Centre for Legal Support has lost its challenge on the provision of the District Tribunal Act that barred them (Lawyers) from representing people before the District Tribunal.
The applicant (Centre for Legal Support) initiated the matter pursuant to sections 5, 37, and 132 of the Constitution of the Gambia in line with Order 27 Rules of the High Court. The Centre relied on sections 24 (dealing with fair hearing) and 33 (protection from discrimination) of the 1997 Constitution.
Section 33 of the District Tribunal Act titled “Legal practitioners not to appear before District Tribunals states that “A legal practitioner shall not appear or act for any party before a District Tribunal,”.
The Centre also relied on section 30 of the Legal Aid Act of 2008 which provides a person is entitled to legal aid in proceedings in a court or tribunal, where the person is charged with an offence in the Criminal Code. The same section of the Legal Aid Act provides a person is also entitled to legal aid if he or she desires legal representation in any criminal or civil matters.
The Judge dismissed the application. The Judge said section 3 of the District Tribunal Act is not inconsistent with the provisions of sections 24 and 33 of the Constitution. The Judge stated that the District Tribunals are “Chaotic” and if legal practitioners are allowed to appear in the tribunals “It will further compound the problem.” Justice Sainabou Cisse-Wadda Judged.
The Judge said that based on the current constitutional setting and with reference to the provisions of the District Tribunal Act, the law the lawyers challenged was consistent with section 24 of the Constitution. The Judge added that the Tribunals are not under the Judiciary, but under the control and direction of the Governors of the Region and the Minister responsible for the enforcement of the Act – the Minister of Justice.
She explained that the district tribunals have different jurisdiction from the other courts. The jurisdiction of the district tribunals are subjected to changes at the whims and caprices of the Minister and the Governor,” she said.
She explained that the District Tribunal Act was a colonial law that was meant to suppress the people. The Centre is a non-profit, non-governmental, and non-religious human rights group. This legal support group stands was established to provide legal advice, and representation and also to initiate or challenge public interest litigation in the country. It was registered and incorporated in 2018
She dismissed the argument of the Centre that the provision of the District Tribunal Act is inconsistent with section 24 of the Constitution. She held that the law barring the lawyers from appearing from the tribunals is reasonable and necessary “based on the current setting”. The Judge explained that the offences triable at the district tribunals are primarily the customs and traditions of that area and not the Criminal Code.
She said the Evidence Act and the Limitation Act do not apply at the District Tribunals. She added that the tribunals are subjected to the direction and control of the Governor and the Minister responsible for the enforcement of the District Tribunal Act.
She explained that the district tribunals do not necessarily use the Criminal Code instead they use their customs and traditions based on the constitutional provision under section 7. She further stated that the status and standard of proof at the district tribunals and the courts are not the same.
“The Judge however advocated for the reform of the District Tribunal Act. The reforms that have been happening since independence ignored the District Tribunal Act,” she said.
She added: “The District Tribunals cannot stand alone in isolation of the courts and other Acts of the National Assembly,”.
Justice Sainabou Wadda-Cisse concluded by calling on the Government to amend the District Tribunals Act to enhance the court’s independence and integrity, adding that the Act was promulgated in 1933.
She said the District Tribunals Act to a large extent operates to compromise the independence and integrity of the District Tribunals in the discharge of its judicial functions, given the unfettered powers vested in the Governors and the Minister to supervise, regulate, and interfere with the proceedings and even decisions of the Tribunals. She added that the Governors and Minister are political appointees and therefore answerable to the executive arm of government.
“As political appointees their powers over the District Tribunals undoubtedly undermine the principle of separation of powers and rob the Tribunals of their judicial independence,” she said.
“I wish to conclude by highlighting the fact that the legislature being a branch of government has in its wisdom to restricted to legal representation before the District Tribunals by virtue of Section 33 of the District Tribunals Act. I shall venture to say that the courts should exercise restraint to attribute a superior wisdom regarding matters entrusted to the legislature,”.
“This notwithstanding, there is of course the urgent need from the executive and the legislature to reform and amend the District Tribunals Act and certain other provisions in our laws to align them to the letter and spirit of the 1997 Constitution. With all due respect, the current state of affairs is chaotic, and permitting legal practitioners to appear before the Tribunals will further compound the problems,”.
“The District Tribunals Act to a large extent operates to compromise the independence and integrity of the District Tribunals in the discharge of their judicial functions, given the unfettered powers vested in the Governors and the Minister to supervise, regulate and interfere with the proceedings and even decisions of the Tribunals. The Governors and Minister are political appointees and therefore answerable to the executive arm of government. As political appointees, their powers over the District Tribunals undoubtedly undermine the principle of separation of powers and rob the Tribunals of their judicial independence,”.
“There is also an urgent need to consider the composition, qualifications, and qualities of members of the District Tribunals. The jurisdictions of these Tribunals are very broad and the members must possess the requisite skills and competence to discharge their duties in accordance with the laws of the land without violating the rights and freedoms of the individuals.”
What is the Case About?
The Centre asked the Court to make a directive to the Attorney General to take steps to repeal section 33 of the District Tribunal Act for its being inconsistent with the 1997 Constitution. Also, the applicant asked the court to declare that the District Tribunal Act which restricts legal practitioners from appearing and or acting for any party before a district tribunal unconstitutional. The applicants are contending that the provision of the District Tribunal Act violates, contravenes, or is inconsistent with the provision of Section 24 (1) and (3) (d) and (e) and Section 33 of the Constitution of the Gambia.
The Centre also asked for a declaration that pursuant to sections 24 (1) and (3) (d) and (e) of the Constitution and section 30 (2) of the Legal Aid Act and other international human rights treaties and conventions that are binding on the Gambia. It is the position of the Centre that a person or party before any court or tribunal including District Tribunals where one is entitled to defend themselves or by a legal representative of their choice.
The Centre wants the high court to make a declaration that a legal practitioner who is issued with a practicing certificate by the General Legal Council is entitled to practice as a legal representative and to appear or act for any party before the district tribunals.
