The above decision is a ruling by a three-panel judge at Court of Appeal of The Gambia in a case by M.A. Kharafi & Sons v the Attorney General of The Gambia decided on 1 June 2020.
The court ruled that findings by The Janneh Commission of Inquiry are mere recommendations and that such recommendations, with or without a White Paper by the government, do not have the force of judicial rulings to be enforced.
The ruling is controversial in many ways which includes the absurdity it has created for some provisions in the 1997 Constitution which state in Section 62(3):
A person who, while holding public office in The Gambia has been-
(c) has been [sic] found liable for misconduct, negligence, corruption or improper behaviour by any commission or committee of inquiry established by law shall not be qualified for election as President.
Or section 90(1)
No person is qualified for election as a member of the National Assembly if he or she-
(e) has been found by the report of a commission or committee of inquiry (the proceedings of which have been held and published in accordance with the relevant law) to be incompetent to hold public office by reason of having acquired assets unlawfully or defrauded the State or misused or abused his or her office, or wilfully [sic] acted in a manner pre-judicial to the interests of the State, and the findings have not been set aside on appeal or judicial review.
If the government is required to seek adjudications in the courts to stay the executions of the recommendations of the Commission of Inquiries, after they have practically compelled with subpoena powers witnesses to appear before them and self-incriminate themselves by speaking ONLY the truth under oath, could their self-incriminating statements be used against them in their appeals in the Court of Appeal or Supreme Court?
Wouldn’t requiring the executive to prosecute cases heard in semi-or quasi-judicial hearings make the Commission of Inquiries redundant in the first place, especially given that the cases must be prosecuted in the Court of Appeal to be enforceable?
What is the legal implications of this ruling on A.N.M. Ousainou Darboe v the Attorney General, and The Gambia National Insurance Company (GNIC) v the Attorney General which were decided both in the Court of Appeal, and subsequently in the Supreme Court after adverse findings against the plaintiffs who individually appealed their cases in the courts assuming the findings against them were legally binding and challenged the authority of the Commission to assess taxes—but not a challenge against the stay of execution?
Politically, the ruling also raised questions on whether it was prudent for the Barrow Administration and the Attorney General’s Chamber, led by Abubacarr Tambadou, to circumvent the traditional criminal justice investigation approach in courts in favor of the commission of inquiry approach which cost poor taxpayers hundreds of million of dalasis only to may have to go to the courts to seek prosecutions or stay of execution of the finding and recommendations.
Would the Department of Justice appeal this ruling in the Supreme Court; or would it seek to enforce the decisions of the government in the White Paper on the Janneh Commissions by initiating civil and criminal proceedings in the Court of Appeal?
The Gambia Times calls on citizens and the media to be vigilant. As The Gambia is engage in the national project of writing a constitution for the Third Republic, The Times also calls on our intellectual class and legal luminaries to contribute to the literature that could be called our equivalence or version of the U.S. Federalist Papers.