While it is indeed painful to witness a key perpetrator like Yankuba Touray easily walk out of the TRRC it is necessary to point out that indeed the Constitution, from sections 13 to 17of the Second Schedule have protected members and other persons acting in the name of the notorious AFPRC from accountability. In their criminal minds the junta seemed to have considered that a day of reckoning would one day arrive and therefore they crafted these entrenched clauses to protect themselves. However, it must be noted that these AFPRC members shall not escape justice for long hence Yankuba was ill-advised to invoke those provisions.
What did those sections say?
Section 13(1) clearly protects members of the AFPRC or their ministers or appointees from answering before any ‘court or authority or under the Constitution or any other law’ for anything they did or failed to do in the ‘performance of their official duties’ in the name of the junta. While torture and murder are indeed not an official duty, however the drafters of the Constitution smartly covered up this matter with subsection 4 which states that even if such action was taken not in ‘accordance with any procedure prescribed by law’ it cannot be questioned.
These actions have been listed in subsection 2 as actions leading to or subsequent upon the July 22 military coup which includes the overthrow of the PPP Government, suspension of the 1970 Constitution or the establishment of the AFPRC. Section 13 went further to state in paragraph 3 that no person acting on behalf of the AFPRC shall be questioned for any act in any proceedings and therefore no court or tribunal shall have the power to make any decision on account of these acts. Furthermore, under paragraph 5 it stated that no court or tribunal shall ‘entertain an action’ against any person acting on the instructions or authority of AFPRC even if such action violates any law during the tenure of the AFPRC.
To further concretise their protection from accountability the Constitution went ahead in Section 17 to state that even the National Assembly ‘shall have no power’ to amend or repeal Section 13 and other sections which seek to prevent any court to challenge the decisions of the commissions of inquiry set up by AFPRC (Section 11) or Section 12 relating to the succession of AFPRC to the properties of the former government or Section 14 which also relates to preventing anyone challenging the confiscation of properties or penalties imposed by AFPRC. Only a referendum can amend or repeal these provision!
In light of the above one can see that Yankuba has a firm ground to refuse to testify as that would mean an ‘authority’ or a ‘proceeding’ is questioning his actions and inactions as a member of the AFPRC. While the TRRC is essentially a fact-finding exercise, and not a court or tribunal, as set out in its objectives in Section 13 of its Act, it must be noted that such inquiry focuses on the actions and inactions of individuals who might be members of AFPRC or their ministers or appointed persons. The recommendations of the TRRC are indeed decisions that would may lead to other decisions being subsequently taken by any authority on the actions or persons connected with AFPRC.
Section 14 of the TRRC Act states one of its functions as investigation of human rights violations that took place between 1994 and 2017. These violations indeed would definitely be actions or inactions committed by AFPRC persons who are already protected by Section 13 of the Constitution from being questioned by anyone. The powers of the TRRC under Section 15 of its Act further emphasise the extent to which it can go to investigate including forcing a person to testify as they did with Yankuba Touray by subpoenaing him.
Section 19 of the TRRC Act gives the power to the Commission to recommend amnesty for perpetrators who apply for such. This means where the TRRC does not give amnesty to a perpetrator then such a person stands the risk of prosecution. Therefore, in view of Section 13 (2) of the Constitution this means the actions or inactions of an AFPRC member or minister are potentially subject to question or decision by some authority contrary to the Constitution.
The question now is what is to be done?
We must bear in mind that a review of Section 13 of the Constitution focuses only on acts and omissions ‘relating to, or subsequent upon’ four events. These are the overthrow of the PPP Government before the formation and after the establishment of the AFPRC and the suspension of the 1970 Constitution as well as the establishment of the 1997 Constitution. This means therefore actions beyond 1996 are not covered by the Constitution for which AFPRC members, ministers and appointed persons do not enjoy any constitutional immunity.
In my view therefore TRRC should focus on the period after 1996 for those AFPRC members who refuse to cooperate by invoking Section 13 of the Constitution. This is one option for TRRC to consider. Otherwise arresting these individuals would be unconstitutional and certainly difficult to prosecute. It will serve to derail the Commission and potentially lose its cool. We must avoid that.
The other option would be to challenge the constitutionality of the immunity clauses in Section 13. I do not think this is also a wise option as Section 13 is indeed part of the Constitution as an entrenched clause. Consequently, it would be strange to question the constitutionality of a provision of the Constitution.
Constitutional experts may wish to interrogate the idea of how the Supreme Court could question a provision of the Constitution against the Constitution. What I know is that the Constitution is the basic law and therefore it is other laws and actions or omissions by natural and legal persons that are interpreted in their relation to the constitution. But to question the constitution against the constitution would be a contradiction in terms in my view.
Having said that it is important to highlight that after all AFPRC persons cannot escape justice. This is because sooner than later the 1997 Constitution will be repealed as we usher in a new constitution for the third republic. That dispensation therefore opens the floodgates to now prosecute AFPRC persons without any hurdles. This is where Yankuba would now come to realise, albeit too late though that his actions before the TRRC were ill-advised.
I wish to therefore urge the TRRC to order the release of Yankuba Touray and rather subpoena him to testify on other issues beyond 1996. Failure to testify for those issues would directly violate the TRRC Act as he would have no constitutional immunities. Therefore, the Commission would have a legitimate ground to seek his arrest and prosecution of he refuses to testify.
As citizens there is no need to despair or act unlawfully because of the unfortunate actions of Yankuba. Anywhere Yankuba goes in this world he cannot escape justice because he has indeed committed crimes that are against humanity hence international crimes. That Yankuba Touray would act in such a way must not be found surprising. Such actions by perpetrators are a normal occurrence in truth commissions around the world.
For that matter no one would have any reason to question or doubt the power, competence, integrity or relevance of the TRRC. This unfortunate action cannot in any way prevent other witnesses from testifying. I am sure many such persons would rather advise themselves properly to realise that it is in their own personal interest to come forward to testify as we saw how Sanna Sabally, Alagie Kanyi, Alagie Martin and others did.
For the Gambia Our Homeland.
The monumental legal obstacle the AFPRC members will face is the murder of Ousman Koro Ceesay. His killing was not within the scope of any official duty and the cover up indicates consciousness of guilt.
This is where they all end up in prison.
One way or another OKC will get justice.
Better still, the constitution they butchered to indemnify themselves will soon be consigned to the archives. There won’t be a constitution to hide behind for long.
Still a setback. None entrenched clauses (those that are deemed necessary to throw out or amend) of the constitution could have and should have been amended a long time ago. Instead, Adama under the tutelage of Ousainou took on a project of piecemeal amendment for political expediency. We dare not forget that lesson, lest it repeats itself very soon again.
Bax, don’t you find anything wrong with Tambadous’ statement? In my mind, he should’ve been humble enough to admit mistakes made with regards to timing and not being diligent in closing such loopholes.
Yankuba is an arrogant fellow, but believe me you, he is as sly as a fox. He cleverly maneuvered his way out of self incrimination in a way that is fit only for a courtroom thriller. As it stands, it’s a score of one to nil against the Gambian people.
He did not invoke the same constitutional immunity at the Janneh commission even though it also covered the same time period of the AFPRC. The question is why?
I theorize he has shrewdly invested the ill gotten money and he could afford to pay off huge amounts at least in installments.
Murder charges or being an accomplice in murder cannot be paid in installments.
Whatever parliament subsequently decides with the TRRC report, there will be an element of custodial sentence. That means mandatory jail time.
That’s the difference.
The lesson here is very simple. When politics fail, every other thing suffers. The failure was planted the moment Ousainou stepped out of jail and he started attacking the coalition agreement. Has anyone noticed how silent he has become with matters he engineered?
@Kinteh (Kemo): you want to come to his defense?
Of course, I’m concerned by the overall performance of Mr Tambedou. Many will agree that he has not lived up to expectations and his recent failed attempts to prosecute Mr Touray and Miss Jahumpa-Ceesay, not to mention his inability to successfully conclude the NIA 9 case, does raise ever more questions about his suitability for job.
I’m not sure how much say he has in the reluctance of the Barrow Administration to carry out the much anticipated constitutional reforms or the piecemeal amendments we saw, but as Chief Legal Adviser to the Executive, I think people will be justified to point fingers at him.
Nevertheless, his decision to prosecute Mr Touray, on this ocassion, seems to be the right one. Mr Touray may be as sly as a fox, but I think he played his hands too soon, by invoking immunity even before he was asked any questions relating to his role, as an AFPRC Official. The question he refused to answer relates to the condition in the GNA (Gambia National Army) before 1994, a period not covered by the indemnity clauses. So, let’s see how Mr Tambedou’s department handles this one.
I genuinely feel sorry for Mr Ousainou Darboe. He seemed to be completely lost without Mr Jammeh at the helm, who provided the platform for the type of politics he (Mr Darboe) and his party thrived in for 20 years.
He doesn’t seem to have any clear strategy to deal with the new political situation in country. Much worse for him is the fact that his earlier pronouncements at the start of this administration have literally tied his hands behind his back.
So, he’s reduced to ineffectiveness and irrelevance, unable to rely on the parliamentary UDP (as loyalties amongst the NAMS are divided) and left to only ocassionally throwing veiled jibes at Barrow (and vice versa) on political platforms.
Very sad, but he shoulders much of the blame for such a situation.
Bax, Bajaw,
Which constitution have you so ardently been quoting to support Adama Barrow’s five-year claim to stay in power till 2021? Isn’t it the same 1997 constitution that Yankuba Touray so rightfully referred to? Is Adama more equal than Yankuba in benefitting from the application of the constitution?
If Yankuba is jailed for rightfully exercising his constitutional rights, there is nothing to stop the 3-Year Jotna movement. Adama Barrow must be remove and take to court for telling lies.
It’s really difficult to judge. The Minister of Justice, Tambedu, who has already made judgement by stating that government will be very severe with Yankuba well before indicting him, I may say you are exactly birds of the same feather. Making judgemen before court hearing.
A Dutch Minister wouldn’t be so agitated and stupid to make such a statement, even in the worst serious case without being asked to resign. It means judgement is made before court hearing.
I urge you to be more cautious and democratic with decisions you make.
We should not make our country The USA, where the law is in the hands of the police.
CORRECTION
Adama must be removed and taken to court for telling lies.
Babu Soli:
1. I never gave my support to Barrow for a 5 year term, though I accept that the Constitution grants him that mandate. However, I think his credibility and trustworthiness will be in tatters, if he reneged on the MOU and serves beyond 3 years.
2. I am not against popular uprisings, per se, as a democratic tool to achieve political objectives. My biggest worry is whether Gambians are ready for it. My assessment, given what I see and hear, is that we are not ready yet, and like any tool, improper use can have serious consequences.
3. If I am not mistaken, Mr Touray is granted immunity ONLY for the period when he served as an AFPRC Official, which was 1994-96, thus he cannot claim immunity for acts and/or actions committed or ommitted outside of that period.
4. Mr Touray, therefore, is liable for prosecution for initially refusing to be sworn before the commission and also for refusing to answer questions relating to pre-AFPRC (1994) era, on the conditions of the army before 1994.
5. I have already indicated my disappointment in Mr Tambedou’s overall performance and I agree that his choice of words left a lot to be desired. It is definitely inappropriate for the Justice Minister to make statements that could jeopardise an impending case, or be seen as an attempt to influence the outcome of any such cases. We don’t want to see that in the “new” Gambia.
6. But again Babu, your attitude beggars belief. You support a regime that has conducted public prosecutions infront of the media prior to arraigning suspects before a court of law. The Farafenni attackers as well as UDP’s Amadou Sanneh and co easily come to mind: beaten mercilessly, tortured and paraded in front of the camera as guilty before appearing in any court.
You support Jammeh who hardly ever appears on National Television or on a public platform, without threatening to kill or send Gambians to his Mile 2, his 5 star hotel.
How could you object to Minister Tambedou’s statement, whilst still condoning and defending the behaviour of Mr Jammeh and his regime? Seriously Babu, do you listen to yourself?
Babu, the Constitution genuine Gambians always refer to is the unadulterated clauses that are truly for the judicious dispensation for the public; not the specifically fiddled enforcements meant to shield deliberate Devilish endeavours as been the case in 1997; hasn’t it occurred to you to pause for once & ask yourself why Jawara never indemnified himself & co when he could’ve done, like the kanilai Evildom Devilish Maggots, if you believe Jawara have committed atrocities against genuine interest, like the Evildom Dracula of kanilai…?
Devil Yankuba Touray is just lucky to have been taken into custody for its own safety temporarily; otherwise we would be talking about something else if the mob following to lynch it managed to lay their hands on it’s filthy flesh….
You think everybody are as big a joke like yaya Devilish Dracula & your likes…?
The Gambia is far from where all societal progression aspirants wishes for but it’s miles ahead in the positive from under the Evil kanilai Murderdom…
The truth for Devil yankuba Touray & fellow Evil Maggots, this weight is just the cushion for the head; the actual load is yet to fall on them but on the way soon; arrogant devils who refuse to admit atrocious commitments, remorse, repent & apologise will be dealt with rightly…
The Gambia can only move forward gradually…
I have just watched that clip Bajaw, and I urge all who call for demonstrations with genuine intentions, to watch it. Please watch it and tell me whether you still think Gambians are ready for mass demonstrations in December.
Unfortunately, that clip also demonstrates a chilling fact:
In that mob are many potential Yaya Jammeh’s, who have no respect for the rule of law, and would happily justify the use of physical violence against perceived offenders when in a position of power.
Despite Yankuba being placed under custody, facing detention, prosecution and possible jail term, this mob would still want to lynch him.
Also, an already highly charged and tense situation was made explosive when tear gas was fired at a time when the van carrying Mr Touray had gone beyond the reach of the chasing mob, a serious error of judgement by the police. Doesn’t this indicate that Gambian security are also not ready to deal with demonstrations?
Let me borrow sister Dr I. Sarr’s prayers and say, “May God help The Gambia. “
I agree Bax; it’s the responsibility of all genuine Gambians to continue to advocate tirelessly for sanity to prevail politically & otherwise for Gambia to progress forward…
God bless Gambia; Ameen…
There are three actors in the play that’s about to unravel come December 2019. The unarmed peaceful protestors, the PIU and an inept president surrounded by sycophants of various sizes, shape and form.
We, who want to take to the streets have a legitimate cause and a constitutional right to express our dissatisfaction with the lies and the wanton corruption of the people presiding over the affairs of the nation. We have a god given right to demand from the president to step down and not to seek re-election in the future in accordance with the agreement framework that brought him to power. In the mix will be people who are out for reasons not in tandem with ours. It will be in our interest and the common good, to filter them out. We will do everything humanly possible to secure two things:
-never to be found wanting.
-to persevere until Adama steps down.
It’s not hard to predict how the other actors are going to conduct themselves. Is it? The executive will decide to switch off internet access to hinder nation wide coordination of the protests. They will try to dominate and own the narrative to situate themselves on a higher moral and legal pedestal. The usual channels of the media, religion and the false narrative of “we are all one” will be intensified to subdue the will of the people to see Adama go. Adama and the thugs surrounding him will loose the battle for obvious reasons.
The PIU has hopefully learned lessons from Faraba Banta. They have their colleagues languishing in custody, waiting to be sentenced to some very long jail terms. Those who gave the commands still have their jobs and a family to go back to everyday after work.
But we know the goons, as threatened by the biggest goon in the person of Ebrima Mbalow, will go on to douse peaceful demonstrators with hot water mixed with hot pepper. They might even use live bullets to cut lives short as threatened by Henry Gomez the drunkard. The outcome of any police high handedness and brutality will be very ugly. Look, the people are angry, dejected, frustrated and hungry for a system overhaul that will put food in the bowls for them and their families. That in itself is a highly social combustible fuel. The GPF is the most corrupt, incompetent but brutal force I have ever seen. Training them for better crowd control is too late. It’s even a nonstarter. Yes, hence Adama is also a puppet of imperial France and the EU, they will like to see him stay in power at all costs.
Even with that backing, we will triumph. Against all odds.
There are parallel demonstrations been organized apart from the 3yrs jotna. The killer NIA, now called SIS, will be scratching their heads in surprise. Some of these movements are targeting the sources of funding for their corrupt “projects”, to make sure the taps are turned off. These are not street demonstrating organizations. Another pressure point to make sure Adama and his cabal (a word borrowed from he who lurks, smh with a smile) do not saddle us with debts that will neither benefit the citizenry no would we be able to pay back with the colossal interests.
Adama Adama Adama Adama Adama, just unbelievable what he has turned into and we have not yet seen the worst of that process of metamorphosis. Before we rise from our slumber, the territory itself will be gone for good. No Bax, no Bajaw, we shouldn’t let him do to us what Yaya has done to us and go to bed and have a good night sleep.