Monday, November 30, 2020

Kombo North District Tribunal – a place where it is forbidden to take oath

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Chief Momodou L.K. Bojang has forbidden litigants from taking the oath before his District Tribunal for reasons best known to him.

Whenever one is required to take the oath, Chief Bojang of Sukuta will ask the person to go outside his compound together with one person to take the oath. In The Gambia, district chiefs are the heads (President) of district tribunals.

The Chief’s decision came on the heels of Imam Abdoulie Fatty’s pronouncement before the TRRC that it is not decreed in Islam that one should hold the Quran and take oath; that instead one only takes oath by uttering the words as prescribed by law.

Several litigants told Foroyaa that Chief Bojang has of late departed from the practice of allowing people to take oath inside his home (Tribunal).

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The tribunal sittings are held at the Chief’s home; but whenever people are required to take oath, he will ask them to go outside his compound to take the oath. The person who is required to take oath goes outside with an escort to take oath outside the Chief’s compound. Foroyaa can confirm this story to be true. People take oath outside the Chief’s residence in the presence of only one escort.

The litigants said the Chief told them that no one will take oath in his compound because it is bad. The oath is often taken in the absence of the other party. The oath is often taken in the presence of one person (the escort) and when they return, the escort will announce to the tribunal that the person has taken the oath.

The litigants said this is undesirable as they called on the Chief Justice to address the matter.

“I have been coming to the tribunal for months and my case is yet to be called. However, any day my case is called I will not go outside to take the oath and I will allow the other party to take oath in my absence,” one of the litigants told Foroyaa on condition of anonymity.

Other litigants said they don’t know why the Chief refuses people to take oath inside his compound.

“It is not rational to ask a person who is supposed to leave the tribunal and take oath outside his compound in the presence of only one person,” the litigants told Foroyaa.

Another litigant, who is a land dealer, said he does not understand why the Chief does this.

“I have witnessed proceedings before several district tribunals but none of the Chiefs asks people to leave their tribunals to take oath outside their homes,” he said.

The other litigants whom Foroyaa interviewed mentioned similar sentiments. The names of the litigants are not mentioned because all of them want to remain anonymous.

When Chief Bojang was approached to explain why he does not allow litigants to take oath before the tribunal (his home), he rescinded from commenting. All attempts to get the Chief’s comment proved unsuccessful. The tribunal’s clerk Momodou Lungs Jarju when approached to comment on the issue said he has no comment to make on it.

“I am Momodou Lungs Jarju and not Momodou Lamin Boajang (the Chief). I cannot give answers on his behalf. However, I saw him doing things that way and I can’t question why he does things in that way because he is the head of the tribunal. He is doing it that way and that is how I see him doing it. I am just a clerk,” he said.

Authorities at the judiciary have been approached to get their side, but they said the matter is new to them and they will find out.

The struggle to expedite backlogs of cases is the greatest challenge faced by district tribunals countrywide. District tribunals have both civil and criminal jurisdiction.

Litigants argued that the on-going reform in the judiciary is far from reaching the district tribunals. The Government came with several ideas of reforms to enhance the effectiveness and efficiency of the judiciary – the Government’s arm responsible for the administration of justice.

District tribunals countrywide are faced with problems of backlogs of cases and the problem is continuing every year. There are several cases at the district tribunals that have been there for several years without determination. Lawyers are not allowed to appear before the district tribunals.

The district tribunals, unlike the courts, do not sit every day – they sit once or twice a week. The maximum number of cases that district tribunals hear a day is less than eight. Usually, district tribunals hear only five cases a day. They sit from 10 am to 4 pm. This makes the work of tribunals in populated districts such as the Kombo South and North tribunals cumbersome. These two districts are large and land conflicts in the area are very high.

Landing Jadama, a litigant said the delay in trial is a tradition for the district tribunals. He said the current chief of Kombo North inherited several backlogs of cases from late Paramount Chief Alhaji Demba Sanyang of Lamin village.

“During Sanyang’s time, cases last for 4 to 5 years. I still have cases that are not settled. They used to sit once a week (every Wednesday). They don’t call more than five cases a day. I used to sit from morning to 4 pm without my case being called,” Jadama said.

He said the load on the current district tribunal sitting in Sukuta is much and the inherited cases are many.

“They have a lot of backlogs of cases to deal with. Land cases take a long time. The district tribunal sits twice a week (every Wednesday and Saturday). The numbers of cases they have on their cause lists are usually much and they cannot deal with them all. This is because land cases are not easy to deal with not even for the Magistrate’s court,” Jadama said.

Jadama said it is not easy to go through the district tribunals.

“They should sit more than twice a week to reduce the loads on them. They have a lot of cases and people come to the tribunal and return home for months before their cases are called. They are overloaded and they need to change their modus operandi,” Jadama said.

One serving district chief (names withheld) and two others, who were relieved of their duties by the State, told Foroyaa the problems District Tribunals are faced with are caused by alkalos – village heads. They said tribunals are dominated by land disputes.

“Alkalos should be monitored in the way they do land transactions. How can an Alkalo allocate land to more than one person? When these people come before us (at the tribunal), we find it difficult to decide because they all have the same alkali’s signature and stamp,” a Chief told Foroyaa.

Another Chief said the problems they are grappling with cannot be solved if the Alkalos’ activities are not regulated in the way they do land transactions.

“The Alkalos should help us because they are the cause of the problems we are facing. We can’t do anything over the situation if the Alkalos continue to sell the same plot of land to more than one person. The Government should step up,” he said.

A land dealer in West Coast Region, who wished to be anonymous, said he has many cases at both Kombo South and North district tribunals.

“I am not happy with the way the district tribunals operate. I have several cases before the Kombo South District Tribunal and Kombo North District Tribunal. I bought lands from different villages. The Alkalos sold the lands to me after they have already sold it to other people. I am a defendant in some of the cases and the others I am the plaintiff. In all these cases, none of the Alkalos has been called to come and testify,” he said.

He opined that the Alkalos should be paid by the Government or else they will continue to engage in dubious land transactions.

“The buyers are often innocent since their interest is to buy land to live on. However, if we go to court for justice, we struggle longer than anyone would imagine. The Alkalos are never called to come and testify,” the land dealer said.

The judiciary under the previous government was unattractive and thus, the need for reform to expedite cases judiciously and the judiciary. The 1997 Constitution provides every person with the right to a speedy trial within a reasonable time. The district tribunals form part of Gambia’s judiciary.

The judicial power in The Gambia is vested in the courts and those powers are exercised according to the respective jurisdiction conferred on them by law.

These tribunals are tasked with the responsibility of the administration of justice for matters within their jurisdiction. The courts, as well as district and industrial tribunals in the new Gambia, are still faced with the problem of expediting cases expeditiously.

President Adama Barrow’s Government came through a Coalition with ideas of reforms dominating their election manifesto. The promised reforms, according to the agenda of the Coalition’s manifesto should have been implemented within three years. Along the way into his mandate, President Adama Barrow disclosed that he was going to stay for five years contrary to his promise to serve for only three years. President Barrow said the promised reforms couldn’t be implemented within three years but before the end of his five-year mandate, he would have implemented the promised reforms.

In 2018, the Gambia Government came up with a national blueprint on development dubbed as the National Development Plan (NDP) which is focused mainly on development. The NDP is development-oriented and next year the national blueprint will expire.

Litigants are complaining bitterly about how their cases are being handled by district tribunals. The district tribunals are headed by district chiefs who have both political and judicial caps. The Chiefs are appointed by the President, who is the head of the Executive arm of the Government and perform a judicial function by becoming the head of district tribunals.

The Constitution of the Gambia makes it a fundamental human right for trials to be held within a reasonable time. Litigants, in both civil and criminal cases, are faced with the problem of having their cases tried within a year or two. This is the greatest challenge faced by the courts in the Gambia. People have to wait longer than expected to have justice.

After a court delivers a judgment, a party that is aggrieved or dissatisfied can appeal which is time-bound. It usually takes litigants several months to have the record of proceeding of their cases. This is mainly as a result of the courts’ archaic recording system.

The efficiency of the judiciary can be greatly enhanced by the use of technology in their operation. Many argue that the major cause of delay in expediting cases is a result of the old-fashioned recording system.

The judiciary in 2019 alone registered 8,178 cases in which only 3,687 cases were disposed of representing a disposal rate of 45%. The Supreme Court, which is the apex court in The Gambia, disposed of 574 cases out of 1032 registered. To address the problem of backlogs, the Chief Justice, who is the head of the Judiciary, initiated the idea of trying only criminal cases in June and July 2019. During this period, they heard 962 cases in which only 382 cases (39%) were disposed of.

Almost all courts in the Gambia have several backlogs of cases to dispose of. Notwithstanding the on-going reforms in The Gambia, the courts still struggle to expedite cases and thus, take longer than expected to decide on.

Like the district tribunals, the industrial tribunal was established to hear industrial (employment-related) disputes. It is still faced with several backlogs of cases. Notably, the case involving 145 former employees of Ocean Bay Hotel which has been on-going for five years or more is stagnant at the instance of the court. The 145 men sued the Social Security and Housing Finance Corporation for unlawful termination of their contracts (employment). The long-standing case has suffered several delays and almost all the delays were all at the instance of the court. Since the beginning of the case to date, several magistrates have handled the case but still, it is the third plaintiff witness who is giving his testimony.

The Deputy Judicial Secretary has confirmed to Foroyaa that one of the panellists of the Kanifing Industrial Tribunal contract expired since December 2019 and he has not yet been replaced.

In an exclusive interview with Foroyaa, Mr. Dello Bah said Yaya B. Njie who was the trade union representative at the Tribunal has retired. Bah said Mr. Njie’s retirement came after he exhausted six years contract with the judiciary. He said the laws provide that no one can be contracted for more than six years.

“Mr. Yaya B. Njie has served in that Tribunal for seven years. He shouldn’t have served more than six years. Therefore, we won’t pay him his gratuity for the seventh year. We have told him that and we have instructed the Treasury to pay him,” Bah said.

Chief Justice Hassan B. Jallow and Salieu Taal, the President of the Gambia Bar Association have described the recording system of the courts as tedious and laborious.

“Currently, we operate a very manual system with out-dated working methods,” Jallow said during his address at the Opening of the Legal Year 2020.

Jallow added: “We intend to gradually introduce technology in the judicial system in various aspects of its operations, especially in recording and transcription of court proceedings and storage the management and retrieval of information.”

Taal on his part said ‘in this day and age the courts are still recording proceedings by longhand, which is very tedious and labourious.’

The President of the Gambia Bar said in many neighbouring countries to the Gambia, courts proceedings are recorded electronically – e-filling.

“It is indeed critical for the judiciary to consider digitising or automating court processes and proceedings,” Taal said.

Salieu Taal has called on the Chief Justice to upgrade the court infrastructure.

“There is dire need to upgrade the court infrastructure in the Greater Banjul Area and build more courts in the regions to broaden access to justice to the majority of the population,” Taal said.

Jallow said in 2019, they have purchased equipment valued at D2.5 million, currently under installation at the High Court in Banjul, for the revival of the recording and transcription system in the High Court. He added they have recruited a consultant with support from UNDP to assess and plan for use of technology in the judiciary for future use.

Currently, no court sittings are taking place because of the suspension of all court proceedings which began on Monday, 23rd March 2020 amidst COVID-19 and no one knows when they will resume because there is no timeline to the break.

Louise Jobe of Foroyaa contributed to the story.

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