Former high court judge: Gambian judiciary politicized, foreign intervention legal

A former high court judge in The Gambia, Emmanuel Nkea, has declared the judiciary of the Gambia “politicized” ,while declaring planned military intervention to oust Jammeh “legal”.

Writing in an opinion piece made available to this medium, he postulated:
“Popular and professional discontent against the judiciary has exposed the deep politicization and patronization of the judiciary in the Gambia. This has deeply eroded the independence of the judiciary, and in politically charged cases, the courts are seen merely as adjuncts to the incumbent.In a widely heralded Press Statement dated 12 December, 2016, the Gambia Bar Association highlighted some of the aspects of the politicization of the judiciary when they accused the Nigerian born Chief Justice Fagbenle of waving and dancing in support of the incumbent Presidential convoy, and for attending political rallies and for attending political rallies and wearing apparels of the incumbent APRC party on the Court premises, as well as distributing APRC party apparel to the Court staff, and making preparations for the victory celebration of the incumbent President.

They also accused him of interfering with judicial officials, and transferring cases to specific courts with a view to predetermine their outcomes, and for causing the dismissal of judges who handed down judgments which were deemed to be against the State’s interest.By section 49 of the 1997 Constitution and section 100 of the Elections Act, an election petition is the legal pathway to determine any election dispute in the Gambia. So normatively, the petition filed by Jammeh is within the ambit of the law. Historically, in the case of Lamin Kebba Saho - PPP v Sheriff M Dibba - NCP (Suit No EP/2/1992), the Gambia Supreme Court laid an important precedence on the legal effect of an irregular election petition. Election petitions are sui generis actions which must be determined in accordance with the local realities. Thus, rather than rely on Nigerian case law, recourse must be had to Gambian case law and jurisprudence. If the principle in Kebba Saho is properly applied to the current election petition by the APRC, then the omission of Adama Barrow as a party would prove fatal to the action and the petition would be dismissed. Seen from this standpoint, the APRC election petition is simply a spent force”.

He further added that an ECOWAS led military intervention would mitigate the loss in human life and property, and remains the only plausible option to uphold the election results in the Gambia.
“The legality of the intended intervention to inaugurate the democratically elected government of President-elect Adama Barrow must be weighed in light of the general prohibition on the use of force in Article 2(4) of the United Nations Charter and the broader principle of non-intervention, recognized under customary international law.However, military intervention aimed at restoring or upholding a democratically elected government does not fall within the scope of the prohibition on the use of force contained in Article 2(4). The ECOWAS pro-democratic intervention would rather support the territorial sovereignty of the Gambia by enforcing the political will and sovereignty of Gambians, which would otherwise be violated by the hold on power”.