Justice Emmanuel Oluwasegun Fagbenle, a Nigerian and incumbent Chief Justice of The Gambia, is working behind the scenes to provide legal support for President Yaya Jammeh’s bid to perpetuate himself in office after being defeated at the polls, SaharaReporters has learnt.
President Jammeh, who has ruled the country for 22 years, conceded defeat to the opposition candidate, Mr. Adama Barrow, but turned around to reject and unconstitutionally nullify Gambia's free and fair presidential election. His action has provoked widespread condemnation from the international community, with the Economic Community of West African States (ECOWAS) threatening to militarily evict him from power if he fails to respect the democratic wishes of Gambians.
President Jammeh used the excuse of errors in the vote tally, ignoring the insistence of the country's Independent Electoral Commission that the winner remains Mr. Barrow, who won with a revised count of 227,708 votes to President Jammeh's 208,487.
President Jammeh’s party, Alliance for Patriotic Reorientation and Construction (APRC), subsequently filed a legal challenge against the election results, a constitutional move complicated by the fact that Gambia's Supreme Court is not known to have a panel.
The Gambia Bar Association (GBA), in a statement dated December 12, described President Jammeh’s declaration of the poll results a nullity as an act of treason and rejected his party’s announcement of its readiness to file an election petition against the result.
The GBA contended that given that the country’s Supreme Court has not had a sitting since May 2015 because of the absence of a panel, there is no legitimate legal mechanism available in The Gambia to hear and determine the election petition filed by President Jammeh. The association warned that it would be against the principles of natural justice for President Jammeh to appoint Supreme Court judges to hear a petition filed by him or on his behalf and called on him to respect the wishes of the Gambian people as expressed in the results of the election. It noted that a Supreme Court empaneled by President Jammeh for the purposes of his election is tainted
“That would be tantamount to one being a judge in his own case, considering that the outgoing President has already pre-empted the outcome of the court process by declaring the election results as a nullity,” the GBA wrote.
The GBA is, however, unaware that President Jammeh had been working in the background, with the support of the country’s Chief Justice, Nigeria’s Justice Fagbenle, to impanel the Supreme Court.
President Jammeh said top Gambian judiciary sources, since October, had secretly appointed judges to his country’s Supreme Court from Nigeria and Sierra Leone. The appointments made, said sources, was kept as top secret by Justice Fagbenle.
Of the six judges appointed, impeccable sources told SaharaReporters, five are Nigerians. They are Justices Habeeb A.O Abiru, Abubakar Datti Yahaya, Abubakar Tijani,
Obande Festus and Akomaye Angim, a former Chief Justice of The Gambia. The sixth judge is Justice Nicholas Colin Brown, Sierra Leonean. The appointment of the Nigerian judges was based on request from Justice Fagbenle to the former Chief Justice of Nigeria, Justice Mariam Aloma Mukhtar.
It remains unclear whether they have all accepted their appointment to seat on appeals before the Gambian Supreme Court.
The judges were originally slated to sit from January 11 to 19, 2017, but the current political developments, disclosed sources, have forced them to start considering a request for deferment of the sitting or rejection of their appointment.
A top source told SaharaReporters that Justice Abiru has decided to reject the appointment and already scheduled a meeting with other members who share his view so that they can communicate their position to the Chief Justice of Nigeria this week.
Justice Fagbenle did not just start working hand-in-gloves with President Jammeh. In a letter dated 12 December and exclusively obtained by SaharaReporters, the GBA called for Justice Fagbenle’s resignation from office, citing his conduct during the country’s presidential campaign as the basis.
“The position of the Chief Justice is a constitutional position, and as head of the third arm of government, you are expected to maintain and uphold certain standards. You have, in our considered view, woefully failed to adhere to these standards,” wrote the GBA.
Specifically, the GBA noted that Justice Fagbenle is in President Jammeh’s pocket, a situation that has brought disrepute to his office.
The GBA observed that before and during the campaigns, Fagbenle was appearing at the rallies of President Jammeh’s party.
“On the day of the nomination of the incumbent president, you were seen in front of the court premises waving and dancing in support of the incumbent presidential parade. Several members of the Bar saw you wearing APRC apparel on court premises. You were distributing APRC apparel to the court staff and making preparation for the victory celebration of the incumbent president,” stated the GBA.
In addition to these, the GBA said Justice Fagbenle’s tenure has been principally devoted to President Jammeh’s scheme to perpetuate himself in office. Notably, explained the lawyers’ association, Justice Fagbenle caused the dismissal of judicial officers presiding over cases involving the government of President Jammeh when they made decisions considered unfavorable to the state.
“In the case of the State v Ousainou Darboe & Ors, you caused the presiding judge to expedite the hearing of the case and their conviction. You transferred the case of the State v Lamin Sonko & Ors to the High Court sitting at Mansakonko. There was no basis for the transfer of the case, as the Mansakonko court had no jurisdiction to hear the case. This action was calculated to ensure that the defendants could not get legal representation, thus easing their conviction. You further failed to respond to the letter from the counsel representing the defendants protesting the transfer. You gazetted new rules for the Supreme Court without following due process. You further failed to respond to the GBA when it protested the action,” said the lawyers’ association.