By Yankuba Jallow
The Gambia Court of Appeal has on November 2nd 2017, quashed Lawyer Ousainou Darboe and 18 others’ appeal. Lawyer Ousainou A.N.M. Darboe is the current party leader of UDP and is also currently the Minister of Foreign Affairs.
He was arrested, prosecuted and found guilty by the Banjul High Court on seven counts. Whilst serving his sentences, the former President was ousted and President Barrow took over. Before President Barrow took over, Lawyer Darboe was already bailed out from Prison upon negotiations. He appealed to the Gambia Court of Appeal for his conviction and sentence to be wiped out but the Court of Appeal Judges in unanimity dismissed the application.
The Appellants (Darboe and others) who were convicted by the Lower Court on seven count charges and sentenced to various terms of imprisonment filed an appeal before Justices Awa Bah, E.F. M’Bai and N. Salla-Wadda. The Appellants who were aggrieved by the said conviction and sentence filed an appeal at the Court of Appeal which is still pending.
Darboe and others upon conviction were displeased with the conviction and sentences of the High Court and made an appeal at the Gambia Court of Appeal. This appeal is ongoing but made another application in court to wipe out records of conviction and sentences of the High Court but the Court of Appeal dismissed the application.
Counsel for Darboe and the 18 others was Lawyer Yassin Senghore whilst the State was represented by M.B. Abubakarr.
The lead Judge of the Gambia Court of Appeal Justice Awa Bah in her ruling said it is during the pendency of the appeal at the Court of Appeal that the President on 30th January 2017 in pursuance of his powers vested under Section 82(1) of the 1997 Constitution granted pardon to the Appellants by way of Gazette contained in General Notice No. 4/2017 vol. 134.
“Subsequent to the said Presidential Pardon, the Appellants indicated their intention to proceed with their appeal despite the pardon” she said.
In her ruling, she held that the President in the exercise of his Constitutional power pursuant to Section 82(1) of the Constitution could not have reversed the decision of the High Court convicting the Appellants of the offences stated therein.
“That power to reverse their conviction is a judicial power and it lies only with the court” she said.
“I want to believe that the drafters of our Constitution did have at the back of their minds the doctrine of separation of power when the provisions of Section 82(1) were being drafted” she said.
She said looking at the wordings of Section 82(1), the President could only invoke his power of prerogative of mercy after a person has been convicted and sentenced and not at any time earlier.
She held that the President could only by grant of pardon to the Appellants; relieve them of all pains of penalties and punishments whatsoever that from the conviction may ensue.
“The grant of the pardon could not wipe out the fact of the conviction of the Appellants, which conviction could not be denied” she said.
Justice E.F. M’bai also submitted himself to Justice Bah’s ruling and allowing the Appellants to proceed with their appeal before this court despite the grant of Presidential Pardon pursuant to Section 82(1)(a) of the 1997 Constitution.
“An appeal is a constitutional right” he said.
“Despite the grant of a presidential pardon, the Appellants remain convicts rightly or wrongly” he said.
Justice N. Salla-Wadda in her ruling also associated herself to Justice Bah’s ruling.
“The effect of that Power by his Excellency the President, in my considered view was to relieve and release the Appellants herein of the remainder of their sentences as imposed on them by the lower court and any other pain or hardship that the appellants herein were to suffer” she said.
“To my mind, that pardon did not have the effect of wiping away the convictions passed on the Appellants by the court below. That power in my considered view is vested in the Courts on a due appellate process” she said.
“The Presidential pardon therefore to my mind does not have the effect of rendering nugatory the appeal filed to this Court by the Appellants” she said.
The trio held that the appeal before the Court is tenable and ought to proceed if the Appellants wish to proceed with same. They added that the Appellants are therefore at liberty to proceed with the ongoing appeal and may seek the orders of the Court to do so.
