JUDICIAL DEVELOPMENTS UNDER THE APRC REGIME

1. INTRODUCTION

Court structures and composition:

Cadi Appeals Panel

Judicial Processes

Infrastructure & systems development

Equipment & Systems

Legal Capacity Building

British High Commission (DFID)

INTRODUCTION

The Attorney General’s Chambers and the Department of State for Justice responsible for National Assembly Matters combine the Portfolios of the Secretary of State for Justice and the Honourable Attorney General and is charged with ministerial responsibility for the general administration of the Justice system, which encompasses the preservation of Law and Order, Constitutional Matters and up holding the Rule of Law and Human Rights. The Secretary of State/Honourable Attorney General is also assigned Ministerial Oversight of the National Assembly and the Judiciary, and office of the Ombudsman; in addition to oversight of other Institutions such as the General Legal Council, the Human Rights Commission, the Law Foundation, the Law Reform Commission, the National Law Reporting Council, the Independent Electoral Commission and the Civic Education Panel.

The Attorney General’s Chambers provides Legal Advice on all aspects of Government Activity; represents government in all Court proceedings and is responsible for the formulation and preparation of all Bills to be enacted by the National Assembly. It also maintains the Registries for Land, Industrial, Intellectual Properties and administers Intestate Estates and Public Trusts. It is responsible for the regulatory framework for Business Organisations. It has recently established a Child Rights Unit to more effectively safeguard the Rights and Welfare of Gambian Children.

The overall goal of the State Department of Justice and National Assembly matters is to promote and enhance Good Governance, Justice and the Rule of Law

THE JUDICIARY 1994 –2004

In outlining the achievements of the present regime since the July 1994, this report will highlight the pre-1994 situation and contrast the present situation and critically analyse the achievements of the 1994 revolution.

The report will highlight the Court structures, judicial processes, management arrangements, infrastructure developments, systems change /upgrading, and capacity building. Top

The interventions that introduced changes in the Judiciary had four main sources

Court structures and composition:

Supreme Court

By July 1994, the final appellate Court for the Gambia was the Privy Council based in the United Kingdom at her Majesty’s pleasure. The location of that court and cost inherent in litigation rendered access to it by the generality of Gambians impossible.

In contrast, the Supreme Court was created under the new constitution to replace the Privy Council. This Court was established in December 2000 and since then, the Supreme Court became the final Court headed by the Chief Justice. It continues to sit regularly over very important constitutional issues and on appeals from the Gambia Court of Appeal.

This move made this Court more accessible and affordable to the majority of the population and the cost of litigation became drastically reduced compared to sending appeals to the Privy Council in the United Kingdom.

Court of Appeal

Next in the hierarchy was the Gambia Court of Appeal. By 1994, this Court had just commenced sitting on a full-time for the first time. However, the un-managed change from the court’s Ad-hoc status posed serious logistical problem to the Registry that lingered until 1994 hampering efficiency and effectiveness of the Appeal Court leading at some stage to negative press reports, among these was a terse ‘Observer’ editorial criticising the Court.

The Court at the time was composed of foreign Judges including its President. In contrast, the Court of Appeal has been well established during the past ten years and for the first time Gambians were appointed as President and Justice of Appeal, a trend that manifests the rapid Gambianisation of the Appeal Court.

High Court

By 1994, the High court, then called the Supreme Court, was headed by the Chief Justice and three other foreign Judges. It exercised unlimited jurisdiction over civil cases and an exclusive jurisdiction in capital offences; in addition to supervision of the Magistrates Courts and the hearing of appeals from both the Cadi’s Courts as well as the Magistrates Courts. Even when the APRC Government appointed three additional judges, of Gambian Nationality to the Bench, so that an average six judges were available to preside over cases in the High Court, the number of cases which continually flowed into the High Court was so great that the half a dozen High Court Judges could not dispose of all these cases expeditiously resulting in a huge backlog of cases.

In order to decongest the High Court and reduce the backlog of cases, the jurisdiction of the Magistrates Courts was enhanced (Magistrates Court Act of 2002) to enable these courts to deal with a large proportion of the total number of cases which would otherwise come before the High Court Judges.

In order to clear up, once and for all the huge backlog of cases, the APRC Government has an Agreement with the Commonwealth Secretariat under which 3 "Hurricane" judges from the Commonwealth will sit for long hours each day for a few months this year, and then leave behind them only the relatively few current cases to be handled by resident High Court Judges whose ranks will in the near future, be swelled by the recruitment of 3 judges from Commonwealth Courts, one judge from the Republic of Ghana and another from South Africa. When all these judges arrive, the High Court will be decentralised, and High Court Judges will specialise. Some Judges assigned to deal only with criminal matters brought before the Criminal Division of the High Court and other judges assigned to civil matters in the Civil Division of the High Court. Top

Cadi Appeals Panel

Prior to 1994, appeals against Cadi Court decisions in Sharia matters were heard by the High Court presided over by Judges with no sharia background.

During the present dispensation, the Cadi Appeal Panel was established by S.137A 1997 Constitution comprising persons learned in the Sharia to deal with appeals against Cadi Court decisions and District Tribunals in matters relating to the Sharia.

Magistrates Court

The Magistrates Courts by 1994 had two foreign Principal Magistrates, one foreign Senior Magistrate, three first Class Gambian magistrates and two lay ones manning Banjul, Kanifing, Brikama, Mansakonko and Basse. These courts had limited jurisdiction in civil and criminal cases

In contrast, the jurisdiction of Magistrates was enhanced in civil cases allowing for enhanced access and reducing pressure on the High Court. In criminal cases, Magistrates were empowered to deal with homicide offences. The two Principal Magistrates are Gambians and so are two Senior Magistrates and three of the four Class One Magistrates. In all, the Magistracy has doubled during the past 10 years to fourteen serving Magistrates out of whom only one is a foreigner.

Cadi Court

Two Cadi Courts were in existence at Kanifing and Banjul and presided over by Cadis below, or at best, at par with the ranks of lay Magistrates.

A third Cadi Court was established at Bundung during the past ten years and the position of Cadis enhanced within a structured hierarchy at par with the Magistrates. There is a Principal Cadi and Senior Cadi, whose grade levels are commensurate with their Magistrates colleagues.

District Tribunals

In law and practice, Divisional Commissioners played judicial roles in the functions of District Tribunals, who had limited jurisdiction. This to some extent affected the efficiency of Tribunals, delayed appellate and enforcement processes and stifled access.

In contrast, the jurisdiction of the Tribunals were enhanced and the practice involving Commissioners, who were central in local Government, discontinued thus bringing Tribunals directly under the purview of the Judiciary. In addition, the powers of the Tribunals were also increased

Industrial Tribunals

It was during the current dispensation that two Industrial Tribunals were established at City of Banjul and Kanifing Administrative area to deal mainly with industrial disputes that have been clogging the courts. Top

Judicial Processes

In the previous dispensation the Constitution provided that an accused person suspected of committing an offence and detained should be brought before a court of law within reasonable time.

In contrast, detained persons are brought to a court of Law within 72 hours. In compliance with this provision, the High court has since put in place a mechanism that will ensure that matters relating to the rights of persons are dealt with expeditiously. A High Judge is assigned every week to hear and dispose of application relating to detainees and bail applications. Normal administrative procedures relating to case processes do not apply allowing for timely hearing of the cases. This has led to timely determination of such matters as bail as opposed to the former dispensation.

Management Arrangements

Judicial Service Commission

Prior to 1994, the Judicial Service Commission comprised three members: the CJ, Chairman PSC and an ordinary member appointed by the President. The Commission had a very limited scope and was served by the PSC Secretariat

In contrast, the JSC under the present dispensation was enlarged to six members drawn mainly from the Judicial/Legal sector including appointees of the President and the National Assembly. The JSC has an expanded mandate covering all categories of staff and is supported by judicial officers

Office of Chief Justice – Management & Finance

In 1994, all issues relating to recruitment, training and staffing were under the existing policies controlled and dictated by the others other than the Judiciary (the Personnel Management Office).

The Judicial Service Commission (JSC) had three members, the Chief Justice, the Chairman Public Service Commission and one ordinary member. The Secretary PSC was also JSC Secretary.

The Master of the Supreme Court, as it was then called, headed both administration and court registry. The position was at a relatively lower level to the Solicitor General & Legal Secretary at the Attorney General Chambers and Ministry of Justice, where policy and direction, in administrative and financial matters came from, rendering judicial independence questionable.

In contrast, the Judicial Service Commission, with an extended mandate, was enlarged to six members and comprised members of judicial/legal sector.

The Chief Justice is vested with absolute authority and responsibility over the Judiciary, which has been accorded an autonomous status in resources and finance mobilisation and management.

The Office of Judicial Secretary, at par with that of a Permanent Secretary, was created to assist the Chief Justice in the management of the courts and financial matters, and provides support to the JSC.

Necessary structures for judicial independence in the management of financial and other resources have been provided. Top

Infrastructure & systems development

By 1994, the physical infrastructure supporting the court systems comprised the following:

Kerewan, Mansakonko and Basse old courthouses built by the PWD and old Quarters in the latter two.

The High Court complex had been newly built and housed both Court of Appeal and the Supreme Court, as it was then called, the Sheriff Division and Banjul Cadi Court.

The Brikama Magistrates Court, transformed from the Divisional Commissioner’s Meeting Hall, was sharing offices with other Government Department.

The Bundung Court premises were built with Gambia Works Agency support in the early days of the take over to house the newly created Magistrates Courts and the Cadi Court also newly created.

Next was the construction of Magistrates Court complex at Brikama to accommodate two Magistrates as part of the AFPRC transitional Government projects

In 1999, the Supreme Court edifice with its impressive dome, was built along the Independence Drive premises in Banjul from proceeds of the sale to the SSHFC of the old court premises along Ecowas avenue.

New Supreme Court

Kanifing Magistrates Court with two Courtrooms only (was housing four Courts, including the Cadi Court) had been built in the very early days by the PWD. The building and the furniture by 1994 become quite unsuitable and during rains and storms, serious inconveniences are suffered and court almost paralysed.

New Kanifing Magistrates Court

In 2000, the premises was rebuilt as an impressive edifice accommodating five courts and several offices, facilities and furnished with modern furniture.

The Banjul Magistrates Court on Wellington. The building had been transformed from a colonial office into two Courts. By 1994, this building was almost giving way. It was also characterised by old and unsuitable furniture.

Old Banjul Magistrate Court

New Banjul Magistrates Court building

In 2002, the New Banjul Magistrates Court building, that created space for three Magistrates and One Cadi Court and funded with HIPC assistance was inaugurated by HE President Abdoulaye Wade of Senegal.

Also with HIPC assistance the Brikama High Court, the Mansakonko High Court and Basse High Court were built. All High Court structures are now in place; and when inaugurated and fully manned it will bring justice to the grassroot in a bid to decentralise the High court system throughout the Gambia. Top

Equipment & Systems

By 1994, there were not more than three computers in the entire Judiciary, not more than six functional electric typewriters and some old manual ones.

The Judiciary has acquired over 30 computers distributed across the different levels of courts and four heavy-duty photocopiers.

The Judiciary is developing a computer based case management system that will facilitate the registration and processes of court case information and proceedings.

Training is underway for the recording of court proceedings as a way of expediting proceedings and relieving judges and magistrates.

An assessment in 1994 by International Public Records Consultants (the international Records Management Trust of United Kingdom) concluded that the records system in the Judiciary, particularly the then Supreme Court (now High Court) had broken down completely. Security and accessibility of vital information was seriously threatened.

The situation arose from the unplanned move of premises from the old Buckle Street Court to the new Independence Drive complex in 1992/93. All records of the court dating back over 100 years were shabbily lumped and dumped as heaps of trash and abandoned in a dark, humid and dirty room in the new court premises. Because of the state of the records, considerable and inordinate delay was experienced in the court cases, since accessibility was impossible. The court system was in chaos.

In contrast, the records system was completely over hauled, professional training provided to staff. In the result, as Judicial Records Centre, a structured and organised room was established holding records as old as hundred years. Retrieval of vital information has been reduced to a matter of minutes, enhancing the system.

In addition, improved systems were put in place in the current records in the High Court and all subordinate Courts within the Greater Banjul. There is no doubt that security and accessibility is no longer a problem. Top

Legal Capacity Building

The government of the Gambia since 1994 in its bid to Gambianise both the Magistrates’ Court and High Court of the Gambia did train a number of Magistrates that have a first degree in law to pursue the vocational training in Sierra Leone and Nigeria. Three Magistrates were sponsored to do the Bar final in Sierra Leone and three in Nigeria. At the moment there is a Magistrate doing the Bar finals in Sierra Leone.

In addition to this, Magistrates have also been sponsored to pursue Post Graduate degrees in law. At the moment a Senior Magistrate is pursuing a Masters Degree at the University of Aberdeen.

In the realisation of the need for a well trained professional and support staff for a well managed Judiciary the Government of the Gambia since 1994 have trained a lot of the support staff in the Judiciary in a number of different disciplines to enhance professionalism and effectiveness in the service. The training courses range from Diploma in Law, stenography and Management.

Donor and International Intervention

The Capacity Building for Economic Management Projects under the support of the World Bank have intervened in a number of areas geared towards strengthening capacity and professionalism within the Judiciary.

A study tour was sponsored by the project to Uganda to understudy the CCAS system in place in order to replicate the same in the Gambia under an electronic case management system to enhance the processing and speedy disposal of case files. The report of the study tour is submitted and the Judiciary is working with the Attorney General’s Chambers to develop the Case Management system for the management and handling of court files.

In addition to the above the CBEMP have supported the Judiciary in a number of instances geared towards enhancing the capacity of staff. The project supported a range of activities ranging from study tours, short capacity building training both within and outside The Gambia, long term local training at the GTTI and MDI in Stenography and management. At the moment two registrars are undergoing a management course at MDI and six court clerks are trainees in stenography at the GTTI.

Furthermore, to reduce delays in Judicial administration, the project has helped the judiciary with a number of computers and photocopiers which to a great extent reduce the delays encountered in the processing of records.

The UNDP (Governance Program)

Under the good governance program by the UNDP the judiciary was helped to organise a workshop to revise the civil procedure rules for both the High Court and Magistrates Court. The objective of the workshop was to minimise delays in the system in a bid to make civil disputes speedily resolved for investor confidence in the country. A consultant was identified who is presently drafting the rules. Top

British High Commission (DFID)

The Judiciary of the Gambia in March 2004 signed a Memorandum of understanding with the British Government through the Department for overseas development office (DFID) and the Legal Capacity Building Programme (LCBP). Amongst other things the memorandum entails the recruitment of Judges on technical assistance on a fifty-fifty basis with the Commonwealth Secretariat. At the moment one of the Judges is serving on the High Court Bench.

In addition to this, the training of Judicial Officers at all levels, the police prosecutors and the staff at the Attorney General’s Chambers to a tune of £900,000.00 over a period of three years is all part of the framework of the project. The programs kicked off in May 2004 with a series of capacity building workshops and seminars as well as local and international training lined up for all beneficiaries at different times.

With the successful implementation of this project the independence of the Judiciary will be enhanced. Government’s policy of decentralisation of the Courts system will be facilitated as more manpower becomes available to implement the policy.

Prior to this, the Judiciary benefited from a DFID funded project, 1999-2001, The Gambia Records Management Improvement Project Phase 2 which was implemented by the International Records Management Trust UK (IRMT).

In this project the records of the High Court and three Magistrates Courts’ registry, and records of Judges’ files were restructured with a new racking, boxing and control system.

A Judicial Records Centre was established in which all the records of the Judiciary, some over 100 years old are kept.

Conclusion

It will be appreciated that the programmes, the commitments and the future Development Plans and policies outlined above by most of the institutions under the purview of the Honourable Secretary of State for Justice and National Assembly Matters, demonstrate that the Department of State for Justice has really benefited under the APRC Government. Most of these institutions have benefited from infrastructural developments and from capacity building initiatives. Perhaps of greater significance are the unquantifiable, perhaps intangible benefits arising from greater motivation, discipline, morale, which should enhance productivity and greater commitment to patriotic duty. It cannot be gainsaid that the justice sector was neglected but since 1994 the legal sector is becoming a force to reckon with. Top

National Assembly; Ombudsman; Independent Electoral Commission; Law Reform Commission; Civic Education; Human Rights; Rights of The Child; Capacity Building; Criminal Justice; Good Governance