On Tuesday, 31 March, 2020, I was having a fruitful bilateral legal discussion, with a very senior, God-fearing and honest Gambia Government lawyer, in his office at the Ministry of Justice. One of the junior TRRC officers, arrived there, and the senior government lawyer, asked him:“Welcome junior TRRC officer, you should be in a position to explain to Dr Carrol and my humble self, why is it that, since Dr Carrol filed his petition at the TRRC one-year ago, against Ms Marie Saine-Firdaus, an ex-Attorney General and Minister of Justice, Dr Carrol has still not been called by the TRRC, to testify?”
In response, the junior TRRC officer said: “…but sirs, I honestly do not know what to say, since I have taken an oath of secrecy at the TRRC, but I am going to hint you both. My seniors at the TRRC, feel that Dr Carrol’s alleged human right violation, is not serious enough, to warrant an investigation and compensation (reparation), by the TRRC.” Both the senior government lawyer and my humble self, profusely thanked the junior TRRC officer, for letting the cat out of the bag. The said junior TRRC officer, should not have any liability whatsoever in law, since he acted uberrimae fidei (in utmost good faith) and pro bono public (for the public good). Also, in the law of evidence, one of the sacrosanct and inviolable principles is: “Illegally obtained evidence, is admissible evidence, in a court of law etc.”. One of the locus classicus (best known) and recent UK Law of Evidence case, for the aforesaid principle (otherwise known as the exclusionary rule, which does not apply in civil cases) is: “Singh Vs Singh (2016)”.
On Sunday, 5 April, 2020, I and a good old friend of mine, a veteran retired educationist, were at his house in Kanifing. While we were chatting heartily, Mr Essa Faal, arrived at the house, perhaps because he saw my white Mercedes Benz car, parked at the gate. Coincidentally, my friend asked Mr Essa Faal the same important legal question, which the aforesaid senior government lawyer, had asked the said junior TRRC officer. At first, Mr Essa Faal was reluctant to answer, and referred to his TRRC oath of secrecy. But I quickly and cunningly prompted him to answer, by telling him that one of the junior TRRC officers (who wants to remain anonymous), has already hinted the answer to both the said senior government lawyer and my humble self, therefore if he refused to answer, then he was a big coward.
He then mustered courage and told me and my friend: “Yes, we have already called some civil servants to testify publicly at the TRRC, but unlike Dr Carrol, those civil servants, had either been sent to the NIA or to prison, during ex-president Yahya Jammeh’s dictatorial government, and since Dr Carrol did not suffer as such, therefore his alleged human right violation is less serious, and the TRRC is only dealing with the most serious human rights violations…” What Mr Essa Faal alarmingly told my friend and my humble self in fact corroborated what the junior TRRC officer, had informed the senior government lawyer, and my humble self. The Holy Bible says: “Out of the abundance of the heart, the mouth speaketh.”
I instantaneously and angrily told him: “Mr Essa Faal, my learned junior and the TRRC lead counsel, you are talking contemptuous, unacceptable and monumental legal nonsense, because Section 14 (1), (A) of The TRRC Act (2017), clearly says: “The Commission shall initiate and co-ordinate investigations into (A) Violations and abuses of human rights…” It clearly does not say: “serious violations of human rights”. A human right violation is indeed a human right violation and the aforesaid statutory provision, clearly does not provide any distinction, between “a human right violation” and “a serious human right violation”, as it is obviously the case, between a misdemeanor (a less serious Crime) and a felony (a very serious crime), in criminal law. “Shall” in the aforesaid section, clearly means the obligation which parliament or National Assembly has imposed on the TRRC, is mandatory or imperative. If it was “may”, it would have been “discretionary”.
Therefore, if my learned junior, Mr Essa Faal, the TRRC lead counsel, had already wrongly advised, the TRRC chairman (your humble self), and other distinguished TRRC commissioners, along the lines of what he clearly told me and my friend, and along the lines, of what the junior TRRC officer had told me and the senior government lawyer, then I am humbly submitting, that he actually gave a very dangerous, inaccurate and unfounded legal advice to you all, and if all of the TRRC commissioners (or most of them), had accepted his aforesaid legal advice, then I am humbly further submitting, that this acceptance, should be instantaneously revisited and rescinded, in the best interest of “even-handed justice” (William Shakespeare), equity and fair play, in order to eschew the TRRC making some decisions, that may amount to a monumental travesty of justice, thereby empowering people who have been adversely affected by such legally wrong decisions, to instantaneously file appeals against them at the Court of Appeal, since the TRRC and the High Court, indeed have concurrent jurisdiction, under The Gambia’s present 1997 Constitution, which is still in force. “Equity aids the vigilant, and not the indolent”, as the famous Equity maxim goes.
Mr TRRC chairman, please feel free or do not hesitate one iota, to get a second legal opinion on this matter of paramount legal and constitutional importance, because as a senior Canadian-trained theologian, let me humbly say, that the Holy Bible authoritatively says, in the book of Proverbs, Chapter 11, Vs 14: “….Where there is no counsel, the people fall, but in the multitude of counsellors, there is safety…”.
Also the Preamble of the TRRC Act (2017) reads: “An Act to provide for the establishment of a Truth, Reconciliation and Reparations Commission, to investigate and establish an impartial historical record of the nature, causes and extent of violations and abuses of human rights, committed during the period July, 1994 to January, 2017, and to consider the granting of reparations to victims and for connected matters.” This authoritative preamble, also fully corroborates, what is clearly stated, in Section 14(1) (A) of the TRRC Act (2017), which I have already quoted and legally analysed, earlier on in this important official missive of mine.
To be continued