Some Realism About Realism!

By Gambian Outsider!

Below you will find a few paragraphs that touch on various topics that were in the news in the last two weeks or so.

(1) A few weeks ago, the despot directed his diatribe to the current and former presidents of the republic of Senegal. A lot has been written about that incident by Gambians in diaspora and politicians in The Gambia. By ridiculing the despot for his conduct, those writers and commentators who are against what the despot said about the current and former presidents of Senegal actually helped him. Your writings may have brought him to his senses to realize the folly of his conduct. What the writers and commentators needed to do this time was to do as his praise singers did. That is, puff up his ego to say more stupid things or better to encourage him to infringe the territorial integrity of Senegal. That would, may be, have help to get the desired result, i.e., him being kicked out of office by the Senegalese government. Instead, your writings and commentaries, in my opinion, may have done the opposite. Without territorial provocation, Senegal is not going to do anything significant that would lead to the despot being kicked out of office. Something more than talk has to happen. Senegal is a democratic country and will not invade another country because that country’s idiot dictator attacked her verbally. Senegal will not stoop to the despot’s level because the despot insulted her leaders. What a missed opportunity. The lesson from this is that, do things with your heads and not with your emotions.

(2) One writer last week made the absurd claim that Gambians in the diaspora are helping the despot when money is sent to The Gambia to deposit bail money for those who have been arrested whether legally or not. What a ridiculous thing to say. The writer went on to say that the monies that are being sent are better used to help the families of those arrested and incarcerated. If such monies are given to the families of those arrested and incarcerated, what happened to the arrested and incarcerated? Whose liberties are hanging on the balance, the family members or the incarcerated? Helping a family to feed does nothing to help the member of that family who is at Mile 2. That was a no-brainer proposition. The writer also thinks that Gambians in the diaspora are somehow enriching The Gambian judiciary when monies are sent to bail some people. This is clearly not true. I ask the writer whether he knows how the legal system in the Gambia operates? The purpose of bail is to compel appearance in court. The policy behind bail is to balance liberty and order. Liberty- not to incarcerate someone until it is absolutely necessary to do so, and Order- to make sure those who are to appear in court do so accordingly. Bail for the most part is discretionary unless it is constitutionally mandated. That means, a judge has great power in determining whether bail is granted and how much. The amount of bail should not be more than the accused can afford. The judges in the Gambia abuse this procedure on a daily basis. They set bail amounts that they know cannot be satisfied by those arrested. Bail is not a form of punishment, but that is what it is in The Gambia. Whereas an accused person’s liberties of movement could be limited by surrendering his or her passport, curfew, house arrest, and how far one can be allowed travel from his or her house, the government lawyers often argue in court that they fear the accused may escape which is nonsense. Instead of utilizing the many ways government lawyers can compel Gambians to appear in court when required to do so, the government lawyers do not consider these things but would rather have the accuse incarcerated by requesting for bail that they know the accused cannot afford. To demand a bail amount that a person cannot afford to pay is really no different from sending that person to jail. For the most part this is what they are asked to do.

Let’s take the United States Constitution, for example, it is no accident that there is an “Excessive Bail Clause” in the Eighth Amendment of that constitution. That Clause was drafted in response to the perceived excessiveness of bail in England at the time. Look it up and see if there is such a clause in the Gambian Constitution and what is the precedent regarding it. Even if bail is not expressly stated in the Gambian Constitution, this does not mean that it cannot be administered. The reason is that the origin of bail can be traced to the Common Law Tradition. The Common Law is simply the unwritten law. And yes, not all laws that affect our lives are written. The issue in the Gambia is under what circumstances should bail be required or granted and what amount? Ideally, it should be that, all persons should be baliable by sufficient sureties except for capital offenses where the proof is evident or the presumption great. This should be the guiding principle under which bail should be granted but as is the case in the Gambia, there is no guiding principle hence its improper use.

Here is an observation for you Gambians both at home and abroad to chew on. Have you people realized that Edward Singhateh always happens to get bail for his clients whereas more qualified and skilled Gambian lawyers than him could not? I know such things escapes the unwary. Look it up. Pay attention! The judges are not blind to who Edward Singhateh is and neither are the government lawyers (prosecutors). The judiciary in the Gambia is not independent. This is an open secret.

One writer complained about what Lawyer Ousianou Darboe said, that the judiciary in the Gambia is fair. I ask the writer what he expected Darboe to have said? Darboe is still a practicing lawyer in the Gambia as I am writing this, and he may still be representing clients when he is not campaigning. He appears before these judges and he is wise not to offend them or else they will make sure that he never wins another case. I am not against Darboe’s statement about the judiciary based on the nature of his job. You have to look at who he is and what he does for a living. As a legal practitioner, he has to say what he said. If the writer who objected to Darboe’s statement was a lawyer, I won’t fault him if he said the same thing. Sometimes to understand the forest, you have to look at the individual trees.

(3) About two weeks ago the Chief Justice, Fagbengle, spoke at The Gambia Institute for Judiciary Training and Research at Mile 7. The chief justice said that magistrates must make sure that the guilty do not escape and the innocent are not punished. The chief justice went on to say that magistrates are expected to apply the law and come up with credible judgments. And that his door is always open for guidance and support. While the chief justice was giving that hypocritical speech, magistrate Jaiteh was being dragged through the judicial system for doing what he was supposed to do as a judge. It is important for Gambians to realize that the despot is not the only one of the many problems destroying The Gambia. All three branches of the Gambian government contribute proportionately to the destruction of the country. The despot is the head so his is the primary target. Please do not forget the rubberstamp Legislature that dances to the despot’s tunes. We also know that the Judiciary cannot be distinguished from the executive branch. These are the main reasons why the despot can do as he pleases.

The charges against magistrate Ebrima Jaiteh of the Brikama Magistrate Court were dropped a few days ago. Let me begin by making it known that I am not a “legal expert.” What nonsense to have arrested and charged the guy. Instead of being awarded a medal for his civic duty, he was slapped with a ridiculous made-up charge. What magistrate Jaiteh did is still being done in the Gambian judiciary on a daily basis. Anyone who cares to read the legal reporting in the Gambia will often read about cases being transferred to the High Court on jurisdictional grounds. What is Jurisdiction? Jurisdiction means extent of power. There is Personal Jurisdiction and Subject Matter Jurisdiction. Personal Jurisdiction means whether a court can force a person to appear before it. If you are in Timbuktu, can a court in the Gambia make you to appear before it? The answer is no. The reason is because Timbuktu is not within the territory of the Gambia, and the judicial powers of The Gambia do not extend to Timbuktu. Of course, extradition laws can change that. Subject Matter Jurisdiction is whether a certain court is the right court to hear a certain controversy? Magistrate Jaiteh’s case involves subject matter jurisdiction. A case came before him and he ruled that the said case was to be heard not in Brikama but in Bundung. What in the world was wrong with that? The Magistrate did not make that rule on the fly. It is the judiciary who made that rule. Magistrate Jaiteh did what he was supposed to do.

Here is how some of the confusion arose. Beside subject matter jurisdiction and personal jurisdiction, there is another procedural device call Venue. Someone mentioned it in his writing but he, I think, mistakenly confused it with subject matter jurisdiction. Venue asked if this court, that is, the courthouse (like the actual building) is the right place to bring or file a case? Territory is crucial to determine venue. For example, where the incident happened, witnesses within that locality and the like. Subject Matter Jurisdiction does not primarily consider those things. Let’s say there is a Tax Court in the Gambia. If the rule is that all tax cases will be heard at a particular court in a certain area, that is subject matter jurisdiction. The reason being, may be, the judges in that particular court are the experts in tax issues. As you can see, that would have nothing to do with a courthouse building as such. And the tax issue may have originated from a locality (venue) different from where the tax case is to be heard (subject matter). Here is the kicker: Venue is time sensitive. Venue has to be objected to the first time the person sued (either in a civil or criminal case) answers to the charge. If not, he or she cannot later object to it. Subject Matter Jurisdiction, on the other hand, is not time sensitive and can be invoked by either, get this, the sitting judge, the plaintiff or the defendant. Let’s say the judge, plaintiff or defendant did not raise subject matter jurisdiction at trial, can it be raised on appeal; and the answer is yes. So you see why magistrate Jaiteh was right to have raised the jurisdictional issue and rightly so. Either the case against magistrate Jaiteh was a witch-hunt or the judiciary is lacking understanding of the difference between subject matter jurisdiction and venue. So it was an absolute abuse of power to have arrested magistrate Jaiteh. He should be reinstated to his former position with pay and an apology. Gambians like magistrate Jaiteh do a great job but some of us in the diaspora cannot openly praise them because of how the despot could view that. So, please, do not think that we are not appreciative of the great job that some of you people are doing in The Gambia under very difficult and dangerous circumstances.

I know! Some of you reading this piece are already asking about the Gambian Bar Association is all this. Well, a Bar Association can tell you a lot by how it fights and defends its members. True legal practitioners are supposed to be ministers of justice and not ministers of money. Most members of the bar do not fulfill their professional responsibilities as lawyers. Regardless of whether some of them got unfavorable rulings from magistrate Jaiteh, the magistrate needed to be defended if members of the Bar are worth their salt. A letter could have been sent to the chief justice about the matter but nothing was done. So, one can conclude that The Gambia Bar Association is a phantom. It does not exist in reality. What a shame from those who take the oath of the profession to protect the innocent. Magistrate Jaiteh is one of their own and the Bar left him hang to dry. The Bar did nothing about it. What a damn shame. Shame on you! Talk about giving a noble profession a bad name!

(4) Mr. Halifa Sallah’s article “The Failure to Employ Community Policing Strategy In Kartong” has the wrong premise right from the beginning. Mr. Sallah wrote, “One doubts whether any [The Kartong Boys] had the premeditation to commit crime.” Premeditation is not a necessary condition for a crime to be committed. Premeditation means done with willful deliberation and planning; consciously considered beforehand. [Google Black’s Law Dictionary.] The different degrees of murder: 1st and 2nd are distinguished by the presence of premeditation. Even in lesser crimes than murder, premeditation can be present; I mean those other crimes classified as specific intent crimes. What happened at Kartong was not an accident as you implied in my next quotation of you.

Mr. Sallah wrote, “First and foremost, those of us who KNOW what happened in Kartong BEFORE and AFTER the clamdown would confirm the security forces did not go to Kartong to provide security for the sand mining area but were called to protect a village leader who felt under threat.” Since Mr. Sallah KNEW what happened BEFORE and AFTER, what did he do about it as a leader of a political party? If Mr. Sallah KNEW what happened BEFORE, then to say that what happened there was not premeditated is preposterous. Because what happened in Kartong was not an accident, premeditation was present. The Kartong boys were not provoked in a manner that led to them having acted with passion. The situation was not one where the authorities or the miners directly provoked them to act. Mr. Sallah said the issue has been brewing for a while and came to a climax on that day. Yet, he did nothing whatsoever about it. If Mr. Sallah wants to be a president then he has to take on a leadership role. You know diffuse things before they reach a climax. Had someone like Mr. Sallah taken such a leadership role, the Kartong boys may have learned better organization and strategies as to how to make their grievances known. Mr. Sallah laid out the PDIOS policy as to what the government should have done. What about what Gambian citizens can do in terms of organization and strategy. Here is why Mr. Sallah did not do anything.

Mr. Sallah believes people should lead; whatever that means. At least that is what he said in an interview a few months ago on Freedom Radio. Mr. Sallah, this is what happens when “people lead” without a genuine leader. Gambia may be lawless to a certain degree but there are some elements of law and order. Had the youth had a genuine leader to direct them in terms of organization and strategies, may be they would have made their point without going through what they were put through. Did Mr. Sallah read the charges and look them up in the criminal code of the Gambia? Those charges were not frivolous. Even in America people are arrested for civil disobedience and, of course, freed on bail whereas the granting of bail is not what it should be in the Gambia. The Kartong incident should have been about balancing liberty and order. Liberty cannot outdo order and order cannot outdo liberty, this is the challenge of all civil societies. If one has to outdo the other between liberty and order, “order” will prevail. This is why under certain circumstances we see curfews and state of emergencies around the world. The boys should have been able to peaceable express themselves orderly. They cannot block traffic, trespass on another’s property or prevent others from going about their business. If they violated any of these things, they could be lawfully arrested. The bizarre thing was to refuse them bail after being arrested. They did not commit any capital offense and neither did they damage another’s property as far as we know.

Mr. Sallah wrote, “However, this goal which unified most of the residents of Kartong, if not all, was being pursued in a gradual manner with different approaches being debated in the public space, which SOME may have used to ring the alarm of an impending crisis.” Why did not Mr. Sallah considered himself among the “some” and rung the alarm bell? Also, the fact that there was a gradual manner of pursuing things is another indication that premeditation was somehow present.

Mr. Sallah wrote “community policing” principles require the security forces to put the community first.” If Mr. Sallah knew that the security forces did not do as they were supposed to do, what did he do about it as someone who aspires to become a president? Mr. Sallah ended his article with, “[o]f course, some in the diaspora have been demanding action from the opposition [which is larger than PDOIS, I might say] in support of the youth. We hope they do not expect PDIOS to mobilize its members to go to Kartong to stop the trucks.” Wait a minute! Stop the trucks! Who asked anyone about stopping any truck? That would be a criminal act. There is a difference between stopping trucks and demonstrating civilly because of the lack of balance between individual liberties and order. The youth could have been shown solidarity without stopping trucks. Then Mr. Sallah sprinkled his article with a little Latin “nolle prosequi” which simply means a formal notice not to prosecute. How simple is that to say it in English so that all readers can understand what the phrase means. Or at least define it for the readers.