By Omar FaFa M’Bai, Esq
The idea for this article arose not from an abstract academic inquiry, but from a series of conversations I have had since The Gambia Law Society publicly expressed its support for the appointment of the chief justice. Since then, a number of friends, colleagues and interested observers within the country and abroad have contacted me, genuinely seeking to understand the relationship between the Gambia Law Society and the Gambia Bar Association and, more particularly, why two organisations comprising members of the same learned profession could arrive at different positions on an issue of such constitutional importance.
One such conversation was with a very good friend of mine, Mr Amadou Koora, Director, Financial Sector and Payment Systems at Waifem (West African Institute for Financial and Economic Management) and a good-governance advocate, who put to me a number of simple but remarkably pertinent questions. If there is already a bar association, he asked, why is there a need for a law society? Are both private professional associations, or does either enjoy a different legal or institutional status? Is there a danger of duplication, conflict of roles or competing interests? Is it common in other Commonwealth jurisdictions for a bar association and a law society to exist alongside each other? Which institution carries greater weight on matters concerning the legal profession? Could the present divergence of views have been avoided? And perhaps most intriguingly, how do two bodies composed of highly accomplished and respected legal minds examine the same issue and arrive at different conclusions?
I thought these were fair and important questions. More importantly, they are questions that many people outside the legal profession may understandably be asking. The present debate therefore offers an opportunity to move beyond personalities and the immediate controversy and undertake a broader examination of the institutions themselves: what they are, what they are not, where their authority comes from, and whether disagreement between them should necessarily be regarded as unhealthy.
I have consequently approached this article not as an advocate for one professional organisation against another, nor as an attempt to revisit the merits of the controversy that brought these questions to the surface. My purpose is principally explanatory. If anything, the present circumstances provide a useful opportunity for lawyers to help the wider public understand the institutional architecture of the legal profession and an important feature of legal reasoning itself: eminent lawyers, acting conscientiously and in good faith, can sometimes examine the same law and legitimately arrive at different conclusions.
There is also a historical dimension to these questions which should not be overlooked. For many years, there was essentially one principal professional association of lawyers in The Gambia, the Gambia Bar Association. In the generation of lawyers to which my late father belonged, the profession was relatively small and, from my own recollection and understanding, possessed a strong culture of collegiality. Its members certainly disagreed, sometimes profoundly, but professional disagreement did not ordinarily have to translate into personal or institutional estrangement.
That generation of lawyers appeared particularly conscious of the dignity and responsibilities that accompanied membership of the profession. There was discipline, humility, mutual respect and an accommodation of different views. Leadership of the profession was approached as service rather than entitlement, and positions within the Executive changed hands over time. Lawyers of different backgrounds, personalities and legal opinions could nevertheless collaborate on matters affecting the profession and the administration of justice.
Many of those lawyers commanded considerable respect beyond the courtroom. To be a lawyer carried with it not merely professional status but an expectation of independence, honesty, restraint, courtesy and responsibility to the wider society. The authority of the bar therefore rested not simply upon the brilliance of its individual members, but upon the public confidence generated by the manner in which the profession conducted itself.
It would, of course, be unfair to romanticise the past or suggest that an earlier generation was without disagreements, rivalries or imperfections. Nor would it be fair to suggest that today’s profession lacks lawyers of exceptional ability, integrity and commitment. The difference, perhaps, lies less in the quality of individual lawyers than in the changing culture and institutional dynamics of the profession.
Today’s bar is larger, more diverse and operates within a considerably more complex political, constitutional and professional environment. Differences of opinion are more visible, professional expectations have changed, and competing perspectives about the proper role of lawyers and their representative institutions have become more pronounced. Where a single professional association may once have been capable of accommodating most shades of professional opinion, some lawyers may today feel that a broader institutional space is necessary.
Seen from that perspective, the emergence of the law society need not necessarily be understood as an act of competition with, or rejection of, the Gambia Bar Association. It may equally be understood as a reflection of the evolution of the profession itself: an additional platform through which lawyers may associate, contribute to public legal discourse and express professional perspectives that may not always find expression through one institution.
Perhaps, therefore, the more revealing question is not simply why a law society should exist when there is already a bar association, but what has changed within the profession that has created the perceived need or space for another professional body. That question requires some honest institutional reflection. A profession sufficiently broad to accommodate diversity of opinion within one organisation may have little appetite for alternatives; where practitioners increasingly feel that their perspectives require another platform, institutional pluralism may become a natural consequence.
This should not be regarded automatically as a criticism of the Gambia Bar Association, nor should the existence of The Gambia Law Society be treated as evidence that the bar association has ceased to have an important role. Both propositions would be too simplistic. Rather, it invites a deeper question about how the culture of a profession evolves, how professional institutions respond to that evolution, and whether unity is best preserved through a single institutional voice or through respectful coexistence between several voices.
It is against that historical and contemporary background that I ask the broader question at the heart of this article: can one profession accommodate two institutional voices, and if so, how should those voices coexist?
Recent developments within The Gambia’s legal profession have brought into public view an important institutional question that extends well beyond any immediate controversy. Why should a relatively small legal profession have both a bar association and a law society? Are these institutions performing different functions, or are they travelling along parallel tracks? Is their coexistence beneficial to the profession, or does it create unnecessary duplication and the possibility of conflicting positions?
These questions have assumed particular importance because the Gambia Bar Association and the Gambia Law Society, although both composed of distinguished and experienced members of the same learned profession, have recently taken different positions on a matter of significant constitutional importance. To the ordinary observer, this may appear puzzling. How can two groups of eminent lawyers examine substantially the same legal circumstances and reach different conclusions?
Yet that question, properly considered, takes us to the very heart of the legal profession. Lawyers are trained not merely to know the law, but to interpret it, question it, test competing arguments and exercise independent professional judgment. The fact that accomplished lawyers disagree is therefore not necessarily evidence of institutional failure. The more important question is whether the institutions through which they speak have sufficiently clear mandates and whether disagreement is managed with professionalism and mutual respect.
An important distinction should first be made between “the bar” and “a bar association”. The bar broadly refers to the body of lawyers entitled to practise before the courts. A bar association, on the other hand, is an organisation through which lawyers associate for professional purposes. The expressions are sometimes used interchangeably in everyday discussion, but they are not necessarily synonymous.
That distinction has practical consequences. When a bar association adopts a position, it speaks institutionally according to whatever authority and decision-making procedures are contained in its governing instruments. That does not necessarily mean that every lawyer within the jurisdiction personally agrees with that position.
This is particularly important when the subject is controversial. Lawyers, like judges, can interpret the same constitutional provision differently while remaining equally committed to constitutionalism and the rule of law. Professional association should therefore not be confused with intellectual uniformity.
The expression “law society” is equally capable of creating misunderstanding because law societies perform different functions in different Commonwealth jurisdictions. In some countries they possess statutory regulatory responsibilities. Elsewhere they principally represent lawyers, promote professional standards, contribute to law reform and defend the administration of justice.
The title of an organisation therefore does not, by itself, determine its authority. The proper questions are: How was the organisation constituted? What does its constitution provide? What legislation, if any, gives it statutory responsibilities? Who belongs to it? And what functions is it authorised to perform?
In this respect, one principle should remain clear: institutional authority comes from law and mandate, not merely from nomenclature, history or prestige.
This leads to an important feature of the Gambian institutional framework. Regulation of legal practitioners should not automatically be confused with representation of lawyers through professional associations.
The General Legal Council occupies an important statutory position within the regulation of the Gambian legal profession, including responsibilities touching admission, professional standards and discipline. That function is conceptually different from the advocacy and representative functions that may be undertaken by a professional association.
We should therefore distinguish between three related but different activities: regulating the profession, representing members of the profession, and advocating on questions concerning law and justice.
Once that distinction is understood, the existence of both a bar association and a law society become considerably easier to analyse.
On the question whether both institutions are needed, I would say that the existence of one professional association does not necessarily make another redundant. The more useful inquiry is what each organisation contributes.
If two organisations have precisely the same membership, objectives and functions, there may understandably be concerns about duplication. Parallel institutions could also create uncertainty if both purport to speak authoritatively for precisely the same constituency on precisely the same matters.
But overlap does not necessarily amount to duplication. Different professional associations can provide different platforms for participation, different perspectives and different approaches to questions affecting the profession.
Indeed, institutional pluralism may sometimes be healthy. No leadership of any professional organisation can reasonably be expected to reproduce perfectly the individual views of every lawyer. The profession includes advocates, corporate lawyers, academics, public-sector lawyers, judges who previously practised, younger practitioners and lawyers whose careers have developed substantially outside the jurisdiction. Their experiences and perspectives will naturally differ.
Nor is institutional diversity peculiar to The Gambia. Across the Commonwealth, there is no single model for organising the legal profession.
England and Wales provide perhaps the best-known example. The Law Society represents solicitors, while the Bar Council represents barristers. Regulatory responsibilities are further distinguished through separate regulatory arrangements.
Canada offers another model. Provincial Law Societies generally perform significant regulatory functions, while Bar Associations undertake professional representation and advocacy.
Kenya presents yet another arrangement, with the Law Society of Kenya established by legislation and occupying a significant statutory position within the profession.
These examples demonstrate why comparisons must be approached carefully. A law society in one jurisdiction may exercise powers that a law society elsewhere does not possess. Similarly, a bar association may be statutory, compulsory or voluntary depending upon the jurisdiction.
The lesson for The Gambia is therefore not that another Commonwealth country’s model should simply be copied. Rather, comparative experience demonstrates that more than one legal institution can successfully coexist where their respective roles are understood.
To be continued Tuesday.
Omar FaFa M’Bai is a legal practitioner, a governance advocate, and a parent based in Dubai, UAE. He writes regularly on institutional integrity, leadership, and education across Africa, Middle East, and Asia.