Constitutional Fidelity and Democratic Renewal: Reflections on the Gambia Bar Association and the Promise of “Never Again”

By Abdoulie Fatty

Author’s Note

The constitutional issues arising from the appointment of the Chief Justice are presently before the Supreme Court for determination. Nothing in this essay should be understood as expressing a concluded view on the legal merits of those proceedings. That responsibility belongs exclusively to the Supreme Court, whose judgment—whatever the outcome—must be respected as the authoritative determination of the constitutional questions before it. The purpose of this essay is narrower. It reflects on a broader constitutional question: how should institutions emerging from authoritarian rule be judged in a democratic society?

The Gambia Bar Association’s (GBA) decision to challenge the appointment of Mr. Edi M.O. Faal as Chief Justice has understandably generated vigorous public debate. Alongside the legal arguments, however, another criticism has emerged. It is suggested that the GBA lacks the legal, moral or institutional legitimacy to challenge the appointment because the Bar did not publicly challenge many constitutional violations during the Yahya Jammeh era.

The criticism deserves careful consideration. There were undoubtedly moments when the Bar, like many other institutions, could have spoken more forcefully. Honest reflection on that history is both legitimate and necessary.

But acknowledging history is fundamentally different from concluding that an institution has forfeited its constitutional responsibility to act in the present. That conclusion does not follow from constitutional principle or from the reasoning underpinning democratic transition.

The Jammeh years were not ordinary constitutional times. As the Truth, Reconciliation and Reparations Commission (TRRC) documented, they were characterised by arbitrary detention, torture, enforced disappearances, intimidation and a pervasive climate of fear. Institutions did not function within the ordinary safeguards of constitutional democracy. Many operated under extraordinary pressure in circumstances where dissent frequently carried profound personal and professional consequences.

Recognising that context does not excuse every institutional omission. It does, however, caution against assessing institutional conduct during that period as though it occurred under ordinary democratic conditions.

It also explains why Gambians overwhelmingly voted for democratic change in December 2016.

The transition was never intended to be merely electoral. It represented a national commitment to rebuild public institutions, strengthen constitutional governance and ensure that the failures of the past would not define the future. That commitment found practical expression in the National Development Plan, whose governance and accountability agenda prioritised institutional reform, judicial independence, security sector reform, respect for the rule of law and accountable governance. The work of the TRRC reinforced the same objective by identifying reforms intended to guarantee non-recurrence.

Together, these initiatives reflected one constitutional promise:

Never Again.

That promise was never directed solely at the Executive. It was a national commitment that every public institution should emerge from authoritarianism more independent, more accountable and more faithful to the Constitution than it had been before.

That expectation now informs every aspect of our public life. We expect a more professional Police Service. We expect a Judiciary that dispenses justice without fear or favour. We expect Parliament to exercise meaningful oversight. We expect constitutional institutions to perform their mandates independently and courageously. When public institutions fall below those standards, criticism is swift because Gambians now judge institutional conduct against the expectations of constitutional democracy rather than the practices of dictatorship.

Against that background, it is difficult to justify holding every institution to higher constitutional standards while insisting that the Bar alone remain confined by the limitations of an authoritarian past.

The criticism directed at the GBA ultimately conflates two distinct ideas: historical criticism and constitutional legitimacy.

Historical criticism is entirely legitimate. Constitutional legitimacy, however, derives from the Constitution itself, not from an institution’s historical perfection.

Constitutional responsibilities are continuous. They do not disappear because an institution once failed to exercise them as effectively or courageously as it might have done. Authoritarian rule may suppress the exercise of constitutional responsibilities, but it cannot extinguish the responsibilities themselves. Democratic transition restores the freedom to perform duties that have always existed; it does not create them.

The same constitutional principle applies throughout the Republic. We do not judge today’s Judiciary solely by the limitations it experienced under authoritarian rule. Rather, we expect it to uphold the Constitution according to the standards required by a democratic society. The same expectation necessarily extends to every constitutional and rule of law institution, including the Gambia Bar Association.

It is equally inaccurate to suggest that the legal profession was entirely silent during the dictatorship. Many lawyers defended political opponents, challenged unlawful state action and represented victims of human rights violations despite considerable personal and professional risk. The TRRC heard evidence that Lawyer Ousman Sillah was shot at point-blank range at the gate of his residence by members of the “Junglers” because of his professional work. His experience serves as a stark reminder that, under authoritarian rule, simply discharging one’s professional duty as a lawyer could expose one to grave personal danger. That reality should caution against judging institutional conduct during that period without appreciating the climate of fear and danger in which members of the legal profession were required to operate.

That history does not immunise any institution from legitimate criticism. It simply reminds us that historical judgment must always be accompanied by historical context.

History therefore deserves honesty, not selective remembrance. It should inform constitutional reflection. It should not become a permanent bar to institutions faithfully discharging their constitutional responsibilities in a democratic order.

The question, then, is not whether the Gambia Bar Association was perfect during the dictatorship. Plainly, it was not. The real question is whether institutions emerging from authoritarian rule should be judged primarily by the constraints under which they once operated or by their fidelity to the Constitution in the democratic order Gambians consciously chose after December 2016.

The constitutional structure established after 2016 points towards the latter.

Every constitutional and rule of law institution ultimately owes one enduring allegiance: fidelity to the Constitution. That obligation neither begins nor ends with any particular government. It survives changes in political leadership, changes in office holders and even periods of constitutional decline. Institutions may perform that obligation imperfectly at different moments in history, but the obligation itself never disappears. Democratic transition restores the freedom to perform constitutional responsibilities that authoritarianism sought to suppress.

The Gambia Bar Association is no exception.

Its foremost obligation is to uphold the Constitution, defend the independence of the legal profession and contribute to the administration of justice. The GBA has not purported to determine whether the appointment of the Chief Justice complies with section 139 of the Constitution. It has simply invited the Supreme Court—the institution constitutionally entrusted with the final interpretation of the Constitution—to determine that question.

Whether the Supreme Court ultimately agrees with the Bar’s interpretation is an entirely separate matter.

Constitutional democracy does not require unanimity. It requires that genuine constitutional disagreements be resolved through constitutional institutions established for that purpose. The Constitution anticipates disagreement. Indeed, it is precisely because reasonable lawyers, judges and citizens may differ over the meaning of constitutional provisions that the Supreme Court is vested with ultimate authority to interpret them.

Resort to that constitutional process is therefore not evidence of institutional conflict. It is evidence that constitutional democracy is functioning exactly as intended.

There is, of course, nothing improper about disagreeing with the GBA’s legal position. Reasonable people may take a different view of section 139 and defend the appointment with equal conviction. That debate is both healthy and inevitable in a constitutional democracy. This essay makes no attempt to prejudge the merits of the proceedings now before the Supreme Court. That responsibility belongs exclusively to the Supreme Court.

The issue addressed here is different.

It is whether the GBA, as a rule of institution, possesses the legitimacy to place a genuine constitutional question before the Court.

In a constitutional democracy committed to the rule of law, constitutional and rule of law institutions cannot ordinarily be criticised merely for invoking the very constitutional processes established to resolve constitutional disputes. To hold otherwise would discourage constitutional engagement and diminish, rather than strengthen, the constitutional order.

The lesson of authoritarianism cannot be that institutions should remain silent once democratic space has been restored. Rather, it is that they should exercise their constitutional responsibilities with greater fidelity, independence and confidence than circumstances previously permitted.

That is, after all, the essence of democratic renewal, or perhaps more accurately in our own context, transition from dictatorship to democracy.

The promise of “Never Again” is not fulfilled by expecting institutions to remain prisoners of their past. It is fulfilled by encouraging them to become better custodians of the Constitution than they were able—or, in some cases, permitted—to be under authoritarian rule.

History should not be a source of permanent constitutional disability. The Constitution does not ask where our institutions stood under authoritarianism. It asks whether they stand faithfully with the Constitution today.

That, ultimately, is the enduring promise of “Never Again.”