By Yankuba Jallow
The Gambia Supreme Court is set to deliver a ruling on whether the Janneh Commission can be sued before a court.
This came about when the Commission lead counsel, Amie Bensouda said the Commission cannot be made a party to any suit.
Lawyer Ida Drammeh opposed the submission of Lawyer Amie N.D. Bensouda’s stating that the Commission should be a party.
The Commission of Inquiry fondly called the Janneh Commission by many people was established by President Adama Barrow to probe into the financial dealings and assets of ex-president, Alhajie Yahya AJJ Jammeh and close associates.
Lawyer Amie Bensouda, the lead Counsel for the Janneh Commission told the court that the Commission has filed a motion for the Supreme Court to strike out its name as a party in their case against Feryale Ghanem.
She told the Supreme Court headed by the Chief Justice, Hassan B. Jallow that the Commission is not a party to any suit in respect of its interim orders.
The panel included Justice Hassan B. Jallow, Justice GBS Janneh, Justice RC Sock, Justice CS Jallow and Justice MM Sey.
Lawyer Bensouda relied on section 200 of the 1997 Constitution of the Gambia that the Commission is not a person to be sued instead an adjudicating body.
“It is clear from the writ that has been filed that the plaintiff is questioning the interim decision that has been made by the Commission of Inquiry against her,” she said.
She referred the court to the decisions of the Gambia Court of Appeal in the cases of Muhammed Bazzi versus the Commission of Inquiry and Fadi Mazegi versus the Commission of Inquiry. She said in those cases, it was held that the Commission of Inquiry like the High Court is not a proper party to be in a suit.
“It is my submission that the Commission of Inquiry should not be a necessary party to any suit but the Attorney General by virtue of the States Proceedings Act,” she submitted.
She made an application for the Supreme Court to strike out the name of the Commission as a defendant in this suit.
“A tribunal (as an adjudicating body) should not be summoned to come to court to defend its decisions (orders),” she said.
She said it was stated in the decision of the Court of Appeal that an aggrieved party can appeal against the interim orders of the Commission but that the Commission cannot be a proper party to any suit.
On her part, Lawyer Ida Drammeh for the plaintiff said the application made by Counsel Bensouda ignores all the laws applicable to the suit.
She said Section 24 of the Constitution provides that any court or other adjudicating authority established by law for the determination of any criminal trial or matter, or for the determination of the existence or extent of any civil right or obligation, shall be independent and impartial; and where proceedings are commenced for the determination or the existence of any civil right or obligation, the case shall be afforded fair hearing within a reasonable time.
“It is my submission that this court like any other court does not have any choice but must afford this case and parties in this case a fair hearing. Whether the first defendant (Commission of Inquiry) is a party or not, the court should hear both parties,” she submitted.
She cited rule 45 of the Supreme Court Rules that any party likely to be affected by a suit should be served and heard. She added that the Commission is likely to be affected by any decision by the court by virtue of sub rule (3) of the said Rules.
“Rule 45 of the Supreme Court Rules is in accordance with section 24 of the Constitution. The Commission of Inquiry should be made a party,” she said.
She said the arguments made by Counsel Bensouda relying on the decision of the Court of Appeal ignores the requirement of the rules of the Supreme Court; that a party likely to be affected by a suit should be made a defendant.
“It is my submission that the Attorney General cannot be a Counsel for the Commission because of the nature of the Commission. We are not even sure whether there won’t be conflict of interest. The Commission is an independent body,” she said.
She said if the Attorney General is allowed to represent the Commission then it is more likely that he is the Counsel for the Commission.
She said the States Proceedings Act cap 8:01 states that the Attorney General should be a party to a case involving the State. She added that the Act defined the State as the government of the Gambia. She adduced that the Constitution as per section 230 defines the government as the executive government of The Gambia.
“It is my submission that the executive government of the Gambia does not include the Commission of Inquiry. The Commission is an investigation body and it is different from the executive government of the Gambia,” she said.
She contended that the Commission should be made a party to the suit.
“There cannot be fair determination to this suit without the joinder and submission of the Commission,” she said.
She said the Commission of Inquiry Act provides that the Commission as an entity can be sued.
She said the judgment of the Court of Appeal mis-categorized the Commission of Inquiry and has no regard to the rules of the Supreme Court. She argued that the case that was before the Court of Appeal arose from an appeal.
She said when dealing with the provisions of the Constitution one should be liberal rather than giving it a restrictive approach as per the case of the State versus Momodou Jobe.
The Supreme Court is set to deliver ruling in this case on a date that will be communicated to the parties.
The cases of Muhammed Bazzi against the Commission of Inquiry and Fadi Mazegi were only mentioned and were adjourned for hearing on dates to be communicated to the parties.