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Momodou
Denmark
11855 Posts |
 Posted - 29 Mar 2008 : 16:16:34
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Foroyaa Editorial
Chief Sues Brother To Chief’s Court
How Will It End?
The Kombo Central District Authority, headed by the Chief of Kombo Central, has sued Jereba Kullay Bojang to the Kombo Central District Tribunal, which is also headed by the Chief, Dembo Satang Bojang. The dispute is over land, a cattle track to be precise. No evidence has been adduced but the matter is awaiting judgment.
What is clear is that according to a principle of natural justice, no one can judge his/her own case. In other words the principle does not allow X to sue Y to court and judge the case.
Furthermore, according to Section 24 subsection (1) of the constitution: “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(a) if any person is charged with a criminal offence, then, unless the charge is withdrawn; or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.”
The issue of whether a Chief can serve both judicial and administrative functions has come to the fore again. As for the paramount Chief, his administrative functions hardly permit him to sit at court.
Source: Foroyaa Newspaper Burning Issues
Issue No. 36/2008, 28 – 30 March 2008
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A clear conscience fears no accusation - proverb from Sierra Leone |
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Nyarikangbanna
United Kingdom
1382 Posts |
Posted - 30 Mar 2008 : 18:12:37
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'The issue of whether a Chief can serve both judicial and administrative functions has come to the fore again. As for the paramount Chief, his administrative functions hardly permit him to sit at court'. -Foroyaa
This is rubbish. For centuries, the Lord Chancellor of the United Kingdom of Great Britain and Northern Ireland had been the Chief Law lord in the House of Lords [the highest court of the land] and a minister in the Prime Minister's Cabinet. His eligibility to preside over cases has never being questioned. What has been accepted as would contravene the principle of natural justice is if he was to preside over a case in which the government he was serving has a vested interest. So yes, the chief cannot be a judge in his own case but that does not necessarily mean he cannot preside over other cases. The rule of natural justice only requires, in such cases, that he be excluded from that particular proceeding, not from the entire business of the tribunal. His membership of a political establishment and duties as an administrative officer is not necessarily an affront to the law.
This is the problem with 'idealists'. They base their claims mostly on fictitious assumptions and dogma rather than established facts. And they always overstate their case and end up becoming 'absolutists'.
Give me a break!
Thanks
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I do not oppose unity but I oppose dumb union. |
Edited by - Nyarikangbanna on 30 Mar 2008 19:03:15 |
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shaka
996 Posts |
Posted - 31 Mar 2008 : 06:07:28
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| I reply to you not because i am a law bone head but i can understand simple English. Just listen to yourself. "What has been accepted as would contravene the principle of natural justice is if he (the Lord Chief Justice of the UK) was to preside over a case in which the government he was serving has a VESTED INTEREST". This is Foroyaa's beef; "The Kombo Central District Authority( even though a local government body but nevertheless a Gambia government institution),headed by the Chief Of Kombo Central(Dembo Santang Bojang),has sued Jereba Kulay Bojang to the Kombo District Authority Tribunal(headed by Chief Dembo Santang Bojang)" This in simple English language (Law jargons and technicalities aside) therefore means that the Kombo District Authority has vested interest in the above case and cannot SUE and at the same time PRESIDE OVER this same very case.This i agree with Foroyaa CONTRAVENES the principles of natural justice. You got too wrapped up in the Forayaa headline of CHIEF SUES BROTHER IN CHIEF'S COURT that that the content of the story become irrelevant. Forayaa is a newspaper and newspaper headlines don't tell all the story. By the way The Gambia might still practice some aspects of crown law but we don't live in colonial Gambia. Your obsession with the PDOIS is vanity, so quit for the sake of your mental health. |
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kayjatta
2978 Posts |
Posted - 31 Mar 2008 : 11:10:11
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| You are right Shaka, and in some ways Nyari is right too. The chief cannot preside over a case that he is a party to. That is if he sues someone to his own court, then it is fair that he excuse himself from that case so that a neutral judge hears that case. In the same vein he cannot be a judge in a case where the government he represents is a party... |
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Nyarikangbanna
United Kingdom
1382 Posts |
Posted - 31 Mar 2008 : 22:02:14
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The issue of the chief heading a local government institution is an irrelevant consideration. As I have said above, the Lord Chancellor used to be a Minister in the Prime Minister's Cabinet, an equivalent of a Justice Minister but he still presides over cases in the House of Lords. So, Chief Bojang's administrative position is not a bar to him being an adjudicator. Notwithstanding this, he cannot be a judge in his own case. Inother words, if he sue someone to his own court, then he should excuse himself from the proceedings and let other adjudicators deal with it. Also, if the institution, the District Authority, he heads/is serving sues some one to his court, he cannot preside.That is all what the rule of natural justice called for. Political affliation is not necesarily a relevant consideration in matters relating to the principle of natural justice, and for Foroyaa/PDOIS's Ayatollah to think otherwise is perversive to the basic intent and true spirit of the principle he very much relied on to justify is point. I suppose that means he has misspoke, isn't it? The principle of 'Natural Justice' has been developed centuries ago and have now being rigorously tested and well understood within the Commonwealth legal community. So, it is very clear as to which issues are covered and which are not.
I still haven't seen the Ayatollah display his purportedly well sophisicated research skills. Oh! I know why. Because it is a myth. That's all.
I hope Shaka will state what the government's vested interest in a personal battle between the cheif and his brother is.
Thanks |
I do not oppose unity but I oppose dumb union. |
Edited by - Nyarikangbanna on 31 Mar 2008 22:22:18 |
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shaka
996 Posts |
Posted - 01 Apr 2008 : 00:39:45
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| Like i said before, you dwell too much on the Foroyaa headline that you gave little significance to the whole story. The plaintiff in this case is not the chief but The Kombo District Authority(a government institution which automatically has a vested interest in the case). If it was a personal grievance between the chief and his brother then it would classed a civil suit and if am right, would have been beyond the jurisdiction of the KDA but a magistrate court or something to that effect. I bet your honorable Lord Chancellor would have never been qualified to sue his dog and preside over the ruling much more his brother. By the way "the Ayatollah" has just published some of his research into a book: Treatise For Founding A Federation Of African Republics. I am surprised that one of his stalkers missed that one. You must be terribly bad at stalking as well. Why don't you buy the book and glean some of his wisdom, you never know, it might change you for good. |
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kayjatta
2978 Posts |
Posted - 01 Apr 2008 : 06:56:06
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Nyari, if the Chief does not excuse himself, perhaps the opposing party which is his brother in this case could file a motion to that effect or even remotely for a change of venue.
One instance that FOROYAA's position makes sense though is that even though in an ideal judicial setting where courts exercise extensive freedom, a judge's political affiliation may not interfere with his judgment; in the Gambia such independence of the courts (judiciary) is lacking. Therefore, a chief who holds such higly partisan office may not be in a position to apply the law without fear or favor. What do you think? |
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Nyarikangbanna
United Kingdom
1382 Posts |
Posted - 05 Apr 2008 : 16:43:58
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I have never heard a court suing someone to itself. It is the people who sue each other to the court. So to say that the District tribunal is the plaintiff is a mischaracterization. The dispute is over land and that land belongs to chief Bojang, not the District Authority. The plaintiff in the matter is therefore the Chief. The district Authority is the adjudicatory body. In other words, the court.
Even if the District Authority is the plaintiff here, that does not mean the Chief cannot exercise judicial function but only that he cannot preside over this case. Ayatollah Sallah's view is that because the chief is an Administrative officer, it is against the principle of Natural justice that he also exercises judicial function. That view is absolutely absurd and poposterous. A complete hyperbole. While I don't deny that there is some substance in the editorial, I think what needs to be acknowledged is that the Ayatollah has overstated his case. He is blown it completely out of proportion. That is my issue with him.
As for his book, am sorry, I don't read fairytales especially when they are concocted with overstatements and hyperboles. That is why I decided to buy Barack Obama's 'Audacity of hope', and it is doing all the good in this world for me. The senator's book embraces commonsense while Ayatollah Sallah is notorious for making statements that affront commonsense.
I have replied not because I want to convince you because I know as a disciple, you will remain insulate to views different from your Ayatollah's for good. But I still find it necessary to present the authoritative view for the benefit of those who will be interested in analyzing the contrast information and make an independent view of it all. That is why God endowed us with discretion and I am glad that most people are using it.
Thanks
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I do not oppose unity but I oppose dumb union. |
Edited by - Nyarikangbanna on 05 Apr 2008 19:00:20 |
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Nyarikangbanna
United Kingdom
1382 Posts |
Posted - 05 Apr 2008 : 17:03:51
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quote:
Originally posted by kayjatta
One instance that FOROYAA's position makes sense though is that even though in an ideal judicial setting where courts exercise extensive freedom, a judge's political affiliation may not interfere with his judgment; in the Gambia such independence of the courts (judiciary) is lacking. Therefore, a chief who holds such higly partisan office may not be in a position to apply the law without fear or favor. What do you think?
This is a political question. In terms of the law, as long as the chief does not explicitly manifest political prejudice in his decision you can't say 'he won't try me because I am UDP'. That would be poposterous. I have stated above that the Lord Chancellor used to be a member of the Prime Minister's cabinet. Both Lords Falconer and Irvine [former Lord Chancellors] are members of the governing labour Party. In fact, Lord Irvine was one of the architect of New Labour that brought Tony Blair to Power. That never disqualify him from exercising judicial functions.
Look, the principle of Natural Justice is a common law principle and it was first developed in the UK and then exported around the world. You can't put in something in their export that they haven't included. Otherwise, you will be distorting their product and this is actually what your Ayatollah is trying to do for cheap political reasons. I am not bothered about him trying to potray himself as a Saint to his desciples but I am against him trying to do it by distorting universal facts and making overstatements and even hyperboles to that effect.
Thanks |
I do not oppose unity but I oppose dumb union. |
Edited by - Nyarikangbanna on 05 Apr 2008 19:02:03 |
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shaka
996 Posts |
Posted - 06 Apr 2008 : 11:31:12
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| Nyari the least you could do is to go back and read the whole Foroyaa story instead debating what you clearly misunderstood or to be more precise the disinformation you have started. I will for your benefit attempt to help you out a bit but please make sure you understand something first before attempting to pass judgement next time. I think there are two entities both headed by the chief. The first one being the KOMBO DISTRICT AUTHORITY(a district council) and the KOMBO DISTRICT TRIBUNAL(a district tribunal). So the chief's brother is being sued by the KDA in the KDT. Hope that spells it out for you. |
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shaka
996 Posts |
Posted - 06 Apr 2008 : 11:55:42
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| One thing you have clearly misunderstood is that Foroyaa's bone of contention is not his political affliation but the amount of administrative and judicial functions that is placed on the shoulders of the Chief. To put it in your language, the Lord Chancellor should not be the Mayor of London and at the same time Lord Chancellor of UK. Ian Duncan Smith would be shouting blue murder if Gordon Brown was to appoint Ken Livinston Lord Chancellor in addition to his position as Mayor Of London. |
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Nyarikangbanna
United Kingdom
1382 Posts |
Posted - 06 Apr 2008 : 22:01:24
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All the issues you have raised have been addressed above. You are motivated by anger of the fact that your highly held Ayatollah have been reduced to rubbles. I will leave you alone to nurse that injury.
I wonder what the difference is between the Lord Chancellor being a judge and a minister on one hand, and being a judge and mayor on the other hand. Whatever difficulty is there, it is a hyperbole to suggest that it would constitute an affront to the principle of natural justice.
See below what I said before.
'Even if the District Authority is the plaintiff here, that does not mean the Chief cannot exercise judicial function but only that he cannot preside over this case. Ayatollah Sallah's view is that because the chief is an Administrative officer, it is against the principle of Natural justice that he also exercises judicial function. That view is absolutely absurd and poposterous. A complete hyperbole. While I don't deny that there is some substance in the editorial, I think what needs to be acknowledged is that the Ayatollah has overstated his case. He is blown it completely out of proportion. That is my issue with him.'
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Good luck brother |
I do not oppose unity but I oppose dumb union. |
Edited by - Nyarikangbanna on 06 Apr 2008 22:51:27 |
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Nyarikangbanna
United Kingdom
1382 Posts |
Posted - 06 Apr 2008 : 22:32:32
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'To put it in your language, the Lord Chancellor should not be the Mayor of London and at the same time Lord Chancellor of UK.'
Excuse me! The above is not my language. God knows where you got that from. I would be interested in seeing you reproduce any of my statements that suggested the above.
Can I also put to you that under the British constitution, Gordon Brown cannot appoint Mayor Livingstone as Lord Chancellor because he is not a member of either Houses of Parliament. I think you have demonstrated grave ignorance by factoring that scenario into this debate. I let you off on that but please don't put words into my mouth, ok
Thanks
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I do not oppose unity but I oppose dumb union. |
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shaka
996 Posts |
Posted - 07 Apr 2008 : 01:47:17
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| Fool acting fool yet again. You should be ashamed of yourself for blatantly lying that Halifa Sallah authored the above piece, any evidence to the effect? I mentioned "your language" because you seem so fascinated by the Lord Chief Chancellor, you centred the whole debate around him,therefore i put him in the picture every time hoping to simplify things for you. Gordon Brown having the power or not to appoint Red Ken as Lord Chancellor is irrelevant here neither did i mention anywhere that Brown has such powers. Your understanding of simple English is at time astonishing. What i am trying to put into your head is that appointing the chief of a district council as the head of a district tribunal is similar to appointing the Mayor of London as Lord Chancellor with combined administrative and judicial functions. The combined function of being Lord chancellor and Justice minister is more straight forward nevertheless very burdensome, the reason why the Lord Chancellor had to be deputised several times by a Deputy Speaker in the House of Lord. What would have been an almost impossible task is to appoint the Lord Chancellor as the Minister of Local Government. In Jammeh's Gambia however this is the scenario. No where did Fororyaa say that the Chief CANNOT combine the role of both judicial and administrative functions. What it said was that heaping the burden of both functions on the shoulders of one man is DEBATABLE. And you accuse me of putting words into your mouth? The issue of natural justice arose from the fact the justice cannot seen to be served in a tribunal headed by the chief when his brother is the defendant. It also hinted the chief is likely to side with the KDA against his own brother for whatever reason otherwise the case would not have gone this far because in Jammeh's Gambia "the chief is the law" in his local area. There is no way his brother will get a fair trial. I suspect a difference in political opinion is behind all this fuss. |
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Nyarikangbanna
United Kingdom
1382 Posts |
Posted - 08 Apr 2008 : 16:40:03
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'No where did Fororyaa say that the Chief CANNOT combine the role of both judicial and administrative functions' - Shaka
Really? Maybe you need to read this below and ask your yourself what it is implying, That is if you got brain. But first, please be informed that the Deputy Speaker in the British Parliament does not sit let alone deputise for someone in the House Of Lords because she is not a member of that house of Parliament. She deputises for the speaker in the House of Commons. Another point, please be informed that both a Mayor and a Justice Minister are political administrators and that is why the case of a Lord Chancellor is the best example anyone can give especially given that that office can only be heard of in a country that is also the birth place of the principle of Natural Justice, a principle your Ayatollah is being using as a canon to execute his diabolic distortion Spree.
Thanks
EDITORIAL:
Can A Chief Serve As An Adjudicator?
According to Section 120 subsection (2) of the Constitution, “The judicial power of The Gambia is vested in the courts and shall be exercised by them according to the respective jurisdictions conferred on them by law.” Subsection (1) of the same section indicates that the courts of The Gambia include District Tribunals.
Furthermore, subsection (3) of the same section stipulates explicitly: “In the exercise of their judicial functions, the courts, the judges and other holders of judicial office shall be independent and shall be subject only to this Constitution and the law and, save as provided in this Chapter, shall not be subject to the control or direction of some other person or authority.”
Although the law makes provision for the appointment of the President of a District Tribunal, in practice the appointed Chief automatically becomes the President of the District Tribunal. The law also makes the Chief head of the District Authority. But according to law the Chief is in the palm of the President’s hand, who can sack him/her at any time without cause.
In short, a chief wears two caps. On the one hand he/she is under the whims and caprices of the executive while at the same time he/she presides over cases which are sometimes controversial and involve the government or the ruling party. Can a Chief who has campaigned tooth and nail in support of the ruling party or one who fears the threat of dismissal be expected to adjudicate impartially in such cases? Only believers in fairy tales would think so.
Furthermore, what would happen if a District Authority headed by a Chief sues a person to the District Tribunal headed by the same Chief? Would we expect impartiality? Can someone preside over his/her own case in his/her own court?
The current judicial system that prevails in rural areas with the Chief as President of the District Tribunal, without written laws and with political pressures only tends to give rise to arbitrary decisions. To talk of customs and tradition is in most cases a joke. The system does not serve the cause of justice. It must be replaced with one that excludes Chiefs from judicial functions and restricts them to administrative functions.
The above was followed by another statement which reads:
'The issue of whether a Chief can serve both judicial and administrative functions has come to the fore again. As for the paramount Chief, his administrative functions hardly permit him to sit at court.' |
I do not oppose unity but I oppose dumb union. |
Edited by - Nyarikangbanna on 08 Apr 2008 17:22:40 |
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Nyarikangbanna
United Kingdom
1382 Posts |
Posted - 08 Apr 2008 : 16:56:26
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'The issue of natural justice arose from the fact the justice cannot seen to be served in a tribunal headed by the chief when his brother is the defendant. It also hinted the chief is likely to side with the KDA against his own brother for whatever reason otherwise the case would not have gone this far because in Jammeh's Gambia "the chief is the law" in his local area. There is no way his brother will get a fair trial.'
Again, this has been addressed above and you don't seem to suggest anything difference except your reluctance to condemn the Ayatollah/Foroyaa's insinuation as an 'overstatement'. I think your own rambling is bit getting into you. See below what I said before.
Thanks
'The issue of the chief heading a local government institution is an irrelevant consideration. As I have said above, the Lord Chancellor used to be a Minister in the Prime Minister's Cabinet, an equivalent of a Justice Minister but he still presides over cases in the House of Lords. So, Chief Bojang's administrative position is not a bar to him being an adjudicator. Notwithstanding this, he cannot be a judge in his own case. Inother words, if he sue someone to his own court, then he should excuse himself from the proceedings and let other adjudicators deal with it. Also, if the institution, the District Authority, he heads/is serving sues some one to his court, he cannot preside.That is all what the rule of natural justice called for. Political affliation is not necesarily a relevant consideration in matters relating to the principle of natural justice, and for Foroyaa/PDOIS's Ayatollah to think otherwise is perversive to the basic intent and true spirit of the principle he very much relied on to justify is point.' |
I do not oppose unity but I oppose dumb union. |
Edited by - Nyarikangbanna on 08 Apr 2008 18:30:56 |
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