“The assassination-style killing of Deyda Hydara, the co-founder and editor of The Point newspaper causes great consternation within the journalistic community and has led to considerable mistrust of the government. The delegation is deeply concerned that the official investigation has not produced any tangible results in the period since his killing.The delegation was concerned to hear of the hacking of the website of The Freedom Newspaper and the publication of the list of subscribers on the pro-government The Daily Observer under the headline ‘Freedom newspaper informers exposed’, as well as attacks on media offices and closure of radio stations expressing views critical of the government.”Said the International Bar Association in its 2006 Human Rights Report on the Gambia. The International Bar Association which had its Head Quarters in London, United Kingdom also says the rule of law was being undermined in the former British Colony, the Gambia, where the government abuses the rights of Citizens. The Legal Organization also strongly deplored the government’s hostility against the private press.”The delegation heard reports that, due to the current climate in the country, lawyers were reluctant to take Lamin Fatty’s case and did not want to visit him in prison.6.10 In May 2006, Lamin Cham and Malick Mboob were arrested by NIA officials. Cham is a BBC correspondent and a former editor of The Daily Observer, Mboob is a former reporter for the same paper. Their names were on a list of subscribers to The Freedom Newspaper, an opposition online website edited by a Gambian journalist living in self-imposed exile in the United States.The website had been hacked into and the list of subscribers had been published by The Daily Observer, which tends to favour the government in its coverage, under the headline ‘Freedom newspaper informers exposed’. Cham was released without charge in June 2006 whilst Mboob remains in custody. The delegation heard that this operation took place as part of an ongoing crackdown against The Freedom Newspaper. Subsequent to the mission there have been further reported detentions of journalists. ” The Freedom Newspaper editors say they were encouraged by the International Bar Association’s statement and vowed to do their job without giving into intimidation. “As we publish this report, people associated with this leading paper were still being asked to report on Bail by the police. Some of our so called informants were also tortured and threatened with death by state agents. An arrest warrant has been issued by the government to arrest subscribers within and outside the country. The government in its bid to undermine independent journalism resorted to blocking the Freedom Newspaper’s IP address. The move they said was intended to deny Gambians having access to the well read paper.”said Editor M’Bai. Meanwhile, the International Bar Association says “On 14 July 2006, Sam Obi, and Abdul Gafari, of the recently opened Daily Express newspaper, were taken into custody by National Intelligence Agency officers and were detained until 18 July 2006, when they were released without charge. Two other journalists have also disappeared and it is reported that they may have gone into hiding. Several radio stations and newspaper offices have been attacked or closed down in recent years.” In 2001, the Bar Association went on, “Citizen FM was closed for broadcasting false news and for not having a proper licence, and Radio 1 was bombed. In 2005 the government revoked the operating licence of Sud-FM, a Senegalese-owned radio station broadcast from Dakar, for allegedly broadcasting derogatory remarks about both the Gambian and Senegalese governments. The Independent has also been subject to arson attacks, including two in 2004 when the printing press was destroyed.” The delegation they said also “heard reports of mistreatment of detainees, including floggings in detention and prolonged solitary confinement. They were also concerned to hear reports of cramped and unsanitary cell conditions in Mile Two prison. The delegation was deeply concerned about the government practice of detaining individuals for long periods of time with charge, without access to family or legal counsel, or without bringing them before a court in order to ensure adequate judicial oversight.” Harassment of lawyers The International Bar Association, also raises concern over the way the government harasses local lawyers.”The delegation were extremely concerned to hear several cases of harassment, threats and attacks on lawyers. These cases have generated an atmosphere of fear amongst the legal profession which affects lawyers’ ability to discharge their professional duties freely. Some of these cases are outlined below.” In December 2003, they went on, “Ousman Sillah suffered a near-fatal attack in which he was shot at several times. Mr Sillah is a well-respected human rights lawyer and at the time of the attack had been representing Baba Jobe, a former leader of the National Assembly on charges of economic crimes. The delegation was informed that Mr Sillah was shot several times in the back after returning home in the evening from a wedding party. The shots were fired by one or several individuals from a car. The delegation heard reports that Mr Sillah had recognised the vehicle from which the shots came as similar to those used by the National Intelligence Agency. There is speculation that Mr Sillah had been privy to sensitive information relating to the ruling party during his conduct of the case.” According to the International Bar Association “Mr Sillah lost a kidney in the attack and now lives in self imposed exile in the United States. Following the shooting, the government issued a press release condemning the attack. Investigations into the shooting are ongoing, although it is not clear at what stage these are at and no report has yet been published.” The damning report also talked about the arrest of Antouman Gaye a leading human rights lawyer. “Antouman Gaye, a senior and well-respected member of the GBA, has been arrested and imprisoned on two occasions in the past year. The first occasion followed the case of The State vs Antouman Gaye discussed above. The second occasion was in the aftermath of the coup attempt in April 2006, where Mr Gaye was representing clients who were suspected coup plotters. He was detained by armed State agents outside the courts complex in Banjul one afternoon and taken away. It is believed that he was questioned in connection with the coup attempt although he was not charged and he was released after spending the weekend in custody. He was not afforded legal representation and he was denied access to his family. The delegation heard reports that that Mr Gaye is concerned for his family’s safety and, after 30 years of experience, is reluctant to represent any more clients in cases involving the government.5.19 The situation of Mariam Denton, the factual scenario of which was described earlier causes great consternation within the legal profession.”the statement says. ” Following her detention, MrsDenton was not permitted access to her lawyers for three weeks, despite constitutional and international obligations being clear as to the right of access to legal representation7 . The delegation was also concerned to hear credible reports that she had been placed in solitary confinement during this time” “The delegation was particularly concerned to hear that the 7 Section 19(2) of the Constitution provides that a detainee shall be informed within three hours of the reasons for arrest and the right to consult a legal practitioner, Article 7(1)(c), ICCPR , Article 14(3)(d), Principle 18 of the UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.” 46 Under Pressure: a report on the rule of law in the Gambia government is appealing the order granting her access to lawyers on the grounds that, in addition to the emergency powers contained in the Constitution, they believed that the constitutional fundamental rights and freedoms are automatically suspended in an investigation relating to a coup d’état. It is noteworthy that no state of emergency has been declared and that accordingly her fundamental constitutional rights and freedoms have not been altered . These instances have created a climate of intimidation and fear and some lawyers are therefore reluctant to accept politically sensitive cases for fear of their own safety, or that of their families. Some lawyers are also reluctant to take such cases for fear of the detrimental effect it may have on the commercial sides of their practices through the withdrawal of instructions from state-owned companies or parastatals. Further, due to the fact that the majority of lawyers are sole practitioners, some lawyers are reluctant to engage in such cases, as any harassment could have a significant impact on their practice. For the same reasons, some lawyers are unwilling to engage in public interest or human rights litigation. Executive summary This is the executive summary of the report of a fact-finding mission to the Republic of the Gambia (the Gambia) by an International Bar Association (IBA) delegation between 12 and 16 June 2006.The mission was prompted by concerns regarding the status of the rule of law, the independence of the judiciary and the ability of the legal profession to exercise its professional duties freely.These oncerns arose following reports about the removal of the Chief Justice in February 2006, the lack of security of tenure of foreign judges appointed on contracts, and the ongoing boycott by the Gambia Bar Association (GBA) of a High Court judge. The coup attempt in March 2006, which occurred subsequent to the decision to visit the Gambia, also raised concerns about the rule of law situation in the country.The mission was organised by the Human Rights Institute of the IBA. The delegation’s terms of reference were to examine:(1) the current legal status of lawyers and judges in the Gambia and their ability to carry out their professional duties freely;(2) the legal guarantees for the effective functioning of the justice system, including theindependence of the judiciary and whether these guarantees are respected in practice;(3) impediments, either in law or practice, that jeopardise the administration of justice and the respect for the rule of law and international and regional human rights standards; and(4) to make recommendations with respect to the above.The high level delegation held meetings with members of the executive, legislature and judiciary,representatives of the Gambia Bar Association and practising lawyers, members of the international diplomatic corps and donor community, non-governmental organisations (NGOs) and the media. The delegation wishes to express its sincere gratitude for the hospitality and assistance given by all those it met.The delegation comprised Justice Yvonne Mokgoro, Constitutional Court of South Africa;Sternford Moyo, Deputy President of the Southern African Development Community Lawyers Association, Former President of the Zimbabwe Law Society; Greg Mayne, Programme Manager, Human Rights Institute, International Bar Association and Alex Wilks, Parliamentary Legal Officer to Lord Lester of Herne Hill QC.The full conclusions and recommendations of the mission are set out in Chapter 7 of this report. Summary of conclusions The judicial system in the Gambia suffers from neglect, under-investment, and a severe lack of resources and infrastructure, resulting from a general deprioritisation of its importance. Whilst the6 Under Pressure: a report on the rule of law in the Gambia government was supportive of the independence of the judiciary in discussions with the delegation,in practice many of its actions undermined judicial independence and the rule of law, and its overall attitude to the judiciary was of grave concern to the delegation. This has created a climate where the protection of human rights is undermined and the rule of law subverted.The majority of judges in the Gambia are appointed on contracts from other African Commonwealth countries, mainly under the UK Department for International Development/Commonwealth Secretariat (‘DFID/CS scheme’), and Ghanaian and Nigerian technical assistance schemes. At the time of the delegation’s visit, there were only three Gambian nationals serving at the bench. The constitutional appointment procedure for judges, given the dominance of the President and the executive over the appointments to the Judicial Services Commission (JSC), the apparent lack of transparency with respect to the JSC processes, the absence of a clearly elaborated selection process and criteria for judicial appointments, exposes judicial appointments to political influence. There are serious concerns that the appointment of contract judges operates outside the constitutional appointment procedure, and that the precise role of the Judicial Services Commission (JSC) in this regard is unclear and limited. The failure of the government to follow the proper constitutional procedures in relation to the removal of judges, and shortcomings of the DFID/CS scheme with regard to security of tenure has created an atmosphere in which judges are unable to operate freely for fear of having their contracts terminated, or not renewed, if they deliver politically unpopular judgments. This undermines public confidence in the judiciary and this lack of confidence is manifested most prominently by the unwillingness of Gambian lawyers to consider a career at the bench.There are a number of infrastructure needs which affect the proper administration of justice.The lack of law reporting is of particular concern as it restricts the judiciary in its fundamental dutyto give reasoned judgments. The lack of stenographers and court reporters further impedes thejudiciary in carrying out its duties effectively and contributes to the backlog of cases. The absence of IT support, inadequate research facilities and the absence of continuing legal education for judges is also detrimental to the proper functioning of the justice system.The delegation was concerned at the frequent disregard or delay in compliance with court orders by members of the executive, particularly those which are politically unpopular. It is apparent that the executive has on such occasions considered itself above the rule of law. This poses a serious threat to the authority and independence of the judiciary and undermines confidence in the legal system. The existence of a mutually reinforcing relationship between the judiciary and the legal profession is an essential element in ensuring the independent and effective functioning of the judicial system. The ongoing boycott of a High Court judge, Justice Paul, by the Gambia Bar Association is severely detrimental to public confidence in the administration of justice, and the relationship between the government and the legal profession. Given the strength of feeling and Under Pressure: a report on the rule of law in the Gambia 7 the material disputes of fact on this situation, and without being able to conduct a full analysis of all relevant documentation, the delegation considers that it is unable to draw a definitive conclusion on the matter. Whilst a basic framework is in place, the legal profession is, in practice, largely unregulated. The General Legal Council lacks capacity and is virtually inoperative. The Gambia Bar Association suffers from a lack of financial and technical capacity and is insufficiently engaged in legal reform and other initiatives. The delegation welcomes the commitment of the current executive of the Gambia Bar Association to substantially increase its activities. Whilst the delegation appreciates that the legal profession may be operating in challenging circumstances, the delegation was concerned at the practice of the Gambia Bar Association of boycotting judges, as such boycotts undermine the status and integrity of the legal profession and undermine the effective functioning of the justice system. The government exhibits hostility and suspicion in its dealings with the legal profession and it was clear to the delegation that the government perceives the profession as an oppositional force. The level of animosity between the Gambia Bar Association and the government and the inability of the executive to disassociate lawyers from the causes of their clients is severely detrimental to the effective functioning of the justice system and to the ability of lawyers to carry out their professional duties freely. There is currently an atmosphere of fear amongst lawyers, emanating from the attempted murder of a lawyer and several other incidents of harassment and intimidation of lawyers, that they may face serious adverse consequences as a result of their acceptance of certain causes on behalf of their clients. This fear is a serious threat to the independence of the legal profession and the administration of justice. The removal of the possibility of bail for certain charges is a violation of the presumption of innocence and the right to liberty guaranteed in the Constitution and international human rights instruments, in particular Article 7 of the African Charter on Human and Peoples’ Rights. It was apparent to the delegation that the non-bailable offences legislation was having a deterrent effect on detainees or their legal representatives from challenging their detention, and that it was being used as a means of ensuring cooperation with government authorities. To this extent, the nonbailable offences legislation was being used as a means of intimidation and coercion. Freedom of expression in the Gambia is limited through restrictive legislation and the harassment of journalists, and in recent months there has been a sustained attack on the journalistic community. The delegation was concerned to hear reports of mistreatment of detainees, including floggings and prolonged solitary confinement. The delegation was deeply concerned about the government practice of detaining individuals for long periods of time with charge, without access to family or legal counsel, or without bringing them before a court in order to ensure adequate judicial oversight. Under Pressure: a report on the rule of law in the Gambia Summary of recommendations • The delegation welcomes the government’s statements in support of judicial independence and the rule of law and encourages the government to give greater priority to the judiciary in the allocation of state resources. The government must comply promptly with all orders of the judiciary, or challenge them through constitutional and legal processes. The delegation encourages the government to be temperate in its criticism of judicial decisions and to refrain from attacking them personally. • The delegation encourages the government to make a more concerted effort to engage the support of the international donor community to strengthen the operation of the judicial system and the independence of the judiciary. • The government must ensure that all judicial appointments and removals, including those of contract judges, are subject to the proper constitutional procedure. With respect to the removals of contract judges under the DFID/CS scheme, this should be specified in the contract of service. In order to ensure security of tenure, DFID/CS and the government are urged to extend the period of fixed-term contracts to five years. The Attorney-General is urged to act upon his assurance that all future removals will take place in accordance with the Constitution. • The operation of the JSC should be strengthened by diversifying the nominating authority for members of the JSC, and by conducting its procedures for the identification of candidates for judicial office in a transparent manner. • The government should raise the salaries of the judiciary and the magistracy in order to attract suitably qualified members of the Gambian legal profession to the bench on a permanent basis. • The President and the Attorney General must publicly reiterate the obligation of all branches of government and the constituent parts of the executive branch, in particular the police, prisons, national intelligence agency and other security forces, of the obligation to comply with court orders promptly. • The judiciary should be provided with an adequate budgetary allocation. This is essential to ensure the effective functioning of the judiciary and the proper administration of justice. The Chief Justice, through the JSC and in consultation with relevant stakeholders, should develop a plan of action for improving the operations of the court system. • The situation regarding the ongoing boycott of Justice Paul by the Gambia Bar Association must be resolved as soon as possible, through an independent commission of inquiry established in accordance with the Constitution. • Resources should be allocated to the General Legal Council in order to make it operational and capable of discharging its functions in accordance with the Legal Practitioners Act and consideration should be given to giving statutory recognition to the Gambia Bar Association and entrusting it with the regulation of the profession. The Gambia Bar Association should establish Under Pressure: a report on the rule of law in the Gambia 9 a permanent Secretariat and take a more active role in legal reform and other initiatives. A Gambia Law Faculty capable of providing an LL B degree or equivalent qualification should be established as soon as possible. • The Attorney-General should facilitate constructive dialogue between the legal profession and the government with a view to lifting the current atmosphere of suspicion and mistrust which exists between the profession and the government. The government must ensure that lawyers are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference. • The government is urged to repeal the non-bailable offences legislation and the amendment to the Criminal Code extending the definition of libel. The government is also urged to ensure that all prisoners and detainees are treated in accordance with constitutional and international due process guarantees and safeguards against torture or cruel, inhuman and degrading treatment. 10 Under Pressure: a report on the rule of law in the Gambia Under Pressure: a report on the rule of law in the Gambia 11 Chapter 1: Introduction 1.1 This is the report of a mission of international jurists which visited the Republic of the Gambia (‘the Gambia’) between 12 and 16 June 2006. The mission was organised by the Human Rights Institute of the International Bar Association (‘IBA’). The IBA is the world’s largest lawyers’ representative organisation, comprising 30,000 individual lawyers and over 195 Bar Associations and Law Societies. The IBA’s Human Rights Institute (‘HRI’) was formed in 1995 under the Honorary Presidency of former South African President Nelson Mandela. The HRI is non-political and works across the Association, helping to promote, protect and enforce human rights under a just rule of law, and to preserve the independence of the judiciary and the legal profession worldwide1 . 1.2 The mission was prompted by concerns regarding the status of the rule of law, the independence of the judiciary and the ability of the legal profession to exercise its professional duties freely. These concerns arose following reports about the removal of the Chief Justice in February 2006, the lack of security of tenure of foreign judges appointed on contracts, the ongoing boycott by the Gambia Bar Association (‘GBA’) of a High Court judge and the harassment and detention of lawyers. 1.3 The terms of reference of the mission were to examine:(1) the current legal status of lawyers and judges in the Gambia and their ability to carry out their professional duties freely; (2) the legal guarantees for the effective functioning of the justice system, including the independence of the judiciary and whether these guarantees are respected in practice; (3) impediments, either in law or practice, that jeopardise the administration of justice and the respect for the rule of law and international and regional human rights standards; and (4) to make recommendations with respect to the above.1.4 The HRI is grateful to the delegation members who accepted the invitation to participate in the mission. The delegation comprised:• Justice Yvonne Mokgoro, Constitutional Court of South Africa.• Sternford Moyo, Deputy President of the Southern African Development Community Lawyers Association, Former President of the Zimbabwe Law Society.• Greg Mayne, Programme Manager, Human Rights Institute, International Bar Association.1 Appendix 1 contains more information about the IBA. 12 Under Pressure: a report on the rule of law in the Gambia • Mission Rapporteur. Alex Wilks, Parliamentary Legal Officer to Lord Lester of Herne Hill QC.1.5 The delegation held meetings with the Chief Justice, Supreme Court, Court of Appeal and High Court judges, the Judicial Secretary, magistrates, the Speaker and Deputy Speaker of the National Assembly, representatives of the Gambian Bar Association and practicing lawyers,some members of the international diplomatic corps and donor community, nongovernmental organisations and the media. The President of the Gambia was unfortunately unable to meet with the delegation due to other commitments. However the delegation was pleased to meet the Vice President, Attorney-General, Solicitor-General, Director of Public Prosecutions and the Chief of Public Administration. The delegation wishes to express its sincere gratitude for the hospitality and assistance given by all those it met. 1.6 This report is based on the analysis of the information gathered in meetings with those mentioned above, as well as on relevant domestic and international laws and standards. The conclusions and recommendations of the mission are set out in Chapter 7 of this report. Under Pressure: a report on the rule of law in the Gambia 13 Chapter 2: Background Geography and demography 2.1 The Gambia, of which Banjul is the capital city, is bound by Senegal to its north, south and east and an 80m bokrder of the North Atlantic Ocean to its west. With a population of approximately 1.5 million people, it is the smallest country on the African continent. 2.2 A variety of ethnic groups live in the Gambia. The Mandinka tribe is the largest, followed by the Fula, Wolof, Jola and Serahule. Approximately 3,500 non-Africans live in the Gambia, including Europeans and families of Lebanese origin. With regard to faith, the Gambia is mainly Muslim (95 per cent), with Christian (4 per cent) and other indigenous beliefs (1 percent). English is the official language but other national languages include Mandinka, Wolof,Fula and other indigenous vernaculars.

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