Abstract

This paper examines the the importance of judicial independence in a democratic state. The paper seeks to examine the operation of the judiciary during Jammeh’s regime and Post-Jammeh Gambia by identifying possible gaps that needs critical assessment and reform to further strengthen the independence of the judiciary. It also highlights constitutional provisions that safeguard separation of powers and judicial independence and the independence of the judiciary. For the purpose of this paper, judicial independence and independence of the judiciary may be used interchangeably although there is a thin line difference between the two. The paper also highlights the significant role of the Judicial Service Commission vis-a-vis the independence of the judiciary. It further highlight actions that could threaten judicial independence especially in a transitioning state like The Gambia.

Introduction

The significance of judicial independence is immeasurable in any democratic state. As guardians of the law, it is essential we ensure that the courts and judicial officers are protected from control and external influence in the performance of their functions.

The independence of the judiciary shall be guaranteed by the state and enshrined in the constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary.¹The Chief Justice of the United States, Marshall CJ, said that it is emphatically the province and duty of the judicial department to say what is law.²

It is also important to distinguish between judicial independence and independence of the judiciary which are functional and institutional independence respectively. The concept of judicial independence is more of a formal attribute, than a pragmatic ideal. The independence of the judiciary on the other hand, is a holistic objective with many interdependent attributes in constitutional theory.³ Functional independence basically refers to the independence granted to judges to freely decide cases impartially, without influence from other arms of state and private interests. Whiles institutional independence on the other hand is about the judiciary as a whole institution being separate from and not controlled by the executive or legislative arm of state.

Historical context: how the judiciary operated under Yahya Jammeh’s rule

Yahya Jammeh’s rule began in 1994 after the military junta toppled the democratically elected government of Sir Dawda Kairaba Jawara under the Armed Forces Provisional Ruling Council. Yahya Jammeh later contested and won the 1996 elections which eventually led to the transitioning from a two-year military rule to civilian rule. Yahya Jammeh’s twenty two years regime was one characterized of weakening the judicial arm of state, which is an arm of state independent of the executive and the legislature.

Under the regime of Yahya Jammeh, there have been numerous appointments and dismissals of Chief Justices. The Chief Justice in the Gambia is the head of the judiciary and is responsible for the administration and supervision of the courts by virtue of section 121(1) of the 1997 constitution of the Gambia. He also serve as a Justice of the Supreme Court of the Gambia pursuant to section 125(1) of the constitution. Among the persons that have served as Chief Justice under the regime of Yahya Jammeh include; Justice Ali Nawaz Chowhan,⁴ Justice Emmanuel Akomaye Agim,⁵ Justice Emmanuel O. Fagbenle,⁶ Justice Abdou Karim Savage,⁷ Justice Stephen Alan Brobbey,⁸ etc., most of whom were foreign judges.

One of the implications of such appointments and dismissals was to instill a climate of fear, intimidation, and control of the judiciary which would undermine the independence of the judiciary. Passing judgments against the state was nearly inconceivable, and such actions later eroded the trust and confidence people placed in the judiciary. Jammeh once reiterated in March 2014 on his personal conception of separation of powers while appointing a Chief Justice that; “I just want you to understand that there is nowhere in the world where the judiciary is independent.”⁹ Such apparent statements made without proper reference to the laws of the Gambia risk flouting the constitution and subsequently undermining the independence of the judiciary.

Current constitutional provisions for separation of powers: the judiciary in perspective

The 1997 constitution of the Gambia provides for the separation of powers of the judiciary, executive, and legislature. I shall examined the constitutional provisions that safeguard judicial independence and the independence of the judiciary.

Section 120(2) and (3) of the 1997 constitution¹⁰ provides that the judicial power of the Gambia is vested in the courts and shall be exercised by them with respect to their various jurisdictions conferred on them by law; and in the exercised of their judicial functions, shall be independent and shall be subject only to this constitution and the law, and shall not be subject to the control and direction of any other person or authority. Section 120(4)¹¹ further provides for government agencies and departments to render such assistance to the courts as they may require to protect their independence, dignity, and effectiveness. Section 123 of the constitution¹² protects judges and other persons exercising judicial power from being liable to any action or suit for any act or omission made whiles performing their judicial functions in good faith.

These plethora of provisions in the constitution ensures that the judges and other persons exercising judicial power are protected from influence or control by other actors while they perform their functions, and provides sufficient safeguards to their independence from other organs of state and private entities. Currently, the security of tenure of judges is perceived to be highly respected and protected. There has not been any report of judges being dismissed unconstitutionally in Post-Jammeh Gambia. The Chief Justice and other judges of the superior courts still continue to exercise their functions since assumption of office. As custodians of justice, it is imperative to ensure their independence in order to enable them administer justice in a fair and impartial manner whiles upholding the rule of law and protecting the constitution.

It is also important to note that financial autonomy of the judiciary is well guaranteed under the 1997 constitution, although the other organs of state play an integral part in the process. The annual estimates of expenditure of the judiciary is submitted to the President by the Chief Justice, for onward placement before the National Assembly without amendment but the President may attach his or her comments and observations by virtue of section 144 of the 1997 constitution. While it is arguable for the purpose of checks and balances, the process creates an unnecessary and cumbersome mechanism. It is noteworthy that any immediate or future process of under-funding the judiciary may undermine and weakened judicial independence.

Role of the Judicial Service Commission and potential reforms

The Judicial Service Commission (JSC) plays a significant role in the appointment of judges and other judicial officers. Although the Chief Justice is appointed by the President after consultation with the JSC, other judges of the superior courts except judges of the Special Criminal Court are also appointed by the President after a recommendation from the JSC pursuant to section 138 of the 1997 constitution.¹³ The Chief Justice also head the JSC as the Chairman by virtue of section 145(1) of the 1997 constitution.¹⁴

The Judicial Service commission is not entirely an independent body as appointments of the Chief Justice and other superior court judges is only effected in consultation and recommendations to the Executive President of the Gambia after making the constitutional requirements. This process creates room for the President to make appointments not based on who has the highest merit as it is devoid of any application process for proper scrutiny. It is also essential to ensure that the character, integrity, and dignity of such persons are also non-negotiable before appointments are effected.

Moreover, it is also commendable that the Government of The Gambia accepted the recommendation of the TRRC in granting the JSC as the sole body charged with overseeing the affairs of judicial officers and an independent committee be set up and supervised by the Judicial Service Commission to screen candidates for the appointment of judges.¹⁵

Actions that could threaten judicial independence and the way forward:

Executive and legislative interference with the functions of the judicial arm of state risked undermining judicial independence. In a recent statement proffered by the Hon. Minister of Lands, Regional Government and Religious Matters, Hamat N.K. Bah, is a clear affront to judicial independence. His statements were anchored on the numerous court judgments passed against the state.¹⁶ It is imperative to bear in mind that the judiciary is an independent arm of state mandated by law to administer justice, and judgments passed are in accordance with the laws of the country and not primarily on opinions or sentiments. As a Honorable Cabinet Minister, and a member of the executive arm of state, it is important to avoid interfering with the functions of the judiciary.

New Zealand Bar Association President, Maria Dew KC, has opined that judicial independence is critical in upholding the rule of law, which supports our democracy. She further stated that the public must be confident that they can come to court and judges will be able to hear their cases without fear or favour.¹⁷ judicial independence is secured in any democratic state, more importantly in a transitioning state like The Gambia.

Recommendations:

I therefore make the following recommendations;

-That the independence of the Judicial Service Commission be strengthen to give little room for control and interference from the executive arm of state vis-a-vis the appointment of judges of the superior courts of The Gambia, and the appointment and vetting processes of judges be manifestly transparent.

-That members of the executive arm of state dissociate themselves with any form of interference on the functions of the judiciary. The functional and institutional independence of the judiciary should be protected in any democratic state to promote justice, impartiality, and the rule of law.

-That the Government of The Gambia continue to be committed in rendering such assistance to the courts as may be necessary and also create an environment where the independence of the judiciary is perceived to be respected and protected.

-That further amendments be made to the 1997 constitution to better safeguard the independence of the judiciary.

Conclusion

In light of the above, it is my fervent conviction that in ensuring judicial independence, the citizenry will have full trust and confidence in our courts, and judges will dispense justice fairly, impartially, and in accordance with the laws of the country without any form of control or influence. Although the independence of the judiciary presently is nothing compared to one under Jammeh’s regime, there is still room for improvement to further strengthen the independence of the judicial arm of state. It is also an integral duty upon the citizenry and the government to ensure that judges are free from intimidation, control, and any form of influence while they execute their functions in dispensing justice fairly, impartially, and in accordance with the laws of the country.

REFERENCE:

1. Constitution of the Republic of the Gambia, 1997.
2. Jammeh Ousman A. S., The Constitutional Law of The Gambia, (AuthorHouse, 2011)
3. Republic of The Gambia, “Government White Paper on the Report of the Truth Reconciliation and Reparations Commission, (2022)
4. Government of Pakistan Ministry of Foreign Affairs, ‘Justice (Retd) Ali Nawaz Chowhan has sworn in as Chief Justice, Supreme Court of Gambia,’ (Government of Pakistan, 17 March 2014)
5. Business Bliss Consultants FZE, ‘The Concept of Judicial Independence’, (Lawteacher.net, September 2025)
6. Bittaye Isatou, “Gambia: Chief Justice Agim and Four Other Judges Meet the Bar”, FOROYAA Newspaper, (14 June, 2009)
7. Darboe Mustapha K., “Gambia; How Jammeh Weaponized the Law”, JUSTICEINFO.NET, (8 April 2021)
8. Dem Mamadou, “Chief Justice recuses himself from case to stop Barrow’s inauguration”, FOROYAA, (17 January 2017)
9. Jallow Yankuba, “Hamat Bah Asks Courts to stop Passing Judgments against Government”, FOROYAA, (7 June 2024)
10. Kelly F. B. William, “An Independent Judiciary: The Core of the rule of Law”, Applied Knowledge Services, 2002
11. Sillah Ousman, “Abdou Karim Savage Laid to Rest”, FOROYAA, (31 August 2015)
12. Trawally Momodou, “Gambia: Chief Justice Briefs Jammeh On Work of Judiciary”, GAMBIA DAILY NEWS, (28 January 2005)
13. “Comments by Ministers on Judges and Prosecution decisions”, New Zealand Bar Association, (16 March 2023)

1 F. B. William Kelly, “An Independent Judiciary: The Core of the rule of Law”, Applied Knowledge Services, 2002,p.2. Available at: https://gsdrc.org/document-library/an-independent-judiciary-the-core-of-the-rule-of-law/ (accessed 30 September 2025).

2 Business Bliss Consultants FZE, ‘The Concept of Judicial Independence’, (Lawteacher.net, September 2025).Available at: https//www.lawteacher.net/free-law-essays/constitutional-law/the-concept-of-judicial-independence-law-essay.php?vref=1 (accessed 30 September)

3 Ousman A. S. Jammeh, The Constitutional Law of The Gambia, (AuthorHouse, 2011), pp.204-205.

4 Government of Pakistan Ministry of Foreign Affairs, ‘Justice (Retd) Ali Nawaz Chowhan has sworn in as Chief Justice, Supreme Court of Gambia,’ (Government of Pakistan, 17 March 2014), https://mofa.gov.pk/justice-retd-ali-nawaz-chowhan-has-sworn-in-as-chief-justice-supreme-court-of-gambia, accessed 25 September 2025.

5 Isatou Bittaye, “Gambia: Chief Justice Agim and Four Other Judges Meet the Bar”, FOROYAA Newspaper, 14 June, 2009. Available at: https://allafrica.com/stories/200906190788.html (accessed 25 September 2025).

6 Mamadou Dem, “Chief Justice recuses himself from case to stop Barrow’s inauguration”, FOROYAA, 17 January 2017. Available at: https://foroyaa.net/chief-justice-recuses-himself-from-case-to-stop-barrows-inauguration/ (accessed 25 September 2025).

7 Ousman Sillah, “Abdou Karim Savage Laid to Rest”, FOROYAA, 31 August 2015. Available at: https://foroyaa.net/abdou-karim-savage-laid-to-rest/ (accessed 25 September 2025).

8 Momodou Trawally, “Gambia: Chief Justice Briefs Jammeh On Work of Judiciary”, GAMBIA DAILY NEWS, 28 January 2005. Available at: https://allafrica.com/stories/200501280248.html/ (accessed 25 September 2025).

9 Mustapha K. Darboe, “Gambia; How Jammeh Weaponized the Law”, JUSTICEINFO.NET, 8 April 2021. Available at: https://www.justiceinfo.net/en/75825-gambia-how-jammeh-weaponized-the-law.html (accessed 25 September 2025).

10 Constitution of the Republic of the Gambia, 1997, s.120.

11 ibid.

12 Ibid, s.123.

13 Constitution of the Republic of the Gambia, 1997, s.138.

14 Ibid, s.145.

15 Republic of The Gambia, “Government White Paper on the Report of the Truth Reconciliation and Reparations Commission: (2022). Available at: https://www.moj.gm/download-file/81d650ed-dc36-11ec-8f4f-025103a708b7 (accessed 30^th September 2025).

16 Yankuba Jallow, “Hamat Bah Asks Courts to stop Passing Judgments against Government”, FOROYAA, 7 June 2024. Available at: https://foroyaa.net/hamat-bah-asks-courts-to-stop-passing-judgments-against-government/ (accessed 29 September 2025).

17 “Comments by Ministers on Judges and Prosecution decisions”, New Zealand Bar Association, (16 March 2023). Available at: https://nzbar.org.nz/news/comments-by-ministers-on-judges-and-prosecution-decisions (accessed 30 September 2025).

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About Author

Alhagie M. Kebbeh is a 3rd year law student at the University of The Gambia. An enthusiast in International and Constitutional law.