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Momodou
Denmark
11805 Posts |
 Posted - 02 Jan 2006 : 13:40:01
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The following article is a personal opinion on the recent decision of the Court of Appeal of the Gambia in the case of the NADD trio. The author is a qualified Barrister and a Gambian citizen resident in the UK.
WHY JUSTICE IZUAKO IS LEGALLY RIGHT AND MORALLY JUSTIFIED
By A K Ceeasy, London, UK
Looking at recent judicial decisions in the Gambia, at least those with political dimensions, ranging from the jailing of Lamin Waa Juwara for an alleged sedition to the Supreme Court’s ruling that resulted in the members of the newly formed NADD to lose their parliamentary seats, one gets the sinking feeling that the notion of justice is seriously under threat in the country. The Court of Appeal’s decision on 15 December 2005 when it dismissed the appeals of the three NADD executives against the ruling of Justice Paul reinforced this view. Although the majority of the Court dismissed the appeals, their judgment, compared to the dissenting one by Justice Izuako, appears inadequate and mediocre. By contrast, any right thinking observer, even without any legal background, will notice that Justice Izuako’s judgment was legally sound, fair and morally justified.
The three NADD executives, Amadou Bah, Halifa Sallah and Omar Jallow appealed to the Court of Appeal against Justice Paul’s ruling in which he entered a plea of not guilty for the trio. They also appealed against his decision not to disqualify himself from hearing the case. The grounds of appeal can be summarised as follows:
a) The defendants had not been properly served or at all and
b) Justice Paul was likely to be partial or bias against the Defendants if he continued to preside over the substantive hearing.
For the sake of clarity, when the three Defendants complained of not being served this meant that they were saying that they had not been properly sent or given a written order to appear in court to answer specific allegations against them. The second ground of appeal questioned the impartiality of Justice Paul. In a nutshell, the three Defendants argued that they had not heard a fair hearing and did not expect the same before Justice Paul. They sought to have his earlier ruling set aside and also an order that Justice Paul should not preside over their case.
Insofar as the first ground of appeal is concerned, this is a very significant procedural rule a non-compliance with which is a manifest indicative of lack of fair hearing. It appears that this point has been missed by the majority of the Court when they held that there was no “substantial error” and no miscarriage of justice when the judge proceeded with the trial even though the appellants had not been served. This, with great respect to the learned judges of the Court, is plainly wrong. The fact that the Defendants had not been served before they were arraigned violated every universally recognised standards of fair hearing including those of the UN and Principle 10 of the Body of Principles, para 2(B) of the African Commission Resolution.
The second ground of appeal is equally very important and has legal and constitutional implications. The Defendants argued that Justice Paul will not be impartial and is likely to be bias against them. Therefore he should recuse (cease to preside over the case) himself as a judge hearing the case. The majority of the Court of Appeal’s response to this was that the appellants failed to prove their allegations by failing to produce documentary evidence. They also considered the allegations to be either speculative or based on suspicion.
By contrast, Justice Izuako came to different conclusions. She noted that two issues arose in the appeals: i) fair hearing, and ii) Justice Paul’s impartiality. Justice Izuako opined that non-compliance with the procedure of serving the Appellants contravenes section 24 of the Gambian Constitution, which protects fair hearing. She held that the Court had no discretion when, fundamental rights such as fair hearing is at stake. Justice Izuako further noted that proof of bias was unnecessary. In her view, the exchanges between the parties and Justice Paul and the language used in the proceedings revealed likelihood of bias. She concluded that there could be substantial miscarriage of justice if the appeals were dismissed. It is clear, that Justice Izuako’s judgment reflects a fair and proper analysis of the evidence whereas the majority view does not appears to be.
Thus the risk of lack of fair hearing in this case, viewed in the context, is blindingly obvious. It should be noted that Justice Paul had been, until recently, under criminal investigation by the police which arose out of recommendations of the National Assembly. Two of the defendants before Justice Paul, namely Messrs Bah and Sallah had been members of the Assembly. Further as a result of the investigation, the Gambian Bar Association members moved to boycott his court. Therefore Justice Paul’s reputation and integrity had been seriously tainted. Consequently, his career as a judge should, in a morally and conscientiously driven society, become untenable. In the circumstances, it should be evident to any reasonable objective observer that Justice Paul cannot be seen to be impartial in the proceedings against the Defendants in this case.
Further, a careful deliberation of the factual background of this case will undoubtedly reveal that the majority of the Court of Appeal’s view was unsustainable. The majority of the Court appears to have misdirected itself by holding that there actually has to be documentary evidence before an argument of impartiality against a judge can be made out. The majority also failed to take into account that this case was no ordinary case and therefore, in the interest of justice as required in a democratic society, special and additional considerations should apply.
The universally recognised standard of fair hearing is to objectively assessed the proceedings and determine whether the conduct of the judge is likely to give a reasonable, informed observer cause to question his impartiality. This has been the approach by the US Court of Appeals for the District of Columbia (concerning anti-competition practices of Microsoft), where the Court said "Although we find no evidence of actual bias [in the earlier ruling], we hold that the actions of the trial judge, seriously tainted the proceedings before the District Court and called into question the integrity of the judicial process." This was because the trial judge had made derogatory remarks against one of the parties.
In 2000, the European Court of Human Rights (in Sander v United Kingdom) held that allegations contained in a note which a juror had transmitted to the judge, indicating that another juror had made racist comments during deliberations were capable of causing the applicant and any objective observer legitimate doubts as to the impartiality of the court.
There is also a question of independence of Justice Paul’s tribunal from the executive pressure. Justice Paul had been under criminal investigation from the executive when the case was assigned to him. That investigation has since been apparently abandoned without any sound conclusion. A tribunal that is not independent of the executive cant not comply with the requirements of impartiality in cases to which the executive is a party.
For any or all of the above analysis, it is clear that Justice Izuako’s judgment is sound in law and morally justified. Justice Paul, should reconsider his position and recuse himself from presiding over the substentail hearing of this case. That will be a decent, just and proper thing to do. It will also enhace and improve the court’s moral authority in the eyes of the ordinary people.
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A clear conscience fears no accusation - proverb from Sierra Leone |
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Dalton1
3485 Posts |
Posted - 02 Jan 2006 : 19:16:56
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Very sound analysis. The idea that even a lay man will grasp.
The interest of the state (Jammeh) in the said political motivated case is clear, because the arrest of the Nadd trio came barely week after he addressed the imams at statehouse and vowing to give "saliboo"-celebration gifts to the opposition.
Juwara, a former magistrate himself, is of the belief that people should have fought justice Paul from the time that he had an encounter with him. He argued a tool for Jammeh and the Aprc is far from being trusted in presiding over such cases. "If justice paul preside over the case, they will lock them till after 2006 elections.", he pointed.
Now that the issue is before the supreme court, people are very silent about it, and makes the supreme court judges continue on thinking whatever they do is right-till when something else happens, then we start making loud noises again.
Justice paul's deregatory comments "i know some of you hate me" is enough for reliance in knowing the truth, far from a statement expected of a responsible judge while in proceedings.
The funny thing about our society-those helping these fellows are all our brothers and sisters. Some one might be supporting Hydara, Sheik Tejan, but it is clear he has a hand in the case. It is only fair for those brothers and sisters to him take it personal-man to man with him, so that he can realise how much wrong he is committing. |
"There is no god but Allah (SWT); and Muhammad (SAW)is His last messenger." shahadah. Fear & Worship Allah (SWT) Alone! (:
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