By Dr. Omar Janneh
In order to deal with the above subject, we must visit section 85 (Control of prosecutions) of the 1997 Constitution of The Gambia which reads:
(1) The Director of Public Prosecutions shall have power in any case in which he or she considers it desirable to do so, and subject to the approval of the Attorney General-
(a) to initiate and undertake criminal proceedings against any person before any court for an offence against the law of The Gambia.
(b) to take over and continue any criminal proceeding that has been instituted by any other person or authority;
(c) to discontinue, at any stage before judgement is delivered, any criminal proceeding instituted or undertaken by himself or herself or any other person or authority:”
Clearly, in regards to the control of prosecutions, section 85 of the 1997 Constitution explicitly confers specific powers on the Director of Public Prosecutions (DPP) and the Attorney General (AG), but not the President. Therefore, it seems that without consulting the DPP and AG, the announcement by President Barrow to discontinue the prosecution [2 days into the TRRC hearings (http://www.trrc.gm/)] of the perpetrators identified in the report of the Faraba Banta Commission, was an overreach on his part and is tantamount to constitutional vandalism. Furthermore, it is a double U-turn on: 1) the need for speedy dispensation of justice and accountability that came from President Barrow’s Office upon setting up the Commission and 2) it also disregards the appropriate criminal prosecutions the Justice Minister promised in a press conference following the release of the report of the Faraba Banta Commission.
While some might argue that the spirit of section 85(1c) may provide some wriggle room to justify the President to discontinue such a proceeding and thus provide the basis for his sympathisers to back his proclamation to discontinue the prosecutions, it must be clear that section 85(1c) is incomplete and goes on as follows:
Provided that the Director of Public Prosecutions shall not-
(I) take over and continue any private prosecution without the consent of the private prosecutor and the court; or
(ii) discontinue any private prosecution without the consent of the private prosecutor.
Although the above text does not contain section 85 of the 1997 Constitution in its entirety, there is absolutely no other part of section 85 of the Constitution that mentions the “President” or confers powers on the President in as far as control of prosecutions is concerned. I think we all know that if Dictator Jammeh wanted this section to bestow some powers onto him, the section would have carried the word “President”. For example, consider section 84 (Director of public prosecution) of the 1997 Constitution:
(2) The Director of Public Prosecutions shall be appointed by the President.
(3) A person shall not be qualified to hold or act in the office of the Director of Public Prosecutions unless he or she is qualified for appointment as a judge of the High Court.
Thus it can be seen that the control of prosecutions is something even Dictator Jammeh did not want to interfere with directly, but did so indirectly by appointing who he chooses as DPP. This is Jammeh’s way of giving his rule that bit of recognition in terms of separation or powers. However, two years into his Presidency, Barrow’s interference in the judiciary (e.g., the paedophile case, and the interference in the Faraba Banta incident), the hiring and firing of staff and his utterances all go to show that he is making Dictator Jammeh look like an amateur at Dictator Jammeh’s game.
While we respect the wishes of the Community of Faraba Banta to discontinue the prosecution of the perpetrators of the incident in their village, President Barrow has no powers to “……. withdraw all the charges against the PIU officers and the civilian perpetrators concerned”. And by declaring that due process be discontinued, President Barrow has exerted himself as the AG and DPP and has also assumed that section 82 (Prerogative of mercy) of the Constitution can be applied by him at this material time. If this is the way to go, why bother with all of the pain and cost associated with the Commissions? I think President Barrow’s actions clearly underscore the extent of his ignorance and he is dangerous as President.
The AG’s reaction to the press release from the Office of the President seems to indicate that he consulted the Office of the President for its views on the request from the villagers of Faraba Banta to discontinue the prosecutions against the perpetrators of the incident in their village on June 18, 2018. Under normal circumstances, one would expect the Office of the President to submit its views on the matter to the AG who sought them. But the President and his press officers being a third-rate bunch seem totally clueless on processes. It is apparent that the Office of the President decided to directly go public with its views.
Thus the press release appears to come as a shock to the AG as it may have been to some of us. Notwithstanding, for the AG to call the content of the press release an unfortunate choice of words is an understatement or has left me quite baffled. I think the AG should have known better, because given the President’s past and recent utterances, it should be clear to the AG that President Barrow is incapable of choosing his words carefully. He is ill-informed and unpolished. If the AG’s article aimed to repair the damage caused by the President’s press release, I think it failed to do that. The content of the press release is what President Barrow intended the public to know about; we’ve read/heard it and have made our minds about it. It is awful and we are disgusted by it.
Unfortunately, instead of letting the story disappear off the headlines, Mr Ebrima Sankareh thought it wise to release an article which did not change anything, but rather served to keep the bad news in the headlines. However, it seems quite clear that Mr Sankareh’s article sought to clear any lingering evil-smelling air around the President’s press release just in case the AG’s article on the matter failed to neutralise the odour associated with the President’s press release. However, what seems clumsy about Mr Sankareh’s write-up was the mention of the President’s commitment to the principles of separation of powers and non-interference in the operation of the judiciary.
The inadvertent or deliberate inclusion of that text in Mr Sankareh’s article seems damaging to the President because the content of the President’s press release clearly shows that the President interfered with the operation of the judiciary as well as the code of conduct and duties of public officers (section 222(3) of the 1997 Constitution). It seems that the President must know or those around him may know and may have told him that his overreach was an impeachable offence. [Excuse the digression, but could that explain the President’s silence over the firearms imported into the country by Mr Abubacarr Jawara? We shall come back to that at a later time.] Thus I think President Barrow must be very scared. In fact if we had serious law makers in The Gambia, they would have started impeachment proceedings against him by now or at the very least investigate him for being in breach of the code of conduct (section 222 of the 1997 Constitution).
If anyone advised President Barrow that what he did was in line with the powers conferred on him by the Constitution, s/he is wrong. Interestingly, I read a piece from lawyer Mr Malick HB Jallow, backing the action of President Barrow to discontinue the prosecution. Lawyer Jallow presented no clear and substantive argument to support his position that President Barrow did nothing wrong to decide to discontinue the prosecutions against the perpetrators of the Faraba Banta incident. Worse, L
awyer Jallow trips over himself in his circular arguments in his opinion piece, so we must not take him seriously. There is absolutely no constitutional provision for the President to interfere with a process such as this – not now or anytime.
Lawyer Jallow must know that if we are completely serious -which I doubt he is- about not wanting a repeat of the brutality that happened in Faraba Banta, due process must run its course in full without hindrance. It is only then can we avoid a repeat of what happened in Faraba Banta, which Lawyer Jallow admittedly advocates in his clumsy opinion piece. If Lawyer Jallow said what he did to gain favours in President Barrow’s Government, time will tell if President Barrow would reward him for his careless and unprofessional remarks. But when and if that happens, the misinterpretation and possible vandalisation of the Constitution must not come as a surprise to us.
We hope that lessons from this saga and that surrounding the paedophile case have finally taught the AG something. He and the silent Chief Justice must know that there is only one way to teach a lousy President and that is to walk away from his or her sinking government before s/he ruins your reputation and track record. It is hoped that even after considering the wishes of the villagers of Faraba Banta, the AG and the DPP will allow due process to prevail so that lessons can be learnt. Doing otherwise will set a very bad precedent at a time when we have Commissions ongoing and potentially more to come. The public needs to have full confidence that #Neveragain is not just hot air. Going forward, we will remain vigilant because President Barrow is a hopelessly crude and clueless President who will have no misgivings about vandalising the constitution in order to try and satisfy his insatiable interests at the detriment of The Gambia.