Supreme Court hears motion against Commission of Inquiry

Thursday, November 29, 2018

The Supreme Court of The Gambia yesterday heard a motion filed by Feryale Ghanem against the Commission of Inquiry and the Attorney General.

The apex court was presided over by Chief Justice Hassan B.Jallow, Justice G.B.S Janneh, Justice Raymond Sock, Justice Sulayman C. Jallow and Justice Mamyassin Sey.

 It could be recalled that the Commission of Inquiry made an order early this year freezing assets of former President Yahya Jammeh and his close associates including the plaintiff (Feryale Ghanem).

The Commission of Inquiry was established by an Act of the National Assembly to probe into the financial dealings of the former president and his close associates.

The plaintiff therefore filed a motion before the Gambia final appellate court seeking redress to overturn the interim order made by the Commission.

The Commission of Inquiry and the Attorney General were joined as the 1st and 2nd defendants in the said suit but lawyer Amie Bensouda in her submission yesterday informed the Supreme Court that the Commission filed a motion dated the 12th October 2018 and filed the same day seeking Court powers to strike out the Commission as a party to the suit.

Lawyer Bensouda submitted that the Commission of Inquiry is not a party to any suit in respect of its orders and that it is not a person but an adjudicating body.

She cited Section 200 of the Constitution that the Commission is an institution for appointing commissioners having regards to the fact that the Commission of inquiry was set up by the president pursuant to Section 200 of the Constitution.

She also cited Section 202 of the Constitution, which states the functions, and powers of the Commission.

She indicated that it is clear from the writ of summons that the plaintiff; Feryale Ghanem is questioning the interim decision made by the Commission against her.

Lawyer Bensouda submitted that she relied on the cases of Muhammed Bazzi and Fadi Mazegi that the Commission of Inquiry has the same powers as the High Court and that the Commission of inquiry is not the proper defendant to be cited in the suit.

She pointed out that a tribunal (as an adjudicating authority) should not be summoned to courts to come and defend its decision (orders).

She argued that if a party is aggrieved about the interim order as stated in the Court of Appeal judgment on the 18th January 2018, that party can appeal at the Court of Appeal noting that the Commission cannot be made a party to that suit.

Lawyer Bensouda argued that by virtue of the State proceeding Act section 13, the proper party is the Attorney General adding that the Commission of Inquiry should not be dragged into any court to defend its decision.

She therefore applied for the Supreme Court to strike out the Commission of inquiry as a party in the suit.

Lawyer D. Binga from the Attorney General’s Chambers and ministry of Justice aligned himself with the submission of lawyer Amie Bensouda and urged the court to strike out the name of the Commission of Inquiry from the suit.

In her response, the plaintiff counsel, lawyer Ida Drammeh submitted that section 24 of the Constitution makes provision to secure and for the protection of laws in the country.

Lawyer Drammeh submitted that basic natural justice is for a party to be allowed to state its case without any hindrance adding that whether the Commission of Inquiry is a party or not, the court must accord a fair hearing in the matter.

She referred the court to Section 45 Subsection 3 of the Supreme Court rule and submitted that rule 45 is in accordance with Section 24 of the Constitution that it affords any person likely to be affected by its decision to be given an opportunity to be heard.

She pointed out that hearing a party is such a fundamental issue and the Gambia laws seek to ensure that all parties are heard.

Lawyer Ida Drammeh submitted that the argument made by lawyer Bensouda in relying on the Court of Appeal decision is untenable noting that she ignored the Supreme Court rule for any party likely to be affected by the decision.

Lawyer Drammeh argued that the plaintiff named the Attorney General because the rule requires that it should be named, referring to Rule 45 (3) of the Supreme Court.

She further argued that the State Proceeding Act defines the State and the definition of the State does not include the Commission of inquiry.

She stated that State means the government of the Gambia and the Commission of Inquiry is not the government.

She submitted that if for any reason, the Commission is not to be named as a defendant, then the commissioners ought to be made a party.

She explained that the Commission is independent of the Executive until the Commission provides its report to the President adding that the Commission was set up by the Constitution and it is not for the State to seek to defend the report or decision made by the Commission.

She submitted that the Court of Appeal judgment is not helpful because it de-categorizes the Commission and has no regard for the functions of the Commission.

In her reply on points of law, lawyer Amie Bensouda drew the court’s attention to Section 202 (3) of the Constitution and argued that Commissioners cannot be joined in any matter unless when they are affected by their conducts.

She submitted that there is a distinction between a defendant or a person made a defendant whilst pointing out that Rule 45 of the Supreme Court doesn’t contemplate adjudicating authority but contemplates juristic person.

The matter was adjourned for ruling on a later date.

Author: Bruce Asemota