By Yankuba Jallow
Lawyer Abdoulie Sisohor has on Monday, 12th October 2020 made an application for the high court to enforce the constitutional immunity accorded to Yankuba Touray by the 1997 Constitution.
Lawyer Sisohor said the murder charge the ex-Minister of Local Government and Lands, Mr Touray is facing was illegal and contrary to the 1997 Constitution. He argued that the powers of the high court to try retired Captain Yankuba Touray has been taken away by the 1997 Constitution which accords Mr Touray and all members of the redundant AFPRC government including ministers immunity from legal proceedings, whether civil or criminal.
“I pray that the court strike out this case because it is illegal and it infringes the rights of the accused [Yankuba Touray]. I humbly submit that the accused person should be discharged because it is illegal to try him under the current constitution,” Lawyer Sisohor said.
The 1997 constitution gives the high court original jurisdiction to interpret and enforce fundamental rights and freedoms.
Touray was a member of the defunct AFPRC Government and was a long-serving Minister of Local Government and Lands under both the AFPRC and APRC regimes. The retired military officer is the third defence witness in his trial where he is accused with murder. According to the indictment, Mr Touray murdered Ex-Minister of Finance Ousman Koro Ceesay in 1995 at his residence in Kololi. Touray pleaded his constitutional immunity but the court entered a plea of not-guilty on his behalf.
In making his application, Lawyer Sisohor relied on the case of Antoine Bana and Ocean View Resort wherein it was held that the issue of jurisdiction can be raised at any time and any manner, whether formally or informally, and once so raised, all proceedings must be suspended and the court should address it.
The senior lawyer relied on the testimonies of prosecution witnesses including the testimonies ex-Corporal Alagie Kanyi, Captain Jangum, Ensa Mendy and Lamin Ndour who all testified before the court as prosecution witnesses in the case. He also relied on Yankuba Touray’s testimony.
The Lawyer submitted all the witnesses before the court have indicated that Touray was a member of the Armed Forces Provisional Ruling Council (AFPRC).
Lawyer Sisohor argued that section 13 (1) and (5) of Schedule 2 of the 1997 Constitution accords Yankuba Touray immunity from civil and criminal proceedings of his actions or omissions between 1994 and 1996.
Section 13 (1) of Schedule Two of the 1997 Constitution provides “No member of the Armed Forces Provisional Ruling Council, any person appointed minister by the Armed Forces Provisional Ruling council or other appointees of the Armed Forces Provisional Ruling Council shall be held liable or answerable before a Court or authority or under this Constitution or any other law, either jointly or severally, for an act or omission in the performance of his or her official duties.”
Section 13 (5) of the same schedule of the Constitution provides “It shall not be lawful for any court or tribunal to entertain an action instituted in respect of an act or omission against a person acting or omitting to act on the instructions or authority of the Armed Forces Provisional Ruling Council, or a member thereof, and alleged to be in contravention of any law whether substantive or procedural, in existence before or during the administration of the Armed Forces Provisional Ruling Council.”
“I humbly submit that it [the application] is not about interpretation but enforcement of the right of the accused [Yankuba Touray] not to be prosecuted,” he said.
He added: “By virtue of these sections [13 (1) and (3) of Schedule Two of the 1997 Constitution], the powers of this honourable court are ousted to try the accused person.