By: Sarjo Barrow, Esq.
I did not follow Coalition of Progressive Gambians v The Attorney General as it happened, but I have now read the July 8 judgment and listened to Lawyer Darbo explain why he thinks the Supreme Court was wrong. With respect, I disagree. The plaintiffs had no case; the Court was right to dismiss it, and I believe the decision will stand the test of time.
My colleague’s argument is as follows. The Constitution already explains how to challenge an adverse finding: section 204 allows an appeal to the Court of Appeal as a right. It does not mention amnesty. The 2023 Act amends the Commission of Inquiry Act of 1903, but no President has ever established a commission under that Act. So, none of the potential beneficiaries was banned under it, and by passing the amendment, the National Assembly exceeded its authority.
He is right about the politics. The motivation was probably political and, in hindsight, quite clever. This gives the President a strong tool. But motive does not affect legal authority, as the Court says in paragraph 42. The real issue is power, not purpose. On that point, my colleague overlooks section 2A.
Before 2023, there were two types of commissions: those under the 1903 Act and those under section 200 of the Constitution. Two separate tracks. The amendment now defines a “Commission of Inquiry” as one created under section 200 of the Constitution. As a result, the statutory commission of inquiry no longer exists. Every commission is now a section 200 commission. The 1903 Act is no longer a source of power; it is just the process.
This is important, and it changes my colleague’s argument. His point that no one was banned under the 1903 commission was true until 2023. The amendment changed this. Now, there is no commission outside section 200, so the Janneh bans clearly fall under the new sections.
If read correctly, the Act is meant to implement section 200. It does not take away the right to appeal to the Court of Appeal; it provides an alternative for those who do not want to appeal. Section 206 allows this: “An Act of the National Assembly may make further provision for the purposes of this chapter.” The plaintiffs said that sections 19, 20, and 21 conflict with “sections 200, 201, 202, 203, 204, 205, and 206.” They pointed to the part that authorizes the Act as the source of the conflict. A challenge to the Act on its face was bound to fail, and future panels should come to the same result.
My concerns are not about the outcome. But there are two things in this judgment that should matter to any advocate preparing a constitutional case.
The first issue is what the Court could not cite.
The judgment cited about fourteen authorities, including the Privy Council, the Nigerian and Australian top courts, and Attorney-General for Alberta v Attorney-General for Canada (1947). By any measure, it is a well-researched judgment.
Then there is paragraph 37, which is central to the outcome: “it is trite learning that the findings of commissions of inquiry are administrative in nature and not judicial.” There is no citation. Nothing.
That sentence weakens the plaintiffs’ only real argument, and it is the only statement in the judgment without supporting authority. The idea is not new. The same Court discussed it in 2018 in Feryale Ghanem v Attorney General, SC 001/2018, where Hassan B. Jallow CJ said a Commission “is an investigative fact-finding body… not an adjudicatory body.” The Court of Appeal used this reasoning on June 1, 2020, in M.A. Kharafi & Sons Limited v The Attorney General, GCA 046/2020, an appeal against the Janneh Commission’s findings. That panel was led by Justice A. Bah, PCA, with Justice O.M.M. Njie, JCA.
When a court announces a new rule, it usually says so clearly: “Today we hold” or “This question has not come up before.” The Court gave no such sign here, and that was correct. The point was not new. It was settled, and the Court knew it. That is what “trite” means. But knowing a rule is settled and being able to show where it was settled are different; only the latter requires a working library.
It might be tempting to call this an oversight. I do not think it is. I believe it reveals a deeper problem.
The Gambia has a National Council for Law Reporting, which has published four volumes since 1993: one for 1960 to 1993, another for 1997 to 2001, and two more for 2002 to 2008. The most recent reported case is 18 years old. Feryale Ghanem is from 2018, and Kharafi is from 2020, but neither is in the reports. They cannot be. There is nothing available online. A judge who wants to cite her own Court must rely on memory.
The judgment’s references show this problem. Alberta is cited with a page number: (1947) A.C. 503, 518. But Bai Emil Touray is listed as “unreported.” Amadou Sanneh is also “unreported.” Gambia Press Union is cited as “(May 2018).” It is easier to cite the Privy Council of 1947 in Banjul than to cite the Supreme Court of Banjul in 2021.
This is why the National Assembly needs to act. Every judgment from the superior courts should be posted on the judiciary’s website within seven days of delivery. Every Act should be posted within seven days of assent, and every Bill within seven days of its introduction. Work on the backlog, with every decision since 2008, should start within one hundred and eighty days. And all of it should be free to read. Paragraph 37 shows what happens when a legal system cannot find its own records.
The second issue is paragraph 50.
After stating in paragraph 22 that it has jurisdiction and deciding the merits over thirty paragraphs, the Court says that a suit “that seeks only to protect the Constitution in the abstract without showing a legally enforceable right or interest of the Plaintiff… is incompetent and ought to be struck out for want of jurisdiction.”
This contradicts paragraph 22. It is obiter. It sits badly with section 127(1)(b), which gives this Court exclusive original jurisdiction “on any question whether any law was made in excess of the powers conferred by this Constitution… upon the National Assembly.” That is an abstract review by design. The Court’s own actions show this: it heard the case.
The plaintiffs deserved to lose, and they did so at paragraph 51 on the merits, as they should have. This does not mean the decision is wrong. It means that in the future, a citizen with a real question might not even get to court. The Attorney General will quote paragraph 50, not paragraph 51.
That is the worrying part.
