THE CONSTITUTION, THE BAR, AND THE POLITICS OF SELECTIVE OUTRAGE

Why Is Pa Edi M.O. Faal Being Targeted—And Why Was Dr. Lamin J. Sise Not?

By Alagi Yorro Jallow

Fatoumatta: The fierce national debate surrounding the appointment of Lawyer Pa Edi M.O. Faal has exposed an uncomfortable reality about constitutional discourse in The Gambia. Increasingly, legal arguments appear to be shaped less by constitutional principle than by politics, tribal sentiment, personal prejudice and selective outrage. Constitutional provisions are invoked with passion in some cases, yet ignored in others. The Constitution becomes a shield for allies and a weapon against perceived opponents.

The controversy over Pa Edi Faal’s appointment has centred on Section 139(2) of the 1997 Constitution, following the position adopted by the Gambia Bar Association after its Emergency General Meeting. The Association maintains that Mr. Faal does not satisfy the constitutional qualifications required for appointment to the office of Chief Justice.

Section 139(2) provides that a person is qualified for appointment as a Justice of the Supreme Court if he or she has served as a judge of the Court of Appeal for at least five years; has served as a judge of a court of unlimited jurisdiction in a common law country for at least five years; or has been qualified to practise as an advocate before a superior court of unlimited jurisdiction in a common law country for at least twelve years.

The Bar Association argues that Mr. Faal satisfies none of these constitutional pathways. It notes that he has never served on the Court of Appeal, has not held judicial office in another common law jurisdiction, and that his international legal practice, including work at the International Criminal Court and other international institutions, does not amount to the constitutional requirement of twelve years’ legal practice before a superior court of unlimited jurisdiction.

These are serious constitutional questions deserving careful examination. However, the seriousness of an argument does not automatically establish its consistency. Constitutional fidelity must be measured not only by what is said today but also by what was ignored yesterday.

That is where legitimate questions arise.

The same Bar Association that now invokes Section 139(2) with commendable vigour remained largely silent throughout the Yahya Jammeh era as dozens of constitutional amendments fundamentally altered the country’s legal and democratic landscape. During those years, many constitutional violations passed with little institutional resistance from bodies that now present themselves as uncompromising guardians of constitutionalism.

This historical inconsistency inevitably raises questions about whether today’s constitutional activism reflects enduring principle or selective application.

An equally important comparison can be drawn with the appointment of Dr. Lamin J. Sise as Chairperson of the Truth, Reconciliation and Reparations Commission (TRRC).

His appointment was governed by Section 200(1) of the Constitution, which provides that the Chairperson of a Commission of Inquiry shall be, or have been, a judge of a superior court in The Gambia or elsewhere, or be qualified for appointment as such a judge.

Dr. Sise had never served as a judge either in The Gambia or abroad. Yet his appointment generated little constitutional controversy. There was no comparable emergency meeting by the Bar Association, no widespread public campaign questioning his constitutional eligibility, and no sustained national debate over the interpretation of Section 200(1).

Whether that appointment was constitutionally sound remains open to legal debate. The more important question is why similar constitutional scrutiny was absent then but has become so vigorous now.

The Constitution itself has not changed. What appears to have changed is the political environment in which constitutional arguments are advanced.

This inconsistency has fuelled public perceptions that constitutional objections are sometimes influenced by politics rather than applied uniformly. Such perceptions are damaging to public confidence in both the legal profession and constitutional governance.

The debate surrounding Pa Edi Faal has also revealed deeper political undercurrents. Rather than remaining a purely legal discussion, it has increasingly become entangled with questions of identity, political allegiance, regional loyalties and personal rivalries. Once constitutional interpretation becomes intertwined with such considerations, public confidence in the rule of law inevitably suffers.

The legal profession carries a unique responsibility to rise above political divisions. The Constitution cannot command public respect if it is seen as a document invoked only when convenient or only against particular individuals.

Some of today’s most vocal constitutional commentators were notably absent during periods when the country’s constitutional order faced far greater threats. During military rule, when democratic institutions were systematically weakened and constitutional safeguards frequently ignored, many of those who now speak most forcefully remained silent.

History matters. Institutional credibility is strengthened not by selective intervention but by consistent defence of constitutional principles regardless of the political circumstances or personalities involved.

This is not to suggest that Pa Edi Faal’s appointment should escape constitutional scrutiny. On the contrary, every public appointment should comply fully with the Constitution and be subjected to objective legal examination.

However, constitutional scrutiny must be applied consistently to every appointment, regardless of the individual concerned or the prevailing political climate. Equal application of constitutional standards is the foundation of the rule of law.

If the Gambia Bar Association wishes to reinforce public confidence in its role as the guardian of legal ethics and constitutionalism, it must demonstrate that its interventions are guided solely by law and not by political expediency, historical convenience or selective activism.

The Constitution belongs to every Gambian. It is neither a tribal document nor a political instrument. It is the supreme law of the Republic, demanding equal application, impartial interpretation and unwavering respect.

The greatest danger facing constitutional democracy is not merely that the Constitution may be violated. It is that constitutional principles may be enforced selectively—strictly against some while overlooked for others.

A nation governed by the rule of law cannot afford selective constitutionalism. Constitutional consistency, institutional integrity and equal justice remain the only durable foundations upon which democratic governance can stand.

The debate over Section 139(2) should therefore become more than a dispute about one appointment. It should serve as an opportunity for national reflection on whether The Gambia is prepared to uphold constitutional standards consistently, impartially and without fear or favour.

That is the true test of constitutional democracy. And that is the standard the Gambian people deserve.