The Gambia’s Democratic Revival: An Interview with Chief Justice Hassan Bubacar Jallow

Since gaining independence from British colonial rule in 1965, The Gambia’s efforts to uphold the rule of law have seen both hopeful advances and significant setbacks. A 1994 military coup led by Yahya Jammeh ushered in over two decades of authoritarianism, marked by repression and weakened institutions. However, following Jammeh’s departure in 2017, the country has been on a hopeful path toward rebuilding democratic governance, judicial independence, and accountability.

Here, New Zealand Court of Appeal Justice DAVID COLLINS, chair of Judicature International’s editorial board, speaks with Chief Justice HASSAN BUBACAR JALLOW of The Gambia about the important role of the judiciary in his nation’s democratic transition from military to civilian rule, efforts to uphold the rule of law, and the challenges of rebuilding public trust in legal institutions.

Before becoming Chief Justice of The Gambia, His Honor served as a prosecutor with the Attorney General’s Office in his home country as well as Attorney General for a decade. He then served as chief prosecutor for the Rwanda Tribunal and chief prosecutor for the Mechanism for International Criminal Tribunals covering both Rwanda and The Hague until 2016. He returned to The Gambia and became Chief Justice in January 2017. Their conversation has been lightly edited for clarity.

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JUSTICE DAVID COLLINS: What do you see as the biggest challenge to the rule of law in The Gambia today?

CHIEF JUSTICE JALLOW: Well, as you know, The Gambia attained its independence in 1965, and we are operating on our third constitution. We had the 1965 independence constitution — a Westminster system of government within the Commonwealth — followed by a Republican constitution in 1970, still under the Commonwealth. But in 1994, we had a military intervention, which took over the government. This led to the promulgation of a new constitution in 1997 which is still in force now, although the military have ceded power back to the civilian government.

For the past three years, we’ve been in the process of trying to put in place a new constitution for the country — one we believe will provide a better framework for good governance. Unfortunately, it has yet to see the light of day. The Constitutional Review Commission proposed a draft, which was initially rejected by the National Assembly.

There has been a revision since then of that initial draft, and it is currently again before the National Assembly.

We’re in the process of trying to provide for a new constitutional framework that we believe would provide greater protection for human rights, greater protection of the judiciary and judicial independence, and overall provide for better governance. We hope this time it will succeed. That is our biggest challenge at the moment as a country.

JUSTICE COLLINS: What are the biggest challenges facing judges in The Gambia?

CHIEF JUSTICE JALLOW: There’s a whole range of challenges we face. Fortunately, judicial independence is not one of those. Since the transition in 2017 from military to civilian government, we’ve had recognition by the government that the judiciary needs to operate independently and impartially. That said, we do face a whole lot of challenges in trying to make sure that the judiciary can perform its functions more efficiently. As a result, we’ve developed a strategic plan that identifies the challenges.

They range from the working conditions for judges, which require improvements so we can attract and retain competent and suitable Gambians to do the work — that’s a big challenge we have, attracting and retaining Gambians. Many of the judges who serve in our judiciary, for instance, are here on technical assistance [secondments] from Nigeria, from Ghana. The Commonwealth used to provide them as well. And they’re able to do so because of the conditions that are specific to them. There is currently a bill before the National Assembly to try to improve on the conditions of service of judicial officers, which we hope will help in ameliorating the situation.

We also face the problem of old rules of procedure of the High Court, which need revision. We recently concluded a wholesale revision of the rules of the High Court to provide for more expeditious hearing of cases. We hope by the end of this year, we’ll have new rules in place.

Then there are problems of infrastructure, shortage of courtrooms, and lack of technical support — for instance, the use of technology to accelerate court processes and court procedures. We are still a very, very manual system. Judges and magistrates must record court proceedings by hand. Of course, that is an enormous strain on the judges and magistrates, but it also slows down the process significantly for hearings and for appellate processes as well.

Fortunately, with the USAID, until recently, we have started a pilot project for automation of recording and transcription of our court proceedings. But as you know, right now, there’s an issue with USAID. They’ve suspended support for such a project. But we’re looking for other options for financing.

So, shortage of courtrooms, challenges with infrastructure, challenges with technology, and old rules of practice which we are revising, etc. — these are all things we face here. But we are trying to deal with them under a strategic plan launched by the government, which we are also trying to get donors to support.

JUSTICE COLLINS: You mentioned that The Gambia has been in the process of trying to encourage more Gambian lawyers, more Gambian judges to join the judiciary. How is that push is going, and are you still using foreign judges as opposed to national?

CHIEF JUSTICE JALLOW: Since independence, we have relied quite a lot on foreign judges, mostly serving here on technical assistance — on secondment from their governments — which means they are serving judges in their own countries. That means of course that we get good people — good, responsible, experienced judges — except for a short break during the military regime when it seemed they just selected their own people, foreigners they recruited.

But as much as we appreciate that support, mainly from Nigeria, Ghana, and Sierra Leone, it is important that we put in place the conditions that would enable us to attract and retain Gambians also to stay, to serve as judges. We had prepared a judges’ or judicial officers’ conditions of service bill, which is currently before the National Assembly. It was not favorably received at the beginning due to some misunderstandings by legislators about the provisions of the bill, but it is being given a second round. And it does appear that it will pass this year.

Essentially what we’ve stressed to legislators is that because of the nature of our work, especially given that judges when they retire cannot do many other things (they cannot practice law anymore, for example), we need to have some special pension arrangements for retiring judges to make sure their security continues. I think the legislators understand that now. We also need to provide them with certain facilities to make them reasonably comfortable. You can’t pay judicial officers as much as private practitioners of course, but they should be reasonably comfortable not only to attract them but also to ensure integrity, ensure that you have the required level of integrity within the judiciary — and also so people don’t have to be struggling too hard every day for their lives. So, we are optimistic that the bill may see the light of day this year.

JUSTICE COLLINS: Does The Gambia have an academy or other educational program designed specifically for members of the judiciary?

CHIEF JUSTICE JALLOW: Yes, the Judicial Training Institute, as we call it under Justice Awa Bah, is very active. It’s running programs continuously for judicial officers and staff of the judiciary, but we are trying to move it to a different level, and so we’ve drafted new legislation, which makes it a National Judicial and Legal Officers Training Institute, so that it’s not limited to just the judiciary. It will now be training the entire legal cadre in the public service — prosecutors, customs officers, the police, etc. All those who are involved in law and law enforcement will fall under the auspices of the academy for training purposes.

And all the other branches welcome that very much because they don’t have any other training options. Funding may be a bit of a challenge; USAID has halted its contributions, but their assistance has not been much concerning the actual training courses. We continue to have support from others: the UNDP, the EU, etc., and from individual states in Europe. They continue to assist us with delivery of our programs, and we take part in their programs as well.

The bill is also now before the Ministry of Justice to proceed to the National Assembly, and if enacted, we would see an institute handling legal training more comprehensively within the entire state structure.

JUSTICE COLLINS: Can you talk more about an Academy program you’re most proud of?

CHIEF JUSTICE JALLOW: One of the new things we are trying at the academy is what we call a “context course” for judges. We say, as judges, we are always called upon to deal with issues, very complex issues when you really are not familiar with the background to them. We are dealing with drug trafficking, trafficking in persons, environmental issues, forestry issues, deforestation program, so on and so forth.

So, we said maybe we should begin to invite experts in those fields to speak to the judicial officers about these critical issues as well as the challenges and how they’re being resolved — not from the legal side, but just from the practical side. And then when the matter comes before you as a judge, you’ll have a better understanding of the issues before you in court because you have that context now. You now better understand drug trafficking, how they’re trying to handle it, for instance. So that’s one new thing we are introducing in the Institute.

JUSTICE COLLINS: You mentioned that the other branches of government are beginning to participate in the Institute. Can you expand on the design for the balance of powers between the branches of government in The Gambia?

CHIEF JUSTICE JALLOW: Under the present constitution, the state is structured into three organs: executive, legislature, and the judiciary. There is an explicit recognition of the judiciary as an independent organ administered by the chief justice, with judges being appointed by the president on the recommendation of a judicial service commission chaired by the chief justice.

There is also a provision for security of judges’ tenure; judges cannot be removed or disciplined except pursuant to a special procedure that involves the National Assembly. Fortunately, we haven’t had to put those into practice. Under the previous military regime, of course, they just did what they wanted and removed judges whenever they wanted to. Hopefully that is a thing of the past now.

The judiciary is recognized as an independent self-administering body, but it is still tied to the executive, which provides its budget, approved by the National Assembly. The constitutional framework provides that power vests in the three organs: one for execution, one for adjudication, and one for legislation.

JUSTICE COLLINS: I suspect that you and many other chief justices in the continent of Africa have reasonably close working relationships. Is that a fair assumption, that you confer and liaise with the chief justices in other jurisdictions nearby?

CHIEF JUSTICE JALLOW: Yes, indeed. We have created many organizations, fora for consultations amongst ourselves. This helps us to share our experiences, to support each other, through both good and difficult times. We do so through, for instance, the Africa Forum of Chief Justices on Alternative Dispute Resolution, which is meeting soon in Kampala; the Commonwealth Magistrates and Judges Association is also a very, very useful organization for us — and incidentally, we are hosting the next conference in The Gambia here in September. The ECOWAS Judicial Council provides West African Chief Justices with another forum for working together. These gatherings enable us to share experiences, to support each other, and to assist us in dealing with common challenges that we face.

JUSTICE COLLINS: Looking beyond The Gambia, what do you think are the largest challenges facing judges on a global scale — challenges to the rule of law? To judicial independence?

CHIEF JUSTICE JALLOW: There’s a challenge of independence, and independence is absolutely necessary for the judges to function. I think we should never assume that once it’s attained, it cannot be eroded. There are forces constantly at work to erode that independence for their own benefit, and so there must be a continuous resistance by the judiciary itself and by all the stakeholders of the justice process to protect that independence. I see this as a continuous struggle; I think we must be alert to that, alive to that.

JUSTICE COLLINS: What, if any, efforts are made by judges in The Gambia to educate the public about the role of the courts and how they discharge their functions?

CHIEF JUSTICE JALLOW: It’s a role we should discharge, but I’m afraid I think we are not doing enough there. We have a judicial training institute, for instance, but it’s focused mostly on building the capacity of the judicial officers and their staff — training them in various branches of the law, training them in new working methods, etc.

We’ve left the education of the public to the Bar Association and General Legal Council, which has been running programs. Sometimes they involve the judiciary, and we will send a judge to participate in the program.

I think we should, though, as a judiciary, be much more active in that area, because there is quite a big misunderstanding by the public as to really the role, the function, the mandate of the judiciary. Very often they confuse it with the Bar, they confuse it with the government, with the Ministry of Justice, etc., with law enforcement generally. And you find, for instance, whenever there is an issue of justice generally, it’s always the judiciary they speak of, when it may not necessarily be falling within our mandate. I think it’s an area where we are not really doing much, but that we should be getting involved in.

JUSTICE COLLINS: A related question: Do you think the public has a high level of trust for the judiciary in The Gambia?

CHIEF JUSTICE JALLOW: Yes, I do think they trust the judges very, very much. Though I must say there was a recent Afrobarometer poll that alleged a decline in public trust for the judiciary, which we totally disagree with. Statistics support our belief that there is increased public confidence; since the change from a military to civilian government along with greater resource investment in the judiciary in terms of judges and magistrates, we’ve been seeing more and more cases, more and more people coming to the courts than before. Annually for the past three years, for instance, we’ve had at least a 30 percent increase in the number of cases, in the number of people coming to court each year.

JUSTICE COLLINS: Wow, that’s massive.

CHIEF JUSTICE JALLOW: Yes, it’s a massive increase in the number of people coming to court because they trust that when they come there, they’ll have justice. It is very welcome, but, of course, it poses a challenge for us. We cannot easily manage that sort of increase in workload without an increase in resources. And so, it has encouraged us to focus very much on developing court-connected, alternative dispute resolution, promoting amicable, out-of-court settlements of civil cases before coming to court. For instance, we have made it a legal requirement that out-of-court settlement efforts must be certified before the case can be heard by a judge. We’ve also set up a mediation center and trained mediators who assist the parties to reach an amicable out of court settlement. But I must say, there’s a lot of public trust and public confidence in the courts.

JUSTICE COLLINS: Is there anything more that judges in The Gambia could do to educate the public about the role of the judiciary in your country, televised court proceedings, for example?

CHIEF JUSTICE JALLOW: I think we can. Yes, televising could be done. The courts are open, and the media do come in and report. Of course, that also has its challenges; sometimes there’s a lot of misreporting. We have to train the media on how to report cases.

I think we have to try and run our own public awareness programs through the radio, television, etc. This may sometimes require that we change our style of writing judgments. When we write judgments, perhaps we should be conscious that we may not be writing just for the parties, but also for the public. We’re writing for the public to understand what we are saying, why we are saying it, and why we are reaching a particular conclusion. I think too often it becomes so technical that nobody wants to read it or can understand it, other than the lawyers.

JUSTICE COLLINS: What about outreach programs, for example, going to schools and educating secondary school students about the civics and constitutional issues? Do you think there’s a role for judges to do something like that?

CHIEF JUSTICE JALLOW: Well, I think generally I would say there is a role for the legal profession, maybe not necessarily for judges. Perhaps sending judges to schools could be a bit risky. But I think the legal profession should be very much involved in that. And I think the Bar should take the lead there. The Bar should take the lead in reaching out to the schools, taking part in civic lessons, preparing materials relating to law and justice for high school students. We do, however, provide judges, for instance, who deliver lectures at the law school and at the university. Perhaps we should limit judges’ involvement to that level.

JUSTICE COLLINS: How many law schools do you have, Chief Justice?

CHIEF JUSTICE JALLOW: We have one university and one law school; we graduate about 50 Gambians each year. Together with many others from the sub-region, up to about 100 altogether per year, but only about half of them would be Gambian.

JUSTICE COLLINS: Who do you look to for inspiration in your role? Is there a mentor you had at an earlier stage in your career, or do you look overseas for guidance and leadership from other judges?

CHIEF JUSTICE JALLOW: Two people have been inspirational in my life, and neither were members of the legal profession. One is my father the late Sheikh Alhaji Bubacar Zaidi Jallow (RA); he was a religious leader, an imam, and in that capacity, he was an academic, teacher, a writer, and a community leader. Every day, we watched him publicly resolving and mediating disputes within the community. We grew up in that atmosphere, where almost daily disputes would come to him and he would try to mediate them according to the Sharia or just to make sure that things went well. And he’s been the greatest influence in my life. I always look back at how he used to do things — the consultation, the dialogue, the mediation, the counseling on personal and community issues.

The second person was our former president, the first president of the country, Sir Dawda Kairaba Jawara. He was a great humanist, a great believer in human rights and good governance. I had the privilege of working with him as his attorney general for 10 years, from 1984 to 1994. He truly believed in respect for human rights, in the rule of law, and in constitutionalism. I think he very much strengthened my commitment in those areas. I continue to be guided by these two great giants.

JUSTICE COLLINS: What do you hope will be your legacy when your time as Chief Justice comes to an end? Looking back, what do you hope people will remember you for?

CHIEF JUSTICE JALLOW: I hope they will say, “Well, he tried his best, he did what he could, and we thank him for that.”

JUSTICE COLLINS: Is there anything you would like to add, anything you would like to share with fellow international judges?

CHIEF JUSTICE JALLOW: I think many judges may not have had the international experience I’ve had, and sometimes we tend to remain very national, but there’s a lot out there in the international plane that could help us in our work. There’s a lot of law out there, there’s a lot of practice out there, there’s a lot of experience out there in international law, in international criminal law, public law, and all the other branches of the law that could be very useful. We should not hesitate to tap into the international legal experience and use it for our benefit, especially in human rights. There’s a whole body of international human rights law that has developed, and we should not close our eyes to that. We need to find ways of using that body of international human rights law to strengthen our national human rights regime itself. I think that’s very important.

JUSTICE COLLINS: Thank you again for speaking with us. We look forward to following your continued work in The Gambia, strengthening the rule of law and preserving judicial independence.