By Bubacarr Drammeh
Numerous Gambians both within The Gambia and outside of its territorial jurisdiction were outraged by Yankuba Touray’s refusal to testify before the Truth, Reconciliation and Reparations Commission (TRRC). The outrage was led by The Gambia’s Attorney General (AG), Abubakar Tambadou, who stated that Touray’s actions “were not only in contempt of the Commission and Commissioners but acted in disrespect to the victims of the crimes, their families and the entire nation.” Tambadou said that he was “shocked by the contemptuous conduct” as he condemned totally Touray’s “actions in the strongest terms possible.” The AG promised that Touray will be “prosecuted vehemently.” Gambians in the country took to the streets to register their frustration shouting “never again” as some held banners with the words “Yankuba Must Testify.” Gambians in the diaspora plunged onto social media to express their resentment. Some demanded for the “imprisonment” of Touray alleging he’d shown “no respect for our country.” Some admonished the drafters of the constitution as others dubbed the Immunity Clause a travesty justifying their request for the National Assembly “do their job and get rid of that travesty.”
The TRRC released a statement entitled, “Statement of the Truth, Reconciliation and Reparations Commission”. The statement reads thus:
The Truth, Reconciliation and Reparations Commission has issued multiple subpoenas to Mr. Yankuba Touray to appear before the commission to testify as a person adversely mentioned for his involvement in human rights violations between 1994 and 1996. All those subpoenas were postponed, and the last subpoena was issued on the 24th day of June 2019 for his appearance and testimony before the commission today. During a meeting this morning between Mr. Touray, the chairman and the commission’s staff members, Mr. Touray indicated his refusal to honor the subpoena. He is presently within the premises of the TRRC but as just been seen, he has clearly refused to appear and testify before the commission pursuant to the subpoena. Mr. Yankuba Touray claims that he has immunity from prosecution for all human rights violations that occurred between 1994 and 1997. It must be noted however that even if this immunity claim were to be accepted which is not the case, he cannot lawfully refuse to appear before the commission and answer questions that do not directly violate the immunity he claims. Mr. Yankuba Touray has also been informed on several occasions that failure to respect a subpoena issued by the TRRC constitutes a contempt of court and is therefore liable to be referred to the high court for prosecution. In the light of this, the commission has to act firmly and within the parameters of the law to ensure that actions of this nature are dealt with the full force of the law. I therefore have no choice but to order the immediate arrest of Mr. Yankuba Touray pursuant to Section 15, 1(A) and 15, 2(B) of the TRRC Act of 2017.
Touray appeared before the Commission on June 26, 2019. After he was sworn-in, he was asked by the lead counsel, Essa Faal, what were the problems that the Gambian army faced in the 1990s. Touray responded saying “I am not going to testify regarding that please. I invoke my constitutional immunity on all those issues.” Faal tried to prompt Touray to testify but his attempts proved futile. Touray responded saying “Counsel, I still stand by my position that I invoke the constitutional immunity. The constitution is the supreme law of the country and any proceeding that is against the 1997 Constitution I’m not going to testify, and I will not answer any question to this effect.”
Touray was arrested by the Gambia Police Force on the order of the Chairman of the TRRC. On July 2, 2019, Touray was charged with murder in the High Court. Even though he was arrested for allegedly committing contempt at the TRRC, he was not charged for contempt as directed by the Chairperson of the TRRC and insinuated by the Attorney-General. We all waited in curiosity as to whether Touray will claim constitutional immunity before the high court or would take his plea. On Monday, June 8th, Touray pleaded immunity before the high court. The Judge entered a ‘not guilty’ plea. Even though the AG concurred that entering a ‘not guilty’ was the right thing to do, he submitted that Touray’s immunity claim is a challenge to the court’s jurisdiction. The court must therefore, he argued, address the issue of jurisdiction before proceeding with trial. The court would rule on the submission of counsel on its next adjourned date. Whatever the outcome, the immunity clause in the 1997 Constitution for the first time came under serious national scrutiny.
Yankuba Touray’s defiance to testify before the TRRC on the claim that he is protected by the Constitution of The Gambia by virtue of the immunity clause sparked a nationwide debate on the issue. The natural question that stem from the aforesaid is, does the 1997 Constitution provide immunity for members of the Armed Forces Provisional Ruling Council (AFPRC) and its appointees?
Legal scholars and commentators differ on whether the constitution grants Touray and his colleagues immunity. But even for proponents who argued that the constitution grants members of the AFPRC immunity, the question that lingers is whether the immunity is blanket or qualified (limited). Considering that this as an important national discourse, I wallow in to express my opinion on this legal question before the Supreme Court does.
Before proceeding any further, let’s take a tour in history to the circumstances that led to the emergence of the AFPRC, the manner it governed The Gambia, and transition into a civilian government it crafted under a framework of a constitutional arrangement to give itself a new lease on political power in The Gambia that extended to twenty-two years.
In July 1994, The Gambia National Army headed by five junior officers, removed the democratically elected government of The Gambia from office through a military coup d’état. They constituted a military council called the Armed Forces Provisional Ruling Council (AFPRC). They announced that they will remain in power for four years and then hand power over to a civilian government after the completion of their transitional agenda to end “rampant corruption.” Despite their promise of heaven for Gambian, there was sustained international pressure on the regime to hand power over to a civilian government. The AFPRC reluctantly bowed to international pressure and agreed to a two-year transition period. The AFPRC ruled the country under its dictatorship from July 1994 to January 1997.
After fleeing the country as the deposed leader and in exile in the United Kingdom, the former president of The Gambia, Sir Dawda Kairaba Jawara, filed a complaint before the African Commission on Human and Peoples’ Right on September 6th1995. He alleged that after the military coup of July 1994 that overthrew his government, there were blatant abuse of power by the military junta. He accused the military government of presiding over a reign of terror, intimidation, and arbitrary detention of citizens. The AFPRC abolished the Bill of Rights contained in the 1970 Gambian Constitution and ousted the competence of the courts to examine or question the validity of any decree passed by the council. The AFPRC banned political parties, ministers of the PPP, politicians and all citizens from taking part in any political activity. The regime restricted freedom of expression, assembly, and movement. Many civilians were allegedly killed, arrested and detained without charge, kidnapped, and tortured. Notably are Ousman Koro Ceesay—a former minister who served in the government of junta as Minister of Finance, and Sadibou Hydara—a founding-member of the military council were believed to have been brutally murdered by foul play of the regime. In November 1994, at least fifty soldiers were executed in extrajudicial exercise and buried in mass graves by the AFPRC government during an allegedly staged-managed attempted coup. Several members of the armed forces were detained (some for up to six months) without trial. The Minister of Interior was empowered to detain and to extend the period of detention incessantly. The regime prohibited habeas corpus proceedings on any detention undertaken in furtherance of its orders, policies and decrees.
The AFPRC denied all allegations made by the former president. The AFPRC claimed that even though there was a change of circumstances in The Gambia, its actions were in conformity with laws previously laid down by domestic legislations. The regime further contended that it did not prohibit the enjoyment of freedoms, but rather that its actions were merely to secure peace and stability of the country. It claimed to arrest and detain only people who disrupted the peace. Furthermore, the AFPRC asserted that after it seized power in the country, not a single individual was deliberately killed; and that during the countercoup of 11th November 1994, soldiers on both sides lost their lives due to the rebels fighting back against loyalist soldiers. The regime insisted that Ceesay died from an accident and Hydara from natural causes. Official post-mortem reports were produced as evidence for both deaths. The AFPRC did not refute allegations of arbitrary arrests and detentions, but defended its position stating that its action must be studied and placed in the context of the changed circumstances in The Gambia.
Before the end of the AFPRC’s two-year transition period, the regime set up a Constitutional Review Commission (CRC). The CRC was tasked to draft a new constitution that will replace the suspended 1970 constitution. The CRC drafted and eventually presented the 1997 constitution to The Gambian people for adoption in referendum. The referendum was conducted in August 1996 and the Draft Constitution was approved by the electorate with 70 percent support. Upon approval followed by the conclusion of the subsequent presidential and parliamentary elections the approved Draft Constitution took effect to become the 1997 Constitution that is currently in place.
Paragraph 13 of Schedule 2 entitled ‘Transitional and Consequential Provision’ grants immunity to members of the AFPRC. I hereby reproduce the said constitutional provision Ipsissima verba for our purpose of analysis.
Section 13 (1) of Schedule 2 of the 1997 Constitution entitled Transitional and Consequential Provision provides thus:
No member of the Armed Forces Provisional Ruling Council, any person appointed minister by the Armed Forces Provisional Ruling council or other appointees of the Armed Forces Provisional Ruling Council shall be held liable either jointly or severally, for an act or omission in the performance of his or her official duties.
There seems to be no contention that the aforementioned constitutional provision provides immunity for members of the Armed Forces Provisional Ruling Council (AFPRC) or anyone it appointed with respect to acts or omissions they committed in the performance of their official duties. This assertion is further reinforced by the decision of the Supreme Court of The Gambia in the case of Jammeh v Attorney-General (2002) when the court held that “Paragraph 13 of Schedule II to the Constitution, provides for immunity from legal proceedings of members of the Armed Forces Provisional Ruling Council or their appointees for acts or omissions in the performance of their official duties.”
Does this mean that the members of the AFPRC are immune from all criminal and civil liability for acts or omissions in the performance of their official duties? The Supreme Court is yet to answer this question. The word “liable” will be at the center stage whenever the Supreme Court is confronted with this question. There is no doubt that the position of the Supreme Court as of now is that, the members of Armed Forces Provisional Ruling Council and their appointees are immune from legal proceedings for acts or omissions in the performance of their official duties. The court did not rule on whether the immunity is for all criminal proceedings or civil proceedings or both. The Supreme Court will definitely resort to statutory interpretation in order to determine the extent of the immunity as prescribed in Paragraph 13.
Some courts adhere to the principle that if the words of a statute are clear and unambiguous, the court need not inquire any further into the meaning of the statute. The court does so by looking at different sources. The court looks at primary sources such as statutory definition and case law. Many statutes contain a definition section that sets forth and defines the key terms used in the statute. And oftentimes one will find that the statute one is analyzing has already been analyzed and interpreted by a court. When primary source materials are insufficient, courts look to other sources of authority to discern the meaning of a statute. These sources include dictionaries, legal encyclopedias, and legislative history documents. I have not found a Gambian case that interpreted the word ‘liability,’ nor do I find its interpretation in the interpretation Act of The Gambia. I will therefore, resort to secondary sources. The black law dictionary defines liability as “the quality or state of being legally obligated or accountable; legal responsibility to another or to society, enforceable by civil remedy or criminal punishment.” The definition of liability seems “clear and unambiguous.” Furthermore, since immunity involves a promise not to be prosecuted for a crime or protection of public officials from liability for their decisions, it is prudent to conclude that the immunity in Paragraph 13 of the 1997 constitution involves both civil and criminal liability. This position, if adopted by the Supreme Court, would mean that the members of the AFPRC or their appointees are immune from criminal and civil proceedings in the performance of their official duties.
Another argument that could be proposed to the Supreme Court is that the word ‘liable’ as used in paragraph 13(1) excludes criminal liability. The constitution being the Supreme Law of the land will not grant immunity for crimes such as murder, rape, torture, etc. These crimes are not just atrocious, but they are also a violation of the fundamental human rights of The Gambian people as provided for in Chapter 4 of the Constitution. Therefore, interpreting the word ‘liable’ to involve criminal liability will lead to an absurdity. Notwithstanding the position of courts that if the language of a statute is plain and unambiguous it must be given effect. Courts have made it emphatically clear that it will deviate from such position if it would lead to absurd or mischievous consequences. Even if the word liable would be interpreted to involve criminal liability, it must be limited to liability for decisions taken in an official capacity and in good faith. Thus, the only reasonable and innocuous interpretation is to exclude criminal liability. If the court is to adopt this position, it means the members of the AFPRC and its appointees are not immune from criminal proceedings.
Paragraph 13(3) of schedule 2 provided thus:
For the avoidance of doubt, it is declared that no action taken or purported to have been taken in the exercise of the executive, legislative or judicial power by the Armed Forces Provisional Ruling council or a member thereof, or by any person appointed by the Armed Forces Provisional Ruling Council in the name of the Armed Forces Provisional Ruling Council . . . shall be questioned in any proceedings whatsoever and, accordingly, it shall not be lawful for any court or tribunal to make any order or grant any remedy or relief in respect of any such act.
This sub-paragraph was crafted to serve as a clarification to the previous paragraph and subsequent paragraphs. It was designed to establish that the AFPRC’s official duties include not only executive power but legislative and judicial powers.
When the AFPRC seized power, it suspended the 1970 constitution and dissolved the House of Representatives. The junta government ousted the jurisdiction of the courts with respect to questioning the validity of its decrees. The AFPRC exercised executive, legislative, and judicial powers. The AFPRC made the laws, executed the laws and in some instances adjudicate through the court-martial process. Even though court-martials are part of almost all judicial systems in the world, the ones that operated during the administration of the junta were sham and Kangaroo courts. With such enormous powers, the AFPRC was unstoppable. The regime could do everything and anything because it has unlimited powers to govern. Consequently, the junta was accused of terrorizing the citizens and misusing the resources of the state. It allegedly went after all those who refuse to recognize it as a legitimate government using the powers it accorded itself. Thus, when it was time to hand power over to a civilian government, it ensured that members of the AFPRC and its appointees were accorded immunity for their alleged brutal behaviors. Thus, the indispensability of Paragraph 13 of Schedule 2 of the 1997 Constitution.
The gist of Paragraph 13(3) of schedule 2 is to elucidate that any action taken by the AFPRC or members of AFPRC or a person appointed by the AFPRC in the exercise of a judicial, legislative or executive powers; or claimed to have been taken in the exercise of a judicial, legislative or executive powers; or appears to have been taken in the exercise of a judicial, legislative or executive powers; or alleged to have been taken in the exercise of a judicial, legislative or executive powers cannot be questioned in any proceeding whether judicial proceeding, quasi-judicial proceeding, or non-judicial proceeding.
If this submission is accepted by the Supreme Court, it would mean that no court or commission, including TRRC, can question Yankuba Touray or any member of the AFPRC or their appointees for actions taken or purported to have been taken from July 1994 to January 1997.
A counter submission would be that a text in a statute has no meaning until it is interpreted. To accurately interpret this section, one must use contextual clues to interpret the meaning and the scope of the words and phrase in it. One way of doing so is to examine what the drafters intended and what the Gambian people understood at the time of endorsing the 1997 Constitution. It is reasonable to argue that the drafters did not intend to grant immunity for murder, rape, torture, etc. The drafters granted immunity on acts or omission that may have been taken by members of the AFPRC and its appointees in the exercise of their official duties. Official duties of a government certainly did not encompass rape, torture or extrajudicial killings. The Gambian people certainly did not vote to grant immunity for the murderers, rapists and torturers of their fathers, mothers, husbands, wives, children and grand-children. Furthermore, the AFPRC bragged about conducting a bloodless military take-over in which not a single individual was killed. The regime asserted before the African Commission on Human and Peoples’ Right that Koro Ceesay and Sadibou Hydara died from an accident and natural causes, respectively. Furthermore, it declared that during the countercoup of 11th November 1994, soldiers on both sides lost their lives due to the rebels fighting back at soldiers loyal to the government. The AFPRC acknowledged arresting and detaining people but claimed that it did so in order to maintain peace and stability.
Premised on the aforesaid narrative of the AFPRC and the events prior to the 1996 referendum, it is reasonable to conclude that the immunity covers acts or omission that were taken in good faith which may have violated the laws of The Gambia at the time. This also includes acts or omissions the AFPRC acknowledged to have committed as part of its official powers but not heinous offences and human rights violations such as murder and torture.
Paragraph 13(4) of schedule 2 provides thus: The provisions of subparagraph (3) shall have effect notwithstanding that any such action as is referred to in that subparagraph was not taken in accordance with any procedure prescribed by law.
This subparagraph seems to eliminate any submission that the immunity sought in subparagraph 3 would be applicable to actions that were in accordance with procedures prescribed by law.
Proponents of immunity believe that this subparagraph removes any ambiguity. It is inserted to make it clear that the actions taken or purported to have been taken by members of the AFPRC and its appointees whether it was in accordance with procedures prescribed by law or in contravention to any procedure prescribed by law, shall not be questioned in any proceeding whether judicial, quasi-judicial, or non-judicial.
Those opposed to a blanket immunity are of the opinion that this subparagraph seems to support the position that the immunity granted to the members of AFPRC and its appointees is limited to acts or omissions that were done in good faith. This is so because the law has a prescribed procedure for acts or omissions that are legal. There is no prescribed procedure by law for rape, torture, and extra-judicial killing.
Paragraph 13(5) of schedule 2 provides thus:
It shall not be lawful for any court or tribunal to entertain an action instituted in respect of an act or omission against a person acting or omitting to act on the instructions or authority of the Armed Forces Provisional Ruling Council, or a member thereof, and alleged to be in contravention of any law whether substantive or procedural, in existence before or during the administration of the Armed Forces Provisional Ruling Council.
This clause is meant to oust the jurisdiction of any court or tribunal to look into the acts or omissions of the members of the AFPRC and its appointees. No court or Tribunal can entertain any action that the AFPRC has taken or omitted to take, that might have violated any law before the administration of the AFPRC. That is any law (substantive or procedural) that the AFPRC might have violated by orchestrating a coup d’état cannot be entertained by any court or tribunal. The second part ousted the jurisdiction of the courts to entertain any action that alleges a violation of any law (substantive or procedural) during the administration of the Armed Forces Provisional Ruling Council. Thus, members of the AFPRC have a blanket immunity with respect to a violation of any Gambian law, be it substantive such as murder; or procedural such as detaining people without following the due process of the law. For example, murder was a violation of our substantive law, the courts or tribunals are barred from entertaining any action that alleged that a member of the AFPRC has murdered someone during the administration of the AFPRC. Additionally, the word administration is synonymous to regime, thus anything done during the regime of the AFPRC is covered in the immunity.
The counter argument to the aforesaid proposition is that it is ludicrous to proposed that sub-paragraph 5 should be interpreted to mean that the members of the AFPRC and its appointees cannot be prosecuted for murdering, torturing and raping innocent Gambian and that the Gambian people have endorsed such proposal through a referendum. The fact that the word administration was used suggests that the immunity is applicable to official duties only, thus limited. The word administration is defined as “the management of public affairs; government.” The word is also synonymous to government, cabinet, ministry, executive, etc. Therefore, the only sensible, rational, logical, and fair-minded interpretation is that the members of the AFPRC and its appointees do not have a blanket immunity with respect to a violation of any Gambian law, be it substantive such as murder, rape or torture; or procedural such as arbitrary arrest and detention. In fact, the AFPRC denied all allegations of murder, rape, and torture (substantive law); it also denied or justified any arbitrary arrests and detention (procedural law). The AFPRC asserted that since the takeover, not a single individual was deliberately killed. Hence, it is reasonable to submit that the immunity granted is not a blanket immunity.
Paragraph 17 of schedule 2 provides that “The National Assembly shall have no power to pass a Bill to amend or repeal this paragraph or paragraph 11,12,13 or 14 of this Schedule.”
This paragraph barred the National Assemble from amending or repealing paragraph 13 of Schedule 2. The National Assembly in 2001 made several amendments to the constitution. Amongst the amendments was Paragraph 13(1). The then NAM added the following phrase to paragraph 13(1) “or answerable before a court or authority or under this Constitution or any other law.” The addition was challenged by former NAM Kemeseng Jammeh before the Supreme Court of The Gambia. In declaring the addition which purported to amend Paragraph 13(1) unconstitutional, the Supreme Court held that “it is clear that the purported amendment to paragraph 13 of the Constitution contained in Act 6 of 2001 is ultra vires paragraph 17 of the Second Schedule to the Constitution which prohibits any such alteration, thus is null and void and of no effect.”
Kemesseng never challenged that Paragraph 13 of Schedule 2 should not be in the constitution. His contention was that Paragraph 13(1) should remain as it was originally written and that the National Assembly does not have the power to add or omit anything from the original text. The Court agreed with his contention. The court never declared Paragraph 13(1) unconstitutional. In fact, the court held that “Paragraph 13 of Schedule II to the Constitution, provides for immunity from legal proceedings of members of the Armed Forces Provisional Ruling Council and their appointees for acts or omissions in the performance of their official duties.”
There is no doubt that the 1997 Constitution in Paragraph 13 of Schedule II provides immunity for the Armed Forces Provisional Ruling Council (AFPRC) and its appointees. The only contention is whether the said immunity is an absolute immunity, or limited immunity. I am of the opinion that the immunity granted to the Armed Forces Provisional Ruling Council and their appointees is not an absolute immunity.
First the AFPRC regime denied allegations of violations of fundamental rights of the Gambian people. The AFPRC claimed that it has acted inconformity with the laws previously laid down by the legislature. It argued that the decrees it passed did not prohibit the enjoyment of freedoms and liberty of the Gambian people. The regime said that it did not deliberately killed a single individual. The junta maintained that it did not terrorized Gambians by either arbitrary arrest and detention or otherwise. In fact, it claimed to have made history for carrying out a successful bloodless military takeover. The only thing AFPRC acknowledged was that it arrested and detained people in other to secure peace and stability. This was how the AFPRC members presented themselves to the Gambian people and the world at large. It is, therefore, logical to conclude that the immunity given to them by the Gambian people does not cover criminal acts and violations of the fundamental rights of Gambians such as extra-judicial killings, torture, rape, etc.
Second, the language of the law that granted immunity to the AFPRC and its appointees in the constitution has been consistent. The words official duty and administration have been consistently used in Paragraph 13. The immunity, even if it covers criminal acts or violation of fundamental rights, would only cover acts or violations that were committed in the execution of an official duty. For example, Decree No. 3 of July 1994 gives the Minister of Interior the power to detain and to extend the period of detention indefinitely. There has been official correspondence for such arrests and detentions. This is a clear violation of the fundamental rights of those Gambians. The aforesaid example is an example of an act in the performance of an official duty. This seems to be the position of the Supreme Court of The Gambia.
Finally, it would be absurd to claim that a constitution that has dedicated a whole chapter to the respect of fundamental rights such as right to life, liberty and freedom, and freedom from inhumane and degrading treatment and torture should be interpreted to have granted immunity to people who are accused of violating rights it seeks to protect.
Section 127(1)(a) of the 1997 Constitution of The Gambia provides that: The Supreme Court shall have an exclusive original jurisdiction for the interpretation or enforcement of any provision of this Constitution other than any provision of sections 18 to 33 or section 36(5) ( which relate to fundamental rights and freedoms).
As the above statement indicates, all interpretations and analysis by legal scholars, analysts, political commentators and lay citizens are mere academic exercises. So too are my analysis and conclusion. The Supreme Court of The Gambia is the only competent authority whose opinion on the issue would be regarded as the position of the law. We all would have to wait, patiently as vultures, for that decision.