Court, Human Rights, Opinion

Judicial Review: “Lawyer Lamin Mboge Wants The Supreme Court To Restrain Ya Kumba Jaiteh”:

by Alagi Yorro Jallow.

Fatoumatta: There is noise within the concerned Gambians, particularly by senior counsel Lamin Mboge who wants a judicial review of the landmark judgment involving Yakumba Jaiteh and the Clerk of the National Assembly also the Attorney General that the Supreme Court should review its Judgement.
According to the Foroyaa publication dated 2/6/2020 that “Lawyer Lamin K. Mboge has on Wednesday, 5th February 2020, filed a motion for the Supreme Court to restrain Ya Kumba Jaiteh from assuming her seat at the National Assembly.
Lawyer Mboge wants the Supreme Court to restrain Ya Kumba, pending the hearing and determination of his appeal (known as a review in the legal parlance). The full bench (seven judges instead of five) of the Supreme Court has the jurisdiction to review its own decision. Section 127 of the 1997 Constitution gives the Supreme Court the power to review its case and come up with a determination. If the motion sought succeeds in the review case, the previous judgment will be set aside”.


Fatoumatta: Everyone has cause to disagree with some decisions of the Supreme court, but because the Justices are human, they are susceptible to make mistakes. Nonetheless, that remains the law. In an iprissama verba of Justice Chukwudifu Oputa, then called the Socrates of the Supreme court appears to be a legal precedent in all Anglophone jurisprudence. “We are final not because we are infallible; rather, we are infallible because we are final.”
The Supreme Court of the Gambia is the highest in the land; a ruling was made on this matter. In a case between YaKumba Jaiteh (Applicant) and Clerk of the National Assembly (1st Respondent) Attorney General (2nd Respondent). The Supreme Court judges on 28th January 2020 delivered their judgment. They held that the purported termination of Ya Kumba’s nomination as a member of the National Assembly was unconstitutional because the President lacks such powers under Gambian laws.
Fatoumatta: I am not a lawyer, but I do know that the Supreme Court can only determine appeals to it from the High Court, and once it decides on such appeals, then that marks the end of litigation.
Fatoumatta: It is clear from this ruling that the public policy principle that there must be an end to litigation always carries the day.
There is no other body where the case could be appealed after the Supreme Court, so it is for the best that only the Supreme Court has been given such a power. However, it has to be noted that review is not substituting a judgment. A judgment cannot be unsettled when declared.
Fatoumatta: This is a fundamental principle. It is only reconsidering when the Supreme Court feels that something of grave nature has gone wrong in the judgment. Judgments cannot be taken lightly when they are declared.
Fatoumatta: It has to be understood that power to review is only exercised in the rarest of rare cases. We cannot take our judiciary casually. Humans can indeed make mistakes, but we are not supposed to have only that in our minds. We have to believe that they are always right. We have to know that they are always right.
So, therefore, if in case anything ever goes wrong, it could only be something of a really patent wrong. And in case there is such a grave wrong, we know that we have a provision in our Constitution, which has to be referred.
Fatoumatta: Justice Chukwudifu Oputa was a Nigerian jurist who was Judge of the Supreme Court of Nigeria also known as the Socrates of the Supreme Court considered the powers of the Supreme Court (as the final Court in the land) to review its earlier decisions and said:
“We are final not because we are infallible; instead, we are infallible because we are final. Justices of this Court are human beings, capable of erring. It will undoubtedly be short-sighted arrogance not to accept this obvious truth. It is also true that this Court can do inestimable good through its wise decisions. Similarly, the Court can do incalculable harm through its mistakes.
When, therefore, it appears to teach counsel that any decision of this Court has been given per incuriam, such counsel should have the boldness and courage to ask that such a decision be overruled.
This Court has the power to over-rule itself (and has done so in the past), for it gladly accepts that it is far better to admit an error than to persevere in error.” Justice Chukwudifu Oputa JSC in Adegoke Motors Vs. Adesanya.k

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