By Pa Louis Sambou Sunday, 17th March 2019
Since the coining of the phrase ‘New Gambia’ and its widespread use to reference this post Jammeh era, one could be forgiven for assuming that we are now a functioning democracy. Unfortunately we are anything but. The ‘Democracy Implementation Project’ (DIP) is not yet a foregone conclusion; in actual fact, it has not even commenced yet.
The existing state of affairs is a semblance of democracy which it can be argued is extremely volatile.
The Supreme Court of The Gambia (SCoTG) in the Case (Injunction application (SC Civil Court No: 001/2019)) concerning an interim application against an Executive act, in dismissing the application relied on the Public / Constitutional Law principle of ‘Presumption of Regularity’ (PoR). The PoR is a Common Law doctrine which it has to be said is widely used around the world. The effect of this legal principle is that the courts will presume that the official duties have been properly discharged (by the person / institution against whom legal action is taken) until such a time the challenger presents clear evidence to the contrary.
In this specific case the Justices of the SCoTG presume the revocation of Ya Kumba Jaiteh’s nomination by the President a lawful act until such a time (at the hearing of her petition) evidence is presented to suggest otherwise. I must state with some degree of reluctance that the reasoning behind such uncomfortable determination / judgment is very problematic: The application of the principle is deeply flawed and, the legal precedent it sets is very adverse to our democracy and a leap into the dark.
The Flawed Application of the ‘Presumption of Regularity’ (PoR)
‘Presumption of Regularity’ (PoR) is a deference doctrine. Its application is dependent on the existence of a functioning constitutional order, not a semblance of it. The existing constitutional order (the 1997 Constitution) is widely discredited. This is evidenced by the ongoing consultations to have it replaced, an exercise which commissioned by the current Attorney General, endorsed by Parliament (hence the Constitutional Review Commission Act (CRC) 2017) and spearheaded by a SCoTG Justice who ironically was a sitting Judge on this matter under review. Even more farcical, the Attorney General who on the 11th December 2017 stood before Parliament (to present the CRC Bill) and denounced the existing Constitutional order as being unfit-for-purpose appeared as Defence Counsel defending the very constitutional order he already denounced and pretending that the respective denunciation(by him) on the 11th December 2017 never even happened.
It is widely accepted that the existing constitutional order is unfit for purpose and, the current political state of affairs exceptionally extraordinary. Therefore the application of the PoR in circumstances which are anything but ‘Regular’ adversely narrows Judicial scrutiny and widens Executive indiscretion. Given what our country is reeling out of (30 years of terribly bad governance and a subsequent 22 years of bitter dictatorship) this is very worrying.
The remedy for our unworkable constitutional and political order is not the application of an off-the-shelve Constitutional Law principles as usual but the adaptation of such principles as dictated by circumstances.
Courts have in recent times departed from the PoR in key cases. In the case involving CNN and the White House (WH) (following the revocation of the WH press pass of CNN journalist Jim Acousta) the Court, departed from the PoR and ordered for the temporary reversal of the revocation as an interim measure. The same was the case in almost all of the 50 cases following the attempt by President Trump to implement an election manifesto pledge (the ‘Muslim ban’). The PoR is certainly not applicable in circumstances which are extraordinary or not the norm.
The SCoTG ought to have on this occasion adopted an implicit neutral approach in deciding the legal question before it rather than erroneously making a determination relying on the PoR which key precedent(s) from around the world suggests is inapplicable in extraordinary circumstances.
The Precedent is a Adverse to Democracy and a Leap into the Dark
Never mind the respective parties and the underlying politics behind this specific case (both of which are, as far as I am concerned wholly irrelevant and insignificant in the public interest argument I put forward here), the effect of this ruling from the highest Court of the land presents very gloomy prospects for the future and until it is overturned it will have the adverse effect of frustrating (if not inhibiting altogether) future legal (interim) action(s) against ultra vires actions by state agents / agencies. This is most certainly the polar opposite of what is in the public interest.
From the ruling on the subject of the constitutionality of the Public Order Act (which the SCoTG endorsed as constitutional), then the riling on the issue of False Publication & Broadcasting (which the SCoTG also endorsed as constitutional) and now this unfortunate precedent. For a post dictatorship Supreme Court, this is a very uncomfortable trend and track record which must worry us all.
The SCoTG appears to be too Conservative, resistant to progressive change or, the Justices are simply too unduly hesitant to progressively developlogical Judicial precedent and caselaw consistent with 21st Century democratic society.
There is indeed credence in the suggestion that the SCoTG is gradually and inadvertently opening Gambian society up to the very risks and excesses it is meant to protect it against. This must dread us all.