A court’s power or ability to decide a matter depends on its jurisdiction. If a court has no jurisdiction, it cannot decide a matter and bind others with its decision. The jurisdiction of a court is granted by and spelled out in the law.
What is the precedent value of a decision of the Gambia Court of Appeal where a majority of Supreme Court judges reverse the decision because of one holding but decline to comment on the other holdings? In particular, what is the precedent value of the Gambia Court of Appeal judgment in such a case where the minority decision of the Supreme Court upholds the Court of Appeal decision on all the issues left out by the majority?
I am referring to this case of the Commission of the inquiry established under section 200 of the 1997 Constitution whether its findings and recommendations as well the Government White Paper can legally render a binding power to be executed or enforced as if it were a judgment or order of a Court High Court.
Justice Omar M.M Njie in delivering a judgment in the case of M.A Kharafi versus Attorney General, The Gambia Court of Appeal in a unanimous decision held that the Janneh Commission of Inquiry recommendations could not legally render a binding decision which may be executed or enforced as if it were a judgment or order of a Court.
A report conflicts with the previous Gambia Court of Appeal case of Attorney General versus Pap Cheyassin Ousman Secka civil Appeal No.30/2008 23rd July, where it was held that findings of the Commission of Inquiry have equal status with the judgment of a High Court. This means that the findings of the Commission of Inquiry can be enforced as a judgment. The Supreme Court decision would resolve the conflict.
The Gambian public is very impatient with the fact that cases involving corruption or economic crimes hardly go on in the courts because of applications like the one we are dealing with the adverse findings of the Commission of Inquiry into the Financial Activities of Public Bodies, Enterprises and Offices as it regards their dealings with former President Yahya A.J.J. Jammeh and connected matters.
We recognize and are well aware of the fact that the public has a legitimate interest in seeing that crime, of whatever nature, is detected, prosecuted, and adequately punished.
However, in our view, the Constitution of the Republic is a reflection of the supreme public interest. Its provisions must be upheld by the courts, sometimes even to the annoyance of the public.
The only institution charged with the duty to interpret the provisions of the Constitution and to enforce those provisions in the High Court and where it is permissible, with an appeal to the Court of Appeal. We have said before, and we will repeat it.
The Gambia has chosen the path of democracy; our Constitution itself talks of what is justifiable in a democratic society. Democracy is often inefficient and, at times, a messy system. A dictatorship, on the other hand, might be quite efficient and less messy. In a dictatorship, we could round up all those persons we suspect to be involved in corruption and economic crimes and lock them up without much ado. That is not the path the Gambia has taken. It has opted for the rule of law, and the rule of law implies a due process.
The courts must stick to that path even if the public may, in any particular case, want a contrary thing, and even if those who are mighty and powerful might ignore the court’s decisions.
Occasionally, those who have been mighty and powerful are the ones who would run to seek the protection of the courts when circumstances have changed. The courts must continue to give justice to all and sundry irrespective of their status or prior status.
The Gambia Court of Appeals’ judgment in the Attorney General vs. M.A Kharafi Versus The Attorney General, subsequent judgment poses many legal and practical challenges.
First, they are arguably inconsistent with the broad jurisdiction of the Court of Appeal under the 1997 constitution. Secondly, the Gambia Court of Appeal’s decisions in the Attorney General vs. Pap Ousman Secka and subsequent judgments accord too much deference to the High Court as a trial court to the extent that the ultimate decision is irreconcilable with the evidence on record.
According to deference to a trial court in such circumstances makes a mockery of and strips the right of appeal of any practical meaning.
Thirdly, according to too much deference to the trial court has the potential to undermine the achievement of the very “highest standards of knowledge, technical competence, and probity” that the Appeal Court seems to espouse (at least rhetorically).
Fourthly, the Appeal Court has created precedents that arguably apply not only to corruption disputes but also to all other cases in which the right of appeal and appellate review are limited to law matters. The problem here is that different cases may involve very different legal or policy considerations.
It is not easy to imagine that a single standard of review, or similar legal or policy considerations, apply to all these very different cases. It is also difficult to imagine that a single or similar approach to jurisdiction applies to all the different types of cases that come up at the Court of Appeal whenever the right to appeal is limited to law matters.
Put differently, different policy or historical considerations might require a different treatment of certain types of cases, notwithstanding the textual similarity of statutes limiting appellate jurisdiction to matters of law.
In particular, the Court of Appeal should consider not only the statutory limitation of its jurisdiction to matters of law but also the need to (i) avoid the perception that the Gambian courts are not honest arbiters in corruption cases; and (ii) end the culture of having undue regard to legal and procedural technicalities in the determination of such disputes.
The Janneh Commission and cabinet issued a Government White Paper. It recommended that ex-President Yahya Jammeh is liable to pay $7,367,426 to the Government of The Gambia and while Kharafi should pay $2,367,426 plus interest of 5% per annum starting 30th June 2004 to 29th March 2019.
Kharafi challenged these adverse findings by the Commission before the Court of Appeal sought a stay of execution pending the appeal’s determination.
The Court of Appeal held that a commission of inquiry is not a court. Therefore, its report submitted to the Government, is neither a judgment nor an order which is capable in itself of being executed.
The court relied on the Supreme Court judgment in the case of Feryale Ghanem versus the Attorney General, where the Chief Justice, Hassan B. Jallow, stated that a Commission of Inquiry is not a law-making body, it has no legislative powers and does not fall within the legislature.
Justice Njie added that Chief Justice Jallow said a commission of inquiry is an investigative fact-finding body that makes findings and recommendations subject to the Government’s approval. Justice Jallow detailed that while a commission of inquiry must act reasonably, impartially and independently is nonetheless, not an adjudicatory body adding it is not a court of law.
Justice Njie cited section 120 (2) of the 1997 Constitution, which provides “The judicial power of The Gambia is vested in the courts and shall be exercised by them according to the respective jurisdictions conferred on them by law.
The Court of Appeal held that a White Paper is a written announcement or statement of government policy on a particular issue of public interest.
“A White Paper certainly does not emanate from the Commission of Inquiry, and it is, as a result, not part of the report of the Commission. It is not legislative character, and it is certainly not a judgment or order of a court of law,” Justice Njie said.
Justice Njie said section 203 (a) of the Constitution provides “On receipt of the report of a commission of Inquiry the President shall within six months publish the report and his or her comments on the report, together with a statement of any action taken, or the reason for not taking any action, thereon.”
Justice Njie said the White Paper is akin to a Government Notice published to satisfy the requirement of section 203 of the Constitution. He said the description fits the definition of a government notice in the Interpretation Act, which states, “A government Notice means any public announcement not of a legislative character made of a command of the President or by a Minister or public officer.”
He said a White Paper published under a Commission’s report does not make the latter capable of being executed. Justice Njie opined that the reference in section 203 of the Constitution to actions that may be taken by the President means actions that the Executive branch of Government is legally able to make as empowered by the Constitution or other laws.
“It certainly, does not mean the exercise of judicial or quasi-judicial powers by the Executive in the form of pronouncement of White Paper,” the judge held.
He said if following the publication of a report of the Commission of Inquiry together with any adverse findings and or recommendations, the Executive intends to have imposed any penalty to any person adversely mentioned, the Executive must take the necessary court action, whether civil or criminal, in order to have those penalties imposed.
“I say this because since the Commission’s report, with or without a White Paper, cannot be enforced or executed as would be the case of a judgment or court order,” he said.
He added: “If the intention were for a Commission of Inquiry to have the power to impose a criminal penalty or to grant civil remedies which could be executed or enforced, then in my view, that would have been spelled out in the Constitution or the Act.”
Justice Njie said the 1997 Constitution and other laws of The Gambia do not provide for the suffering of liabilities by persons against adverse findings are made by the Commission of Inquiry.
“Therefore, after such findings are made, the Attorney General would have to take the appropriate legal steps, through the law courts, to ensure that those persons suffer such liabilities,” he said
He said a White Paper published under a Commission’s report does not make the latter capable of being executed. Justice Njie opined that the reference in section 203 of the Constitution to actions that may be taken by the President means actions that the Executive branch of Government is legally able to make as empowered by the Constitution or other laws.
“It certainly, does not mean the exercise of judicial or quasi-judicial powers by the Executive in the form of pronouncement of White Paper,” the judge held.
