By Ibrahim Cham,
Constitutional analyst
Introduction
This rejoinder responds to the article by Hon Sarjo Barrow, Esq, published in The Alkamba Times, titled “Re-examining State v. Yankuba Touray (2021): Constitutional Immunity, Official Acts, and Fair Trial Guarantees.” While the article commendably interrogates the tension between accountability and constitutional safeguards, it proceeds from several fundamental mischaracterisations of the jurisdiction, powers, and procedural competence of the Supreme Court of The Gambia under the 1997 Constitution.
Most notably, the article erroneously confines the Supreme Court’s authority to abstract constitutional interpretation, overlooking its appellate jurisdiction as a final court of both law and fact, and consequently misrepresents the Court’s determination on “official acts” as premature and procedurally improper. This rejoinder clarifies those misconceptions, situates the Supreme Court’s reasoning within settled constitutional doctrine, and demonstrates that no fair-trial guarantees were undermined.
The constitutional functions of the Supreme Court: beyond pure interpretation*
Hon. Barrow’s central premise rests on an unduly narrow view of the Supreme Court’s functions. Under Sections 125–128 of the 1997 Constitution, the Supreme Court exercises dual jurisdiction:
Exclusive original (constitutional) jurisdiction and final appellate jurisdiction in civil and criminal matters.
The Supreme Court is not merely an advisory interpreter of constitutional provisions; it is the ultimate judicial authority, empowered to review both legal conclusions and factual determinations emanating from the High Court and the Court of Appeal.
This position has long been settled in Gambian jurisprudence. In Jeng v. Gambia Commercial & Development Bank Ltd (1997–2001) GR 679, the Supreme Court affirmed that once seized of a matter on appeal, it is entitled to draw its own conclusions from the record, particularly where concurrent findings raise constitutional implications. Similarly, in Attorney General v. N’Jie (No. 2) (1961) GLR, the Court underscored that appellate courts are not precluded from engaging with factual matrices where justice so requires.
Accordingly, the suggestion that the Supreme Court exceeded its remit by assessing whether the alleged conduct could amount to an “official act” is doctrinally unsound.
The Supreme Court’s determination was appellate, not premature
Contrary to Hon. Barrow’s assertion, the Supreme Court did not determine the issue of officiality in the abstract or at first instance. Rather, it acted within its appellate jurisdiction, reviewing concurrent decisions of both the High Court and the Court of Appeal, which had already rejected the immunity claim.
It is settled law that where lower courts have made concurrent findings, the Supreme Court may affirm, modify, or overturn those findings where constitutional interpretation is implicated. This principle mirrors comparative authority. In United States v. Johnston, 268 U.S. 220 (1925), the U.S. Supreme Court confirmed that appellate courts may determine mixed questions of law and fact where the material facts are undisputed or sufficiently established on the record.
Thus, characterising the Supreme Court’s decision as “premature” misconceives both procedural posture and constitutional hierarchy.
Official acts, employment scope, and constitutional immunity
Paragraph 13 of the Second Schedule to the Constitution grants immunity only for acts performed “in the performance of official duties.” This phrase is neither vague nor elastic. Its interpretation must be grounded in the scope of employment and lawful authority.
As stated by Chief Justice Hassan B. Jallow in State v Yankuba Touray, murder is not within the course of employment of any public official. This reasoning aligns with orthodox common-law doctrine. In Liversidge v. Anderson [1942] AC 206, Lord Atkin famously cautioned against construing executive authority so broadly as to swallow legality itself.
International jurisprudence also supports this position. While it is true that some international tribunals recognise that grave crimes may be committed “under colour of authority,” this does not mean such acts qualify as official acts for the purpose of domestic constitutional immunity. The distinction between state attribution and employment authority is critical. The latter governs constitutional immunity.
Law and fact: A false dichotomy
Hon. Barrow’s attempt to separate “law” from “fact” in this context is analytically flawed. Facts do not exist outside the law; they are assessed within legal frameworks. The proper distinction is between raw facts and legal issues arising from those facts.
The Supreme Court did not conduct a criminal trial or determine guilt. It assessed whether, on the undisputed allegations, the act complained of could as a matter of law fall within the constitutional meaning of “official duty.” This is a legal determination, not a trial-level adjudication.
In Pullman-Standard v. Swint, 456 U.S. 273 (1982), the U.S. Supreme Court recognised that appellate courts may resolve mixed questions where the legal standard is decisive. The Gambian Supreme Court acted squarely within this principle.
Mens Rea, Actus Reus, and the nature of the alleged conduct
The alleged conduct in State v. Yankuba Touray involved both actus reus and mens rea, elements that fundamentally negate any claim to officiality. The deliberate, covert nature of the killing, coupled with the subsequent false declaration of the cause of death, removes the act from any conceivable realm of lawful state function.
In R v Princewill (1963) 1 All NLR 54, the court held that criminal intent cannot be shielded by official position where the act is inherently unlawful. The same logic applies here. An act deliberately concealed and falsely explained cannot simultaneously be characterised as an official duty.
Domesticated treaties and constitutional supremacy
It is correct that domesticated treaties form part of Gambian law under Section 7 of the Constitution. However, they remain subordinate to the Constitution. The Supreme Court has repeatedly affirmed this hierarchy, notably in United Democratic Party v. Attorney General (2008) 1 GLR 326.
The Court’s reasoning in Touray did not subordinate the Constitution to international law; rather, it harmonised constitutional accountability with international norms — precisely as envisaged by comparative constitutional practice (see Whitney v. Robertson, 124 U.S. 190 (1888)).
Fair trial guarantees were not undermined
Finally, the claim that Section 24 fair-trial guarantees were violated is unsustainable. The accused was not denied the opportunity to defend himself at trial; rather, he was found not entitled to constitutional immunity from prosecution. Immunity is a threshold legal question, not a component of the presumption of innocence.
As the European Court of Human Rights held in De Cubber v. Belgium (1984) 7 EHRR 236, fair-trial rights protect procedural fairness, not immunity from lawful prosecution. The Supreme Court’s decision merely affirmed that the trial could proceed — nothing more.
Conclusion
The Supreme Court of The Gambia acted within its constitutional mandate, exercising its appellate jurisdiction, applying settled principles of official duty, and safeguarding the supremacy of the Constitution. The determination that the alleged act could not, in law, constitute an official act was neither premature nor procedurally improper.
Far from undermining the rule of law, the decision reinforces it: constitutional immunity cannot be transformed into a shield for deliberate criminality. The processes and procedures adopted by the Supreme Court were lawful, legitimate, and consonant with both domestic and comparative jurisprudence.
In constitutional democracies, accountability and legality are not competing values; they are complementary. State v. Yankuba Touray stands as a principled affirmation of that truth.
