Alagi Yorro Jallow

AG is obliged to speak truth to power and to adhere to the Constitution

The Attorney-General for the Gambia should be an independent chief law officer who is mandated to uphold the Constitution and is obliged to speak truth to power.

The Attorney General for the Gambia (AG) recently released the Gambia Government White Paper on the report of the Commission of Inquiry probing into the financial activities of former President Yahya Jammeh, his top officials and business associates for committing economics and financial atrocities against the Gambia government during his twenty years of kleptocratic rule on Friday at press briefing at the Ministry of Justice .

Silent majority of Gambians strongly condemns the deeper issue of blindness, bias, discrimination, prejudice and reiterates its unequivocal condemnation of all selective justice demonstrated in government published White Paper ‘bleaching others with fragrance’ and indicted others as well as scapegoated others in contravention of the recommendation of final report of the Commission.

In a State that is characterized by the politics of patriarchal patrimonialism, clientelism, bad governance, and corruption but has liberal democratic Constitution, one can expect a very busy judicial review court when the citizens move to enforce their fundamental rights and challenge executive excesses. The Attorney General and Cabinet members should be smarter to critical thinking and concern with moral impartiality.

However, the Commission final report implicated both of President Adama Barrow’s Finance and Economics Affairs Minister Mamburay Njie as well as his Chief of Protocol officer Alhagie Ceesay culpable of corruption, complicity in aiding and abetting Yahya Jammeh’s thievery of Gambian resources.

The Attorney General and Cabinet recommended in its White Paper “beyond a reasonable doubt” Mr. Ceesay and Mr. Njie blameless in an act of corruption and aiding and abetting Yahya Jammeh.

We seek to connect people, bring people together and provide a platform for everyone’s justice to be seen and to be heard. We are against all forms of discrimination. It should have no place in the Gambia.

One interesting thing about human rights and justice, at least from the perspective of those of us in the first generation, is that you don’t discriminate when it comes to human rights and justice. Even your traducers deserve human rights and justice. Reason we fought against Yahya Jammeh’s dictatorship because we were victims of rights abuse.

This should serve as a lesson to those of this generation who validate blatant abuse of rights, as long the perpetrator is their government of preference.

Without going into what the AG should or should not have advice government on the issue, a larger question arises regarding the constitutional institution of the AG, its independence and its relationship with the political executive. Is the AG just another lawyer defending the government before the judiciary or is the institution more than that? Who is, after all, the AG’s client?

The Constitution deals with the AG’s office. It says that the President can appoint a person who is qualified to be the Attorney-General for the Gambia. The AG advises the government on such legal matters as referred or assigned by the President, has the right of audience in all courts in the country, holds office at the pleasure of the President and receives such remuneration as the President determines. The President is generally bound by the “aid and advice” of the Cabinet of Ministers.

Effectively, therefore, President Barrow decides who should be appointed the AG, what matters be referred or assigned to him for legal advice, his remuneration and lastly, whether he should continue to hold office. But can we, on this basis, conclude that the client of the AG is the government? It would have been an easy conclusion to arrive at except for the word “for”.

The Constitution does not provide for Attorney General of the Gambia. It provides for Attorney General for the Gambia. This would seem to indicate that the AG’s client is not the government but rather the people of the Gambia.

The government as a legal entity is a complex thing to understand. In theory, we elect our president and legislators every five years, the president that wins gets to form the government and continues to hold office as long as it enjoys the confidence of the legislature or until its term ends. But the public offices held by our elected representatives are also offices established by our Constitution.

The Cabinet of Ministers are answerable not only to the National Assembly but also to the judiciary, and in the ultimate analysis, to the people.

Actions taken by successive Cabinets, regardless of their political complexion, have been found unconstitutional and struck down by the courts. To say that every Cabinet and National Assembly will on its own abide by the Constitution is to ignore James Madison’s advice in Federalist No 51: “If angels were to govern men, neither external nor internal controls on government would be necessary.

In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to control the governed; and in the next place, oblige it to control itself.”

Who tells the Cabinet that their proposed actions are possibly unconstitutional or at least of suspect constitutionality? Certainly not the Cabinet itself. The Cabinet might agree to do something because of its political desirability or compulsions.

The President can refuse to follow the advice of the Cabinet but only once. (Though one of us has written elsewhere that the President is not necessarily bound to follow an unconstitutional advice given by the Cabinet.) So, are we to let the Cabinet and the National Assembly do whatever they want and leave the legal aspects to be examined at a later date by the courts? There is no reason to arrive at this dangerous conclusion. Because we have the AG.

Our system, the AG is supposed to discharge the high constitutional office independent of the political executive that appoints him. Many eminent lawyers have discharged this office with great distinction.

The AG is “Attorney General for the Gambia”, not attorney general for the government of the Gambia.

Minister Tambadou

In that, the AG is special for he acts “for the Gambia” and not the government. There is a constitutional expectation on the AG and other legal officers to exercise independent judgement and provide wise counsel to the government, notwithstanding who appointed them or what advice is being expected from them. This makes the task of the AG very difficult and indeed delicate.

The fact that constitutionally the AG has to be as good as a Supreme Court judge clearly demonstrates the wishes and aspiration of the Gambian people. The AG ought to be a pivotal institution that helps the government act in accordance with the rule of law.

In our system, the AG is obliged to speak truth to power and help the government to adhere to the Constitution.

Let us not forget the sage advice of B R Ambedkar: “However good a Constitution may be, if those who are implementing it are not good, it will prove to be bad. However bad a Constitution may be, if those implementing it are good, it will prove to be good.”

The 1997 Constitution is not perfect but was amongst one of the finest in the world before it was bastardized and mutilated by Yahya Jammeh, but we need upright people in high constitutional offices to uphold the Constitution. The AG is such an office since the Attorney General for the Gambia represents the people of the Gambia.

Professionally speaking, the AG has to be good enough to be appointed a Supreme Court judge and must discharge his office in that spirit.