By Sarjo Barrow, Esq.
Author’s Abstract
The views expressed in this article are the author’s and do not necessarily represent the views of the U.S. Department of Justice or the United States.
This commentary reexamined the Supreme Court of The Gambia’s 2021 decision in State v. Yankuba Touray, focusing on constitutional immunity under paragraph 13 of the Second Schedule to the 1997 Constitution. It contends that the Court may have prematurely determined the act as “official,” a finding typically reserved for the trial court. Drawing on Gambian, West African, and international jurisprudence, the commentary identifies potential flaws in the Court’s reasoning, particularly the conflation of legality with officiality, which may undermine fair-trial protections under section 24 and deviate from established comparative law principles. The analysis emphasizes the necessity of procedural integrity in reconciling transitional justice objectives with constitutional safeguards.
Introduction
In State v. Yankuba Touray (2021), the Supreme Court of The Gambia determined that a former AFPRC member was not entitled to immunity for an alleged murder committed during the AFPRC period. Although the Court’s focus on accountability is notable, its reasoning exposes potential constitutional and procedural deficiencies. By pre-emptively deciding whether the act was “official” at the reference stage, the Court circumvented the High Court’s fact-finding function, thereby denying the accused the opportunity to present evidence and conflating the legal issue of immunity with the factual determination of officiality. This methodology risks undermining section 24 fair trial guarantees and establishes a concerning precedent for future transitional justice proceedings.
Constitutional Supremacy and International Law
Section 4 of the 1997 Constitution declares the Constitution the supreme law of The Gambia. Treaties and statutes, even when domesticated, are subordinate to the Constitution (sections 7 and 79). The Supreme Court has repeatedly affirmed this hierarchy. See Jeng v Gambia Commercial & Development Bank Ltd (1997–2001) GR 679; United Democratic Party (2008) 1 GLR 326). Accordingly, paragraph 13 immunity may operate even where its application conflicts with international legal norms. This position is consistent with comparative constitutional practice. In the United States, for example, treaties may not override constitutional provisions. See Whitney v Robertson, 124 U.S. 190 (1888); The Cherokee Tobacco, 78 U.S. 616 (1871). This does not deny the normative force of international criminal law. Instead, it reflects the constitutional reality that domestic courts are bound first by their constitutions.
Paragraph 13: Scope and Interpretation
Paragraph 13(1) of the Second Schedule provides:
“No member of the Armed Forces Provisional Ruling Council… shall be held liable… for any act or omission in the performance of their official duties during the administration of the AFPRC.”
Immunity applies exclusively to acts performed in the execution of official duties. Determining whether an act qualifies as official requires consideration of factors including the accused’s role, hierarchical position, connections to state authority, and utilization of state resources. Gambian jurisprudence mandates adherence to the precise statutory language unless such interpretation produces an absurd outcome. See Hon. Halifa Sallah & Ors v Clerk of the National Assembly & Ors (2002–2008) GR 244).
Jurisdiction and Procedural Competence
Sections 127 and 128 of the Constitution empower the Supreme Court to interpret constitutional provisions but do not authorize it to conduct criminal trials. The determination of whether an act is official constitutes a mixed question of law and fact, appropriately addressed by the trial court. Premature resolution of this issue may infringe upon the right to a fair trial. See Pullman-Standard v. Swint, 456 U.S. 273 (1982); De Cubber v Belgium (1984) 7 EHRR 236). The Supreme Court’s approach bypassed established procedures, thereby compromising judicial integrity and the accused’s right to a fair hearing.
Although the issue before the Court was whether the accused is entitled to Constitutional immunity from prosecution for the alleged murder of Ousman Koro Ceesay under Paragraph 13, the invocation of the Court’s jurisdiction under section 127 is not merely procedural. Instead, it is a critical step in upholding the rule of law and the integrity of constitutional interpretation. While, at first glance, the issue may appear jurisdictional, Paragraph 13(1) does not, by its plain language, operate as a jurisdictional bar. Instead, it establishes an affirmative defense that must be raised appropriately and assessed against the fundamental principles of justice and accountability. This distinction is not trivial; it underscores the importance of allowing courts to thoroughly examine claims of immunity, ensuring that justice is neither obstructed by technicalities nor denied under the guise of official conduct.
There are instances in which the Court’s original jurisdiction is engaged, and it acts as a factfinder to reach a legal conclusion—such as in constitutional challenges to legislation. However, in this matter, the Court’s task was to provide definitive legal determination on the scope and application of immunity, not to engage in factual determination. The authority to interrogate the indictment and assess whether the alleged conduct constitutes official conduct—and whether it is shielded by immunity—resides with the High Court.
This careful division of responsibility is essential to preserving the separation of functions, fair trials, and public confidence in the justice system. Upholding this process ensures that immunity provisions are not misused to shield unlawful acts but are applied only in circumstances where the law and justice so demand. As Judge Posner thoughtfully observed in In re Whirlpool Corp. (2011), “[t]he ostrich is a noble animal, but not a proper model for an appellate advocate.” In the context of Paragraph 13, its inclusion in the transitional clause reflects careful deliberation and purposeful intent by the drafters. This provision deserves close and respectful consideration, acknowledging both its historical significance and its role in shaping a fair and balanced legal framework.
Conflating “Official” with “Lawful”
The Supreme Court’s position that serious crimes cannot constitute official acts appears to conflate the concepts of legality and officiality. It is worth noting that international criminal law acknowledges that acts committed under state authority may, in certain circumstances, be manifestly unlawful yet still possess an official character. For example, in Prosecutor v. Blaskic (ICTY Appeals Chamber, 2004), the court recognized that even grave offenses such as murder or torture can be considered acts performed under color of state authority. Similarly, in R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet (No. 3) [2000] 1 AC 147, torture was deemed an official act, though immunity was ultimately denied in view of overriding international law obligations. With respect, by categorically denying official status, the Supreme Court may have departed from the analytical process typically undertaken by trial courts: first determining whether conduct is official, and then assessing the appropriate limitations of immunity. Adhering to this sequence of analysis helps ensure that the complex interplay between official capacity and legal accountability is fully and fairly considered.
Why Official Status Requires Trial-Level Determination
Officiality, if not inherently factual, at best is a mixed question. Determining it requires assessing:
- The accused’s position and duties,
- The chain of commands,
- Connection to state policy,
- Use of state resources or coercion.
These determinations necessitate the presentation of evidence, cross-examination, and thorough fact-finding. Courts in other jurisdictions caution against appellate courts resolving such issues prematurely. For instance, the South African Constitutional Court in President of the Republic of South Africa v South African Rugby Football Union 1999 (4) SA 147 (CC) emphasized that courts should refrain from making factual determinations during constitutional interpretation, as this practice may compromise fairness.
By determining at the constitutional reference stage that murder could not constitute an official act, the Gambian Supreme Court precluded a defense that the accused should have been permitted to advance at trial. See also State of Haryana v. Bhajan Lal (1992) Supp (1) SCC 335), in which the Supreme Court of India cautioned that higher courts should avoid making determinations that pre-judge matters reserved for trial, as this practice may compromise the integrity of the fact-finding process.
Similarly, the U.S. Supreme Court in Trump v. United States, 603 U.S. __ (2024), recognized the nuanced distinction between official and unofficial acts by holding that presidents have absolute immunity for core constitutional powers, presumptive immunity for official acts, and no immunity for unofficial acts. Importantly, the Supreme Court remanded the case to the lower court, emphasizing that the task of distinguishing between official and unofficial acts necessitates careful factual determination. In this spirit, it is respectfully submitted that, as in Trump, the High Court possesses both the inherent jurisdiction and the responsibility to examine an indictment and determine whether the alleged conduct constitutes official acts. This approach not only aligns with comparative jurisprudence but also reinforces public confidence in the fairness and integrity of the judicial process. It should be underscored that advocating for such an analytical process is in no way suggesting that heinous crimes such as murder are to be regarded as official acts, but rather, it is to ensure that claims of immunity are rigorously and impartially assessed according to established legal standards.
Distinguishing Pinochet
Most of the Court’s reasoning was anchored in international criminal law, which, as part of the laws of the Gambia under Article 7 of the Constitution, rightly informs its analysis. The Court’s consideration of the amicus brief and reliance on the Pinochet decision demonstrate a commendable commitment to comparative jurisprudence. However, with respect, the analogy to Pinochet warrants careful scrutiny. In Pinochet, the acts in question were accepted as official, but immunity was denied because of clear and pre-existing obligations under international law, specifically the 1984 UN Torture Convention. The House of Lords’ reasoning was thus rooted not in the nature of the acts alone but in the overriding imperative to uphold international legal standards. A nuanced reading of Pinochet suggests that the determination of official acts and the scope of immunity require a context-sensitive approach, one that balances respect for state authority with the demands of justice and treaty obligations. Significantly, the House of Lords unequivocally held that General Pinochet could not shield himself behind state immunity for acts of torture committed after the entry into force of the 1984 UN Torture Convention. This landmark decision reaffirms that no official position, however high, can override the imperative of accountability for grave violations. It underscores the essential role of international law in ensuring that perpetrators of serious crimes face justice, regardless of their official capacity.
The 1997 Constitution further reinforces this principle by providing absolute proscriptions on torture, without exceptions or claw-back clauses. While it is acknowledged that Touray was not charged with torture due to deficiencies in domestic criminal legislation, this should not detract from the broader legal and moral imperative to pursue accountability for grave crimes. It is also notable that the extradition proceedings in Pinochet did not compromise the trial fact-finding process, as the House of Lords focused on resolving legal, rather than factual, questions. Furthermore, international criminal tribunals have recognized that serious offenses may be perpetrated under state authority, but this does not mean that immunity is unqualified, rather, it must be carefully circumscribed to prevent impunity. This balanced approach serves justice while respecting the prerogatives of state institutions.
Therefore, strict adherence to procedural and constitutional fidelity could have yielded the same result, while safeguarding the integrity of the judicial process. The Supreme Court might have considered limiting its determination at the reference stage to clarify the scope of immunity and the appropriate procedure for invoking it, without prematurely adjudicating the official nature of the alleged conduct. Should the High Court subsequently determine that the conduct is official and immune under the Constitution, the Supreme Court would still retain the authority to review the legal conclusions de novo and the factual findings for clear error, thereby ensuring the right to a fair trial and upholding public confidence in the legal system. Such an approach fosters both principled decision-making and institutional respect.
Regional and Comparative Perspective
West African jurisprudence supports trial-level determination of immunity questions. Nigeria: Fawehinmi v IGP (2002) 7 NWLR (Pt 767) 606 (Constitutional immunity under 308 protects against arrest or prosecution but does not bar investigation); Ghana: Tsatsu Tsikata v Attorney-General [2001–2002] SCGLR 620. Internationally, appellate courts review factual determinations for legal error rather than pre-judging them. See United States v. Wilkes, 662 F.3d 524, 532 (9th Cir. 2011).
Fair Trial Implications
Paragraph 13 contains specific qualifications that merit careful consideration. Respectfully, by pre-judging officiality, the Supreme Court may have inadvertently limited the accused’s opportunity to present evidence in support of immunity and circumscribed the High Court’s essential fact-finding function. Section 24 is designed to safeguard fair-trial rights, including the presumption of innocence and the right to present a full defense. Ensuring that these rights are robustly protected not only upholds the integrity of the judicial process but also strengthens public confidence in the judiciary. A more measured approach, one that allows the High Court to fully exercise its fact-finding role, would better serve the interests of justice, due process, and the rule of law. See De Cubber v Belgium, 1984.
The Constitutionally Correct Approach
The Supreme Court’s decision underscores the delicate balance between ensuring accountability and upholding constitutional principles. Again, with respect, by omitting a thorough fact-finding process, the Court may have blurred the distinction between questions of law and fact, inadvertently encroaching on the fact-finding role reserved for trial courts in criminal proceedings. This approach risks affecting the accused’s substantive and procedural due process rights and may impact public confidence in the judiciary.
A more constitutionally orthodox and persuasive approach would have preserved the separation of functions, thereby safeguarding the integrity of the process and the rights of all parties involved. Specifically, the Court might have:
- Interpreted paragraph 13 as granting immunity only for acts performed in an official capacity;
- Clarified that such immunity is limited and subject to overriding law;
- Declined to pre-judge factual questions; and
- Remitted the matter to the High Court for factual determination.
This approach would preserve accountability, fairness, and legitimacy—principles essential to effective transitional justice.
Conclusion
The State v. Yankuba Touray stands as a compelling reminder that true justice is rooted in steadfast adherence to constitutional principles. With the utmost respect, when courts, even with the best of intentions, bypass due process in the pursuit of moral imperatives, they risk compromising the very legitimacy they strive to uphold. In this instance, by prematurely resolving the “official act” question, the Supreme Court may have unintentionally departed from comparative legal standards and impacted fair-trial rights and public confidence in the judiciary. Nevertheless, this moment offers an opportunity for reflection and continued commitment to the highest ideals of justice. Ultimately, it is through rigorous fidelity to established procedures—not expediency—that courts secure meaningful justice and fortify the rule of law for all, preserving both the integrity and the public trust essential to a vibrant constitutional democracy.
