Ebrima Jaiteh of the High Court in Banjul has dismissed motion filed by one
Alhagie Kissima Kebba for a stay of execution on the findings of the Commission
of Inquiry chaired by S.B. Janneh.
Justice Jaiteh declared that the High Court does not have jurisdiction to entertain an application for a stay of execution of adverse findings of the Commission of Inquiry.
In the ruling delivered yesterday 21st May, 2019 premised on the preliminary objection raised by lawyer Binga D. of the Attorney General’s Chambers, Justice Ebrima Jaiteh asserted that a Commission of Inquiry is a creature of Section 200(1) of the 1997 Constitution of The Gambia and the provisions of Section 202 (2) of the Constitution is to enable the Commission of Inquiry to carry out a full and impartial investigation to the matters in which the Commission of Inquiry is established for and explained that the words of Section 202 (2) are very clear and unambiguous.
Justice Jaiteh explained that the combined effect of sections 202 and 204 is to ensure that the Commission of Inquiry is able to carry out its mandate for which it is established and without such powers, rights and privileges it would be difficult for a Commission to conduct its duties and functions.
He cited the Gambia Court of Appeal case of the State versus Abdoulie Conteh (2002-2008) GLR VOL.1 at page 150 holding 16 and stated that a Commission of Inquiry is not a permanent institution with established structures like the High Court.
He asserted that it is the President of the Republic who issues a Commission of Inquiry when the need arises to address any matter of public concern.
He further asserted that by virtue of Section 202(1) and 204 of the Constitution, a Commission of Inquiry has only the powers to investigate, make adverse findings and furnished its report of investigation and has no jurisdiction to try.
Justice Jaiteh disclosed that the report of a Commission of Inquiry is not a decision but consists of recommendations only, noting that the adverse findings and recommendations of the Commission of Inquiry are merely advisory and not conclusive and binding.
He cited the case of Governor of Oyo State v Folayan and the case of the State versus Abdoulie Conteh and noted that the provisions of Section 204(2) and (3) of the Constitution grants a special dispensation to a person against whom an adverse finding is made to appeal to The Gambia Court of Appeal.
Justice Jaiteh said a Commission of Inquiry is temporal in nature and has a life span and the Janneh Commission was set up to inquire into the financial activities of public bodies, enterprises and offices as regards their dealings with former President Yahya A.J.J. Jammeh and connected matters was issued under a Legal Notice and has made adverse findings and furnished its report of investigation to the President of the Republic and has ceased of its investigations.
Justice Jaiteh further revealed that a person against whom any such adverse findings has been made may appeal against such findings to the Court of Appeal as of right and any other application, such as stay of execution touching on the adverse findings of a Commission of Inquiry should be made to the Court of Appeal of The Gambia and not the High Court.
Justice Jaiteh pointed out that a Commission of Inquiry is not a court of law but a constitutional device that allows techniques of judicial investigation to be applied to investigate serious allegations of corruption or improper conduct in the public service, or to investigate a matter of public concern and its report is not a decision of a court but recommendations.
Justice Jaiteh further pointed out that courts of law do not make recommendations but decisions that are binding and conclusive unlike a Commission of Inquiry where the government has to decide whether to take actions on the findings and recommendations.
Justice Ebrima Jaiteh further declared that that the High Court does not have jurisdiction to entertain an application for stay of execution of an adverse findings made by a Commission of Inquiry.
He upheld the objection of the State and dismissed the motion on notice for a stay of execution.