[Note: This is part IV of a blog series on judicial globalization, in addition to the introduction]
Judges have an active role in the global legalization process of setting judicial standards; developing and borrowing general principles, and interpreting statutes in conformity with international and regional human rights instruments as noted in Part I of this series. Increasingly courts are called on to apply global standards and norms. Therefore, courts decide cases based on global rules. On the other hand, courts use foreign case law as precedents or for argumentation in their legal reasoning.
As illustrated in Part II and Part III of this symposium, the explicit use of international law and foreign decisions is found in the Constitution of South Africa, which allows the Constitutional Court to use both international and foreign law to determine the substantive meaning of its Bill of Rights. South African judges have been comparatively open to foreign law in rendering their decisions. As can be seen, comparative law played a major role in the development of South Africa’s jurisprudence. Evident from following evolving transnational consensus to citing foreign law or distinguishing the position of South African from another foreign jurisdiction.
The 1997 Constitution of The Gambia does not mandate the Supreme Court to use international law to interpret various provisions of the Constitution. In essence, there is no enforceable provision that specifically allows the courts to rely on international treaties to which The Gambia is a party in interpreting the fundamental rights and freedoms contained in the Constitutions.[1]
Section 216(3) of the Constitution obligates the state to be guided by international human rights instruments in making policies for the protection of fundamental rights and freedoms. Section 211(b) further empowers the courts to have regard to these state policies in interpreting any laws based on them. Section 219(c) and (d) of the Constitution also provide that:
The State shall endeavour to ensure that in international relations it:
(a) promotes and protects the interest of The Gambia;
(b) seeks the establishment of a just and equitable international economic and social order;
(c) fosters respect for international law, treaty obligations and the settlement of international disputes by peaceful means; and
(d) is guided by the principles and goals of international and regional organisations of which The Gambia is a signatory.
As noted by Nabaneh, these provisions “as directive principles of state policy, do not confer legal rights and are not enforceable, but all organs of government should be ‘guided by and observe them.’[2] There is a strong presumption in common law systems that statutes and the common law will be read so as to be compatible with international law, save where the provisions of a statute or common law clearly preclude such an interpretation. This principle was specifically recognized in Gambian law by Moshood Adio J, on behalf of the pre-1994 Supreme Court (now the High Court), in the case of Abdulrasheed Mohamed v. the State (Unreported). This approach is also in keeping with the principle of Gambian constitutional interpretation set out by the Privy Council in the case of Attorney General v. Jobe (No 2) [1960-1963] GLR 226, whereby the Constitution, ‘in particular that part of it which protects and entrenches fundamental rights and freedoms to which persons in the State are to be entitled, is to be given a generous and purposive construction.’
While the Gambian Supreme Court has been known to cite foreign decisions from other common law jurisdictions, it is important that the Constitution has an enforceable provision that allows the courts to interpret constitutional provisions progressively. The provision should clearly mandate that the interpretation of constitutional provisions, especially the fundamental human rights chapter must be enlightened by the consideration of international law. It is evident that since the establishment of the South African Constitutional Court in 1994, it has become fearless in citing foreign precedents in its reasoning. The extensive foreign cases cited deal mainly with human rights issues. This points to the confidence of the Court in its independence and its role in judicial globalization. The jurisprudence of the South African Constitution serves as a model of the role judges can play in facilitating global judicial and constitutional dialogue. As in the case of South Africa, acceptance of the role of both international and foreign law in constitutional adjudication coexists peacefully in the uniqueness of their constitutional identity.
Indeed, courts in The Gambia have extensively utilized foreign authorities in their citations. But they have largely shied away from directly applying international law and subsequently, developing inconsistent practice in relation to international law. However, given that The Gambia is a party to international, regional, and sub-regional bodies, the courts need to decide cases based on global law and standards. Regardless of the dualist approach, the national legal system is bound to conform to global human rights standards.
There can be no doubt that it will be helpful for our courts to consider the approach of other jurisdictions while being well attuned to differences among legal systems. As noted by the Constitutional Court of South Africa in the Sanderson v Attorney-General, Eastern Cape case “the use of foreign precedent requires circumspection and acknowledgment that transplants require careful management.” The Gambian courts should have a strong incentive to look to other democracies in light of its recent history. In developing an indigenous jurisprudence after a dictatorship, the Gambian judiciary must be willing to look at international human rights law and foreign law. As a comparativist enthusiast, The Gambia’s effort in consolidating democracy must endeavor to build a solid foundation to move confidently in the future. Our transition from an authoritarian regime to a democratic one is in part looking at external foreign sources of law, such as international law and foreign case law: the expansive repository of rules and standards. This is particularly important if international human rights law is to have a prominent place in the governance of the country. Justice Ginsburg has explained that in her view:
comparative analysis emphatically is relevant to the task of interpreting constitutions and enforcing human rights. We are the losers if we neglect what others can tell us about endeavors to eradicate bias against women, minorities, and other disadvantaged groups. For irrational prejudice and rank discrimination are infectious in our world.
In The Gambia’s subsequent constitution building, comparative law should play a major role in the development of The Gambia. A willingness to look at foreign law and international law is “no impediment to developing and maintaining distinctive legal approaches that respond to the particular history, values, and needs of a nation.”[3] As noted by Kozyris:[4]
What comparativists share . . . is a passion for looking beyond, an empathy for differences but also for similarities, a faith in the self-transformative task of learning, and an interest in the form of knowledge itself.
It is time we join the global conversation.
[1] See Satang Nabaneh ‘The Gambia: Commentary’ in Rudiger Wolfrum, Rainer Grote & Charles Fombad (eds.) Constitutions of the World (Oxford University Press, 2017), pp. 34-36.
[2] Satang Nabaneh ‘The impact of the African Charter and the Maputo Protocol in The Gambia’ in Victor Ayeni (ed) The impact of the African Charter and Maputo Protocol in selected African States (Pretoria University Law Press, 2016), p. 78.
[3] Chief Justice Beverley McLachlin, Keynote Address: The Use of Foreign Law—A Comparative View of Canada and the United States, 104 Proceedings of the Annual Meeting of the American Society of International Law 491(2010), p. 493.
[4] P. John Kozyris, Comparative Law for the Twenty-First Century: New Horizons and New Technologies, 69 Tul. L. Rev. 165, 166–68 (1994).
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