By Yankuba Jallow
The Gambia Court of Appeal has on the 24th February 2021 delivered ruling in the case of former Minister of Defence Edward Singhatey and the Attorney General regarding the “Janneh Commission” adverse finding against him.
The three justices of the second apex court – O.M.M Njie, Basiru V.P. Mahoney and Kumba Sillah-Camara in a unanimous decision held that in order to enforce adverse findings of the Commission of Inquiry renowned as the “Janneh Commission” against Edward Singhatey, further judicial action must be taken or else it cannot enforce on its own.
By a motion filed on 22nd October 2019, Edward Singhatey sought an order for stay of execution of the orders of the “Janneh Commission” of inquiry dated the 29th March 2019 pending the hearing and determination of the appeal before the Court of Appeal. Singhatey wanted the court to grant an injunction restraining the Attorney General or any person acting through or under him from or interfering with the subject matter of the suit pending the determination of the appeal.
Singhatey’s motion was supported by an affidavit deposed to by himself in which he stated that he was not informed by the Commission of Inquiry (Janneh Commission) about the adverse findings against him, which he came to know about when the White Paper was released. The former military captain said the Attorney General was taking steps to act on the adverse findings and that the appeal will be rendered nugatory if the Attorney General is not restrained.
The Attorney General filed an affidavit in opposition to the application on the 11th December 2019 in which the deponent admitted that the Attorney General was taking steps to act on the adverse findings and stated further that Singhatey has no appeal before the Court because the purported appeal was filed out of time without leave.
The Justices of the Court of Appeal noted that the Attorney General was granted several adjournments to provide an extract copy of the adverse findings against Edward Singhatey, but to no avail.
The adverse findings made by the Commission against Singhatey were found at pages 276 and 277 of the Report of the Commission stating “USD35 Million Loan from Taiwan”. It stated that the probable offences “by being signatory to the account conspired to breach the constitutional provisions for dealing with public funds and probably violated section 115 of the Criminal Code. Aiding and abetting the theft of USD2.7 Million not deposited. Abuse of Office contrary to section 90 of the Criminal Code.” The Commission found that the AFPRC failed to account for the USD32 million and held that “to account for the said sum jointly and severally answerable for the amounts not accounted for.”
Lawyer Lamin S. Camara for Singhatey argued that the Court has power to stay execution under the Rules of the Court and its inherent jurisdiction. He submitted that Singhatey had satisfied all the conditions for the grant of a stay of execution as he urged the court to exercise its discretion in his favour.
Counsels for the Attorney General on the other hand submitted that the Court does not have the power to grant a stay or an injunction against the State pursuant to section 17 (2) of the State Proceedings Act.
Justice Mahoney, who delivered the lead ruling relied on the Court of Appeal’s decision in the case of M.A. Kharafi and Sons Limited versus the Attorney General delivered on the 1st June 2020, in line with the State versus Abdoulie Conteh and the Supreme Court decision in Feryale Ghanem versus the Attorney General delivered on the 5th June 2018, that the adverse findings and recommendations of a commission of inquiry are not orders of a court and cannot be enforced proprio vigore (by its own force independently).
“This position applies to adverse findings and recommendations of commissions of inquiry whether or not the Government accepts the recommendations so that the adverse findings and/or recommendations cannot be enforced or executed without recourse to the courts who have exclusive judicial power to give final enforceable judgments and orders,” Justice Mahoney said.
The Judge held that in the context of the adverse findings of the Commission of Inquiry made against Edward Singhatey, orders against him are consequently unenforceable proprio vigore. On the recommendation for criminal prosecution, Justice Mahoney held that it is the Attorney General’s discretion to commence criminal proceedings against any person.
He cited in his ruling the case of The State versus Abdoulie Conteh where the particular commission of inquiry whose adverse findings were appealed against had recommended that the Respondent refund overpayments made to him. Conteh filed an appeal against the adverse findings made against him and the State had subsequently assured him that the Government had no intention of acting on the adverse findings which led Mr Conteh to discontinue the appeal. Sometime later, the State brought criminal charges against him on the same subject matter, that is, the overpayments made to him, and he raised the issue of ‘res judicata’ which the trial court accepted.
On appeal to the Court of Appeal, the Court held that the proceedings of a commission of inquiry are not criminal proceedings – Mr Conteh was not tried for any offence at the Commission, he was merely being investigated. The Court also held that the Commission of Inquiry was not a court.
“That it only has power to investigate, make adverse findings and furnish its report of investigation and that it has no jurisdiction to try,” Mahoney read.
He added that the court held that the report of a commission of inquiry is not a decision, but consists of recommendations only; that they are merely advisory and not conclusive and binding. He said in this respect, the court in that case held that ‘res judicata’ does not apply.
Justice Mahoney in this case held that injunction against the Attorney cannot be granted as the Court of Appeal held in its recent case of Tida Jaiteh versus The Attorney General as well as relied on the Supreme Court case of Ya Kumba Jaiteh versus the Clerk of the National Assembly and others delivered on the 28th January 2020. Justice Mahoney also relied on section 17 of the State Proceedings Act that an injunction cannot be granted against the State.