, an excellent and
admirable piece of work which must be commended.
It
is indicative of the depth of wisdom of the Honourable Commissioners of the
Constitutional Review Commission. The document, although not perfect, has a
great potential of creating a better Gambia which will be founded on the rule
of law, freedom, justice and accountability. And the whole exercise of drafting
the document is truly unprecedented in the sense that it encourages popular
participation through debate.
This
article is aimed at taking that debate further by highlighting a fundamental
issue of access to justice, through legal aid, which doesn’t appear adequately
provided for.
It
further attempts to explain why without access to justice being sufficiently
guaranteed in the document, entitlement to fair trial and due process will be
meaningless and unrealisable, which in turn will spell miscarriage of justice
and undermine the rule of law upon which democracy is predicated.
Access
to Justice in the Gambia - Current Position
Currently,
access to justice, especially in criminal cases, is guaranteed in the 1997
Constitution and the Children’s Act 2005. Section 24 provides that if a person
is charged with an offence which “carries a punishment of death or imprisonment
for life, that person shall be entitled to legal aid at the expense of the
state.”
Similarly,
the Children’s Act 2005 grants all children in the Gambia the right to legal
aid and representation, at the state’s expense, in cases they are involved
regardless of whether civil or criminal. The Children’s Act makes it possible
to enforce the Gambia’s treaty obligation under the UN Convention on the Right
of the Child 1989.
Both
the Children’s Act and Section 24 of the 1997 Constitution leave no room for
doubt as to entitlement to access to justice and legal aid. They are also
unequivocal as to who should meet the cost and when. The aim is plain – to
secure protection of the law and fundamental right to due process and fair
trial through legal aid. From available information, there appears to be no
evidence of any insurmountable obstacle to the application and/or realisation
of this purpose since the 1997 Constitution and Children’s Act respectively
came into force.
Indeed
the establishment of the National Agency for Legal Aid can be seen as an
implementing measure of section 24 of the 1997 Constitution and the Gambia’s
international obligations under various treaties and conventions on fair trial
and access to justice. Although not independent, operationally and financially
as should be the case, it appears to be genuinely addressing the unmet need of
legal assistance for the vast majority of indigent accused persons (adult and
children alike) up-and-down the country. But the Draft Constitution appears to
make a significant departure from the existing state of affairs insofar as
access to justice and legal aid are concerned.
The
position in the Draft Constitution
The
Draft Constitution is curiously silent on access to justice, either under the
1997 Constitution or under the Children’s Act 2005. The phrase, access to
justice, has not been mentioned in the document, despite fundamental rights to
fair trial and due process being guaranteed under Sections 43 and 70 of the
Draft Constitution. More disconcertingly, it seems to have omitted,
substantially, Section 24 of the 1997 Constitution.
Although
the Draft Constitution offers unencumbered right to legal representation in
certain circumstances, the cost of this will, it is apparent, still have to be
met by litigants themselves, some of whom may be extremely vulnerable. This is
an untenable position as it will mean that criminal suspects and/or accused
persons, and some other vulnerable persons such as children and women, will be
left to meet the cost of accessing justice themselves or go unrepresented.
Access
to Justice Constitutional Matter and should be so addressed
Some
may argued, unrealistically, that access to justice is catered for in the Legal
Aid Act 2008 and the Criminal Procedure Code; so there is no need to
constitutionalise it.
But
this will be missing the point altogether and impracticable. Access to justice,
through legal aid, especially in capital offence cases and cases involving
children’s best interests, is a constitutional matter and an international
obligation. It must therefore be seen and adequately addressed as such. It is
indisputable that an entitlement guaranteed under the constitution cannot be in
the same class as those provided for in an ordinary legislation which is
susceptible to amendments according to the prevailing political dispensation.
Access to justice must thus be explicitly stated in the Constitution to avoid
ambiguity and unnecessary future litigation with high costs, delay and
uncertainty. Drafting seminal documents, such as a constitution, is not
routinely done. It is once-in-a-lifetime exercise. So it should be thorough and
comprehensive enough first time round.
The
case for enshrining access to justice in the new constitution becomes even more
compelling when set against what a criminal suspect has to face in light of the
state’s mighty power and resources. He is always at a disadvantage. The state,
in addition to its powers of arrest and detention, also has a well-trained
investigators, in the form of the police force, who investigate crime and
gather evidence and a dedicated constitutional institution, the office of the
Director of Public Prosecution, to consider the evidence and prosecute. These
are adequately funded by the public funds. In contrast, the accused, from the
moment of becoming a suspect up to trial and possible conviction, has nothing
to safeguard his interest. Lest we forget, the Gambia’s recent history shows,
left unchecked, some rogue elements of the state have tendency to use
shortcuts, during investigation, to obtain confessions and admissions under
severe torture, oppression or threat of the same. But such inadmissible
evidence is routinely used in the proceedings unless challenged.
If
lucky, the first time a criminal suspect, be it a child or an adult or a person
with mental health problems, sees a lawyer may be a moment before he is asked
to respond to a charge in court; an environment which is strange, intimidating
and where communication is done (written and/or oral) in a foreign language –
English. This often happens without a prior legal consultation. The accused
person’s plight becomes even more precarious by virtue of the fact that the
investigation and interrogation are done when he has been deprived of his
liberty and is extremely vulnerable. They are done and recorded in English; the
resultant evidence is introduced in court in English and the Court’s language is English. Even the
presiding judge may not be a native speaker and may be alien to our mores,
traditions and customs. But even where an accused person is educated, his level
of sophistication may be too low to comprehend what really obtains during the
proceedings. Further still, and more worryingly is that our legal and procedure
texts are not easily accessible, even for lawyers.
Clearly,
in this context, without access to a skilled lawyer, without the guiding hand
of a competent and agile advocate, the adversarial system will break down and
miscarriage of justice will almost certain to occasion. It means that an
innocent person could be wrongly convicted; and a guilty person is left to roam
our streets only to strike again. So, the only remedy against this sorry state
of affairs, is to have effective access to justice through legal aid and/or
assistance from an early stage of the process. This certainly deserves
constitutionalisation which will guarantee equality of arms! The concept of
equality of arms means that the suspect must be granted autonomy, confidentiality,
the power to challenge the state’s case, and adequate resources that are at
least equal to those provided to the state agents.
Such
constitutionalisation of access to justice and legal aid is now an established
trend in many progressive developing democracies; some of which have similar
legal systems to that of the Gambia and are comparatively at par with the
Gambia in terms of economic development. They include Nigeria, Ghana, South
Africa, and Sierra Leone all of which have constitutions that guarantee access
to justice and legal aid.
So
the question of budgetary implication does not (and should not) even arise; and
cannot be legitimately raised. For any budgetary consideration will be justly
outweighed by public and justice interest considerations in favour of fair
trial entitlement.
In
any event, there is now strong empirical evidence showing that strengthening
policies on access to justice, through legal aid, and prevention of miscarriage
of justice has positive impact on economic development. This has recently been
confirmed in a joint-report by the International Bar Association and the World
Bank. The report surveyed over 50 cost benefit studies on legal aid programmes
worldwide, across both civil and common law jurisdictions, including the USA,
Bangladesh, and South Africa.
It
concludes that “improving legal aid services is as important for economic
growth as providing functioning hospitals, schools and roads.” It further notes
that “[t]he cost of problems left unresolved by a lack of legal aid do not
disappear - they simply shift to other areas of government spending such as
healthcare, housing, child protection and imprisonment.”
Therefore,
constitutionalisation of access to justice through legal aid and/or assistance
will be in line with international standards, the doctrine of the rule of law
and the Gambia’s various international obligations on rights to fair trial.
Without such guarantee in the new constitution, right to due process and fair
trial will be meaningless and unrealisable. Additionally the rule of law itself
will be undermined. Consequently, serious miscarriage of justice, often
accompanied by irreversible damage to those affected, will be routinely
inevitable.
In
a nutshell, it is universally accepted that there can be no legal right without
a remedy and, additionally, that the remedy must be accessible if it is to be
meaningful. Access to justice is not just representation at court. It will only
be meaningful and effective if it begins well before a case comes to court. In
fact there is incontrovertible evidence suggesting effective access to justice
often prevent unnecessary court proceedings, both in civil and criminal
context. In criminal cases, access to justice must begin before or immediately after an arrest is effected
and continues throughout the process. In this context, it is reasonable to
recommend that effective access to justice must be constitutionalised. That
will be in line with the adoption of the Draft Constitution “[I]n … spirit and
in the name of God the Almighty”, for God the Almighty orders that: “[I]f you
do judge, judge between them justly. God the Almighty loves [justice].”
The
author is a legal practitioner and works for National Agency for Legal Aid.
This article is a truncated version of NALA’s submission to the CRC.
