Bar At Loggerheads With Chief Justice; Can He Preside Over Cases?

One of Yahya Jammeh’s foreign mercenary judges trying to resuscitate a dying regime. Too late!

The Gambia’s Chief Justice has found himself embroiled in  brouhaha with the country’s Bar Association, with the former accusing the latter of not conducting well during the just ended presidential campaign.

Justice Emmanuel Fagbenle has been the only sitting judge left in the Gambia’s Supreme Court until this month. The government’s deliberate refusal to appoint judges to the highest court has come back to haunt President Yahya Jammeh who has filed an election petition at an empty court. Well, that petition was on Wednesday heard in chambers, although the names of judges have not been named public.  Also, the Independent Electoral Commission officials have not been served. The case is adjourned to January 10.

The question that remains to be answered is whether Chief Justice who has been asked to resign by the Bar has the constitutional mandate to preside over cases. Any serious government would have launched investigation into the Bar’s claims and act when it is necessary.

In a letter published below, the Bar has vigorously defended why Justice Fagbenle should resign.

13th December 2016

The Honourable Chief Justice

Law Courts Complex

Independence Drive


Dear Justice E. O. Fagbenle,


At an Emergency Meeting of The Gambia Bar Association (GBA) held on the 12th day of December, 2016, the members of the Gambia Bar Association unanimously passed a resolution and mandated the Executive of the Association to call for your resignation as the Chief Justice of The Gambia.

It was resolved by the members of the GBA that your conduct during the presidential campaign has brought disrepute to the Office of the Chief Justice.

The position of the Chief Justice is a constitutional position and as the Head of the third arm of Government, you are expected to maintain and uphold certain standards. You have, in our considered view woefully failed to adhere to these standards.

Section 120(3) of the 1997 Constitution of the Republic of The Gambia provides that Judges and other holders of judicial office shall be independent and subject only to the Constitution and the law. This provision is sacrosanct and as head of the judiciary and the administrative head of all judicial officers, it was your duty to ensure and maintain this independence.

We refer you to the following provisions of the Judges (Supplementary Code of Conduct) Act Cap 6:01:

Section 6(2): ‘A Judge must strive to ensure that his or her conduct, both in and out of court, maintains and enhances confidence in his or her impartiality and that of the Judiciary.’

Section 8(1) ‘A Judge must –

(a) not participate in partisan or political activity or association; and

(b) on assumption of judicial office, cease absolutely and unequivocally a partisan political activity or association.

Section 8(2) A Judge must avoid any public gathering if he or she considers that a mere attendance at the gathering might reasonably –

(a) give rise to a perception of an ongoing political involvement; or

(b) put in question his or her impartiality on an issue that could come before the court.’

Your recent conduct, particularly during the campaign period for the 2016 Presidential Elections is a violation of these provisions.

During this period you engaged in activities which in our considered opinion, compromised the independence of the Judiciary. We highlight below some of your actions which we deem unacceptable:

1. You were seen during the campaign period and prior to campaign period openly attending political rallies of the APRC.

2. On the day of the nomination of the Incumbent President, you were seen in front of the court premises waving and dancing in support of the incumbent Presidential parade.

3. Several members of the Bar saw you wearing APRC apparel on the Court premises.

4. You were distributing APRC apparel to the Court staff and making preparations for the victory celebration of the incumbent President.

In addition to your conduct during the campaign period, you have throughout your tenure as Chief Justice acted to perpetuate the will of the outgoing President and in particular:

1. You interfered with judicial officials who were presiding over cases and caused them to be dismissed when they made decisions which were deemed to be against the State’s interest.

2. In the case of the State v Ousainou Darboe & Ors, you caused the Presiding Judge to expedite the hearing of the case and their conviction.

3. You transferred the case of The State v Lamin Sonko & Ors to the High Court sitting at Mansakonko. There was no basis for the transfer of this case as the Mansakonko court had no jurisdiction to hear the case. This action was calculated to ensure that the defendants could not get legal representation thus easing their conviction. You further failed to respond to the letter from Counsel representing the Defendants protesting the transfer.

4. You gazetted new Rules for the Supreme Court without following due process. You further failed to respond to the GBA when it protested this action.

For these and other reasons, the Gambia Bar Association does not have faith in your ability to discharge the function of Chief Justice and we believe that you are not a fit and proper person to hold the Constitutional position of the Chief Justice of The Gambia.

We thus urge you to resign from this position with immediate effect failing which the GBA will pursue all avenues to have you dismissed for misconduct under the Provisions of Section 141 of the Constitution.

Yours faithfully,

…………………………                                                                                                                   …………………………

Sheriff Marie Tambadou                                                                                                      Abdul Aziz Bensouda

Interim President, GBA                                                                                                         Secretary General, GBA


One Comment

  1. It is time for The Gambia’s National Assembly members to side with the Gambian people.

    The behaviors of President Yaya jammeh before and after the election which includes a shutdown of international telephone gateway lines on the day before The Gambia’s election and an annulment of December 1st election results have all clearly violated the constitution of The Gambia. Dictator Yaya Jammeh has ordered The Gambia’s main telecommunication company ( Gamtel) and its subsidiary companies to shut down international gateway lines which resulted to no incoming and outgoing calls to or from the country. Thus The Gambia was isolated and disconnected from the rest of the world. Such a pre-election irresponsibile behavior, lack of respect for the welfare of the Gambian people and the constitution has caused serious consequences on socioeconomic and general wellbeing of citizenry as well as international community which has business dealings with the country and its citizens. Jammeh’s misconduct was a clear violation of chapter VI , part 1, section 67 in the following constitutional provisions which warrant his removal from the office of presidency.

    Misconduct 67 by the president;

    1. The president may be removed from office in accordance with this section on any of the following grounds-
    (a) abuse of office, willful violation of the oath of allegiance or the president’s oath of office or willful violation of any provision of this constitution or

    (b) misconduct in that –

    (i) he or she has conducted himself in a manner which brings or is likely to bring the office of President into contempt or disrupt: or

    (ii) he or she has dishonestly done any act which is prejudicial or inimical to the economy of The Gambia or dishonestly omitted to act with similar consequences.

    From the above constitutional provisions, it can be concluded that Jammeh’s behavior was a misconduct which was detrimental to the economy of The Gambia and such behavior was also disruptive to the office of presidency and general welfare of Gambian people. Gambian economy was severely affected because businesses which deals with internet usage as well as international calls were halted as a result of reckless and irresponsible behavior of Dictator Jammeh. The misconduct of president Jammeh is an abuse of office and willful violations of oath of office as he failed to defend and safeguard the welfare and Supreme interest of Gambian people at the time. In this regard, the constitution has empowered the Speaker of the National Assembly with less than half of all the members of the National Assembly to formulate a motion for the removal of the president on any of the grounds in allegations of misconduct of constitutional provisions stated above. The constitution also indicate that “The speaker of the National Assembly shall request the Chief Justice to set up tribunal consisting of at least four people, two of whom shall be persons who hold or have held high judicial office” with responsibility to investigate such misconduct , allegation or violations of oath of office. In the same section of the constitution ; it states

    (5) Where the tribunal reports to the National Assembly that it finds the particulars of any allegation have been substantiated the National Assembly may ,on a motion supported by the votes of not less than two thirds of all the members, resolve that the president has been guilty of such abuse of office, violation of oath, violation of the constitution, or misconduct or misbehavior as to render him or her unfit to continue to hold the office of the president, and where the National Assembly so resolves , the president shall immediately cease to hold office .

    Gambian people have clearly seen that the speaker of rubber-stamping National Assembly and its members as well as the Chief Justice has failed to do their constitutional responsibility to hold president Jammeh accountable for the misconduct and abuse of office he has done when he shutdown international telephone gateway lines which has brought severe economic consequences for the people of The Gambia and international community. In an open and democratic society, National Assembly members are the representatives of the voice of the people in each of their respective constituencies. But in the case of The Gambia’s National Assembly members , they are truly agents of dictatorship as they failed to follow the constitution of The Gambia which clearly stated that they and the president should always act in the best interest of the country.

    Since President jammeh has stated his irrational statements that he annulled the December 1st election results , we haven’t heard or seen any statement from the National Assembly members which condemn such irrational and irresponsible statements from Dictator jammeh who threaten the peace , security and economic well being of all Gambians. President Jammeh’s despicable and irrational statements on annulment of election results is also a clear violation of section 49 of 1997 constitution which states that

    ” any registered political party which has participated in the presidential election or an independent candidate who has participated in such an election may apply to the Supreme Court to determine the validity of the election of a president by filling a petition within ten days of the declaration of the result of the election “.

    President Jammeh’s pronouncement to annul the election results is a violation of the constitution and therefore it is a treasonable crime under the constitutional provision of section 6 (1) of the constitution.

    In both of these two cases , that is Jammeh’s pre-election conduct in shutting down the international telephone gateway lines and his pronouncement to annul the election results without any constitutional justification and responsibility is tantamount to abuse of office , misconduct and treasonable offense which render him unfit to stair the affairs of our country in a positive direction. Hence the National Assembly members has a responsibility to act to defend the best interest of the country. It is time for the National Assembly members to break ranks with the Dictator who has no respect for Gambian people. The people of The Gambia and the civilized world as well as all the reputable international organizations and institutions have all denounced and condemned the despicable behavior of Dictator Jammeh. Our National Assembly members should now be courageous enough to side with the people of The Gambia who have gone through 22 years of terror and humiliation. It is time to support the constitution and democratic aspirations of Gambian people or else history will judge you as men and women of our time who lack moral conscience to stand for what is morally and constitutionally right .
    Thank you .