By Bruce Asemota
The High Court has derailed government’s efforts to prevent itself from being sued by parents of children who died of acute kidney injury after consuming contaminated medicines imported into the country.
More than thirty parents had filed a suit before the High Court against Maiden Pharmaceuticals Company Ltd based in India, Atlantic Pharmaceuticals Company, Medicine Control Agency, the Ministry of Health and the Attorney General as defendants.
However in an attempt to block this suit,
Lawyer Binga D legal representative of the Medicine Control Agency, Ministry of Health and the Attorney General filed a motion asking the court to dismiss the suit arguing that the Medicine Control Agency, Ministry of Health and the Attorney General are not liable to be sued unless sovereign immunity is waived and that the High Court lacks jurisdiction over the plaintiffs’ claim.
The state lawyer also argued that the actions and omission of the state and its officials in the exercise of discretionary functions, or in its role as a regulator are immune from civil liability and that the separation of powers doctrine precludes the judiciary from adjudicating and/or imposing liability on either the executive or legislative branches of government based on the performance of their core constitutional or institution mandates.
However Lawyer Yassin Senghore, lead Counsel for the parents of the AKI victims responded and referred the court to section 7 of the 1997 Constitution and submitted that it binds the High Court and she also referred the court to the case of Yakumba Jaiteh. She argued that the common law authorities cited by Lawyer Binga are not applicable before the said court.
In his ruling, Justice Ebrima Jaiteh disclosed that the right to sue the state is provided under Part ll of the State Proceedings Act, Cap 8:03, Volume 3 in the Laws of the Gambia 2009, adding that the state as a party is subject to all the liabilities as if it were a private person of full age and capacity.
The judge said the Medicine Control agency failed in their statutory duties to regulate the efficacy, quality and safety of medicines and related products, their importation, manufacture, labeling, marketing or identification, storage, promotion, sale and distribution.
He declared further that the Ministry of Health also failed to exercise oversight duties over the Medicine Control Agency to regulate the skill, duty, and the responsibility of medical practitioners who are licensed by the Medicines Control Agency.
Justice Jaiteh pointed out that it is as a right that any person who is aggrieved and have claim against the state can sue the state without seeking the state’s consent to do so.
He therefore declared that the Medicine Control Agency and the Ministry of Health can sue and be sued.
