In the past two weeks, six current and former top officials of Justice Ministry have come under criticism over their alleged receipt of US$200,000 (approx. D10.2 million) from Organisation of Islamic Cooperation (OIC) for their role in the case at the International Court of Justice against Myanmar for the human rights violations of the Rohingya Muslims.

On April 13, the Attorney General and Minister of Justice Dawda Jallow wrote to OIC Gambia Secretariat, requesting for them to distribute the money among 6 lawyers as follows:

• Abubacarr Marie Tambadou, former Attorney General and Minister for Justice, US$ $39,000
• Hussein Thomasi, Solicitor General, US$32,000
• Cherno Marenah, former Solicitor General, US$29,000
• Bafou Jeng, senior lawyer, US$31,000
• Amadou Jaiteh, legal counsel at Gambian Embassy in New York, US$29,000.

But is the official version of the story surrounding this payment true? Was the payment actually meant to be an honorarium or was it a fee charged by the officials of the MOJ?

An honorarium is a payment for professional services, in this case to Gambia’s legal team, that are rendered nominally without charge.

And charges simply mean a price asked for goods or services, in this case services of Gambia’s legal team.

Let’s examine how we got to the honorarium. 

The charges for the international legal firm, Foley Hoag, are calculated based on an hourly rate of lawyers.

According to a communication from Gambia’s Justice Ministry, through the Gambian embassy in Riyadh to the OIC Secretariat, the hourly rates for Hoag are as follows: US$345 to US$635 for associate attorneys, US$645 to US$950 for the counsel and partners and US$245 for paralegals.

And Gambia had requested for Foley Hoag to limit lawyers on the case to 6. Thus, the Ministry concluded that the estimated amount of legal fees to be paid to Foley Hoag will amount to US$1.5 million per year.

And, according to AG Jallow, given the issues arising in the case, the trial is expected to prolong, and therefore the cost will increase; perhaps up to $10, 000 000.

“We [Justice Ministry] estimate that the average annual legal fees would total approximately US$1.5 million per year for the external legal team, and a flat sum amount of US$420, 000 per year for the national legal team of three lawyers including the agent.

Please note that this is an average annual amount over the course of the entire case,” the letter said. 

Let’s consider few things. The charges for Foley Hoag are hourly fees for lawyers, suggesting it could go up depending on the nature (documentations or filings or others works by the lawyers) of the trial or frequency of the sittings of the court.

However, the money to be paid to the local legal team is a flat sum, $420,000 yearly.

And perhaps, the most interesting sentence in the letter is this: “This estimate (the legal cost) only includes the professional fees of the national and international lawyers, including the non- Foley Hoag lawyers who are appointed to the team with the Gambia’s approval”

Now, since the issue of the honorarium is addressed, one may ask: why was the payment $200, 000 and not the yearly fee of $420, 000?

Well, because The Gambia is struggling to raise funds for this case. Even the payment for Foley Hoag, for the first year for a case that is in its third year, could not be completed.

They were so far paid little over $1 million, said AG Jallow on West Coast Radio’s Coffee Time with Peter Gomez.

In September last year, the Gambian Ambassador to Riyadh Omar Gibril Sallah, visited the OIC Secretariat to express concerns over the late payment of the legal fees of the firm.

“Lack of payment since December 2019, I emphasized, means that they have not been able to pay the vendor who provides certain services for the work, including the translators and cartographers.

Their translators include members of the Rohingya community, and it is especially difficult not to pay them on time for their work,” Mr Sallah said, as stated in a confidential report of their meeting.

“Consequently, as lack of payment is not financially sustainable for the legal firm, I pointed out that it may decide to withdraw its services and this would certainly be embarrassing to The Gambia and the OIC.”

AG Jallow expressed similar concerns in November 2020 at the OIC Council of Foreign Ministers’ meeting in Niger. “… The Law Firm (Foley) has had to pre-finance almost all the expenditure related to the case preparation and filing at the ICJ,” said Jallow to OIC Foreign Ministers.

The law firm which is owed about $6 million, according to AG Jallow, is still not paid even its first-year expenses but an honorarium is paid in half to Gambian officials who were on official duties, enjoying all benefits that come with such?

The Gambian officials, who comprised the local legal team, were representing the Gambia in that Court.

How is it not a fee or charges if it were demanded or asked for or negotiated by the Ministry of Justice?

According to Section 18 of the Public Service Act, “a fee, reward or remuneration of any kind whatsoever, beyond the emoluments, shall not be received and kept for his or her use by a public officer for the performance of any service for the government, unless specifically authorized by law or the terms of his or her appointment by the Secretary General”. 

But Dawda Jallow said on West Coast Radio that the payment was approved by the Secretary General even though this is not independently verified.

But if indeed this was a paid work as the facts suggest, doesn’t it conflict with section 17 of the Public Service Act?

This section states that a “public officer may carry out a paid work in addition to his or her normal public service duties, provided that such work shall not be carried out during official working hours or at such other times as prejudice to his or her official duties.

No government resources shall be utilized in carrying out such work and the approval of the Secretary General had been previously obtained”. The facts suggest the Ministry made the charges of a flat sum of US$420, 000 yearly.

And all costs relating to the Ministry’s activities in this trial were taken care of by tax payers. Would this “honorarium” qualify as a charged fee paid for a job done within official hours and by public officers whose transactions were financed by taxpayers?

I am inclined to say yes. 

But perhaps, the most significant issue to look at in terms of potential unconstitutionality is Section 222 (12) on the Code of Conduct for public servants in the 1997 Constitution.“A public officer shall not ask for or accept any property or benefits of any kind for himself or herself or any other person on account of anything done or omitted to be done by him or her in the course of his or her duties.”
The officials at MOJ asked for the fee, according to their own internal documents. They were the beneficiaries and they accepted the payment.

But these are not the only puzzling questions in relation to the “honorarium”. The payment is supposedly half of the yearly fee due for the local legal team for their first year.

AG Jallow only comes in at the second half of the second year, considering he started in July 2020. Why did he have the payment? Why did the current Minister and Solicitor General get more than their predecessors who did most of the work?

And even the manner by which the Ministry and authorities treated this case shows they want it to remain secret. Even where they were given the chance to come clear on the issue of the “honorarium”, the officials only kept mentioning $200, 000.

Why didn’t they explain that a total of $420, 000 was the fee due for the Gambian legal team and that this payment is supposed to be yearly?

If the complication to raise funds for this case persists as it does, wouldn’t it be odd that the Gambian legal team is paid honoraria when a firm they have hired is not fully paid even its first-year expenses?

Who is legally responsible for paying the external law firm`s fees?

Clearly not the OIC! AG Jallow told Foreign Ministers of OIC-member countries in November last year that they are being troubled by the international law firm for non-payment of their money which, we are told, is about $6 million in arrears, surpassing initial estimates which was $1.5 million annually.

Jallow said in Niger: “In fact, our Lawyers (Justice Ministry of the Gambia) are under intense pressure from the Law Firm’s Management Committee, as the lack of payment is not financially sustainable for the firm (Foley Hoag).”
Based on the foregoing facts, I find it reasonable to make the following conclusions:
–Officials of the Ministry of Justice appeared to have negotiated for themselves a flat fee for the execution of their official duties and professional fees for the international law firm conducting the case.

–   AG Jallow claims on West Coast Radio that the $200, 000 was a fee for 18 months which is inaccurate given the charges, according to their Ministry’s files, were a flat sum of $420, 000 annually. This therefore suggests a deliberate attempt to mislead the public about the issue.

 

• That AG Jallow claims he brought up the payment with the President because it is not contained in “black and white”(writing) for him when he came to the Ministry. This is weird considering I have seen at least 15 correspondences on the issue between Ministry of Justice and OIC Secretariat in Riyadh and the Gambian Embassy in Riyadh.
• That the AG Jallow and SG Thomasi are not entitled to receive anything from the first-year payment which is reportedly the arrears that are being settled.
• The request and receipt of the so-called honoraria flouts Section 222(12) of the Code of Conduct in the 1997 Constitution.

Background of Gambia’s ICJ case with Myanmar

In April 2018, Foreign Ministers of OIC-member countries met in Dhaka, Bangladesh, culminating into the creation of a ministerial committee to pursue accountability for human rights violations against the Rohingyas.

Gambia, represented at this meeting by former Justice Minister Abubacarr Marie Tambadou who was delegated by former Foreign Minister Ousainou Darboe, was unanimously elected to chair the Committee.

The initial meeting of this Committee on February 10, 2019, took a decision to file a case against Myanmar at the International Court of Justice. And the Gambia was unanimously endorsed to file the case in its name as a State Party to the ICJ.

For this legal battle, Gambia selected the US-Based international legal firm Foley Hoag.