A three judge empanelled Gambia Court of Appeal has ruled that the recommendations of commissions of inquiry like the Janneh Commission and orders in the resultant government white paper “cannot make enforceable judicial orders that are capable of execution”. The making of such orders are the sole preserve of the courts, the judges agreed unanimously.
Delivering the lead ruling Monday in the case of MA Kharafi versus the Attorney General, Justice Omar Njie observed that commissions of inquiry are part of the executive and not the judiciary as adjudicatory bodies and “cannot legally render a binding decision which may be executed or enforced as if it were a judgment or order” of a court.
“Consequently, my view is that the adverse findings and recommendations of a commission of inquiry cannot be executed or enforced by the state; they are not judgments or orders of adjucatory body…are merely advisory and not conclusive and binding.”
Both Justice Bashirou Mahoney and appeals court president Justice Awa Bah concurred.
Justice Bah stated that “it is not permissible in our modern law systems and democracies to find a person liable, especially criminal liability, without first affording such a person the opportunity of a trial before a court of law. One must be mindful that people appearing before the commissions do so as witnesses and not as persons on trial. Thus fair hearing dictates that before they are condemned with penalties and sanctions, they be heard in their defence.”
Justice Mahoney rehashed the changing landscape of the law as it relates to the law and commissions of inquiry before, during and after the 1994-1996 military interregnum.
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 is not of legislative character and it is certainly not a judgment or order of a court of law,” Justice Njie said.
A year ago, the Kharafi company filed an appeal at the court after the Janneh Commission recommended that it pay $2,367,426 plus interest of 5% per annum starting 30 June 2004 to 29 March 2019 over its purchase and running of Kairaba Beach Hotel.
It appealed for a stay of execution pending the determination of its appeal in the court over the commission’s adverse findings.
But the appeals court has clarified that according to the constitution, a report of a commission of inquiry is treated as a judgment only for the purpose of an appeal and not for the purpose of execution.
“Since there is no enforceable order before this court capable of execution, there is nothing to be stayed,” Justice Mahoney ruled dismissing the appeal.
Kharafi was represented by Ms Combeh Gaye, while A Ceesay and MB Sowe appeared for the Attorney General.