THE JUDICIARY:
Kayjatta
The judiciary is the third branch of government. Madison considered it the least dangerous branch in that it is less susceptible to abuse of power as compared to the executive and legislative branches.
In the United States, the judiciary’s main function is rule adjudication in original and appellate jurisdictions. The courts of original jurisdiction comprise of state courts, federal courts, and military courts. The appellate jurisdiction comprise of appeal courts and the Supreme Court.
The Federal court system consists of district courts (94 of them), courts of appeals (13 of them), and the Supreme Court. The Courts of Appeals consist of a three-judge panel who deal with errors of procedures of law. In other for the appeals courts to hear a case, a brief must be submitted.
The Supreme Court, often simply referred to as The Court has a nine-judge panel-this is only by tradition since the Civil War, the Constitution did not specify any number of judges on the Supreme Court. The nine judges consist of the Chief justice (John Roberts is the current Chief Justice) and eight associate justices. The Chief Justice’s position is an administrative one; he is not more powerful than the other judges.
The president nominates the justices, but the senate confirms their nomination after a thorough scrutiny. Justices of the Supreme Court enjoy life tenure, but can be impeached for gross mis-conduct. The disadvantage with life tenure is that infirmity may set in with old age. The fact that justices are not elected but nominated, to serve for life, brings up an argument that is described as the “counter-majoritarian difficulty”. This means that a small group of unelected people amass enough power to overturn or dictate the decisions of millions of citizens. This argument attempts to undermine the legitimacy of the Supreme Court justices.
The Supreme Court enjoys both original and appellate jurisdictions, and its main task is the interpretation of the law. This guarantees the uniform interpretation of the law and also maintains national supremacy.
The Supreme Court hears only a small fraction of cases (about 1%) that are brought before it. A writ of certiorari is filed and if granted (must be approved by four justices), the case will be heard. Usually only cases that raise pertinent constitutional questions, the solicitor general is a party, or many interested groups file amicus curiae; are heard.
The judicial decisions made by the justices are informed by judicial philosophy, original intent, and (political) ideology. These might also be described as judicial restraint, judicial activism, and strict constructionist.
The major oversight, policy and law making tool the judiciary possess is called judicial review. This is essentially the power of the courts to make law by side-stepping both the legislature and the executive. Interestingly, this powerful tool is not designated to the courts by the constitution; it is an implied power. However, James Madison, that greatest of U.S. founding fathers expected this to happen. The case of Marbury V. Madison (1803) establishes judicial review in the U.S.
The courts have expanded their own power by assuming judicial review as one of the basic functions of the judiciary; however the power of judicial review is not likely to survive in countries where the independence of the judiciary and the tenure of the justices is not guaranteed. This is where the Gambia comes to mind.
The Gambia has a very weak judiciary. Judges are appointed by the president without any input from the National Assembly (the legislature) and are fired at his will. Furthermore, most of Gambian judges are contracted from foreign countries in the subregion, mostly Nigeria and Ghana. Many of these judges understand that they are hired by the president and therefore are expected to serve his interest. Consequently, the judiciary is muzzled and the rule of law non-existent. Judges that act against the government and the president are routinely fired. Justice Savage, the first and only Gambian Chief justice ever; Magistrates Bory Touray and Buba Jawo are just examples of those dismissed by the president.
The lack of independence of the Gambian judiciary is a big set back for the development of democracy and economic development. A vibrant, progressive and independent judiciary where judges can interpret and apply the laws in accordance with modern thinking is necessary for a positive evolution of the Gambian society. Primitive and archaic laws such as sedition (libel and defamation, particularly of government officials) and "lying to a government official" that are systematically used to imprison journalists, defense attorneys and other critics of the government could have since been effectively laid to rest by the courts. These crude laws deny Gambians free speech. Free speech is instrumental in fostering tolerance and also helps in the achievement of development (in education, technology, business entrepreneurship, and artistic creativity). No wonder that many potentially great Gambian artists are reduced to only singing about the president, and many other smart educated Gambians who could have started their own businesses are reduced to only chasing the president's entourage just to scrape a living. Consequently, there is a plethora of songs, paintings, sculptors and loyal followers of the Gambia's Sheikh Professor.
The courts can be very instrumental in changing the cause of evolution of societies even more dramatically than the legislature and the executive both of which even if independent are often slow and deliberative because of the nature of their constituencies and source of power. I will briefly mention some landmark cases in the U.S. where the decisions of the courts have revolutionized U.S. society and culture.
One such landmark case is Brown V. Board of Education 1954 (Topeka, Kansas). In this case the Supreme Court ruled that "separate but equal" doctrine that legitimized school segregation was unconstitutional. This marked the end of legal segregation in the U.S. This ruling also helped sparked the civil rights movement leading to the enacting of the Civil Rights Act of 1957 and 1964; the Voting Rights Act of 1965; and the Fair Housing Act of 1968. These acts legally ended all forms of discrimination (in education, employment, political participation, housing, etc, etc) based on race, gender, and national origin.
Another landmark case that revolutionized U.S. society is Roe V. Wade of 1973. This case legalized abortion in the U.S. This case is very interesting because the court is very innovative in deciding the case. The decision in Roe V. Wade, that is the woman's right to abortion, is based on the right to privacy. Privacy, which is the right to be left alone or not to disclose personal matters is not in the constitution, but the courts created this by relying on other rights guaranteed by the 14th Amendment for example. Therefore, the court argues "the decision of abortion is between the individual woman and her doctor" based on her right to privacy. This decision has tremendously boosted women empowerment and gender equality.
It will be unfair to end this without mentioning free speech and how the courts grappled with its challenges in different circumstances. Free speech is absolutely guaranteed in the U.S. constitution and culture. However, the courts have redefined free speech in different ways-sometimes restricting it and other times expanding it-depending on prevailing circumstances but never attempted to abridge it. During World War II and the anti-war movement, the court used the "bad tendency test" to define free speech. Then the "clear and present danger test" , also called "fire in a crowded theater" was later adopted. Since the case of Timothy McVey however, the courts use the "direct incitement test" as the current policy governing free speech. This means that any speech that directly incites violence or insurrection is not protected by free speech.
The Gambia should move quickly towards the separation of powers and particularly the independence of the judiciary. The courts and the judges must be active in claiming their independence. In the face of foreign (Nigerian) judges who are often referred to as "mercenary judges" controlling the judiciary, the Gambia Bar Association (GBA) must keep the pressure on the government for reforms. This might appear to be a long shot, but as far as I can see, the rights and freedoms for Gambians will be given by the courts, not the presidency.
The Gambia has a very weak judiciary. Judges are appointed by the president without any input from the National Assembly (the legislature) and are fired at his will. Furthermore, most of Gambian judges are contracted from foreign countries in the subregion, mostly Nigeria and Ghana. Many of these judges understand that they are hired by the president and therefore are expected to serve his interest. Consequently, the judiciary is muzzled and the rule of law non-existent. Judges that act against the government and the president are routinely fired. Justice Savage, the first and only Gambian Chief justice ever; Magistrates Bory Touray and Buba Jawo are just examples of those dismissed by the president.
The lack of independence of the Gambian judiciary is a big set back for the development of democracy and economic development. A vibrant, progressive and independent judiciary where judges can interpret and apply the laws in accordance with modern thinking is necessary for a positive evolution of the Gambian society. Primitive and archaic laws such as sedition (libel and defamation, particularly of government officials) and "lying to a government official" that are systematically used to imprison journalists, defense attorneys and other critics of the government could have since been effectively laid to rest by the courts. These crude laws deny Gambians free speech. Free speech is instrumental in fostering tolerance and also helps in the achievement of development (in education, technology, business entrepreneurship, and artistic creativity). No wonder that many potentially great Gambian artists are reduced to only singing about the president, and many other smart educated Gambians who could have started their own businesses are reduced to only chasing the president's entourage just to scrape a living. Consequently, there is a plethora of songs, paintings, sculptors and loyal followers of the Gambia's Sheikh Professor.
The courts can be very instrumental in changing the cause of evolution of societies even more dramatically than the legislature and the executive both of which even if independent are often slow and deliberative because of the nature of their constituencies and source of power. I will briefly mention some landmark cases in the U.S. where the decisions of the courts have revolutionized U.S. society and culture.
One such landmark case is Brown V. Board of Education 1954 (Topeka, Kansas). In this case the Supreme Court ruled that "separate but equal" doctrine that legitimized school segregation was unconstitutional. This marked the end of legal segregation in the U.S. This ruling also helped sparked the civil rights movement leading to the enacting of the Civil Rights Act of 1957 and 1964; the Voting Rights Act of 1965; and the Fair Housing Act of 1968. These acts legally ended all forms of discrimination (in education, employment, political participation, housing, etc, etc) based on race, gender, and national origin.
Another landmark case that revolutionized U.S. society is Roe V. Wade of 1973. This case legalized abortion in the U.S. This case is very interesting because the court is very innovative in deciding the case. The decision in Roe V. Wade, that is the woman's right to abortion, is based on the right to privacy. Privacy, which is the right to be left alone or not to disclose personal matters is not in the constitution, but the courts created this by relying on other rights guaranteed by the 14th Amendment for example. Therefore, the court argues "the decision of abortion is between the individual woman and her doctor" based on her right to privacy. This decision has tremendously boosted women empowerment and gender equality.
It will be unfair to end this without mentioning free speech and how the courts grappled with its challenges in different circumstances. Free speech is absolutely guaranteed in the U.S. constitution and culture. However, the courts have redefined free speech in different ways-sometimes restricting it and other times expanding it-depending on prevailing circumstances but never attempted to abridge it. During World War II and the anti-war movement, the court used the "bad tendency test" to define free speech. Then the "clear and present danger test" , also called "fire in a crowded theater" was later adopted. Since the case of Timothy McVey however, the courts use the "direct incitement test" as the current policy governing free speech. This means that any speech that directly incites violence or insurrection is not protected by free speech.
The Gambia should move quickly towards the separation of powers and particularly the independence of the judiciary. The courts and the judges must be active in claiming their independence. In the face of foreign (Nigerian) judges who are often referred to as "mercenary judges" controlling the judiciary, the Gambia Bar Association (GBA) must keep the pressure on the government for reforms. This might appear to be a long shot, but as far as I can see, the rights and freedoms for Gambians will be given by the courts, not the presidency.
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