Role Of The Bar In Upholding The Rule Of Law And Good Governance In A Democracy

{A Paper Presentation by Femi Falana SAN at
the virtual consultation workshop for the development of a new Five
Year Strategy for the Gambian Bar Association on Saturday, July
31st, 2021}

I received the invitation to participate in this virtual
consultation workshop a few days ago. Even though I was otherwise
engaged I had to accept the invitation on account of my respect for
Mr. Salieu Taal, the President of the Gambian Bar Association
(GBA). In thanking the entire members of the GBA for requesting me
to participate in this all important workshop permit me to take the
opportunity of my short address to remind this distinguished
audience of our collective struggle which culminated in the
restoration of democracy in The Gambia. In addition, I am going to
challenge colleagues to use their privileged position to defend the
Gambian people in the struggle against local and foreign forces of
exploitation and oppression. It is common knowledge that due to
poverty and ignorance majority of the people of Africa are not in a
position to enjoy civil and political rights like the bourgeoisie
and other privileged people. I am going to task the GBA to empower
lawyers to promote the socioeconomic rights guaranteed by the
African Charter on Human and Peoples Rights which has been ratified
by the government of The Gambia.

No doubt, the GBA is one of the oldest law societies in Africa.
My interaction with the GBA dates back to 2000 when we were
mobilizing leaders of national bar associations in Africa to set up
the Pan African Lawyers Union (PALU). In my capacity as the then
Secretary-General of the African Bar Association I held positive
consultations with bar leaders in the Gambia on the urgent need to
unite the law societies in Africa. It is on record  that the
GBA played a prominent role in the subsequent formation of the PALU
in 2002 and the West Africa Bar Association (WABA) in 2004. Under
my leadership of the WABA we campaigned for the expansion of the
jurisdiction of the Court of Justice of the Economic Community of
West African States (Ecowas)  to include the enforcement of
human rights. The campaign succeeded in January 2005 when the
Authority of Heads of State and Government unanimously adopted the
Supplementary Protocol that vested the Ecowas Court with the power
to hear and determine cases filed by victims of human rights abuse
against the member states of the Ecowas.

I am delighted to recall that the first human rights case filed
in the registry of the Ecowas Court is that of Ebrimah
Manneh v Republic of The Gambia (2008) AHRLR 171 The
Plaintiff was a journalist who had been  detained for several
months without trial. Apart from declaring the arrest and detention
of the Plaintiff illegal the Court awarded him reparation of
$100,000. The Manneh’s case was followed by that of Musa Saidykhan
v The Republic of The Gambia (2010) CCJELR 178, another journalist
who was detained and subjected to horrendous torture by security
operatives. He won the case as he was awarded damages of $200,000
for the infringement of his human rights to personal liberty and
human dignity. I was privileged to have handled both cases at the
instance of the Media Foundation for West Africa with the support
of the Gambian Journalist Association.

Having regard to the fact that the Yahya Jammeh dictatorship had
captured the domestic judiciary at the material time the cases of
Manneh and Saidykhan were soul lifting for the hapless people of
The Gambia. From that moment the numerous victims of human rights
violations in the Gambia turned to the Ecowas Court and the African
Commission on Human and Peoples Rights for legal redress. During
the 2017 election crisis Mr. Salieu Taal and other progressive
lawyers worked with their Nigerian counterparts to frustrate former
President Jammeh from using  the judiciary to endorse the
manipulation of the election results to extend his dictatorial
regime. In particular, the Supreme Court was unable to form a
quorum to determine the frivolous election petition of President
Jammeh as the external members of the Court from Nigeria distanced
themselves from the charade.

Notwithstanding the crisis confronting the rule of law in the
Gambia the GBA has stood for the defence of the human rights of
the  people under the rule of law and the promotion of
professional ethics and the enhancement of the legal profession.
The comprehensive testimony of the GBA President, Mr. Taal before
the Truth,  Reconciliation and Reparation Commission has
confirmed the leadership role of the GBA is in the promotion of
accountability and transparency in public affairs in The Gambia.
Apart from working with the GJA in respect of the case of Ebrimah
Manneh who disappeared from custody I belong to a consortium of
international lawyers that submitted a detailed petition to the
Commission on the brutal killing of 59 West African migrants on the
directive of Mr. Yahya Jammeh sometime in July 2005.

The G.B.A. should continue to lead the civil society in the
defence of human rights under the rule of law. This will require
the campaign for the domestication of African Charter on Human and
Peoples Rights, United Nations International Covenant on Civil and
Political Rights, United Nations International Covenant on Social
Economic and Cultural Rights, United Nations Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW) etc. In view of the
forthcoming general elections in the Gambia, the GBA should
challenge political parties and politicians to commit themselves to
the domestication of international human rights instruments and
respect for the rule of law.

In the struggle of the people for the consolidation of democracy
in the Gambia the GBA should vigorously campaign for the
independence of the judiciary and defence of democratic
institutions. In order to achieve the patriotic objective the GBA
must  protect the interest of its members. The GBA should
provide pro bono services for indigent citizens and other
vulnerable victims of human rights abuse. To end official impunity
the GBA must encourage its  members to file public interest
cases. I also expect the GBA to provide opportunities for lawyers
to be involved in the practice of law in the ECOWAS Court, African
Court on Human Rights and Peoples’ Rights, African Commission on
Human and Peoples’ Rights and the International Criminal Court. The
GBA must defend lawyers against harassment by the police and other
law enforcement agencies. Courts should not be allowed to
intimidate lawyers with contempt of court. At the same time, Judges
must be accorded respect.

The record of human rights in The Gambia was one of the worst in
Africa during the 22-year reign of President Jammeh. But with the
restoration of democracy The Gambia is ahead of many countries in
Africa in the protection of human rights and compliance with the
judgments of regional courts. Today, The Gambia is one of six
countries that have made a Declaration permitting individuals and
Non Governmental Organisations to institute human rights cases in
the African Court on Human and Peoples Rights in line with Article
34 (6) of the Protocol for the Establishment of the Court. The
Gambia is also leading other member states of the Ecowas in
compliance with the judgment of the regional Court. Thus, The
Gambia is reported to have paid the entire monetary damages awarded
to victims of human rights abuse by the Ecowas Court. However,
since political and civil rights are enshrined in the 1997
Constitution of The Gambia I am compelled to call on the GBA to
encourage its members to enforce the socioeconomic rights of the
people guaranteed by the African Charter on Human and Peoples
Rights in regional courts.

Unless this challenge is seriously taken up human rights will
remain a tantalising reality for the majority of poverty stricken
people. The GBA should organise seminars and workshops on the
African Continental Free Trade Zone established to create a single
continental market for goods and services, permit me to assure the
GBA of my unalloyed commitment to continue to collaborate with
Gambian lawyers in the struggle for the promotion of the
socioeconomic rights of the Gambian people, the expansion of
democratic space and observance of human rights. For too long,
African lawyers limited legal practice to the protection of the
interest of their clients without any consideration for the larger
interest of the society. A former Supreme Court Justice in Nigeria,
the late Justice Pats Acholonu once reminded lawyers of their role
in the society when he said inter alia:

“We all agree that the attorney whose professional
thoughts begin and end with his own private clients is a pitiable
mockery of what a great lawyer is and that only by taking part in
the movements for the betterment of the law and the profession can
he practice law in the grand manner – the only way it is worth
practicing” (Williams v. Akintunde (1995) 3 NWLR (Pt. 381)
101 @ 115)

{A Paper Presentation by Femi Falana SAN at
the virtual consultation workshop for the development of a new Five
Year Strategy for the Gambian Bar Association on Saturday, July
31st, 2021}

I received the invitation to participate in this virtual
consultation workshop a few days ago. Even though I was otherwise
engaged I had to accept the invitation on account of my respect for
Mr. Salieu Taal, the President of the Gambian Bar Association
(GBA). In thanking the entire members of the GBA for requesting me
to participate in this all important workshop permit me to take the
opportunity of my short address to remind this distinguished
audience of our collective struggle which culminated in the
restoration of democracy in The Gambia. In addition, I am going to
challenge colleagues to use their privileged position to defend the
Gambian people in the struggle against local and foreign forces of
exploitation and oppression. It is common knowledge that due to
poverty and ignorance majority of the people of Africa are not in a
position to enjoy civil and political rights like the bourgeoisie
and other privileged people. I am going to task the GBA to empower
lawyers to promote the socioeconomic rights guaranteed by the
African Charter on Human and Peoples Rights which has been ratified
by the government of The Gambia.

No doubt, the GBA is one of the oldest law societies in Africa.
My interaction with the GBA dates back to 2000 when we were
mobilizing leaders of national bar associations in Africa to set up
the Pan African Lawyers Union (PALU). In my capacity as the then
Secretary-General of the African Bar Association I held positive
consultations with bar leaders in the Gambia on the urgent need to
unite the law societies in Africa. It is on record  that the
GBA played a prominent role in the subsequent formation of the PALU
in 2002 and the West Africa Bar Association (WABA) in 2004. Under
my leadership of the WABA we campaigned for the expansion of the
jurisdiction of the Court of Justice of the Economic Community of
West African States (Ecowas)  to include the enforcement of
human rights. The campaign succeeded in January 2005 when the
Authority of Heads of State and Government unanimously adopted the
Supplementary Protocol that vested the Ecowas Court with the power
to hear and determine cases filed by victims of human rights abuse
against the member states of the Ecowas.

I am delighted to recall that the first human rights case filed
in the registry of the Ecowas Court is that of Ebrimah
Manneh v Republic of The Gambia (2008) AHRLR 171 The
Plaintiff was a journalist who had been  detained for several
months without trial. Apart from declaring the arrest and detention
of the Plaintiff illegal the Court awarded him reparation of
$100,000. The Manneh’s case was followed by that of Musa Saidykhan
v The Republic of The Gambia (2010) CCJELR 178, another journalist
who was detained and subjected to horrendous torture by security
operatives. He won the case as he was awarded damages of $200,000
for the infringement of his human rights to personal liberty and
human dignity. I was privileged to have handled both cases at the
instance of the Media Foundation for West Africa with the support
of the Gambian Journalist Association.

Having regard to the fact that the Yahya Jammeh dictatorship had
captured the domestic judiciary at the material time the cases of
Manneh and Saidykhan were soul lifting for the hapless people of
The Gambia. From that moment the numerous victims of human rights
violations in the Gambia turned to the Ecowas Court and the African
Commission on Human and Peoples Rights for legal redress. During
the 2017 election crisis Mr. Salieu Taal and other progressive
lawyers worked with their Nigerian counterparts to frustrate former
President Jammeh from using  the judiciary to endorse the
manipulation of the election results to extend his dictatorial
regime. In particular, the Supreme Court was unable to form a
quorum to determine the frivolous election petition of President
Jammeh as the external members of the Court from Nigeria distanced
themselves from the charade.

Notwithstanding the crisis confronting the rule of law in the
Gambia the GBA has stood for the defence of the human rights of
the  people under the rule of law and the promotion of
professional ethics and the enhancement of the legal profession.
The comprehensive testimony of the GBA President, Mr. Taal before
the Truth,  Reconciliation and Reparation Commission has
confirmed the leadership role of the GBA is in the promotion of
accountability and transparency in public affairs in The Gambia.
Apart from working with the GJA in respect of the case of Ebrimah
Manneh who disappeared from custody I belong to a consortium of
international lawyers that submitted a detailed petition to the
Commission on the brutal killing of 59 West African migrants on the
directive of Mr. Yahya Jammeh sometime in July 2005.

The G.B.A. should continue to lead the civil society in the
defence of human rights under the rule of law. This will require
the campaign for the domestication of African Charter on Human and
Peoples Rights, United Nations International Covenant on Civil and
Political Rights, United Nations International Covenant on Social
Economic and Cultural Rights, United Nations Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW) etc. In view of the
forthcoming general elections in the Gambia, the GBA should
challenge political parties and politicians to commit themselves to
the domestication of international human rights instruments and
respect for the rule of law.

In the struggle of the people for the consolidation of democracy
in the Gambia the GBA should vigorously campaign for the
independence of the judiciary and defence of democratic
institutions. In order to achieve the patriotic objective the GBA
must  protect the interest of its members. The GBA should
provide pro bono services for indigent citizens and other
vulnerable victims of human rights abuse. To end official impunity
the GBA must encourage its  members to file public interest
cases. I also expect the GBA to provide opportunities for lawyers
to be involved in the practice of law in the ECOWAS Court, African
Court on Human Rights and Peoples’ Rights, African Commission on
Human and Peoples’ Rights and the International Criminal Court. The
GBA must defend lawyers against harassment by the police and other
law enforcement agencies. Courts should not be allowed to
intimidate lawyers with contempt of court. At the same time, Judges
must be accorded respect.

The record of human rights in The Gambia was one of the worst in
Africa during the 22-year reign of President Jammeh. But with the
restoration of democracy The Gambia is ahead of many countries in
Africa in the protection of human rights and compliance with the
judgments of regional courts. Today, The Gambia is one of six
countries that have made a Declaration permitting individuals and
Non Governmental Organisations to institute human rights cases in
the African Court on Human and Peoples Rights in line with Article
34 (6) of the Protocol for the Establishment of the Court. The
Gambia is also leading other member states of the Ecowas in
compliance with the judgment of the regional Court. Thus, The
Gambia is reported to have paid the entire monetary damages awarded
to victims of human rights abuse by the Ecowas Court. However,
since political and civil rights are enshrined in the 1997
Constitution of The Gambia I am compelled to call on the GBA to
encourage its members to enforce the socioeconomic rights of the
people guaranteed by the African Charter on Human and Peoples
Rights in regional courts.

Unless this challenge is seriously taken up human rights will
remain a tantalising reality for the majority of poverty stricken
people. The GBA should organise seminars and workshops on the
African Continental Free Trade Zone established to create a single
continental market for goods and services, permit me to assure the
GBA of my unalloyed commitment to continue to collaborate with
Gambian lawyers in the struggle for the promotion of the
socioeconomic rights of the Gambian people, the expansion of
democratic space and observance of human rights. For too long,
African lawyers limited legal practice to the protection of the
interest of their clients without any consideration for the larger
interest of the society. A former Supreme Court Justice in Nigeria,
the late Justice Pats Acholonu once reminded lawyers of their role
in the society when he said inter alia:

“We all agree that the attorney whose professional
thoughts begin and end with his own private clients is a pitiable
mockery of what a great lawyer is and that only by taking part in
the movements for the betterment of the law and the profession can
he practice law in the grand manner – the only way it is worth
practicing” (Williams v. Akintunde (1995) 3 NWLR (Pt. 381)
101 @ 115)