Edi MO Faal has been nominated as The Gambia’s next Chief Justice. The nomination, which has drawn considerable attention and debate within the country's legal and political circles, positions Mr. Faal as a potential successor in the nation's highest judicial office. This proposed appointment has sparked significant discussion regarding the qualifications and judicial philosophy expected of a Chief Justice, particularly in a nation undergoing critical legal reforms and constitutional development.
Retiring Justice's Legacy
Mr. Edi MO Faal's potential appointment would see him replace the retiring Chief Justice Hassan B Jallow. Justice Jallow is widely recognized for his substantial contributions to legal literature, having authored several influential books. These include significant works such as "Justice and the law in The Gambia" and "Journey for justice," which have provided valuable insights into the country's legal landscape and the broader pursuit of justice. Beyond his domestic achievements, Justice Jallow has an impressive record of international service, notably including a distinguished tenure as Prosecutor of the UN International Criminal Tribunal for Rwanda. This international role showed his commitment to international justice and human rights.
Domestically, Justice Jallow played a key role in shaping The Gambia's future constitutional framework. He led the Constitutional Review Commission (CRC), an independent body tasked with drafting a new constitution for the nation. The CRC operated diligently between 2018 and 2020, engaging with various stakeholders and gathering public input to ensure a full and representative document. The commission's extensive work culminated in a draft constitution, which was subsequently tabled before the National Assembly on September 14, 2020. This draft was envisioned as a foundational document for a new era of governance in The Gambia, building upon the nation's democratic aspirations.
Faal's Qualifications Questioned
Edi MO Faal is a trial attorney based in California, with a career spanning 44 years of litigation experience. His professional background includes representing various clients in complex legal matters. Mr. Faal has also served as counsel for The Gambia in cases before the International Centre for Settlement of Investment Disputes (ICSID), an international arbitration institution. His legal work for the country has included representing The Gambia in international arbitration matters, which typically involve disputes between states and foreign investors. These roles highlight his experience in international legal proceedings, particularly in the realm of commercial and investment law.
The process of constitutional reform, which Justice Jallow spearheaded, was a defining moment for The Gambia. The draft constitution, a meticulously crafted document intended to modernize the nation's legal and political structures, was formally submitted to President Barrow on March 30, 2020, marking a significant milestone in its journey towards adoption. Following its submission, the draft constitution underwent further official procedures, being gazetted on two separate occasions: first on May 28, and again on August 28, 2020. This gazetting process is a key step in making proposed legislation publicly known and officially recorded.
The culmination of these efforts was the parliamentary vote. The draft constitution progressed to a parliamentary vote, where it faced a critical test of political will and consensus. However, despite the full work of the CRC and the aspirations for a new constitutional order, the draft constitution failed to secure the required three-fourths majority in The Gambian parliament on September 22, 2020. This outcome meant that the proposed constitution, which had been the focus of so much national dialogue and effort, could not be adopted, leaving the nation's constitutional future uncertain.
Judicial Temperament and Scholarship
The author of this article has expressed a total and unequivocal rejection of Edi MO Faal's nomination as the next Chief Justice of The Gambia. This strong stance stems from serious concerns regarding Mr. Faal's scholarly contributions and his demonstrated judicial temperament, which are considered essential for such a high office. A full search of legal databases, meticulously conducted and covering an extensive period from 1982 to 2026, yielded no books, law review articles, peer-reviewed papers, or published lectures authored by Mr. Faal on Gambian constitutional, criminal, or commercial law. This absence of scholarly output in the specific legal areas key to The Gambia's jurisprudence raises questions about his deep engagement with the country's legal evolution.
Professor Mahmood Mamdani's scholarship is cited as particularly relevant and insightful in this argument regarding judicial appointments, especially in post-colonial or transitioning nations. Professor Mamdani articulated a profound distinction, stating, "The lawyer who merely practices in the courts of the old regime cannot theorise the new. He reproduces the logic of the system he inhabited. The break requires a scholar-jurist — one who has written his way out of the old order before he can judge the new." This perspective shows the need for a Chief Justice to possess not just practical legal experience, but also a profound theoretical understanding and the ability to critically engage with and shape legal frameworks, rather than merely applying existing ones.
Echoing this sentiment, Lord Bingham, a highly respected jurist, wrote compellingly about the importance of a judge's prior intellectual contributions. Lord Bingham further elaborated on this key point, stating, "The judge who has never expressed a view in writing on the great questions of law comes to the bench untested. The public cannot know the mind that will govern them." This notes the value of published legal thought as a window into a jurist's intellectual capacity, their approach to complex legal issues, and their philosophical underpinnings. Without such a record, the public and the legal community are left without a clear understanding of the judicial philosophy that would guide the highest court. Ruth Bader Ginsburg, another towering figure in legal history, concurred with this perspective, stating unequivocally, "A judge’s writings before the bench are the best evidence of judicial temperament." Her statement reinforces the idea that a judge's prior written work offers invaluable insight into their analytical rigor, their capacity for reasoned argument, and their disposition towards justice—qualities that are critical for a Chief Justice tasked with upholding the rule of law and guiding the judiciary. The complexities surrounding the draft constitution, which was a significant legal document for The Gambia, further show the need for a Chief Justice with a proven record of deep scholarly engagement and a clear judicial philosophy.