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kobo
United Kingdom
7765 Posts |
 Posted - 14 Mar 2013 : 22:33:52
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1. Related topic: Gambian judiciary
2. THE GAMBIAN FACE OF THE JUDICIARY NIGERIANS AWAY FROM THE FIRING LINE
Foroyaa News Editorial: Published on Thursday, March 14, 2013
Written by: Ousman Njie
"During the past years few people speak about the judiciary in the Gambia without mentioning the Nigerian nationals who were occupying the upper echelon of the judiciary.
Foroyaa observes that the membership of the judiciary has changed and the public is observing the situation with greater keenness.
Chief Justice Raymond Sock heads the judiciary, Justice Naa Ceesay Sallah Wadda is a Judge of the Court of Appeal, Justice Amie Joof, Justice Mama Fatima Singhateh, Justice Marie Saine Firdaus, Justice Awa Bah, Justice Kumba Sillah, Justice Edrissa Mbye, JusticeBasiru Mahoney are Judges of the High Court. Many people now claim that the higher echelon of the judiciary wears both female and Gambian face.
The Question now remains: Do the judges have security of tenure? Experts on the Gambian Constitution should begin the debate to ensure that the country has an independent judicial system as required by the Constitution.
Section 24 subsection (1) of the Constitution states:
“Any court or other adjudicating authority established by law for the determination of any criminal trial or matter, or for the determination of the existence or extent of any civil right or obligation, shall be independent and impartial; and
(a) if any person is charged with a criminal offence, then, unless the charge is withdrawn; or
(b) where proceedings are commenced for the determination or the existence of any civil right or obligation, the case shall be afforded a fair hearing within a reasonable time.”
Section 141 Subsections (4) and (5) state respectively:
(4) The Chief Justice, a justice of the Supreme Court, the Court of Appeal and the High court and members of the Special Criminal Court may only be removed from office for inability to perform the functions of his or her judicial office, whether arising from infirmity of body or mind, or for misconduct.
(5) A judge may be removed from his or her office if notice in writing is given to the Speaker, signed by not less than one-half of all the voting members of the National Assembly, of a motion that judge is unable to exercise the functions of his or her office on any of the grounds stated in subsection (4) and proposing that the matter should be investigated under this section.
We are still wondering why a judge could have his or her services terminated before the setting up of a tribunal to hear the case.
Section 141 subsection (2)(c) states that subject to the provisions of this section which includes subsections (3) and (4) that we have already quoted, “a judge of a Superior Court may have his or her appointment terminated by the President in consultation with the judicial service commission”
Could the president remove a judge without the confirmation of infirmity or misconduct by a tribunal set up by the National Assembly? The Bar association and the Judiciary should subject this to debate in defence of the independence and impartiality of the Gambian Judiciary."
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Edited by - kobo on 14 Mar 2013 23:56:00 |
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kobo
United Kingdom
7765 Posts |
Posted - 16 Mar 2013 : 12:39:41
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OUR CRIMINAL JUSTICE SYSTEM BAIL IS A RIGHT CIRCUMSCRIBED BY REASONABLE AND JUSTIFIABLE CONDITIONS
Revisiting Foroyaa News Archive with a refreshing relevant P.D.O.I.S Press Release: Published on Monday, January, 2011
Written by: Ousman Njie
"OUR OPINION Issued by Halifa Sallah: Compatriots, Pan Africanists and Internationalists, developments of far reaching historical experience are taking place in our homeland. It is therefore necessary for PDOIS which seeks to be a credible alternative to the APRC to draw a clear line of demarcation between the systems of government advocated by the two political forces.
It is common for the people to hear from the spokespersons of the APRC that a credible opposition is one that praises the government when it is right and criticizes it when it is wrong. Those who have knowledge of political systems would know that that is the role of a party back bencher. In short in systems where Ministers are part of Parliaments and are recruited from the ranks of the parliamentarians, those who are not selected as Ministers become back benchers who would praise the Government when things are right and criticise them when things are wrong.
The role of an opposition party is to prepare itself to replace a ruling party. Its duty is to expose why the existing ruling party is unfit to govern and present the better policies it would put in place if it were to be given the opportunity to replace it.This is the role PDOIS has been playing since the first Republic. Some have even accused us of propagating clarity on issues of fundamental importance which could give ruling parties ideas on how to address those problems. This, they say would enable ruling parties to stay longer in office. In our view, if ruling parties embrace what we say to their advantage it would only go to show that we could do better if we were in their position.On the other hand if we fail to put alternative policies in the public space what would the people rely on to make informed choices? It should be clear that not giving the people a legitimate option is not an option in a functioning multi party system.
The criminal justice system of a country is fundamental to the enlargement and consolidation of justice and liberty. Jurisprudence teaches that Justice and Liberty are twins. Where there is justice there is liberty. Where there is no liberty there is no justice.
Bail as a right circumscribed by reasonable and justifiable condition, to appear before an impartial and independent tribunal, when required to do so or to help the law enforcement agents in their investigations, when necessary before charges are preferred, belongs to the school of jurisprudence of a Republic where sovereignty resides in the people. Bail as a privilege which is granted based on the prerogative of the administrator of the law irrespective of whether there are reasonable or justifiable conditions to accord it, belongs to the school of Jurisprudence of monarchical states, where sovereignty resides in the king or Governor.
PDOIS subscribes to the Republican school of jurisprudence and not the monarchical one. People should challenge the APRC to state the school of Jurisprudence it subscribes to?
Under the Republican school of jurisprudence, Constitutions become the embodiment or the depository of the collective will of the citizenry and is congealed or concretized as the supreme authority created by the sovereign people which should dictate the exercise of all public or state functions and should govern the relation of all sovereign persons under it. In this respect the constitution rules. This is what is meant by the rule of law. On the other hand, under the monarchical school of jurisprudence the law becomes the expression of the sovereign will of the king or governor. The King or the Governor rules under such a system. The law is made and abrogated at will by the monarch. The monarch becomes the state. Monarchs in States where Constitutions or statutes stand above them are mere ceremonial monarchs. Absolute monarchs rule absolutely.
The Constitution of the Republic of the Gambia is a Republican Constitution: Some argue that constitutions need not be quoted since they have no power of their own to impose their will on every one especially those who prefer to disregard it. This is a short-sighted perception of constitutions.
Constitutions are Instruments. No instrument is effective unless it is used effectively. An instrument cannot be effective unless one knows how to use it. The Constitution could only be effective if all citizens know what they have agreed to guide their destiny. Secondly, they must know that they should hold their leaders accountable for the implementation of its provisions. They must take note of every violation. They must make leaders pay for non compliance by voting them out of office for maladministration or mis-governance. This is how constitution becomes effective instruments.
We have studied the Constitution and the laws governing bail in the Gambia and have asked ourselves whether Bail should be a right under a republic and our answer is in the positive. What is our proof‘?The Republic makes the sovereign person to be supreme and their collective supremacy embodied in a constitution makes it supreme.
The status of the sovereign person is thus spelt out in the first chapter and first section of the Constitution of the Gambia which states:"The Sovereignty of the Gambia resides in the people of the Gambia from whom all organs of government derive their authority and in whose name and for whose welfare and prosperity the powers of Government are to be exercised."It stands to reason that the sovereignty of each person must be protected.
This is why Chapter four spells out the right of each sovereign person and then gives instruction to the organs of the state to protect those rights. These instructions could be found in section 17 of the Constitution which states among other things that:"The fundamental human rights and freedoms enshrined in this Chapter shall be respected and upheld by all organs of the executive and its agencies, the legislature and where applicable to them by all natural and legal persons in The Gambia and shall be enforceable by the Courts...
"One of the rights to be respected, protected and enforced is one relating to liberty. It states that:"Every person shall have the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention.
No one shall be deprived of his or her liberty except on such grounds and in accordance with such procedures as are established by law."What does the law state about deprivation of liberty?
The Laws of the Republic states categorically that no person should be detained if there is no evidence to believe that he or she has committed a crime.The Constitution further adds that no person should be kept for more than three hours without being told why he or she is arrested and detained and be further informed of his or her right to consult a legal practitioner.
If that person is not released he or she should be taken to court without undue delay and, in any event, within 72 hours.
When the person appears before the court he or she is required by section 24 to be tried by an Independent and Impartial court and be afforded a fair hearing within a reasonable time.
During the trial Section 24 commands that:"Every person who is charged with a criminal offence shall be presumed innocent until he or she is proved or has pleaded guilty."
Suffice it to say that presumption of innocence should be accompanied by an equal measure of liberty. Herein lies the essence of bail in a Republic.
One may now ask: What should happen in a court when one appears before a court charged with a crime? The answer is simple. Once the person makes a plea of not guilty she or he should be presumed innocent until his or her guilt is proven. If there is to be any adjournment of the proceedings the person presumed to be innocent should be asked to enter bail based on conditions that are equivalent to the crime alleged. These bail conditions should not be excessive. This is the language of the constitution. The provision of any law on bail should be read in conjunction with the presumption innocence provision of the Constitution. The Constitution is the supreme law and all laws which contradict the Constitution could be declared null and void by the Supreme Court.
We hope the APRC would also come up with their position on how they intend to secure and defend the liberty of the sovereign Gambian people and what amendments they would be willing to carry out to make the Criminal Procedure Code, which makes bail discretionary,to conform with the Constitutional provision, which deals with presumption of innocence. The limit to liberty of the person presumed to be innocent is that which would require him or her to appear before the court for trial when needed and not to tamper with evidence material to a fair determination of the case.
We wish to promise the Gambian Nation that under a PDOIS administration no person who could afford bail conditions that would be reasonable and justifiable in any democratic society would ever be remanded in custody.
We shall state without ambiguity certain conditions which would qualify a person to be granted bail. Take the case of a Lawyer who is defending clients and needs to make preparation for their defence. The clients have a right to be represented by a counsel of their choice. Remanding such a lawyer in custody would do more harm than good.
We shall pioneer the enactment of laws that would make bail mandatory and the discretionary powers of the courts to be restricted to the determination of what is reasonable and justifiable bail condition in a democratic society, for the crime alleged.
We shall decriminalise offences such as criminal charms, libel, giving false information to public officers, being idle and disorderly, etc.. We shall also substitute many custodial sentences for community services. Those who are to be found in prison are those who need rehabilitation so that they could be released at a time when they could play a useful role in the development of society.
The End" |
Edited by - kobo on 16 Mar 2013 12:42:14 |
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