The ruling was delivered on Monday, 2 November following an application by Defence Counsel Abdoulie Sisohor for the court to discharge Yankuba Touray on grounds of constitutional immunity pursuant to paragraph 13 (1) and (5) of the Second Schedule of the 1997 Constitution.
Sisohor submitted that no court of law or tribunal or body can enquire into any activities or omissions of the accused person (Yankuba Touray) as a member of the Armed Forces Provisional Ruling Council between 1994 and 1997. The senior lawyer argued that the application was not about the interpretation of the constitution, but enforcement of the right of the accused person not to be prosecuted as the high court lacks the jurisdiction to try the case.
Lawyer Sisohor submitted that the high court's powers to try the case have been ousted by virtue of paragraph 13 (1), (3), (4) and (5) of the Second Schedule of the 1997 Constitution. He urged the court to discharge Mr. Touray.
Counsel Kimbeng T. Tah for the State submitted that paragraph 13 (1) and (5) of the 1997 Constitution refers to acts carried out by members of the AFPRC, ministers appointed by AFPRC and other appointees of AFPRC and in the performance of their official duties.
The Principal State Counsel argued that Yankuba Touray has the burden of providing facts to the court as to what his official duties were as a member of the Armed Forces Provisional Ruling Council and whether the allegation of the murder of Koro Ceesay was part of his official duties.
Barrister Tah submitted that Touray has not provided sufficient facts to the court to demonstrate that the alleged murder was committed as part of the discharge of his official duties and in the absence of facts, the application to invoke constitutional immunity was premature.
Lawyer Tah said 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 Kemeseng Jammeh and the Attorney General where the court held that the purported amendment of paragraph 13 (1) by Act number 6 of 2001 was made in excess of the powers of the National Assembly.
Tah said Yankuba Touray is not entitled to constitutional immunity provided under paragraph 13 (1) and (5). He submitted that paragraph 13 (5) of the Second Schedule of the 1997 refers exclusively to an act or omission done under the authority, instruction or orders of the AFPRC or a member of the AFPRC and in the absence of facts before the court, adding the application to invoke constitutional immunity was premature.
Justice Ebrima Jaiteh of the Banjul held that the jurisdiction of High Court is contained under section 132 (1) (b) of the 1997 Constitution which is 'to interpret and enforce the fundamental rights and freedoms as provided in sections 18 to 33 and section 36 (5), and in exercise of such jurisdiction, the court shall have all such power and authority as may be conferred by this Constitution or any other law."
"What this means is that the High Court can only interpret and enforce the fundamental rights and freedoms which are listed under sections 18 to 33 and 36 (5) of the Constitution," Justice Jaiteh said.
He said it is worthy to emphasise that the 1997 Constitution of The Gambia confers on the Supreme Court the exclusive original jurisdiction to interpret or enforce any provision of the Constitution except the provisions provided under section 18 to 33 and section 36(5) of the Constitution.
"It is worthy to state that paragraph 13 of the Second Schedule which deals with immunity does not fall under the provisions of section 18 to 33 and section 36 (5) of the Constitution and therefore, the High Court of The Gambia does not have the power to interpret or enforce paragraph13 of the Second Schedule," the Judge held.
He maintained that it is only the Supreme Court that has the power to interpret or enforce paragraph 13 of the Second Schedule of the 1997 Constitution. The Judge further held that no court other than the Supreme Court has the power to interpret or enforce paragraph 13 of the Second Schedule of the Constitution.
The Judge disagreed with both counsels for Defence and the State that paragraph 13 of the Second Schedule is not about interpretation or enforcement, rather it is about invocation. The Judge said the court cannot invoke or enforce a provision of the constitution without interpretation.
"In fact, in order to invoke a constitutional provision, the said provision must be interpreted first to determine whether it can be invoked or enforced," the Judge added.
“This court has no jurisdiction to entertain the issue of constitutional immunity under paragraph 13."
Justice Jaiteh said the proper court to deal with this matter is the Supreme Court of The Gambia.
The Judge referred the issue of constitutional immunity brought pursuant paragraph 13 (1), (3), (4) and (5) of the Second Schedule of the Constitution to the Supreme Court for determination. The Judge also stayed the trial pending the outcome of the Supreme Court decision. He also directed the registrar of the High Court to forward a copy of the ruling and arguments of both counsels in respect of constitutional matter from the record of proceedings to the Supreme Court.