In our constitutional democracy and by the doctrine of the separation of powers, the independence of the judicial branch is sacrosanct and indispensable to the rule of law, democracy, and good governance. Since gaining independence in 1965, the Gambians have witnessed indisputable evidence of attempts to undermine and violate the principles of the separation of powers and the independence of the judicial branch.
The Gambia inherited its legal system from Westminster, which introduced a mechanism to avoid any conflict of interest because the attorney general is a political appointee, usually a member of Parliament, appointed by the prime minister to be part of the government. He/she acts as the chief legal adviser to the government.
But a separate body that is operationally independent from the attorney general makes prosecution decisions. The attorney general does not influence these prosecution decisions other than in a very small number of offenses.
Separating the office of the attorney general and the office of the director of public prosecutions needs an urgent review regarding the prosecution practices in the offices of the attorney general to ensure that a conflict of interest can be avoided. This conflict is caused by the fusion of two roles into one office. More specifically, the attorney general provides legal advice to the government and, at the same time, decides whether to prosecute a case or not.
I have proposed to establish, by an Act of the National Assembly, the Office of the Director of Public Prosecutions. This office, which is to be independent of the executive branch, investigates and prosecutes certain categories of cases and allegations of corruption and other criminal wrongdoing, including those involving alleged violations of the Public Procurement Act and cases implicating political officeholders and politicians.
The view that I will seek to advance is that of “formal independence” or the complete autonomy or separation from the attorney general that appears to exist under the provisions of the new Constitution as the attorney general retains responsibility over all prosecutions. However, “substantial independence” by way of impartiality and neutrality may yet be achieved through a firm political will, definite intentions, and resolved commitment by the government to allow the officeholder sufficient freedom to carry out his or her mandate with little to no outside interference.
I have reiterated my previous call for the government to decouple the Ministry of Justice and the attorney general’s office from the office of the director of public prosecutions by saying that doing so is the first step to winning the fight against corruption.
“When you have an Attorney General who is a cabinet member and is the most powerful person in terms of fighting corruption, how is that possible in our part of the world that you sit there with your colleague and you are the one who will look at your colleague and say you are a thief, you have stolen money from the state and you have done something against us? How does that happen? What we are asking for is a separation.
Let the Minister of Justice and the Attorney General become the President’s Chief legal adviser while the Director of Public Prosecutor’s office becomes the people’s lawyer and let’s bring that independence there.”( A.YJallow,2017).
Gambians want to have an office for an independent prosecutor. That is what we are talking about here: separating the two offices by law and adding this separation to the reforms in the new Constitution so that it happens.
Several Commonwealth countries separate these two roles. As in the United Kingdom, for example, the Australian attorney general is a politician whose role is to advise the government. But prosecution is decided by the director of public prosecutions who operates independently from the attorney general and the political process.
For countries that seriously want to ensure that justice is done and is seen as having been done, the roles of the attorney general and public prosecutor are separated. This is the direction that we should go to give credibility to prosecution decisions. If the attorney general holds the power to decide on prosecutions, the problems faced by any attorney general today will continue to be faced by all future attorney generals, regardless of how honest they are.
This situation is bad for both the attorney general and the person in question. The attorney general will face criticisms, even if he or she is acting professionally and honestly. In contrast, the person in question will continue to be doubted, even if there is truly no case against him or her.
A conflict could occur if the person being investigated is in the government. If the attorney general is advising that person in government, many people will doubt his or her independence when deciding whether to prosecute that person.
To conclude, my respectful position is that complete independence is what Gambians require for the proposal of new provisions to the Constitution demonstrating strong political will that allows an office holder (DPP) sufficient liberty to work with little to no political or other interference.
The offices should function with sufficient latitude to prosecute members of the government—if they fall foul of the law. The success or failure of this proposal would go a long way towards resolving several issues: 1) whether to separate the office of the attorney general from that of the minister of justice, 2) create an independent office for a prosecutor general, or 3) grant the attorney general independence from the executive branch and the President in exercising all prosecutorial powers.
It is my personal and firm belief that the new Gambia should introduce this proposal into the new Constitution and take away the criminal prosecution function of the attorney general’s office and vest it in the separate and independent office of a director of public prosecutions.
Until we achieve this constitutional change, I certainly welcome the separation of the office of the director of public prosecutions with a specific mandate to work with the police and other statutory investigatory agencies and prosecute public sector corruption and crimes committed under our procurement laws. All prosecutions would, of course, be in the name of the Republic of Gambia and handled by the director of public prosecutions, in accordance with the Constitution.