The Supreme Court has finally declared the findings and recommendations of the defunct Assets and Properties Recovery Commission (Bamfo Commission) as null and void.
The Commission was established by the Armed Forces Provisional Ruling Council (AFPRC) headed by former Chairman Yahya A.J.J. Jammeh.
The Supreme Court declared the decisions and findings of the outdated Commission null and void because the AFPRC violated its own law that established the Commission.
The requirement to serve as the Chair of the Commission was that the person has to be a legal practitioner who has at least seven (7) years standing in the bar or a judge of the high court. Justice Bamfo, at the time of her appointment, was not a judge nor a legal practitioner of 7 years standing.
Gambia’s apex court, the Supreme Court, on 8 November passed judgment against the military junta’s imposed Bamfo Commission of Inquiry established in 1994 to investigate former ministers under the PPP rule.
Set up by Legal Notice 14 of 1994, the Bamfo Commission was tasked with investigating the assets activities of the PPP ministers. It was constituted under powers accorded to AFPRC under section 3 of the Public Assets and Properties (Recovery) Act. AFPRC appointed Justice Vida Akoto-Bamfo as the Chair of the Commission. M.C. Cham appeared before the Commission on several dates between January and December 1995. He was found wanting by the Commission and some of his properties were confiscated. AFPRC went ahead to issue a White Paper purportedly based on the recommendation of the Bamfo Commission. The White Paper was undated, according to the Supreme Court. Some of the penalties imposed in the White Paper were not based on the recommendation of the Commission.
Alhagie M.C Cham, who was a minister in the PPP regime, and was arrested after the military takeover of 1994, got his assets and bank accounts frozen by the military junta of AFPRC.
Former PPP Minister M.C. Cham began his challenge on the outdated Commission at the high court and then appealed before the Gambia Court of Appeal. He lost in both courts and the decisions were passed against him. He finally succeeded at the Supreme Court.
The five (5) judges who presided over the case and passed judgment against the Bamfo Commission were Justices – N.C. Browne-Marke, Cherno Sulayman Jallow, Maimuna M. Sey, Haddy Cecilia Roche, and Basiru V.P Mahoney.
The Gambia Court of Appeal on 18 March 2014 struck out M.C Cham’s appeal against the high court judgment against him. Like the high court, the Court of Appeal held that the transitional provisions of the Constitution take away their power to inquire into the matter since it happened between 1994 and 1996.
This case was mainly about whether the person who presided over the Commission or chaired the Bamfo Commission of Inquiry which investigated the assets of the Ministers under the PPP regime was qualified or not; and if she was not qualified, whether the decision of the Commission should be nullified or not.
The Supreme Court was called upon to interpret sections 11(3), 13(3), and 14 of the second schedule of the 1997 Constitution dealing with transitional provisions. The Supreme Court was also required to interpret Section 3 of the Public Assets and Properties (Recovery Decree) of 1994.
On whether Bamfo was qualified to Chair the Commission or not, the State did not object to M.C Cham’s claim that the Chairperson of the redundant commission was not qualified. Both the high court and the court of appeal held that Bamfo was not qualified. However, the two courts declined to make orders setting aside the decision of the Bamfo Commission because of the transitional provisions in the 1997 Constitution.
The transitional provisions in the Constitution forbid the courts from making orders or granting reliefs against decisions by AFPRC and persons appointed by them to perform a task. Section 14 specifically provides that any confiscation of any property or any other penalties imposed by AFPRC or its Chairman thereof shall not be questioned or reversed by any court or other authority under the 1997 Constitution or any other law.
The Supreme Court held that AFPRC has the power to make appointments, but could not make appointments that violate laws it had promulgated. The AFPRC promulgated a decree setting up a Commission and for the Chair to be a Judge or a legal practitioner of 7 years standing in the bar.
“If that person is not qualified to be a Judge, that person is not qualified to chair [the] commission of inquiry,” Justice Browne-Marke said.
The Supreme Court held that Justice Bamfo was not COMPETENT to Chair the Commission. The Supreme Court held that since Bamfo was not qualified to Chair the Commission, every decision taken was a nullity.
“The decisions of the Commission of Inquiry chaired by Justice Akoto Bamfo are null and void as she was not qualified to chair the Commission,” Justice Browne-Marke said.
The Supreme Court set aside all the orders made against M.C. Cham and ordered the return of all his seized properties.