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Only a new constitution can solve Nigeria ’s problems — Gambia Chief Justice

By Ise-Oluwa Ige, Just back from Banjul

Justice Emmanuel Akomaye Agim is the incumbent Chief Justice of the Republic of the Gambia .

He is one of the few Nigerian egg heads that had occupied the exalted seat.

Before his appointment, June, this year, he had earlier served as the President of the Court of Appeal and the Director of Public Prosecution (DPP) of the Gambia, at separate times.

Born on April 26, 1960 in Okambi village located in Obudu Local Government Area of Cross River State , he is one of the few Nigerian experts in the Gambia doing Nigeria proud.

Before he was sent by the Nigerian Government under its technical assistance programme to the Gambia, he had been in private practice in Nigeria for 19 years during which he served as the Chairman and the Secretary of the Ogoja chapter of the Nigerian Bar Association (NBA), at separate times.

He told Vanguard in this interview conducted in his office in Banjul that he is worried over the myriads of problems facing Nigeria including corruption.

He said the only way to fix them is the making of a new constitution to replace the incurably defective 1999 constitution. He said the on_going attempt by the National Assembly to amend the present constitution would not solve the nation’s problem. On how to go about it, Justice Agim was succinct in this interview.

Can we know a little of your background?

I am from Cross River state, specifically, Obudu Local Government in Nigeria . I had come to the Gambia as a legal expert sent by the Nigerian Government under its technical assistance programme to the Gambia . So I was here for eight years.

First, I was the Director of Legal Prosecution (DPP). After many years, about six years, I was elevated to the bench up to the Court of Appeal. After my contract was concluded, I went back to Nigeria . But the President of the Gambia was gracious enough to consider me for this appointment.

That was how I came back. Before I came to the Gambia , I was a private legal practitioner in Nigeria for about 19 years. I was Chairman of the Nigerian Bar Association, Ogoja branch, and secretary of the association at some point and I was also one of the leading lawyers in that state. I was in most of the high profile election petitions in that state and commissions of enquiry.

I was into extensive legal practice because my practice was not limited to the state but also other states like Benue state. And I handled cases from the trial lower courts through the Court of Appeal to the Supreme Court at times. That was the kind of practice I had before I was appointed by the Government of President Obasanjo to the Gambia .

What year was that sir?
Year 2000. I arrived Gambia on September 1.

And from there, you have risen to become Chief Justice of the Gambia ?

What is life like, a Nigerian, being the Chief Justice of the Gambia ?
Well, being a Nigerian out here elicits mixed feelings at times. But generally, we are appreciated for the good contributions we are making to the legal system here. As Chief Justice, the challenges are many.

First I had to deal with the idea that an indigene was removed to be replaced by somebody who is not an indigene. And during the swearing in, the president made it clear that what he wanted was performance. If he identifies you as a person who is capable of putting in place a functional judiciary, he will engage you not minding where you come from.

He said he could even go as far as Alaska or Australia to bring anybody who can help him provide an efficient justice delivery system. Those were the words he used. And I felt encouraged by that which showed that he is truly a pan-Africanist; somebody who doesn’t care where you come from.

The merit of your service, what you can do for his country is what drives him. So it is on that note that I started as the Chief Justice of the Gambia and that has guided my action and he sees me as somebody who has come to help them make the judiciary very functional. By the grace of God, I have not disappointed him. I enjoyed a lot of goodwill from the Gambians. They are happy with my efforts so far. That is the position

As a prosecutor and judicial officer at both the trial and appellate courts of record at the Gambia, which of your cases or judgments would you readily recall to mind that has helped to shape activities in this jurisdiction?
Well, there are so many. If I started as DPP, before I go to judgment (laugh) I have done so much to impact positively on the criminal justice system. A whole range of activities like training lawyers, I mean new state counsel; reorganizing the criminal division of the ministry of justice and ensuring that no case-file from the police remains on our desk beyond two weeks. All opinions must go out within two weeks. So that if a matter is meant to be prosecuted, it goes to court within two weeks. Before that, it was not like that.

I introduced that and I maintained it all through that time. So the prosecution system became very functional and we emphasized observance of human rights in the whole process. So, it was a very humane process that I had to put in place.

And to complement that, I wrote a manual on pre trial criminal process to help improve the observance of human rights of the accused persons at the pre-trial stage and to help the police in their investigative technique. This is because the quality of the case presented depends on what happens at the pre-trial stage.

If there was so much violation of human rights, certainly, it is going to affect the outcome of the case. If the investigation is poor, it will affect the outcome.

Justice Emmanuel Akomaye Agim
Justice Emmanuel Akomaye Agim

So, I had to develop that manual to assist both lawyers and the police. And we worked very hard, engaged in so many cases. At that time, what was topical was economic crimes; crimes against public officers who engaged in ignoble act of stealing public funds, funds meant for the development of the society, the welfare of the people. And I have the responsibility of prosecuting such cases.

One of them that readily comes to mind involved the Majority Leader of the Parliament and a member of the ruling party, a high profile figure who was very close to the President. In fact, he was one of the most popular politicians. He was accused of stealing about $8 million dollars or thereabout. I am not very sure of the amount now. And he was tried, convicted and sentenced to eight years imprisonment and all his property were seized and forfeited to the state. He owned vast property.

In fact, in Gambia , if you are charged with economic crimes, from the moment of being charged to court, all your estate is frozen until the determination of the case. If you are found guilty of the economic crime, you will refund all the monies, the loss you caused the country and forfeit all your assets.

So, there is no presumption of innocence?
No, the presumption on you is to show how you acquired the assets. The onus is on you. The onus is on the public servant to show how he came by his enormous wealth.

The man jailed. Was he a serving parliamentarian?
Yes. In this clime, under the Economic Crime Decree, the onus really is on the prosecution to show that he committed the economic crime. And there are categories of the crime.

One of them is: If as a public officer, you conduct or act or omit to act in such a manner as to cause a financial or any economic loss to the public, you have committed an economic crime. So it is not an excuse to say I didn’t take the money. No, once you conduct yourself in a manner that causes the country an economic or financial loss, you have committed the offence.

As a serving parliamentarian, is he not entitled to any form of immunity?
No, there is no immunity for crimes in the Gambia

Across all offices?
No, no immunity. If while holding office, you commit a crime against the people, you cant have immunity. That was demonstrated some years back. The Gambian Government set up a Presidential Commission of Inquiry to look into the assets of public officers, how they acquired the assets and every public officer from the Vice_President down faced the inquiry.

A majority of them forfeited their assets to the state. If you have come before that enquiry, the burden is on you to show how you came to own all these number of properties whether directly or by proxy. If you are unable to explain satisfactorily how you acquired any property, it goes to the state. That is the position.

Access to justice and effective justice delivery system are cardinal to functional constitutional democracy. Will you say that the Gambians have access to justice and how effective is the nation’s justice delivery system?
Let me start by saying access to justice is the ability of the aggrieved person who has come to court to get justice.

And that is determined by a lot of factors including the ability of aggrieved citizens to go to court and file cases; the ability to engage lawyer to prosecute your case if you need one and it is about how long it takes for the court to decide the cases filed in court. It is also about how much does it cost him to do his case; how much does it cost government to be able to put a structure for that particular case to be heard and what is the distance; how long does it take him to get to that court where the case is filed and how often is his case heard by the court?

How much attention does the court give to his case and how much attention does his lawyer give to his case? All these build up to determine his ability to get the justice he went to look for within a reasonable time and at a minimal cost. Once these two factors of reasonable time and minimal cost are missing, it is clear that there is a very limited access to justice. If justice takes too long time to get, you know what that means.

They say it is worse than justice denied. There are other things that affect that ability. Those ones are on technical side. The procedure as to witnesses, like illiterate witnesses, child witnesses and interpreters and so many other factors. But basically, the major indicators of a good access to justice are expeditious disposal of the cases at minimal expense.

Can a Gambian query the policy of government or conduct of its officials through the court without any inhibition? Put differently, how often do the Gambian courts use the concept of locus standi to shut the doors of justice against citizens?
Yes, in terms of access to justice in that regard, Gambia is one of the best in West African countries that avail its citizens access to justice courtesy of their constitution. They have one of the most progressive constitutions in West Africa .

The access to justice here is guaranteed by an unlimited concept of locus standi. Under the common law, the idea of locus standi is very restricted. A person would have a right to go to court where his interest is peculiarly affected. Only that.

So, if that right is common to a class of persons, he has no right to maintain an action in court in respect of that matter. That is a very inelastic concept of locus standi and that shuts out public interest litigation so that you can not now go to court to say that 400billion was voted for a road construction passing through your village and that road has not been constructed.

You cant go to court to challenge it in such a situation because that interest is common to all those living along that road and all road users. Or, somebody does something in violation of the constitution, you say look, that violation affects all persons, so it is not peculiar to you.

Unless you can show that the violation peculiarly affects you in some respects. Now, but under the Gambian constitution, section 5 provides that every person in the Gambia, that is the citizens of the Gambia and the non-citizens who are resident there, can go to court to seek a declaration that a particular public officer or authority or any person has violated the constitution. Any person can go to court to seek the declaration that any public officer or authority has violated the constitution.

Secondly, every citizen of the Gambia has a legal duty under the constitution to defend the Gambian constitution. Thirdly, every citizen of the Gambia has a fundamental human rights to petition the executive on any matter of public concern and the executive has a legal duty to investigate the petition. So, this provisions guarantee unlimited access to courts on matters of public concern.

So, you can go to court at anytime. It is not even matters of form and procedure can inhibit you because series of decisions from the Supreme Court of the Gambia have said you can file the action in any form. It is not a question of say no, you didn’t bring it by a way of originating summons or writ of summons.

You can come in any form. That is the position here. And you see, that has a very serious impact on governance. There is high level of accountability because the people have been given the powers to hold government accountable, to hold ministers accountable, to hold local government chairmen accountable, to hold the sanitary officers accountable.

Given what you have shown us in the operative 1997 constitution of the Republic of the Gambia as it relates to the empowerment of the citizens to hold the government and its officials accountable and given your knowledge of the absence of these fundamentals in the 1999 constitution of the Federal Republic of Nigeria, do you think there is any hope for the country to fix its myriad of problems including that of corruption? If no, what suggestion do you have for the relevant authorities and the people of Nigeria with regards to the constitution?

Well, when you talk about the 1999 constitution of the Federal Republic of Nigeria with regards to empowerment of citizens to approach courts for the purpose of holding government and its officials accountable, I think it will be better to start the discussion by asking: how did the constitution come about?

A constitution is a very important document. In other parts of the world, people don’t play around with it. It is a soul of the community. Everybody has come together and submitted his personal God-given sovereignty and put it in one place called this community and say the community should govern all of us. And in doing this, every segment of that community is entitled to have a say in formulating the terms under which the entire government is ruled.

So before you have a proper constitution, you must start from there. If you do not have a process by which every segment, whether minority or majority, sat to say this is my own interest, put it there, any document that you have will not take care of the interest of the people there. It will be a document of exclusion.

So, to be able to assess the 1999 constitution, we need to ask questions ourselves: how did it come about? Did it come out from a consensus of the people of Nigeria or did it come out from an assumed consensus of the people of Nigeria? Was the constitution made by a few number of people who think that by sitting there, they are representing the people. How was it made?

Now, when a few people made a document purporting it to be constitution, they now organize some representatives in the name of constitutional conference to come and look at that document, it is like superimposing something on nothing. What they are looking at, in the first place, did not come out through the proper way. Now that they have come, how are they approaching it? Now, they tell you: don’t discuss this one, discuss this one. That is not how a constitution is made.

In constitution making, you don’t say: discuss this, don’t discuss this. If you do, then, there is no constitution. There can only be a constitution when there is a process where the segments of that community sit and say: these are the terms of our association. But if a few people gather together to do that and produce a document, it will be a document of the minority to govern the majority.

If the document is meant to usher in a democracy, then the document itself must be democratic. I was discussing with my friend who was in the constitutional conference that dealt with this 1999 constitution. I told him that to me, the 1999 constitution, with due respect, is a false document because it claimed to be what it is not. And he asked me: how should it have been made to be a genuine document and I told him that they can make it a genuine document by this process: you should have a referendum through a universal adult suffrage of the people across the country just like a general election to decide what should be the constitution. Prior to the referendum, each segment of the community should be allowed to bring its own memorandum of what are his own interest and the totality of it, un-doctored, is put together, and this is submitted round the country for everybody to know and be informed as to the proposed terms. Then after that, there is a voting. If at the end of the day, we come out and now agree that these are the terms, then that becomes the constitution. You cant tell me that there was an agreement when we never agreed. An agreement can not come into existence when there was no consensus.

A constitution is an agreement. So for the 1999 constitution, who and who agreed? Were the Yorubas consulted? Were the Ibos consulted? Were the Ibibios consulted? Were the Hausas consuilted? Were the Fulanis consulted? What aabout the Tivs, the Ijaws, the Benins , the Urhobos, the Ankpa people, the Cross-Riverians?

Who consulted who and where? The truth is: nobody was consulted. So, what happened was that somebody just introduced a document, call some people and called it constitutional conference and they came. But under what principle did they operate?

On the principle of discuss this, don’t discuss that. Certainly there is no constitution. The document has no foundation. If you look at the constitution of the Gambia , it expresses how it came into being.

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