Is Justice Minister Tambadou’s decision to charge JCB Mendy compliant with the law?

By Alagi Yorro Jallow

I expect sane legal minds in The Gambia to speak on Section 232 of the 1997 Constitution and the prosecutorial powers of the Attorney General and Truth Reconciliation and Reparation Commission Act In addition to the immunities that exist in law, including executive, judicial, legislative, diplomatic and sovereign immunities, the political class in The Gambia has just created another: defection immunity.

If you defect from the immunity granting entity, your forgotten crimes shall instantly be revisited. And if you defect to the immunity granting entity, your crimes, no matter how egregious or glaringly monstrous they are, shall be forgotten or forgiven.
May the Good Lord save our land from perdition; and may our people who sheepishly have become the lapdogs of the political power elites be imbued with wisdom and the discerning spirit to save themselves from self- enslavement.
Our attention has been drawn to the trending news that JCB Mendy has been charged with murder, based on orders of the Attorney General last Wednesday and is to be arraigned on murder charges.

The prosecutorial decision that has been taken by the Justice ministry is a very grave one. It is unprecedented in the legal and political history of the Gambia. Let us go down memory lane. Section 232 of the constitution: Legal Proceedings “6 of 2001 13. (1) 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 or answerable before a court or authority or under this Constitution or any other law, either jointly or severally, for an act or omission in the performance of his or her official duties.

(2) After the coming into force of this Constitution, it shall not be lawful for any court or tribunal to entertain any action or take any decision or make any order or grant any remedy or relief in any proceedings instituted against the government of The Gambia or any person acting under the authority of the Government of The Gambia, or against any person or persons acting in concert or individually to assist or bring about the change in government which took place on the twenty second day of July 1994, in respect of any act or omission relating to, or consequent upon:
(a) the overthrow of the government in power before the formation of the Armed Forces Provisional Ruling Council; or
(b) the suspension or abrogation of the Constitution of The Gambia 1970; or
© the establishment of the Armed Forces.

Provisional Ruling Council; or
(d) the establishment of this Constitution”.
Being a weighty issue, therefore, one would have imagined that the decision to put JCB Mendy on trial with frenetic speed, following the orders of the Attorney General, was not weighed very carefully. JCB Mendy is, in the eye of the law, presumed innocent, until the immunity clause in the constitution is removed. Being charged at all, however, implicates his right to immunity. In other words, once charged and arraigned, the likelihood is that in the end, irreparable damage would have been done to reputation and the integrity of the judiciary. The most important reason why JC Mendy ought not to have been charged before the courts, let alone being prepared for arraignment is because the charge is illegal and unconstitutional.

Section 232 of the Constitution held that a person acting under the instruction or authority of the AFPRC can be tried in a court of law.
This is the position of the law position we took when that decision was handed down was that the prosecution had no Constitutional basis. Section 232 of the Constitution persons immunised enjoy immunity against arrest and prosecution, while they are in service of the AFPRC. They do enjoy executive immunity and are covered by Section 232 of the Constitution. The court, therefore, cannot grant to the Attorney General an immunity the Constitution does not vest in it. The concept of legal immunity only covers the exercise of the legal powers of a person and his jurisdiction. No civil action or criminal action may be taken against him in respect of his work or actions, and he is shielded from criminal culpability if he commits a criminal offence while he was in office.

The immunity provision, however, remains the law in The Gambia today.
The Gambia is a constitutional democracy under the rule of law. By virtue of Section 232 of the Constitution of the Republic of The Gambia.
We support the fight against impunity in human rights violations and. But this fight must be done in scrupulous conformity with the rule of law.
In the light of the foregoing, we call on the president of The Gambia to direct that the charges filed against JCB Mendy for now be suspended until the legal remedies are put in place to proceed for prosecution or be withdrawn forthwith for its incompetence, even as the administration continues to explore other legitimate and constitutional means to continue its fight against human rights practices in our public life.

The allegations against JCB Mendy may be grave, but justice cannot be served by resorting to patent illegalities.

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