By Yankuba Jallow
The Gambia Court of Appeal has on Thursday, 2nd July 2020 unanimously dismissed the case of Ansumana Jammeh, a younger brother to former President Yahya A.J.J. Jammeh.
Ansumana Jammeh was dissatisfied with the adverse findings of the Janneh Commission of Inquiry dated 29th March 2019 against him and thus filed an appeal before the Court of Appeal for determination. Ansumana Jammeh was challenging the jurisdiction of the Janneh Commission before the Gambia Court Appeal.
The former Gambia Ambassador to Qatar wanted the Court of Appeal to issue an order setting aside the adverse findings made by the Commission of Inquiry against the appellant.
Jammeh was asked to vacate by the State and he pleaded to the Court of Appeal that if allowed, it will render him and his family homeless.
The judges of the court were Justices Awa Bah, the President of the Gambia Court of Appeal, O.M.M Njie and Basiru V.P. Mahoney.
The State on the 12th May 2016 filed criminal charges against the appellant, a former Ambassador to Qatar. The criminal complaint alleged that Ansumana Jammeh did engage in a scheme to defraud the Government of the Gambia (GOTG) by assisting CONAPRO to get the contract to supply fuel to Gambia then he (Mr. Saoud Ghandour) will make him (Ansumana Jammeh) happy. The criminal complaint further alleged that Mr. Jammeh used his position within the government to obtain information to assist CONAPRO formulate a proposal for oil supply contract, particularly in construction with “premium circulations”. Payment totaling over $1.5 million were paid from June 2010 to January 2011 to Ansumana Jammeh through one of his businesses, Maligam International Import and Export by Mr. Saoud Ghandour. Monies were subsequently withdrawn and spent on items including a Lexus RX3 vehicle for the benefit of Ansumana Jammeh.
Mr. Jammeh pleaded guilty to abuse of office, official corruption, receiving property to show favour, and conspiracy and economic crimes. A fine of D24,647,028 was imposed on him. In addition, his properties in Bijilo and Old Yundum as well as his vehicle worth D1,000,000 were forfeited to the State.
The Janneh Commission held that the judgment has not been executed as they recommended for its execution by the Sherriff of the High Court in accordance with the law.
On APAM, Ansumana Jammeh confirmed to the Janneh Commission that he was involved in the licensing of APAM and signed the license for APAM’s sand mining activities.
The Commission found that APAM for all intent and purpose was operating illegally because it was an illegal entity created by ex-President Jammeh to exploit and steal the country’s mineral resource and thereby clinch himself with impunity. The Commission held the former President and all the managers of APAM liable for the unlawful sand and mineral mining activities.
Ansumana Jammeh managed APAM from August 2015 to November 2015 and generated revenue of D10,268,000. He then paid D600,000 to KGI.
The Commission held that the sum of D600,000 paid to KGI by Ansumana Jammeh from APAM funds should be recovered at first instance from KGI and failing which it should be recovered from Ansumana Jammeh’s assets.
Aggrieved with the findings of the Janneh Commission, Jammeh is arguing that the Commission of Inquiry erred in law by acting in excess of its jurisdiction by looking into CONAPRO and GFFI. According to the particulars, the appellant was convicted by a superior court of co-ordinate status and jurisdiction in respect of the same subject matter. The Commission was therefore estopped from inquiry and adjudicatory in respect of the same subject matter.
On the second ground of appeal, he claimed that the Commission violated section 24(1)(b) of the Constitution by making adverse findings against him in the absence of his testimony in respect of the CONAPRO and GFFI issue before the Commission. According to the particulars of the appeal, Jammeh said he was never asked about and no testimony was given under oath by him before the Commission in relation to the CONAPRO issue. He said the Commission merely relied on his witness statement provided to it by the police – the content of which was not examined in the testimony of the appellant before the Commission. He said the Commission denied him the fundamental right to a fair and impartial hearing as guaranteed by the Constitution.
On the third ground of appeal, Jammeh contended that the Commission both in law and in fact held that the appellant is liable to pay the sum of D600,000. According to the particulars, Jammeh said he was neither a director nor a shareholder in KGI and APAM, adding that he was merely acting as a manager of APAM and was simply acting on instruction as an employee. He said he is not liable under section 603 of the Companies Act 2013 and section 44 of the Single Window Business Registration Act 2013. He added that the liabilities of Toni Ghattas and Woreh Njie Ceesay could not be shifted onto him. He said the liabilities of APAM and KGI should be tied to their respective directors and or shareholders and not employees like the appellant.
On ground 4, Jammeh said the Commission erred in law in making adverse orders against him without making adverse findings against him in respect of APAM’s D600,000 payment to KGI. According to the particulars, he claimed that the Commission in its report held Toni Ghattas and Woreh Njie Ceesay jointly and severally liable and not the appellant, yet make adverse findings against him.
On the final ground of appeal, Jammeh said the adverse findings of the Commission against him are against the weight of evidence. According to the particulars, he is claiming that the evidence against him as a whole is weak and insufficient for the Commission to rely upon to make adverse findings against him.
The State filed an affidavit in opposition against the appeal saying the relief sought is an attempt to delay the processes of executing the findings of the Commission. The State argued that the property belongs to the State via a high court judgment dated 13th June 2016. The State is arguing that if the reliefs sought are granted it will prejudice their case.
In her judgment which was agreed by the other two judges, Justice Awa Bah said the high court judgment was not appealed. She held that the State is at liberty to execute the judgment anytime. She said the Court cannot stay a judgment that has not been appealed before it.
“The High Court judgment is valid and this court cannot stay its execution,” she held, adding “there is nothing before this court to be stayed.”
On the recommendation of the Janneh Commission, Justice Bah said commission of inquiries and make recommendations and 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 went ahead stating 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.
“A Commission of Inquiry cannot legally render a binding decision which may be executed or enforced as it were a judgment or order,” Justice Bah said.
The judges held that the case failed and therefore, dismissed it in its entirety.