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Statement Of The Gambia Bar Association Following A Statement By The President “That Individuals Released On Bail By A Judge Will Be Arrested”

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Salieu Taal, President Gambia Bar Association

The Gambia Bar Association [GBA] is very concerned and troubled by the remarks made by His Excellency, President Adama Barrow at the opening of NPP Bureau in Jarra Soma. According to audio-video clips making rounds in the media, the President amongst other statements remarked “We will put an end to the practice of insulting others. Even if individuals are released on bail by a judge, we will re-arrest them”.
The GBA is very troubled that the President being the Head of Executive arm of government made the statement that the state will re-arrest individuals even if released on bail by a judge. This statement essentially amounts to a disregard for the legal authority of the competent courts of the country and undermines the respect for the rule of law. To this extent, the GBA categorically states that the statement made by the President of the Republic is unwarranted and has very serious ramifications to the respect for the rule of law, independence of the judiciary and the separation of powers. The President of the Republic, as the head of the executive branch of Government can only exercise powers within the confines of the law in accordance with the constitution and laws of the land underpinned by respect for democratic values and principles as succintly espoused in the preamble of our constitution “This Constitution guarantees participatory democracy that reflects the undiluted choice of the people. The functions and arms of government have been clearly defined, their independence amply secured with adequate checks and balances to ensure they all work harmoniously towards our common good.” Any citizen including the President is entitled to the protection of the law and entitled to file complaints against individuals accused of violating the criminal laws of the land to the police for an independent, impartial investigation before a decision to prosecute is made by the relevant prosecution authority.
Under section 85 of the 1997 Constitution, the legal authority to prosecute persons accused of committing criminal offences is vested exclusively in the Director of Public Prosecutions subject to the approval of the Attorney General. The President of the Republic has no prosecutorial power or authority under the laws of the land and cannot lawfully direct or instruct the prosecution of any individual. As such, any attempt to do so constitutes an unwarranted interference with the prosecutorial authority of the prosecuting authorities to make independent prosecutorial decisions without fear or favour. As a country that came out of the clutches of a brutal dictatorship characterized by the weaponization of the laws and rule of law institutions such as the police, the GBA strongly advises the executive to desist from making any pronouncements or acting in a manner reminiscent of the Jammeh era dictatorship.
The practice of re-arresting individuals released on bail or discharged by the courts is a legacy of the Jammeh era and is an abuse of power as well as a contempt for judicial authority. As a country rebuilding its rule of law institutions as part of its transitional justice process, we must collectively reject such undemocratic conduct and uphold the

respect for the rule of law unreservedly. The social implication of such statements is that it erodes the public’s trust and confidence in the administration of the criminal justice system.
The respect for court orders by the executive is the fundamental cornerstone of the rule of law and underscores the independence of the judiciary. On the other hand, the disregard of the court orders by the executive undermines respect for the rule of law, independence of the judiciary and negates the state’s commitment to democratic governance. As a country that has defeated dictatorship and rebuilding its democratic institutions, such a statement from the President is regrettable and a departure from our country’s democratic trajectory. We trust that the unguarded statement by the President will be the last utterance of this nature and strongly remind the President of his solemn undertaking and oath to govern the country in accordance with the dictates of the constitution.

Dated – 6th October , 2023
Salieu Taal
Gambia Bar Association

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