A question the Supreme Court answered incorrectly
In some circles, the clamour for a replacement of the 1997 Constitution of the Republic of The Gambia is approaching a crescendo. At the Official Opening of the 2023 Legal Year on 05 February, the President of the Gambia Bar Association called for a new Constitution.
So too His Excellency the President of the Republic, but with the warning that what the country needs is a neutral Constitution, not one that “targets individuals”.
Not to be outdone, the National Human Rights Commission (NHRC) released what it calls an Advisory Note on the Abolition of the Death Penalty in The Gambia (the Advisory). Rather incongruently with the body of its Advisory, its recommendations to the Government for expediting the “abolition of the death penalty in The Gambia” are:
1. Re-introduces the 2020 Draft Constitution which contained progressive provisions that guarantee fundamental rights and freedoms, including the right to life.
2. Prioritizes and expedites the enactment of the Criminal Offences Bill and the Criminal Procedure Bill which proposed to abolish the death penalty as a form of punishment.
In the sublime words of the Honourable Majanko Samusa during the National Assembly debates on the 2020 Draft Constitution, it is common territory we need a Constitution BUT…
It is my contention the NHRC Advisory made no case that the death penalty is a serious matter of practical concern in The Gambia and cannot therefore be interposed as a justifiable anchor for reintroducing a Draft Constitution that must be pruned of its excess fat.
Other than the Executive moratorium on the implementation of the Death Penalty in place since 2018, and notwithstanding the continued imposition of death sentences by the High Court, there is a cogent case for the proposition that on the current architecture of the highest national law, there is no valid death penalty regime in The Gambia.
There is therefore no compelling basis for the NHRC to link its Advisory to a reintroduction of the rejected substandard 2020 Draft Constitution.
I here reproduce an article first written just after the prisoner executions in 2012 and modified and republished some few years later.
Please read on
“With the recent announcement of Courts Martial verdicts on the 30 December 2014 State House attacks, the question of the death penalty is back on the agenda as a topic of major public interest. Both sides of the underlying political spectrum informing the December events are curious as to whether The Gambia has a valid death penalty law.
On the death penalty itself, there is philosophical divergence on its appropriateness as a form of punishment in a public environment professing fidelity to the sanctity of life. This is a legitimate dispute over a public question of great moment, and understandably, the philosophical gulf is not completely bridgeable.
For some, there is never any justification for state-sanctioned killing, be it judicial, or extra-judicial. Others are firm adherents to the centuries-old precept of ‘a life for a life’, but only in that specific circumstance. What may not be in doubt is the absolute need for watertight procedural safeguards to ensure that for a transaction so terminal, there are no legal regrets after the fact. The stain of unlawful killing by the state is not cleanable!
In a nutshell therefore, and as far as the death penalty is concerned, the fundamental question to be answered is whether the current state of Gambian law permits state-sanctioned killing. There is no question a gap inheres in the law, and it is therefore the duty of the overall public space to engage with the issue and settle the question publicly and transparently.
It may be argued that the law is clear and there is no need for either visiting or revisiting the issue. And what evidence might be advanced for this contention? In the case of Colonel Lamin Bo Badjie & 6 Others and the State (SC Crim. Appeal No: 1-7/2011), the Supreme Court of The Gambia, in a decision delivered 12 November 2014, spoke on the issue and gave an affirmative answer to the question of whether the country has a valid death penalty law. Although the full Bench of seven Justices of the Supreme Court (JSC) sitting in “review” of the matter pursuant to Rule 54(a) of the Supreme Court Rules decided 4-3 against the appropriateness of imposing the death penalty in a matter involving neither “violence”, nor “the administration of any toxic substance, resulting in the death of another person”, it unanimously upheld the legal validity of The Gambia’s death penalty regime.
On the facts as established in that case, the substitution of life imprisonment for the original death sentence was unquestionably the right decision. It is nonetheless a matter of great concern that the original verdict had to run the whole appellate gamut, and an “exceptional” revisit of related issues including the sentence in a full Bench “review” to reverse the glaringly incorrect death sentences imposed by the trial court, a view echoed by Hon. E. K. Ayebe, JSC (Ayebe, JSC) thus: “It does not appear from the record that in confirming the sentence of death, we took into consideration the fact that we could consider the sentence of imprisonment for life too, that no actual violence has occurred …” (p. 33 of Judgment).
Of additional concern is the fact that Hon. Justice Raymond C. Sock, JSC (Sock, JSC), the author of the opinion the full Bench was moved to “review”, changed his vote on the sentence without accepting the reasoning concomitant to any rational change of vote. Instead of embracing the clear command of section 18 of the Constitution (section 18) and unequivocally accept that the death sentences were incorrect, Sock JSC argued: “Although the Applicants failed to urge the Court of Appeal to exercise its discretion under section 6(4) of the Court of Appeal of The Gambia Act and vary the sentence of the trial court, they did raise it before this Court, as I said earlier. The question, however, is whether the ordinary bench of this Court ought to have exercised its discretion under section 126(3) of the Constitution to vary the sentence passed by the trial judge. I believe this Court should have done so “in the greater interest of justice to avoid a gross miscarriage of justice”, given the particular circumstances of this case and in the absence of any reason by the trial judge for the exercise of his discretion in sentencing the Applicants to death” (p. 46 of Judgment).
This is an incredible copout by Sock, JSC, in light of the fact that “discretion” was not an issue before the “review” Court. On the facts, the Constitutional pronouncement was conclusive! The “trial judge” had no competence, and therefore no “discretion”, on whether or not to impose the death sentence. Similarly, the ordinary Bench led by Sock, JSC, had no competence to maintain the death sentence of the Applicants. If only for the clear and incomprehensible disregard of 18(3), it acted per incuriam!
Unquestionably, there is sentencing discretion available to the courts when dealing with Section 35(1) Criminal Code offences, with the exception of section 35(1)(f) which imposes a mandatory death sentence. However, when the Constitution, and inferior statutory law speaks to an issue, the former reigns supreme. It wins conclusively!
As convincingly articulated by Hon. Justice G.B. Semega-Janneh, JSC (Janneh JSC): “… It is only in respect of offences under section 35(1)(f) that the death penalty is mandatory. But in view of the interpretation of section 18 and the provisions of paragraph 16 of the Second Schedule of the Constitution in relation to the facts, the sentence for which the appellants are liable under section 35 is a sentence of life imprisonment”.
Although the reversal of sentence answered that particular issue correctly, the Supreme Court’s ginger dance around the edges of the larger question did not inspire. On the penultimate issue of whether the Gambia has a valid death penalty law, the Supreme Court answered incorrectly, thereby depriving the overall decision of potential landmark status.
At stake is not so much the sentence per se, but whether the courts have competence to impose the death sentence in light of the architecture created by section 18. Since 2007, no level of court in The Gambia has the competence to impose, or maintain, a death sentence.
Of the opinions by the full Bench of seven, Janneh, JSC, gave the most compelling exposition of the Constitutional principles at stake, concentrating more on the larger purpose of section 18 than the questionable grammatical issues seized on by Sock, JSC – the so-called “problem” of “the misplaced or dangling modifier” – whatever that means (see pp. 48-50 of Judgment). For Sock, JSC, I merely interpose the Supreme Court of India thus: “The attempt of the Court should be to expand the reach and ambit of the Fundamental Rights rather than to attenuate their meaning and content by a process of judicial construction” (Maneka Gandhi v Union of India, AIR 1978 SC 597).
According to Janneh, JSC, “Section 18 is an entrenched clause and protects a fundamental right and freedom. It has now been repeatedly stated and restated in constitutional cases across common law and other national jurisdictions, that a constitution, particularly the part that protects fundamental rights and freedoms, is given a generous and purposive interpretation” (p. 18 of Judgment, citing Attorney General of The Gambia v Momodou Jobe  AC 670, a Privy Council decision).
But even Janneh, JSC, stopped short of categorically stating that pending a mandatory “review” by the National Assembly, and a possible referendum by the electorate, imposed by the Constitution, the death penalty is placed in abeyance and can neither be imposed nor executed and that those sentenced to death after 16 January 2007 cannot be lawfully killed. Even whilst recognizing the complications embedded in section 18, Janneh, JSC, contends:
… However the death sentence is saved by section 18(1) reproduced above. Section 18(3) contemplates the abolition or otherwise of the death sentence. The effect of this sub-section has been properly and adequately dealt with by my brother the Hon.
Justice R. C. Sock in the lead judgment under review. I have this to add. It is for the
National Assembly and not the courts to act on the sub-section. It is open to civil
society and society at large to urge upon the National Assembly to belatedly act on
the sub-section, that is to say, “review the desirability or otherwise of the total
abolition of the death penalty in The Gambia”. However, let it be noted that in reviewing the desirability or otherwise of the death penalty, the National Assembly might well conclude that a total abolition of the death penalty is not desirable and thereby the death sentence as circumscribed by the Constitution shall remain in place” (pp. 24-25).
More on the above, but suffice for now that section 18 is entrenched, and as such the National Assembly has no unilateral capacity to decide on the death penalty. Poignantly, Janneh, JSC’s worry about the National Assembly’s direction of travel on a “review” of 18(3) is not a matter for the Supreme Court to ponder. As stated, at section 127(1)(a), the Supreme Court has jurisdiction “for the interpretation or enforcement of any provision of this Constitution …”.
It is therefore a matter of great disquiet some JSC’s are quite dismissive in their opinions on an issue so momentous, and voted to maintain the death sentences without advancing any cogent reasons for so doing. They appear to have lost sight of the enormity of the question they were petitioned to pronounce upon, an inexcusable lapse considering the level of court, and the fact that the machinery of justice continues to impose and maintain death sentences.
For example, the Hon. Chief Justice Ali Nawaz Chowhan offered no original thoughts on the thorny issue of the death penalty, relying instead, and wholesale, for that matter, on the earlier panel of five judgments of Sock, JSC, and then Chief Justice Hon. Emmanuel Akomaye Agim (pp. 81-84, and 89-90 of Judgment), effectively confirming the legality of the death penalty, and more crucially, accepting the implicit suggestion running through the opinions that the jurisdiction of the Supreme Court was ousted, and cannot therefore fashion a way out of the evident legal paralysis 18(3) speaks to. Concurring, Hon. Walters S.N. Onnoghen, JSC (Onnoghen, JSC) states: “While the majority of the full Bench are of the view that the court can and should so review, I hold a contrary view mainly because having held that the application for review failed, the failure is total and includes the sentence as affirmed by the ordinary Bench of the court” (p. 105 of Judgment).
In clear conflict with the considered view of Sock, JSC, that the “the ordinary bench of this Court ought to have exercised its discretion under section 126(3) of the Constitution to vary the sentence passed by the trial judge” (p. 46 of Judgment), Onnoghen, JSC asserts: “the matter of sentence was not made an issue before this court on the appeal, the judgment of which is now on review, so this court has no business engaging on a voyage of discovery in respect of the sentence imposed on the applicants” (p. 105 of Judgment).
Not to be outdone, Hon. Justice E.O. Fagbenle, Ag JSC, states: “The applicant has only reopened and reargued all the issues earlier argued and determined by the full panel of 5. It has not canvassed any new grounds showing exceptional circumstances that has led to a total miscarriage of justice. It is on this score that I agree with the ruling of the Hon. Chief Justice that the application be dismissed” (p. 107 Judgment).
Contrast this with the view of the Supreme Court of India that as “the protector and guarantor of the fundamental rights … it cannot, consistently with the responsibility so laid upon it, refuse to entertain applications seeking protection against infringement of such rights” (Romesh Thappar v State of Madras, AIR 1950 SC 124). With utmost respect to Fagbenle, Ag JSC, the “exceptionality” of a wrongly imposed death sentence, is, at the very least, a legitimately contestable issue.
Notwithstanding the position of the Supreme Court therefore, the question of whether there is a legally implementable death penalty law in The Gambia must be seen as an issue of the highest import. I answer that question in the negative, arguing instead, and unequivocally, that there is currently no legally enforceable death penalty law in The Gambia.
As the reader ploughs through, it would be helpful to afford particular attention to section 18, and more especially, to the explicit wording of subsection 18(3). Of all the entrenched clauses, 18(3) alone incorporate a “sunset” provision mandating very specific action within ten years of 16 January 1997. A corollary enquiry must address the issue of the legal permissibility, and, or, fairness, of unilateral benefit to one side of a transaction akin to a contractual relationship between the state and the citizen. In other words, can the state maintain the death penalty, and continue to profit from it even where its permission lapsed, and it either refuses or neglects to renew that permission? In that kind of climate, can the highest court in the land, with the legal authority to pronounce what is law, legitimately absolve itself of responsibility to do so on a public question of such seminal importance?
Pertinently, section 18 states:
(1) No person shall be deprived of his or her life intentionally except in the execution of a sentence of death imposed by a court of competent jurisdiction in respect of a criminal offence for which the penalty is death under the laws of The Gambia as they have effect in accordance with subsection (2) and of which he or she has been lawfully convicted
(2) As from the coming into force of the Constitution, no court in The Gambia shall be competent to impose a sentence of death for any offence unless the sentence is prescribed by law and the offence involves violence, or the administration of any toxic substance, resulting in the death of another person.
(3) The National Assembly shall within ten years from the date of the coming into force of this Constitution review the desirability or otherwise of the total abolition of the death penalty in The Gambia.
As an entrenched provision, section 18 is amendable only via the restrictive procedure delineated at Section 226 of the Constitution, which states:
(2) Subject to subsection (4), a Bill for an Act of the National Assembly under this section shall not be passed by the National Assembly or presented to the President for assent unless-
(a) Before the first reading of the Bill in the National Assembly, the Bill is published in at least two issues of the Gazette, the latest publication being not less than three months after the first, and the Bill is introduced into the National Assembly not earlier than ten days after the latest publication, and
(4) A Bill for an Act of the National Assembly altering any of the provisions referred to in subsection (7) shall not be passed by the National Assembly or presented to the President for assent unless-
(a) the Bill is published and introduced in the manner required by paragraph (a) of subsection (2),
(b) The Bill is supported on the second and third readings by the votes of not less than three quarters of all the members of the National Assembly,
(c) the Bill has been referred by the Speaker to the Independent Electoral Commission and the Commission has within six months of such reference, held a referendum on the Bill and
(d) at least fifty percent of the persons entitled to vote in the referendum have taken part in the referendum and the Bill is supported in the referendum by at least seventy five percent of those who voted
(7) Subsection (4) applies to-
(a) this section (b-d)
(e) Chapter IV (which provides for the protection of fundamental rights and freedoms)
As earlier mentioned, 18(3), alone of the entrenched clauses has a “sunset” provision mandating a particular action within ten years of the Constitution coming into force. Notwithstanding subsection (4)(b) of section 226 that “The Bill is supported on the second and third readings by the votes of not less than three quarters of all the members of the National Assembly”, it is arguable that at least for 18(3), the mandatory “review” slated for the National Assembly is one of mere administrative routine.
Unlike other entrenched clauses with no “sunset” provisions, it appears that 18(3) does not contemplate a defeat of the “review” Bill at the National Assembly stage of the multi-faceted procedure delineated for deciding the “desirability or otherwise of the total abolition of the death penalty in The Gambia”.
But even where the strict constructionist would ignore the internal contradictions that beset the Constitution and allow for the defeat of the Bill at the National Assembly stage of the mandatory “review”, there can be no doubt the “review” must take place within ten years. Where the state refuses to abide by the explicit Constitutional command of a “review”, the highest court in the land must declare a judicial moratorium on the death penalty.
On different facts, but with identical underlying principles to the command of a “review” in 18(3) on the status of Gambia’s death penalty law, a differently constituted Supreme Court, in a declaratory judgment, ordered the Independent Electoral Commission “to hold Chieftaincy elections as required by the Constitution” (The Constitutional Law of The Gambia: 1965-2010, by Ousman A S Jammeh, at p. 256).
In that celebrated case of Fasaikou Jabbi v Kebba Fanta Koma, the AG, & Others[Civil Application Number 4/2000] (Sup. Court), the plaintiff, “of Lameng Koto village, Sami District … sought to ensure compliance with the Constitution as supreme law… Jabbi took out an originating summons in the High Court against the Defendants namely, Kebba Fanta Koma, then acting Chief of Sami District, Central River Region, the Minister for Local Government and the Attorney General, praying” thus:
(a) “a declaration that the continued holding and performance of the functions and duties of the office of District Chief of Sami District by the first defendant is in contravention of section 58 of the 1997 Constitution and therefore null and void;
(b) a declaration that the act of the second defendant to retain the first defendant as Chief for the District of Sami without holding an election to fill the vacancy created by the removal/retirement of Musa Coma is unconstitutional, null and void; and
(c) an order or directive restraining the first defendant from parading or holding himself out as Chief of Sami District until he is properly elected as such in accordance with the provisions of the Constitution and the Elections Decree, 1996” (Ibid).
In the emphatic and cogent analytical words of Ousman A S Jammeh, this “was another unprecedented case of constitutional significance arising from an omission, rather than an act of commission on the part of the executive, and by implication, the legislature”. The decision of course found disfavour “with the executive branch” (Ibid, at p. 113), and was predictably followed by a Constitutional Amendment in 2001 making chieftaincy an appointive position, but at least the intervention of the Court spurred movement by the drivers of public policy, in this case the Executive, and the Legislature.
Given its own precedent, albeit by a differently constituted Supreme Court, it is wholly unpersuasive for Janneh, JSC, to interpose an argument akin to what is known in US federal jurisprudence as the “political question”, a doctrine fully enunciated in the landmark case of Baker v Carr 369 US 186 (1962). In deciding that there is no implementable death penalty law, the Supreme Court would not be traversing Constitutional demarcations by intruding into legislative territory. Indeed it is the function of the courts to uphold “the Constitution and to this end, have been conferred the power to interpret it. It is they who have to ensure that the balance of power envisaged by the Constitution is maintained and that the legislature and executive do not, in the discharge of their functions, transgress constitutional limitations” (L. Chandra Kumar v Union of India AIR 1997 SC 1125 at 1149-50).
In the inspiring words of the Indian Supreme Court, “Articles 32, 141 and 142 are couched in such wide and elastic terms as to enable this Court to formulate legal doctrines to meet the ends of justice … To deny this power to the Supreme Court on the basis of some outmoded theory that the court only finds the law but does not make it is to make ineffective the powerful instrument of justice placed in the hands of the highest judiciary of this country” (I. C. Golak Nath v State of Punjab AIR 1967 SC 1643, at 1668-9).
Considering the many currently on death row, the validity or otherwise of the death penalty is a legal question that comes within the competence of the Supreme Court to settle once and for all. In the Indian case of Minerva Mills Ltd v Union of India, AIR 1980 SC 1789, the Chief Justice, for the majority, ruled: “It is the function of the Judges, nay their duty, to pronounce the validity of laws. If Courts are totally deprived of that power, the fundamental rights conferred on the people will become a mere adornment because rights without remedies are as writ in water. A controlled constitution will then become uncontrolled”.
I accept that it cannot enforce an order directing the National Assembly to “review the desirability or otherwise of the total abolition of the death penalty in The Gambia”, but there is no question that given the wholly legal nature of the matter, the Supreme Court has the Constitutional mandate, and the public responsibility no less, to place a judicial moratorium on the imposition, maintenance, or execution of the death penalty. In the words of Ayebi, JSC, “the framer of the Constitution would want the retention of the death penalty on the statute books in the Gambia considered or given a second look after the operation of the Constitution for a period. That in my view is the spirit of the Constitution” (p. 32 of Judgment), and in this regard, in its interpretive role, “the judicial approach should be dynamic rather than static, pragmatic and not pedantic and elastic rather than rigid” (Pathumma v State of Kerala AIR 1978 SC 771, at 774).
From the onset, there is absolute clarity on the fact that section 18, as part of Chapter IV of the Constitution, is an entrenched provision. The fundamental point to note is therefore that in light of the constitutional architecture on entrenchment, the National Assembly has no unilateral capacity to “review the desirability or otherwise of the total abolition of the death penalty in The Gambia”. In simple terms, 18(3) of the Constitution mandates the National Assembly to initiate a referendum process on “the desirability or otherwise of the total abolition of the death penalty in The Gambia”. The National Assembly can only validly act in collaboration with the electorate. In theory at least, it can also refuse to act by defeating any Bill on amending section 18 of the Constitution, thereby foreclosing any need to consult the people on whether to maintain the death penalty or not.
On any reading of 18(3), it is clear that the National Assembly is under Constitutional compulsion to initiate the “review” process. And provided the most critical hurdle of section 226(4)(b), i.e., “the Bill is supported on the second and third readings by the votes of not less than three quarters of all the members of the National Assembly”, a referendum vote on the simple question of whether or not The Gambia should maintain the death penalty must take place by 16 January 2007 at the very latest.
Albeit partially, I concede there is an argument The Gambia had a valid death penalty law from 10 August 1995 when the AFPRC reinstated it, up to, and including 16 January 2007. That validity, sanctioned by a higher law and encapsulated in 18(1), and 18(2) of the Constitution, lapsed on 16 January 2007. On 17 January 2007, an automatic moratorium on conviction, sentence, and implementation of the death penalty kicked in by virtue of 18(3) of the Constitution. That moratorium is what the Supreme Court must now unequivocally pronounce!
In other words, 18 (1) and (2) ceased to have effect and were placed in abeyance by the express overriding qualifier of 18(3) in so far as the constitutional command of a “review”, and a possible referendum on the death penalty did not take place. All death sentences not implemented as of 16 January 2007 were constitutionally stayed. And all death sentences imposed since 17 January 2007 were legally invalid. The supremacy clause at Section 4 of the Constitution overrides the Death Penalty Restoration Act 1995 (see Cap 11:02, Laws of The Gambia, 2009). And notwithstanding anything in section 35 of the Criminal Code, no court in The Gambia is competent to impose, maintain, or implement a sentence of death.
Considering the constitutional timelines around a mandatory “review” of the death penalty law in The Gambia, assuming no hurdle at the National Assembly, even 16 January 2007 as an absolute deadline must be construed as somewhat of a charitable interpretation of the law. The outer deadline of ten years assumes the “review” and potential referendum process was in motion in accordance with the stipulated timelines in section 226 (2)(a) of the Constitution regarding publication of a pertinent Bill in at least two issues of the Gazette, the latest publication being not less than three months after the first, and the Bill is introduced into the National Assembly not earlier than ten days after the latest publication. This alone is a clear 100 days before the mandatory “review” deadline of 16 January 2007!
On commencement of the Bill’s journey through the National Assembly, it may take a good two to three months through the third reading and voting on the matter. After this constitutionally mandated journey in the National Assembly, and again depending on the decision of that legislative body, the Speaker must refer the Bill to the Independent Electoral Commission which must, within six months of such reference, organize a referendum on the Bill. As the wording on timelines permit some discretion on when certain things happen, e.g., “within six months”, it is reasonable to assume that from the first reading of the death penalty retention or abolition Bill in the National Assembly through the holding of a referendum by the IEC, a solid six to nine months could, at the very least, lapsed.
What this means is that a “review”, and possible referendum process, must have commenced in January 2006 to avoid legal uncertainty over the death penalty. Although the commencement of a “review” and referendum process in January 2006 would not have invalidated 18(1) and (2), it would have suspended the implementation of the death penalty pending the verdicts of the National Assembly and the electorate. Since the mandatory “review” and potential referendum process was not even attempted, a strict application of 18(3) suggests the death penalty was in abeyance as early as January 2006.
If only because the Constitutional mandate was inexplicably ignored by the drivers of public legislative power, in this case the National Assembly, and the Executive, the Supreme Court cannot absolve itself of responsibility to act on the matter. It may well be for the “National Assembly” to act on “sub-section” 18, but there is no question citizens and residents of The Gambia continue to endure the strictures of a law no longer validly implementable.
It may be “open to civil society and society at large to urge upon the National Assembly to belatedly act on the sub-section, that is to say, “review the desirability or otherwise of the total abolition of the death penalty in The Gambia”, but there is no question the Supreme Court has the Constitutional mandate to apply the brakes and impose a judicial moratorium on the imposition and implementation of death sentences.
This is not remotely akin to trampling on the domains of either the Executive, or Legislative arms of government, but of protecting the polity itself by removing “certain basic and fundamental values out of the reach of transient political majorities” (Fifty Years of the Supreme Court of India: Its Grasp and Reach, Oxford University Press, 2000). Legality is the software of a democratic political system. Without it, the mainframe is but a mere carcass!
When the question returns to its docket, as it certainly will, the Supreme Court must not again squander the opportunity, and duty, to hold the drivers of public power to account by declaring a judicial moratorium on the death penalty pending National Assembly compliance with a “review”, and potential referendum, as commanded by 18(3) on this thorny, if highly significant issue of public concern”.