High court judge, Justice Sainabou Wadda-Cisse said it is lawful and constitutional that lawyers are denied the right to appear before district tribunals.
Section 33 of the District Tribunals Act provides as follows: “A Legal Practitioner shall not appear or act for any party before a District Tribunal.”
A lawyers’ group dubbed Center for Legal Support brought an action against the Attorney General challenging the provision of the District Tribunals Act that bars them from appearing before the tribunals. The case was brought pursuant to sections 24 (dealing with the right to fair-hearing) and 33 (provision against discrimination) of the 1997 Constitution and section 30 of the Legal Aid Act. The Centre wanted the court to declare the said sections the District Tribunals Act as unconstitutional, null and void.
The Centre alleged that section 33 of the District Tribunals Act violates its rights and freedoms under Sections 24 and 33 of the 1997 Constitution of The Gambia.
THE DISTRICT TRIBUNALS ACT & ITS JURISDICTIONS
The enactment of the District Tribunals Act 1933 establishes the District Tribunal in all the administrative regions of The Gambia with civil and criminal jurisdiction. The preamble of the District Tribunals Act and some of its provisions indicate the purpose of the Act, which is to expand the administration of justice to the protectorate regions of the country, in order to maintain law and order within the scope of customary law, beliefs and practices. These are courts of summary jurisdiction and its members consist of the chiefs (by convention the president of the court) and elders of the various districts/communities which the Tribunal serves. The members of the courts are not required to be literate in English or to have any form of formal training or qualification. Although, the District Tribunals do produce records of proceedings when they are demanded the language of the court is not English.
The District Tribunals as established created an integrated justice delivery mechanism based on religious beliefs, cultural norms, values and practices of the communities. The condition is they should not be repugnant to natural justice and morality, or inconsistent with the relevant statutes or other laws in the Regions.
Sections 13 and 17 of the District Tribunals Act provide that the district tribunals have both civil and criminal jurisdictions in very broad terms, with the power to impose custodial sentence in criminal trials.
The Judge said since its enactment in 1933, it is remarkable to observe that the Act restricted the appearance of legal practitioners before the Tribunals.
The Centre also wanted the high court to declare that pursuant to the section 24 (1) and (3) (d) and (e) of the 1997 Constitution and section 30 (2) of the Legal Aid Act 2008 and international treaties and conventions that The Gambia is a signatory to, a person or party before any court or tribunal in the Gambia is entitled to defend himself or herself or through a legal representative of his or her own choice.
The lawyers’ group wanted a declaration that a legal practitioner issued with a Practicing Certificate by the General Legal Council is entitled to practice as a legal representative and to appear or act for any party before a district tribunal.
They asked for an order directing the Attorney General or the Government of the Gambia to take immediate step to repeal Section 33 of the District Tribunals Act for being inconsistent with the constitution, other Acts of the National Assembly and the international human rights obligations.
The Attorney General opposed the application by filing the affidavit in opposition sworn to by Haddy Drammeh on 2 February 2022.
ANALYSIS
On the analysis, the Judge deliberated on the reasons why legal representation is important. She said representation is a fundamental principle of fair hearing in the administration of justice. She added that the right involves affording all the parties reasonable and equal opportunity of a hearing throughout the proceedings. It also pertains to providing level playing field on which the judge has no interest whatsoever in the outcome of the contest before it.
She stated that the significance of legal representation particularly in court proceedings was succinctly expounded by Lord Denning in the celebrated case of PETT V GREYHOUND RACING ASSOCIATION (1968) as follows: “It is not every man who has ability to defend himself on his own. He cannot bring out the point in his own favour or the weakness in the other side. He may be tongue tied, nervous, confused or wanting in intelligence. He cannot examine or cross-examine witnesses. We see it every day. A magistrate says to a man; ‘you can ask any questions you like;’ whereupon the man immediately starts to make a speech. If justice is to be done, he ought to have someone to speak for him and who better than a lawyer who has been trained for the task?”
She cited several decided cases. She said it is apparent from the authorities that the right to legal representation is a fundamental human right and an essential requirement in a fair trial. The right to legal representation is also a constitutional right and one that must be jealously guarded by the courts.
“The critical question now is why the restriction on legal practitioners not to appear or represent any party appearing before the Tribunals? Nonetheless, the rational for the establishment of the District Tribunals is to do substantive justice in accordance with the customs, beliefs and practices of the people within the particular district, without recourse to complexities and technicalities of the common law courts.
By virtue of the provision under section 74 (2) of the Evidence Act, the Court is permitted to take judicial notice on all matters of public, history, literature, science or art. In this regard, it is obvious, without any fear of contradiction, that one of the purposes of establishing the District Tribunals was to make the indigenous people of the protectorate/districts to see themselves as being in charge and in control of their own affairs within their communities, with the resultant effect of suppressing dissent and at the same time protecting and sustaining the colonial government.
The difficulty and repulsion that colonial lawyers, were confronted with when they appeared before the District Tribunals is clearly conceivable; English is not the language of the Tribunals, customary laws vary from one district to another, the customs and norms of the people of the various districts are not codified, common law principles are not applicable, the law of evidence and the Limitation Act do not apply to the District Tribunals.”
She added: “I am of the considered view that there are two main legal implications of Section 33 of the District Tribunals Act. Firstly, the provisions of Section 24 (3) (d) and (e) of the Constitution are crystal clear on the point that an accused person charged with an offence is entitled to legal representation as of right, whilst the Legal Aid Act is intended to compliment and ensure compliance of this constitutional provision. Clearly, Section 33 of the District Tribunals Act is not in consonance with the Constitutional provision of Section 24. Secondly, a party before the District Tribunal has been accorded some differential treatment as opposed to a party appearing before any other courts – the Magistrates’ Courts and the Superior Courts. The party appearing before the magistrates’ court or the Superior Courts is entitled to legal representation by a lawyer of his/her choice, and in certain circumstances such party may be entitled to state funded legal representation under Section 30 (2) of the Legal Aid Act. The fact of the matter is that litigants who are inherently equal are being treated differently in a manner which appears to impair their constitutional right to fair hearing in relation to legal representation.
But the question that I cannot resist to ask is whether this right is an absolute right and cannot be subject to reasonable limitation?”
She examined the provision of Section 17 (2) of the Constitution which provides basis for limitation of rights and freedoms.
“The fundamental rights and freedoms guaranteed under the Constitution are clearly not absolute and are subject to limitation, only to the extent that the enjoyment of rights and freedoms by an individual does not prejudice the rights and freedoms of other citizens and the limitation is in the best interest of the public. A limitation to fundamental rights and freedom must be reasonable and justifiable in a democratic society, taking into consideration all the fundamental dynamics of equality, freedom, human dignity in the context of the nature and purpose of the limitation.”
She said the Supreme Court in the unreported case of the Gambia Press Union and Ors v The Attorney General, SC Civil Suit No. 1/2014, delivered on 9th May 2018 held that the Constitution creates exception to the exercise of rights and freedoms and thus places a discretion on Parliament to make laws providing limitations to the exercise of such rights and freedoms as Parliament considers reasonably required in a democratic society. The said Court further held that Parliament in enacting legislation restricting any individual rights and freedoms must satisfy that the restriction is reasonable and necessary in a democratic society.
The existence of customary law is accorded constitutional backing under Section 7 (e) of the 1997 Constitution in so far as it concerns members of the communities to which it applies. Section 7 (e) of the Constitution provides thus: “In addition to this Constitution, the laws of The Gambia consist of Customary law so far as concerns members of the communities to which it applies.”
“Indeed the Constitution has expressly recognized the limitation of the application of customary law to the particular community where the custom, practice or norm applies and that customary law is not intended to be of general application in all communities/districts and the country at large. In my mind, the recognition of the peculiarity and variation of customary law in relation to its application to the district/community concerned undoubtedly influenced the drafters of the 1997 Constitution to expressly acknowledge the limited scope of the application of customary law to the community concerned. Therefore, it appears that the perception regarding the peculiarity, variations and limited application of the customary law to the community concerned influenced the legislature to amend the District Tribunals Act to restrict the appearance of legal practitioners.”
“Firstly, I have stated herein above that the District Tribunals have both civil and criminal jurisdictions in very broad terms, with the power to impose custodial sentence in criminal trials. Learned Counsel for the applicant has drawn the Court’s attention to the District Tribunals jurisdiction to enforce within the limits of the district the provisions of the Criminal Code in relation to offences triable by a Second-Class Magistrate and the power of the Magistrate to impose a maximum prison term of ten years and a fine of D500, 000.00. See Section 5 (3) of the Criminal Procedure Code (CPC. It must be observed that this provision of the CPC extending the punishment powers of the 2nd class Magistrate was amended in 1986 and in 2003 respectively, whereas the extension of the jurisdiction of the District Tribunals to try offences triable by a Second-Class Magistrate under the PC was enacted in 1935. Of course in 1935, a Second-Class Magistrate’s power to impose a fine or order imprisonment was limited as opposed to what it is currently under the PC as amended.
Furthermore, Counsel for the applicant has not provided the court with any decision of a District Tribunal wherein the prison term of ten years was imposed against a convict. I have not come across such a decision either. But what is fundamental is that the power of the District Tribunal to impose a fine or order imprisonment or both is subject to the punishment being authorized by customary law. This presupposes the fact that the offences triable before the District Tribunals are offences principally recognized under customary law and not under the Criminal Code. See Section 13 of the District Tribunals Act.
Secondly, in my view, the drafters of the said District Tribunals Act recognized these broad powers of the Tribunals and had made provisions for greater surveillance or supervision of the Tribunals under Sections 3, 4, 5, 8, 23 and 34 of the District Tribunals Act confer unfettered powers on the Minister responsible for the administration of the District Tribunals as follows:
Under Section 3 of the Act, the Minister is empowered to establish within the regions such District Tribunals as he or she shall think fit, which shall exercise jurisdiction over such area and within such limits as be defined by the order;
Under Section 4 he/she may prescribe the constitution of the District Tribunal;
Under Section 8 he/she may exclude persons from the jurisdiction of the Tribunal; and under Section 34 he/she may make rules in respect of the practice and procedure, the restriction of the jurisdiction of the District Tribunal, etc.
Moreover, the Governor and Deputy Governor of the Region concerned also have revisionary powers under Section 23 of the Act, which powers he/she may invoke the motto at any stage of the proceedings, even after judgment.”
Section 23 states: (1) A Governor shall at all times have access to any District Tribunal in his or her region and to the records to the Tribunals and of his or her own motion may a) Revise any of the proceedings of a District Tribunal whether civil or criminal, and make such order or pass such sentence there as the District Tribunal could itself have made or passed: Provided that no sentence of fine or imprisonment or other sentence in any criminal proceedings shall be increase without first giving the accused opportunity to be heard; (b) Order any case to be retried either before the same Tribunal or before another District Tribunal of competent Jurisdiction; transfer any cause or matter to the subordinate court established by the Courts Act for the region concerned: Either before trial or at any stage of the proceedings for trial, or for retrial, after sentence or judgment has been passed.
“In general terms these provisions of the Act demonstrate in no uncertain terms that the membership, jurisdiction and even the inherent powers of the District Tribunals are not precise and absolute, for want of a better term, but subjective and subordinate to the powers vested in the Minister and the Governor. The powers vested in the Minister and the Governor are inconsistent with the principle of judicial independence, which is the hallmark of judicial proceedings and must be present for a court to discharge its constitutional mandate. This constitutes a fundamental difference between the District Tribunals, the Magistrates Court and the Superior Courts in terms of jurisdiction, composition and independence. The jurisdiction, powers and limitations of the Superior courts and the Magistrates Court are codified and not subject to change at the whim and caprice of a Governor or Minister.
Thirdly, despite the various developments in our laws, some Acts of the national Assembly, the application of which are sacrosanct in the administration of justice are expressly excluded from the proceedings before the District Tribunals. Section 2 of the Evidence Act excludes the application of same in proceedings before the District Tribunals. This means that the District Tribunals are not bound to apply the standard and burden of proof required in criminal trials to establish the criminal culpability of an accused person. Likewise, Section 37 of the Limitation Act also excludes its application to proceedings before the District Tribunals. Guided by the above, it should be noted that the reforms of the law that had taken place since independence ignore the District Tribunals. The District Tribunal cannot stand on its own in isolation of the Constitution and some Acts of the National Assembly and other common features of the common law upon which the Superior Courts are anchored. The point is particularly important having regard to the fact that the decisions emanating from the District Tribunals are appealed against before the High Court and all the way to the Supreme Court.
Hence both the members of the District Tribunals and litigants appearing before the District Tribunals are not accorded the same status as those members and parties in the Superior Courts and Magistrates Court. I do not consider such distinction as demeaning or discriminatory to the status of the members of the Tribunal or the parties or the legal practitioners who cannot appear before the Tribunals.
Having considered the application, the submissions of counsels and the authorities cited and relied on and also having regard to the relevant provisions of the Constitution considered, it is my finding and I so hold that the restriction under Section 33 of the Act do not operate to deny justice to the indigenous people of these communities. Rather the exclusion of the application of various statutes, like the Evidence Act, the unfettered powers vested in the Governor and Minister (who are political appointees) to regulate and interfere with the membership and proceedings of the District Tribunals, the various local dialects allowed before the Tribunals, the varied and subjective application of customary law, non-codification of customary law in the various communities all support the view that the impugned provision of Section 33 is reasonable, justifiable and favourable in the current constitutional dispensation. Taken in that context, there appears to be very good policy reasons behind the restriction imposed by Section 33 of the District Tribunals Act. It follows therefore that the employment of lawyers before the District Tribunals would serve to obfuscate rather than elucidates the proceedings. To that extent I find that the impugned Section 33 of the District Tribunals Act is not inconsistent with Sections 24 and 33 of the Constitution.”
