By Bruce Asemota
Justice Ebrima Ba Jaiteh of the High Court in Banjul has referred the issue of constitutional immunity of Yankuba Touay to the Supreme Court for determination.
Justice Jaiteh’s decision was anchored on a ruling premised upon an application made by Defence Counsel A. Sissohor urging the court to discharge Yankuba on grounds of constitutional immunity pursuant to paragraph 13 (1) & (5) of the Second Schedule of the 1997 Constitution of The Gambia.
Lawyer Sissohor had submitted that no court of law or tribunal or body can enquire into any activities or omissions of Yankuba as a Junta member of the Armed Forces Provisional Ruling Council (AFPRC) between 1994 to 1997.
Lawyer Sissohor argued that the application is not about interpretation of the constitution but enforcement of Touray’s right not to be prosecuted, noting that the court lacks jurisdiction to try this matter.
Lawyer Sissohor submitted that the High Court’s powers are ousted to try this case by virtue of paragraph 13(1), (3), (4) & (5) of the Second Schedule of the 1997 Constitution and therefore urged the court to discharge him.
Defence Counsel submitted that if the court disagrees with his submission, it should refer the matter to the Supreme Court for interpretation.
Justice Jaiteh disclosed that Principal State Counsel K. Tah in his response submitted that the Defence application does not seek an interpretation or enforcement of paragraph 13(1) & (5) of the 1997 Constitution of The Gambia.
Counsel Tah submitted that paragraph 13 (1) refers to acts carried out by Junta members of the AFPRC, ministers appointed by AFPRC and / or other appointees of AFPRC and in the performance of their official duties.
State Counsel Tah asked whether the act alleged to have been committed by Yankuba was within his official duties.
He argued that Yankuba has the burden of providing facts to the High Court as to what were his official duties as a Junta member and whether the allegation of the murder of Koro Ceesay was part of his official duties.
He submitted that Yankuba has not provided sufficient facts to the court to demonstrate that the murder was committed as part of his official duties and in the absence of sufficient facts, the application to invoke constitutional immunity is therefore premature. He submitted that paragraph 13(1) as it appears in the 2002 reprint of the 1997 Constitution has been rendered inapplicable by virtue of the Supreme Court case of Jammeh v Attorney General (1997 – 2001) GR at page 839, where the Apex Court held that the purported amendment of paragraph 13 (1) by Act No. 6 of 2001 was made in excess of the powers of the National Assembly.
He submitted that Yankuba is not entitle to constitutional immunity provided under paragraph 13(1) & (5).
He urged the court to dismiss the application and direct Yankuba to proceed with his defence.
Delivering the ruling yesterday, the trial judge said the meaning of section 127 of the Constitution gave the Supreme Court the power to interpret or enforce any provision of the 1997 Constitution other than the provisions enshrined under sections 18 to 33 and section 36(5) of the Constitution.
Justice Jaiteh asserted that the High Court does not have the power to interpret or enforce paragraph 13 of Second Schedule but only the Supreme Court of The Gambia that has the power to interpret or enforce paragraph13 of the Second Schedule of the 1997 Constitution and no other Court in the hierarchy of our courts have such power.
Justice Jaiteh stated that he disagreed with the submissions of both Counsel for the Defence and the State that paragraph 13 (supra) is not about interpretation or enforcement, rather it is about invocation.
He said a court of law cannot invoke or enforce a provision of the constitution without interpretation.
Justice Jaiteh revealed that any attempt by his court to invoke, interpret or enforce any provision under paragraph 13 will tantamount to an academic exercise in futility.
Justice Jaiteh revealed that Yankuba raised the issue of constitutional immunity and invoked paragraph 13 of the Second Schedule of the 1997 Constitution, the proper court in this jurisdiction to deal with this matter is the Supreme Court of The Gambia.
Justice Jaiteh stayed the proceedings and referred the matter to the Supreme Court for its determination of the issue raised under subsection 1 (a) of section 127 of the 1997 Constitution.
