Thursday, October 29, 2020

High Court Judge Says Dismissal of Bory Touray as Magistrate Was Unconstitutional

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Justice Aminata Saho-Ceesay of the Banjul High Court has on Monday, 5th October 2020 declared that the termination of the service of Lawyer Bory D.S. Touray as a magistrate by way of Executive directive was contravention of the 1997 Constitution.

The Plaintiff, Bory Touray is a senior legal practitioner and a former magistrate. He brought the suit vie an originating summons filed on the 22nd March 2019 seeking two things.

He wanted the court to make a declaration that the decision of the Executive in directing his dismissal at the Judiciary as a magistrate was a contravention of section 120 (1) (b) and (3) of the 1997 Second Republican Constitution and for that matter null and void and of no effect.

He also sought from the court a declaration that the decision of the Executive in directing the termination of his services with the Judiciary was a contravention of section 120 (1) (b) and (3) of the 1997 Second Republican Constitution and for that matter null and void and of no effect.

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Upon being served, the Attorney General, who is in this case the Defendant, filed an application praying for this suit to be dismissed based on four reasons. The reasons were – the action of Mr Touray was statute-barred, it was an abuse of process, the court lacked the jurisdiction to determine the suit and the suit is otherwise unmaintainable.

In a considered ruling dated the 25th October 2019, Justice Saho-Ceesay dismissed the Attorney General’s application as lacking merit. Thereafter, the case continued until its final determination.

In his argument in support of the case, Touray sai he was appointed in the service of the Government of The Gambia as a Magistrate by the Judicial Service Commission (JSC) in August 1995. He submitted that he presided over the case of the Inspector General of Police versus Pa Sallah Jagne, Ebrima Chongan and Kebba Dibba. He said he dismissed the case and on the following day, he was summarily dismissed from the service of The Gambia Government which as conveyed to him was directed by the Office of The President. He averred that his dismissal was not as a result of misconduct on his part.

He thereafter wrote a petition for his reinstatement, and was subsequently reinstated and his service as a consequence reconnected.

Following his reinstatement, his services with the Government of The Gambia were again terminated on the directives of the Executive. This time around, Mr Touray averred that the termination was as a result of him presiding over another criminal case of the Inspector General of Police versus Ousainou A.N.M Darboe and 24 others on the 27th June 2000.

Refuting the facts as presented by the Plaintiff, the Attorney General filed an affidavit in opposition denying the Plaintiff’s allegations, especially as regards the motive behind the dismissal and termination of his services as a magistrate. The Attorney General stated that the allegations are nothing but speculation on the part of Mr Touray and that his dismissals were as a result of the decisions he made in respect of the cases he mentioned. The Attorney General also denied the allegation by Mr Touray that the decision of the Executive to summarily dismiss him without any reason was clearly in violation of the Constitution.

The Judge said in order to draw an inference or come to the conclusion that on the two occasions Mr Touray was dismissed and terminated as a result of the decisions he made in the two cases mentioned, would have provoked no difficulty, if Mr Touray had tendered evidence that is material to the determination of the said allegations – that is the case dockets or at least certified copies of the said decisions.

She maintained that the dates on which those decisions were made are very crucial to the determination of whether the dismissals came the day after those decisions were rendered as alleged by Mr Touray.

“In my view, these material pieces of evidence would have aided me in determining whether there is a causal link between the way the named cases were determined and his removals from office,” he said.

She added: “As such, I am of the view that it would be nothing short of judicial overstretch on my part and would also appear iniquitous and scandalously unreasonable for me to hold that the said dismissals were as a result of the events preceding same – when there is no evidence before me to aid me in coming to such a conclusion. I am fortified in this reasoning having regard to the trite principle of law that a court should not decide a case on mere conjecture or speculations. Courts decide issues on facts established before them and on the law. Consequently, I would, without hesitation, reject that line of argument and proceed to determine whether the manner and procedure by which the dismissals were carried out culminate to the constitutional infractions claimed by the Plaintiff (Touray).”

The senior judge said Touray was appointed by the JSC which is an independent body established under the 1997 Constitution vested with the power inter alia to appoint persons to hold or act in any judicial office.

He was subsequently dismissed on the 11th April 1996 and he petitioned against his dismissal and on the 24th April 1996, he was reinstated then terminated on the 27th June 2000.

The Permanent Secretary at the Personnel Management Office wrote to Touray stating “I have been directed to inform you that the Judicial Service Commission has approved your dismissal from the service with immediate effect.

Touray’s dismissal letter written by the Secretary of JSC stated: “Pursuant to the memo dated 23rd June 2000 under reference PR/C/35/vol.2/(110), the Judicial Service Commission has concurred with the termination of your appointment as Magistrate Class 1 with immediate effect. This is pursuant to directives issued from the Secretary General, Office of the President vide the said memo. The Commission wish to take this opportunity to thank you for your past services to the Judiciary.”

The Judge in her judgment said section 120 confers on the courts the authority to exercise judicial power.

“Any court, in exercising this judicial power must have the independence bereft of external control or influence. Attack on judicial independence and by extension on the principle of separation of powers in my view, the clog in the wheel of attaining justice and the rule of law that no society needs,” she said.

She held that the independence of the judiciary is essential to the rule of law and the continuance of its authority and legitimacy.

“It involves the impartiality, and appearance of impartiality, of judges; and the freedom of judges from political and other pressures in their determination of the law and adjudication of disputes,” she said.

She said it is universally accepted principle that officers exercising judicial power cannot be removed at the pleasure of one person or institution. She added that the rule of law dictates that judges exercising judicial functions must enjoy the security of tenure of office for them to be able to perform their duties free from fear or favour, affection or ill will.

Counsel Kimbeng Tah for the Attorney General argued that the judicial powers enshrined under section 120 of the 1997 Constitution have no relation with the power of appointment of judicial officers. That is not in dispute that the executive cannot direct the dismissal of a judicial officer from the Judiciary. These powers, Tah argued are vested in the JSC under section 146 of the 1997 Constitution, and further strengthen by section 148 which guarantees independence in the exercise of its role. Tah posited that the provision that Touray seeks to be held as having been contravened, however, has to do with the exercise of judicial functions or power.

Tah further submitted that there is no nexus between the process of appointing and dismissing judicial officers and the exercise of judicial power. Any such action, Tah argued can therefore not be found to be in contravention of section 120(1) (b) and (3) of the 1997 Constitution as they are unrelated. He further submitted that the declarations of unconstitutionality are serious matters and Mr Touray cannot expect the court despite its wisdom, to speculate on what constitutional provisions he meant to refer.

Lawyer Ida Drammeh for Mr Touray argued that section 120 (3) of the 1997 Constitution guarantees the independence of the Judiciary adding the provision provides the strongest form of protection for independence of the judiciary by not only making express declaration of judicial independence, but also protecting it from interference from any person or authority as a consequence of which, is an entrenched provision by virtue of section 226 (7) (j) of the Constitution. She said the Constitution did not only provide for the independence of the judiciary, but also caters for the total independence of the JSC by virtue of section 148 (1) thereof. She added that the power to remove a magistrate is safely bestowed on the JSC and no other institution.

Section 148 (1) of the Constitution provides “in the exercise of the functions under the Constitution, the Judicial Service Commission shall not be subjected to the directive or control of any other person or authority.”

“The evidence before this court has revealed that the Executive did in fact direct the removal of the Plaintiff from office in both cases……….It seems to me, and I say so with respect, that regarding the termination of the Plaintiff’s services, the JSC was only used as a conduct to relay to the Plaintiff, the wishes of the Executive. This procedure in my considered view was a grave constitutional infraction that eroded all that independence accorded to the JSC by section 148 (1) of the Constitution and I so hold,” she said.

She said section 120 (3) of the Constitution was violated as she dismissed the Attorney General’s argument that there is no nexus between the process of appointing and dismissing judicial officers and the exercise of judicial power.

She said the Executive branch of the State’s actions in directing the dismissal and termination of Mr Touray in the manner it did is indicative of a dystopian society where the executive can direct the removal of any judicial officer out of its whims and fancies.

“In my considered view, the anomaly and the impropriety of the procedure of removal of the Plaintiff from office, having been condone, did not only establish bad precedent but at that time damaged the very fabric of judicial independence and rule of law which the Constitution sought to protect,” she said.

She said it undermined the independence of the judiciary and that of those empowered to perform judicial functions and also violated the constitutional principle of separation of powers.

She said the principle of separations of powers is meant to insulate one arm of government from the vagaries of the other arm of government. Separation of powers means that the three arms of government must be separated in matters of functions, personnel and control. This means that members of one arm cannot be members of another arm, the functions performed by one arm cannot be performed by the other, and an arm is not subject to control by another arm.

“It is important to emphasize the point that the Constitution does not only provide for the independence of the judiciary, but also caters for the total independence of the JSC. Therefore, removal of a magistrate can only be justified where the shortcomings of the same are so serious as to destroy confidence in his or her ability to properly perform the judicial function. So for the Executive to have directed and indeed removed the Plaintiff in the manner that it did and in absence of the JSC proffering any justification in that regard was not only a grave constitutional infraction but was in no uncertain terms, an affront to the judicial independence and the rule of law and I so hold.

“It would not be the intention of any legislature for the Executive to be given the exclusive power to remove a judicial officer as and when they are suited. Giving the Executive this power means a judicial officer can be removed for not deciding in favour of the Executive in any matter which it has an interest,” she said.

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