24 C
City of Banjul
Monday, November 30, 2020

Legal postmortem of the first Supreme Court Judgement, In Ya Kumba Jaiteh’s case (S.C.No. 001/2019)

- Advertisement -

Introduction
The plaintiff (Ms Ya Kumba Jaiteh), was officially nominated by the President of The Republic of The Gambia, His Excellency Adama Barrow, together with other four nominated members of the National Assembly, pursuant to Section 88 (1)(B) of our present 1997 Constitution. On 11th April, 2017, she subscribed to the oath of office, and assumed her seat, in the said Assembly. On 25th February, 2019, the Secretary General, at the Office of the President, conveyed to the plaintiff in writing, the “executive decision”, to revoke her “nomination” to the said Assembly, with immediate effect, and on 15thMarch 2019, the Office of the President, acting in pursuance of Section 8891 (b) of the 1997 Constitution, nominated the third defendant to the National Assembly (ie Mr Foday Gassama).

The plaintiff’s lead counsel, my learned junior, Ms Yassin Senghore, told the court that: “The revocation is without legal authority, as only Section 91 of the Constitution, sets out the conditions, under which the seat of a member of the National Assembly, including a nominated member, can be vacated, and that none of these conditions has been breached…” Ms Senghore, was wrong on two legal grounds: (1). Firstly, Section 91 of our present 1997 Constitution, is titled: “Tenure of Seats of Members of The National Assembly.” Section 91(1), applies to both Elected Members and Nominated Members.

- Advertisement -

Section 91(1) has 8 Sub-Clauses namely: (A), (B),(C), (D), (E), (F), (G), (H). It is of paramount legal importance, to note that, after (G), there is no conjunction (i.e. “and”), between (G) and (H). This clearly means, that the legal grounds for ending the tenures of the two aforesaid types of members, are clearly not closed or exhausted. The famous Latin maxim, “expressio unius est exclusio alterius” (ie when the law has expressly mentioned one thing, it excludes, what has not been mentioned), clearly does not apply here.

Secondly, Ms Senghore’s aforesaid submission, was legally wrong, because apart from the legal grounds stated in Section 91(1), His Excellency, President Adama Barrow, can constitutionally end the tenure of a nominated member of the said Assembly, by rightly evoking Section 231(1) of the aforesaid Constitution, which says:“Where any power is conferred by the Constitution, to make any proclamation, order, regulation, rule, or pass any resolution, or give any direction, or make any declaration or designation, it shall be deemed to include the power exercisable in like manner,and subject to like conditions if any, to amend or revoke the same.”

Ms Senghore also submitted: that Section 91 being the only provision of the Constitution, expressly providing for the revocation of the seat of a Nominated Member, cannot be overridden by a general clause, such as Section 231(1), and that, in any case, it is undesirable and contrary to the separation of powers…” Firstly, Section 91, equally applies to both elected and nominated members. It is not exclusively applicable, to nominated members, as Ms Senghore has wrongly said. Also “The separation of powers” and democracy systems laid down by the Constitution, nowhere in our world or global village, are these political doctrines fully applied 100%. There must be checks and balances, among the three arms of government (i.e. the Legislature, the Executive and the Judiciary). Under our present 1997 Constitution, for example, Honourable NAMs can rightly impeach a sitting Gambian president, if he or she has violated the Constitution. In the United States of America, the houses of parliament (i.e. the Congress and the Senate), have just impeached, tried and acquitted President Donald Trump.

Also Ms Senghore’s submission, that Section 91 being a specific provision, cannot be overridden by a general provision, such as Section 231(1), may be legally wrong, because whenever there are two conflicting provisions in our Constitution, the matter should be rightly referred to The Gambia Supreme Court, for interpretation, thereby exercising its exclusive original jurisdiction, under Section 127(1)(A) of the aforesaid Constitution.
The court accepted Ms Senghore’s submission, and buttressed its acceptance with inter alia: (1) Ojukwu Vs Obasanjo (2004) 7 SC (2004(12) NWLR)- The Supreme Courtof Nigeria, and (2) Halbury’s Laws Of England, 4thEdition, Vol44 per 755, which lays down the common law rule of interpretation:- “generalia, specialibus, non-derogant” (Latin: the provisions of a general statute, must yield to those of a special one”. Also called “the rule of implied exception”. This Latin maxim is applicable in The Gambia, by virtue of Section 2 of The Law of England Application Act (Cap 5:01) Laws of The Gambia (i.e. “The Reception Statute”). The court then concluded, that applying this legal principle to this Case: “The President has no power to revoke a nomination under Section 231(1), nor does he have such power or authority under Sections 89 or 90, as revocation is not therein provided for…” Section 89 is titled: “Qualifications for membership of The National Assembly”, Section 90 is titled: “Disqualifications from membership of The National Assembly.”

My legal analysis
By handing down this first judgment of the first panel of The Gambia Supreme Court, the court has given 100% security of tenure, to nominated Members, while vulnerable elected members, can be removed from the said Assembly, by qualified voters of a constituency, by the procedure laid down in Section 92 of our present 1997 Constitution, which is only for recalling an elected member from the said Assembly.

This is indeed “discrimination”, contrary to Section 33 of our present 1997 Constitution, and this is indeed a miscarriage of justice, concerning the elected members. Google says: “Equality before the law, also known as, equality under the law, or equality in the eyes of the law, legal equality, or legal egalitarianism, is the principle that, each independent being, must be treated equally by the law (Principle of Isonomy) and that, all are subject to the same laws of justice.” We do not want, an Animal Farm scenario: “All animals are equal, but some are, more equal than others,” (George Orwell). The procedure for recall in Section 92, should be in an Act, but since the Act is not yet promulgated, the equity maxim, that can take care of this legal deficiency is, “Equity regards as done, that which ought to have been done,” and it is settled law, “That where Equity and Common Law conflict, Equity shall prevail,” (Sec The Earl Of Oxford Case, 1615) Section 92 encapsulates the sacrosanct and inviolable constitutional procedure, for recalling elected members from the said Assembly, by the honourable IEC chairman, by the lion-hearted and God-fearing Alhaji Momar Njai.

Legal grounds for creating a second
or a review panel of the supreme court
Section 54 of The Supreme Court Act-Subsidiary Legislation, is titled “Grounds For Review”, and it reads: “The Court may review a decision made or given by it on any of the following grounds:- (a) exceptional circumstances which have resulted in miscarriage of Justice, (b) discovery of new and important matter of evidence, which after the exercise of due diligence, was not within the applicant’s knowledge or could not be produced by him or her, at the time when the decision was given.”
What is miscarriage of justice?:The Concise Oxford Dictionary (9th Edition), authoritatively defines miscarriage of justice, thus: “any failure of the judicial system to attain the ends of justice.”

Miscarriage of justice against
His Excellency President Adama Barrow:
Apart from the aforesaid miscarriage of justice concerning National Assembly elected members, a monumental miscarriage of justice, has also been unfairly and unjustly inflicted, on His Excellency, President Adama Barrow. Whenever the phrase “unconstitutional” is used, this means, either an act or an omission has been committed, which contradicts what is stated in the Constitution. Therefore, if the first panel of the Supreme Court, describes the president’s act of instructing the secretary general, Office of the President, to issue a termination letter to Ms Ya Kumba Jaiteh, as “unconstitutional”, the five judges of that first panel of the Supreme Court (in all fairness to His Excellency, President Adama Barrow), should have clearly stated, which section in our 1997 Constitution, had been contradicted by the aforesaid act of His Excellency President Adama Barrow? I am humbly submitting, that no provision whatsoever, of the aforesaid Constitution, had been contradicted or violated, by President Barrow’s aforesaid executive act, because the said Constitution, is absolutely silent, as to which constitutional procedure, President Barrow should follow, concerning the revocation of any of his five presidential nominees in the said Assembly. The court rejected the phrase: “that these five presidential nominees, hold their parliamentary offices at his pleasure”. But the court should agree “quam diu bene se gesserint”(Latin: as long as they behave themselves well).

The Attorney General, appeared in person, and on behalf of the first and second defendants, and rightly said, the plaintiff had failed to discharge the burden of proof, and that Section 231(1) gives the president the power, to revoke the plaintiff’s nomination, and he relied on Section 20 of Interpretation Act (Cap. 4:01 Laws of The Gambia), to buttress his proposition, and it reads: “Whereby or under any Act a power to make any appointment is conferred, then, unless the contrary intention appears, the authority having power to make the appointment, shall also have the power, to suspend or dismiss any person appointed by it, in exercise of the power.” Unfortunately, the court refused to accept this Statutory provision, because (as I have already stated earlier), the court was of the opinion, that this quotation would not be admissible, because the court believed, that “a contrary intention”, could be deduced, from the surrounding circumstances.

The court also observed, that the secretary general’s letter to the plaintiff (the revocation letter), did not indicate on what legal authority, the revocation was being done? It stated,“…that while such an omission may not be fatal to the act, it is nonetheless desirable where public officials purport to exercise powers, conferred on them by the law…” Yes, this is a fair comment, but in all honesty, the court should not expect The secretary general (who is a layman in law, with all due respect to him), to indicate in his revocation letter, under what legal authority, the revocation was being done? “Nemo dat quod non habet” (Latin: No person can give, what he/she does not have).

Conclusion
The way forward now, is for a second panel (of 7 Supreme Court Judges), to be urgently constituted, which will review the decision of, the first panel of five judges. “Equity aids the vigilant, but not the indolent”, as the famous equity maxim goes. The second panel, will hopefully effectively take care of the two monumental instances, of “miscarriage of justice” which His Excellency President Adama Barrow, and the honourable elected members of the said Assembly, have really experienced and suffered in this case. His Excellency President Adama Barrow, must not be made to suffer, because of a monumental deficiency, in our present 1997 Constitution.

The late veteran British Second World War prime minister, the Rt ,Honourable Sir Winston Churchill (KCMG), once said: “Give us the tools, and we will finish the job.” The CRC, should now give His Excellency President Adama Barrow and his successors,the requisite Cconstitutional tools, so that when this incident re-occurs in the unknown future, the then sitting Gambian president, will constitutionally nullify the nomination of a nominated parliamentarian, without any hullabaloo or pandemonium.

I am very grateful to my learned friend, Mr Lamin K Mboge, for writing a very powerful article last week, in our national newspapers, fully corroborating my humble and plausible legal opinion, that there is indeed a very important and urgent need, for the setting up of a second panel of the Gambia Supreme Court, for the aforesaid noble purpose. I rest my case.

Dr Henry DR Carrol (MRG) is a Solicitor General Emeritus of The Gambia (from 2007 to 2009), Senior Oxford-Trained Lawyer & Founder Senior UTG Law Lecturer (from 2007 to date).

- Advertisement -
Join The Conversation
- Advertisment -

Latest Stories

Billy G Tunkara

PRO-BARROW NAMS BOYCOTT VOTE TO SLASH PRESIDENT’S BUDGET

By Tabora Bojang A number of lawmakers seen as sympathetic to President Barrow yesterday boycotted a parliamentary vote called to slash funds in the 2021...
jarju

Ex-minister, magistrate dies

- Advertisment -