By: Yankuba Jallow
The appeal case of Lebanese businessman Mohamed Ibrahim Bazzi, has on Thursday suffered a blow before justices of the Court of Appeal, who dismissed the suit.
The Lebanese businessman was challenging the adverse findings made against him by the Janneh Commission.
The Janneh Commission found out that Bazzi held a Gambian Diplomatic Passport with number 000129 due to his position as Consul General of The Gambia in Lebanon. Mr. Bazzi came to The Gambia sometime end of 2000 into early 2001. He was invited to The Gambia by Mr Terek Musa because he was in the electricity power business. He was declared a close associate of former President Jammeh on 13th October, 2017.
The Commission found that Mr Bazzi was involved in extensive business dealings both with former President Jammeh through their companies, and the Government of The Gambia with the full support of former President Jammeh. Mr Bazzi’s main foreign partner was Mr Fadi Mazegi, while his main local partner was Mr Amadou Samba. Mr Bazzi and Mr Amadou Samba were introduced around the same time Bazzi met former President Jammeh. Some of Mr Bazzi’s family members were also involved in the operation of his companies in The Gambia.
The Commission found that Mr Bazzi is known to have interest in at least fifteen (15) companies which either directly or indirectly had business dealings with the Government and former President including Euro Africa Group Limited (EAGL), Global Trading Group NV (GTG), Gam Petroleum Company Limited, Gamveg Oil Company, Gambia Milling Corporation Limited (GMC), Gambia-African Mining International Company Limited (GAMICO), Royal Atlantic Residence etc.
Bazzi wanted the court to stay the execution of the Janneh Commission recommendation against him.
The Court of Appeal held that the adverse findings and recommendations of the Commission of Inquiry are merely advisory and not conclusive and binding.
The justices held that the Commission of Inquiry is part and parcel of the Executive and not part of the Judiciary, thus, not an adjudicatory body.
The Court of Appeal held that a commission of inquiry is not a court and therefore, its report submitted to the Government, is neither a judgment nor an order which is capable in itself of being executed. The court relied on the Supreme Court judgment in the case of Feryale Ghanem versus the Attorney General where the Chief Justice, Hassan B. Jallow stated that a Commission of Inquiry is not a law making body, it has no legislative powers and does not fall within the legislature. Chief Justice Jallow in Feryale Ghanem said a commission of inquiry is an investigative fact finding body which makes findings and recommendations that are subjected to the approval of the government. Jallow detailed that while a commission of inquiry has a duty to act fairly, impartially and independently is nonetheless, not an adjudicatory body adding it is not a court of law.
Section 120 (2) of the 1997 Constitution provides “The judicial power of The Gambia is vested in the courts and shall be exercised by them according to the respective jurisdictions conferred on them by law.”
The Court of Appeal held that the adverse findings or recommendations of a Commission of Inquiry cannot be executed or enforced; they are not judgments or orders of an adjudicatory body as they relied on section 202 (1) of the 1997 Constitution which provides that a Commission of Inquiry is set up to investigate or conduct an inquiry.
The justices held that the White Paper is akin to a Government Notice published to satisfy the requirement of section 203 of the Constitution. They believed that the description fits the definition of a government notice in the Interpretation Act which states “A government Notice means any public announcement not of a legislative character made of a command of the President or by a Minister or public officer.”
A White Paper published pursuant to a Commission’s report does not make the latter capable of being executed, the Court of Appeal said. They opined that the reference in section 203 of the Constitution to actions that may be taken by the President means actions that the Executive branch of government is legally able to make as empowered by the Constitution or other laws. It certainly, does not mean the exercise of judicial or quasi-judicial powers by the Executive in the form of pronouncement of White Paper. The court held that following the publication of a report of the Commission of Inquiry together with any adverse findings and or recommendations, and the Executive intends to impose any penalty to any person adversely mentioned, the Executive must take the requisite court action, whether civil or criminal, in order to have those penalties imposed.
The Court held that with or without a White Paper, it cannot be enforced or executed as would be the case of a judgment or court order.
It was the holding of the court that “If the intention was for a Commission of Inquiry to have the power to impose criminal penalty or to grant civil remedies which could be executed or enforced, then in my view, that would have been clearly spelt out in the Constitution or the Act.”
The 1997 Constitution and other laws of The Gambia do not provide for the suffering of liabilities by persons against whom adverse findings are made by the Commission of Inquiry, the Court held.
“Therefore, after such findings are made, the Attorney General would have to take the appropriate legal steps, through the law courts, to ensure that such liabilities are suffered by those persons,” he said.