Barrister Surahata Semega Janneh, the most senior member of the Gambian bar, who served for 45 years, told Foroyaa that it would be wrong to arrest and detain a magistrate for what he has said or ordered in his court.
The doyen of the bar made this statement in his office in Banjul during an exclusive interview with this reporter on Wednesday, 18 November, 2015.
“I am absolutely clear in my mind in answer to your question that it is highly improper and contradictory to the Constitution for a judicial officer like a magistrate or a judge to be arrested and detained and charged with the offence of carrying out his or her duty or making a pronouncement, giving an order or judgment in his or her own court. The reason is that the judicial officers have immunity because unless there is immunity they may not do a lot of things inside their court,” said Barrister Janneh.
However, he clarified that a magistrate or a judge does not have immunity from arrest and detention in all circumstances, citing stealing and murder offences which they may be involved in because such actions have no link to the proceedings they are presiding over.
“But what we are talking about is the pronouncement in the court either by a judge or a magistrate is not an offence that causes his arrest and detention. That is my clear opinion and I have no doubt that it is the position of the law,” he stressed.
Lawyer Semega Janneh added “It is bad, really, to take such a step. For another reason, it is very important to maintain the confidence of the public in the administration of justice and unless the public is satisfied that a magistrate is independent enough to say what he wants to say, in accordance with the law, in his own court, without being subjected to arrest and detention, otherwise a great deal of harm will be done to the administration of justice.”
He noted that arresting, detaining and prosecuting a magistrate or a judge poses a challenge to the independence of magistrates and judges.
“It is wrong to arrest and detain a magistrate for what he has said or ordered in his court. He is immune to arrest or criminal prosecution. I think what should be done is if a magistrate did something wrong in his court, he should be given an opportunity to clear himself before the appropriate authority, perhaps the Judicial Service Commission. But the only way he can do that is by being invited by the Commission giving notice of the civil charges against him and let him answer. If he answers, that is it, and if he cannot, then perhaps he could be sacked. But to prosecute is definitely contrary to the immunity which has been bestowed on him by law,” he concluded.
Senior Barrister Janneh is the leading doyen of the Gambian bar by virtue of being the longest serving lawyer. He was the first Gambian Master and Registrar of then Supreme (High) Court of the Gambia. He held the presidential position of the Gambia Bar Association and also vice chairman and is a founding member of African Commission on Human and Peoples’ Rights (ACHPR).