By Ise-Oluwa Ige
Justice Esther Awo Ota [nee Eleje] is the incumbent President of the Gambian Court of Appeal.
She hails from Afikpo North Local Government Area in Ebonyi State, Nigeria. She graduated from the Faculty of Law, Imo State University in 1988 and was called to the prestigious Nigerian Bar in 1989. The worked briefly with two Federal Government parastatals after she was called to the bar till 1993 when she travelled to the Gambia to join her husband who is a medical doctor of international repute.
At the Gambia, she was appointed a magistrate in 1993 where she rose to become a judge of the Gambia high court and presently a President of the Gambian Court of Appeal. She occassionally sits with justices of the Gambian Court of Appeal on constitutional cases when the court cannot form quorum. She spoke with Vanguard in her office in Banjul on a number of issues including some of the public interest litigations she had handled and constitutional immunity.
According to her, nobody in the Gambia is above the law.
She said unlike the 1999 Constitution of the Federal Republic of Nigeria which provides immunity for 74 political office holders including Mr President, his vice, the 36 state governors and their deputies, he said the 1997 Constitution of the Gambia does not have such provision. She also said that the executive does not interfere with the work of the judiciary in the Gambia as she recalled how she tried a very close friend of Mr President in the Gambia and jailed him for 8 years based on preponderance of incriminating evidence against him.
Your lordship, can you let us into your background?
I am a Nigerian from a family of nine children. I am number eight. I went to Federal Government Girls College Bakori, now in Katsina State, after which I gained admission to study Law at the Imo State University, where I graduated in 1988 before proceeding to the Nigerian law school. I was called to bar in 1989. Yes, I am married with three children and I came to The Gambia as a magistrate in 1993 because my husband came to work here. When I was coming here I did not expect that some day I would be occupying such a position after starting off as a magistrate.
How do you feel being the President of the Gambian Court of Appeal?
All the glory goes to God. Quite naturally, I feel elated and honoured to sit in the exalted office of the President of the Court of Appeal, The Gambia. Remember this is not my country, I am not a Gambian, so to come to another manâ€™s country and excel because the people and government appreciate your contribution to the development of their country is really a big honour. But let me quickly point out that with such honour and elevation, comes higher responsibility and challenges as I cannot afford to betray the trust and confidence reposed in me by the Gambian People.
Can you recall the most sensitive case you handled which brought you into limelight in the Gambia?
I would say the case that brought me to limelight was the one that had to do with a senior parliamentarian and a personal friend of President Yahya Jammeh, Mr. Mousa Sosso, who was involved in drug trafficking.
Of course, he was not the drug baron, but he used his position to pave the way for the lady who was travelling. He was not the drug baron, but he was arrested and the case was charged to my court and at that time, drugs offence was becoming a source of concern for the people and government of the Gambia and I jailed him for eight years to serve as a deterrent to others. So that was the main case that brought me to limelight and it showed how very thin the line between obscurity and fame is; one minute you are unknown and ordinary, the next minute by one noble deed, by the right activity and decision, everybody comes to know and celebrate you.
We had a total of about sixteen witnesses in that case. There were actually three people who should have stood trial in that case, the drug baron, the lady apprehended and the parliamentarian, but by her own choice, the lady sought for â€˜plea bargain.â€™ They were charged with possession of drugs, possession for trafficking,Â trafficking and conspiracy. She did a plea bargain and got off with a lighter charge of possession and got off with a light sentence which had an option of fine, unlike the others who attracted custodial sentences. Nobody is above the law and that is the message the court swore to disseminate always.
Was this convict, Mousa Sosso, a serving parliamentarian at the time of his trial before you?
Of course, he was a serving member of the Gambian Parliament and a staunch member of the ruling party, which the President belongs. He was a key member. But the government stepped aside and allowed justice to run its full course and that is what makes the case very interesting. Nobody is above the law and the government in that case showed it by staying away from the judiciary. That is what The Gambia is all about. If you commit any offence, no matter how highly placed you are, you are made to answer for it in court. Here, the rule of law thrives and that is because the Gambian constitution has made it so.
How do you compare the work pressure when you were a magistrate to the present situation as the President of the Court of Appeal?
When I was a magistrate, we did not have enough magistrates, so it was a whole lot of work for me. But like you know, at the magistrate court level, it is summary trial. For instance, civil matters come up on Fridays in court and the defendant oftentimes comes to court to say â€˜I admit that I owe this amount of moneyâ€™, so you just enter judgment there and then, saying, â€˜judgment entered in favour of so so and so and if they want instalmental payment, you make the order there and move on to something else. But then you have some of the cases, where the defendants will come and say they do not owe. So I as a magistrate then was quite busy.
I was particularly very busy as a magistrate and I served in several magisterial jurisdictions. When I was at the High Court, I was very busy because the High Court had several divisions; we had the criminal division, the commercial division and the civil division. Commercial law is the widest arm of the Court. When I was at the High Court, I manned the commercial division even though we were then two Judges in that division.
It was still very busy because it is not everything that should go to the Appeal Court, so that means, I had to be up and doing, ready to do a good job. But if it has to come to applying the law, hard work, I think I have worked hardest in the Court of Appeal. I have. But when it is a Nigerian that is close to me, close to me outside the office, I do not handle that case.
For instance when I was at the Commercial Division of the High Court, I had a case involving my husbandâ€™s office, the Medical Research Centre, I went to court and the first thing I did was to recluse myself because I cannot sit in judgment over my own cause. And it is not that I cannot handle such a case, but how will other parties see it? But I have done several cases involving Nigerians, sometimes they lost, other times, they win and all the parties in these cases saw my adjudication and eventual judgment as free and fair.
You said in The Gambia nobody is above the law irrespective of their status. So does it mean the President and Vice President of The Gambia do not enjoy immunity from prosecution?
No, these two public office holders enjoy immunity to an extent. The constitution is clear on that. They enjoy immunity only on civil matters, but they do not enjoy immunity if a criminal offence has been committed. The constitution clearly drew a line to limit and qualify the extent of protection the President and Vice President of The Gambia can enjoy. It is not limitless; immunity for them covers only civil matters.
So, is it that there is no corruption in The Gambia with the hard stance taken by its 1997 Constitution?
There is no country where corruption is totally absent. But I can tell you that in The Gambia, it would be at its barest minimum, I say this because the people and government here have expressed their resentment against corruption through the 1997 Constitution of The Gambia.
By the said constitution, the Gambians have said, whoever you are, there is no immunity if you commit a crime or engage in corrupt practice. Besides, the Gambian is a small place and that makes it even easier to detect acts of corruption or crime. You cannot take bribe from anybody because everybody knows everybody here and in no time that bribe you took will be exposed and you will be made to answer for it. In this country, crimes and corrupt practices are detected and punished no matter who is involved and that is why the country has made tremendous progress.
You have talked about The Gambia and its anti-corruption posture so passionately. You even shed light on the fact that here acts of corruption cannot go undetected and unpunished. Yet, in Nigeria, we continue to contend with high level corruption in public office. For instance, look at the States in Nigeria, in spite of huge allocations, the states are in a state of infrastructural and economic decay.
The governors are busier looting the common wealth of their people. Using your Gambian experience, what do you think is the way out for Nigeria?
The main problem facing Nigeria in the battle against corruption is the immunity clause provided under section 308 of the 1999 constitutionÂ for the President, Vice President, Governors and their deputies. It is the immunity that is protecting these leaders, they are already protected and before they go into office they know they are protected and so what is stopping them from stealing public funds. The immunity is unnecessary because it places corrupt leaders above the law.
It is my view that once the immunity clause is removed from the constitution our leaders who hitherto looted public treasury brazenly will be careful about stealing public fund they are meant to hold in trust and administer for the common good of the people. I see no reason why there should be immunity for any public office holder if we are to show that nobody is above the law; the immunity clause clearly shows that some sets of Nigerians are above the law and that is not even good for the national psyche. I recommend the Gambian experience, as I earlier said immunity here in the Gambia is qualified in that there is immunity from civil actions, but as far as it relates to issues of crime or corrupt practices, there is no immunity as you are made to answer for it immediately.
The â€˜no immunity against crime or corruptionâ€™ posture of the government and people of The Gambia has helped in no small way to fight crime and corruption because it has helped the leaders to operate above board and this has trickled down to the man at the bottom rung of the ladder. If the immunity clause is qualified to allow for prosecution of the beneficiaries of the clause on matters of crime and corrupt practice, Nigeria will be better for it as the civil servant and also the common man will also be more careful knowing that â€˜the Highs and Mightiesâ€™ have also become careful and wary of the law that makes them answerable to charges of corruption while still in office.
In the Nigerian setting, people including the unrivalled human rights crusader of blessed memory, Chief Gani Fawehinmi [SAN] were never allowed to sustain public interest litigations that they initiate.
Usually at the preliminary stage of the case, the court would rule that they lacked the locus standi to Sure. The 1997 Constitution of The Gambia gives anybody in the country [not just the Gambian citizen] the right to go to court and challenge a decision or policy of government or challenge an infraction of the 1997 Constitution. As a matter of fact The Gambian Constitution 1997 places a burden on its Citizens to defend all its provisions thereof and as such gives the citizens the unfettered access to do so through lawful means by going to court. Specifically, Section 5  [a] and [b] provide thus: â€œany act of the National Assembly or anything done under the authority of an Act of the National Assembly, or any act of omission of any person pr authority, is inconsistent with; or is in contravention of a provision of this constitution, may bring an action in a court of competent jurisdiction for a declaration to that effect.
You can see through the clear wordings of these provisions than the Gambian is constitutionally empowered to query the action or policy – decisions of government and its officials in court and seek a declaration against such. And by the provisions of section 5  of same constitution, the court has a duty to evaluate the merit of the declaration so sought by the applicant and give directions [orders] as it may consider appropriate for giving effect, or enabling effect to be given, to such a declaration. So you can see that unlike the situation in Nigeria, where cases are dismissed at interlocutory stage on the ground that the citizen lacks locus standi, Gambians and non Gambians alike have been granted locus standi by the Gambian Constitution.
Is there any time when you made an order that was against the Executive or a friend of the Executive and it was not obeyed?
I am yet to see that day when the Executive would interfere with the judgment of the court. Once a case has been brought to court, Mr. President does not want to know what party the person belongs. So as we speak, I am yet to see that day when the order of a Gambian court would be disregarded by the people and government of the Gambia. As I stated earlier, it is a country made up of a people and government with the highest regards for the courts and the rule of law and they constantly demonstrate that by how faithfully they abide with and by court pronouncements and decisions.
What is the case law situation in The Gambia like?
The case law in The Gambia has developed over the years. Although it is not binding on us, when we have cases, we compare them with other jurisdictions with peculiarities because our own statutes can be very specific on certain issues. Where the statute is specific, you have to apply it as specified, but where it can be compared to other jurisdictions. We have a lot of case laws from Nigeria, the Ghanaian law reports and some others. We have five law reports in The Gambia and you see when you talk of law reports, you have to look at the size of the jurisdiction. What we have tried to do is to compile the law reports from 1994 â€“ 95 to 2008.
The Gambian government has been concerned about the perennial problem of delay of cases in court. Have you devised a strategy to tackle it?
When it comes to delay, for instance there is no such problem at the magistracy because my lord, the Chief Justice of The Gambia, Honourable Justice E. A. Agim has given a brilliant direction and directive in such a way that there is backlog of cases anymore at the magistracy. What he has done simply is to direct that Magistrates sit on Saturday to take cases of litigants, who have no legal representation and come to defend themselves.
He did so because we realised that those cases without legal representations suffer so many adjournments because priority is always given to lawyers who are in court. So you find out that when the lawyers must have finished arguing the many cases in court everybody would have been exhausted and so you may end up adjourning these cases that the litigants have no legal representation.
So when the present Chief Justice took over them helm of affairs, he decided that Saturdays should be devoted to hearing those special cases without legal representation and that eliminated backlog of cases at the magistracy. Then another factor that created delays of cases here also is the dependency on judicial officers on contractual arrangements. When you are out of contract and another Judge takes over and cannot read the handwriting of their predecessor, so you find yourself starting de novo [afresh].
But now there is a structure the Chief Justice has put in place even for the High Court so as to replicate the approach at the magistrate court and therefore eliminate the backlog of cases pending there because my lord, the Chief Justice, Honourable Justice Agim like the President of The Gambia believes that when cases are delayed the people of The Gambia are denied justice and as a result as brought about new innovations in form of practice direction to help fast track the administration and dispensation of justice in The Gambia.
We noticed all around that women are quite visible, we have seen more of them in the police as we drive around. Is it some gender equality message being sent out?
I wouldnâ€™t put it that way. The government promotes women; it is interested in issues of women and children. The President believes in women empowerment. In fact, I would say there is gender transparency in The Gambia because if you use to look at his cabinet there were lots of women there and there still are lots of women in the cabinet as it is presently constituted; even the Vice President of The Gambia is a woman. The president is committed to the course of women, he has a vision for the nation and that vision also includes the women, not like other nations where people have vision and women are second class citizens.
How are judicial officers disciplined?
We have a Code of Conduct for judicial officers and it states clearly what a judicial officer must not do. All over the world, it is the same Code of Conduct that regulates the conduct of judicial officers.. And we have the Judicial Service Commission of The Gambia, it is like the policeman of Judges and it is this commission that makes recommendation of persons to be appointed as magistrates or Judges to the President of The Gambia and the President, in turn, approves. It is like our own National Judicial Council. So where a judge misbehaves in office, the Commission looks at the extent of misbehaviour and takes punitive measures as it deems necessary.