By Yankuba Jallow
Lawyer Abdoulie Sisohor has downplayed the brief of argument of four lawyers who lately joined the case in the public interest.
He said the four lawyers in the persons of Lawyers Gaye Sowe, Neneh M.C. Cham, Salieu Taal and Abdoulie Fatty did not address the issues before the court. Barrister Sisohor said the four lawyers relied heavily on international law and want to pull the court to apply that in this case.
The four appeared before the court as ‘Amicus’ meaning friends of the court in the public interest. The Justices of the Supreme Court were Hassan B. Jallow, Raymond Sock, Maimuna M. Sey, Idrissa Fafa Mba’I and Awa Bah.
Sisohor said the brief by the four human rights lawyers did not touch on the fundamental issues before the court. He said the four lawyers wrote a long brief and only managed to deal with the law only once. He said the lawyers dubbed the friends of the court only deliberated on paragraph 13 (1) leaving out the other subparagraphs.
“The issue before the court is not an international matter for the [Supreme] Court to draw inspiration from. It is a domestic matter,” Sisoho said.
He said the brief by the four lawyers is talking about international crimes like genocide and crime against humanity.
“It has no relevance to the case,” Sisohor said.
He added: “In our Constitution there is constitutional immunity. All authorities cited by them [the four lawyers] are irrelevant to the case except one which is a decided case.”
He told the court that when one is citing judicial authorities, he or she should provide the court with the ratio (meaning decision) of the court rather than bring the commentary of the judge.
He said the ‘Amiscus’ brief did not address any of the issues before the court in respect of the case.
Lawyer Sisohor submitted that the Constitution is the very foundation of the nation and the people chose to be governed by it. He argued that section 7 of the Constitution deals with the sources of law of The Gambia. He said Gambia’s obligation to international law and treaties is not recognised, unlike other jurisdictions where international law applies.
“In The Gambia, if we sign treaties, they have to be domesticated and ratified,” Sisohor said.
He said paragraph 13 of the 2nd Schedule of the Constitution is an immunity clause. On the purpose of an immunity clause, senior lawyer Sisohor submitted that throughout history the issue of immunity is being protective of alleged crimes.
“Immunities are shields to the unknown – it is not a defense,” Sisohor said.
He said subparagraph 5 of paragraph makes provision for “any act or omission” which means whatever members of the Armed Forces Provisional Ruling Council must have done between July 1994 and January 1997 they are immune.
“It is not a defence, but a shield. It cannot be questioned by any court or authority,” Lawyer Sisohor said.
Barrister Sisohor informed the court that from the records at the high court his only difference with the State was on the question when to trigger immunity. He said he is with the view that it can be triggered when the indictment is read while the State is with the view that he has to give evidence.
He said paragraph 13 of the 2nd Schedule provides immunity for all categories of offences including those that attract life imprisonment including murder charge or a death sentence.
Sisohor said in the military, in the course of performance of coup, they don’t sometimes [necessarily] follow the law. He said no person or authority can question any of their acts or omissions between July 1994 and January 1997.
“The Accused Person [Yankuba Touray] has immunity not to be prosecuted for crimes allegedly committed between July 1994 and January 1997. It [paragraph 13 of the 2nd Schedule] is a shield,” Sisohor said.
On the brief by the State, Lawyer Sisohor said the State is deviating from the earlier position they held at the high court adding they cannot change their position at this stage. He referred the Supreme Court to the records of the high court in respect to this case.
“You cannot change here. You are coming up with facts. You have to be consistent. They have changed their brief,” he said.
On his part, Lawyer AM Yusuf for the Attorney General said Mr Touray is charged with murder contrary to section 187 of the Criminal Code. He said paragraph 13 (1) of the 2nd Schedule is not ambiguous.
He said persons who committed offences like murder cannot be considered as performing their official duty. He said Ousman Koro Ceesay was deprived of his life and this was not envisaged under paragraph 13 of the 2nd Schedule.
He submitted that the provision of paragraph 13 of the 2nd Schedule of the Constitution cannot override all other provisions of the Constitution – in particular section 18 which provides for the right to life. Yusuf argued that the said paragraph of the Constitution is a general provision while section 18 is a specific provision. He said section 18 provides the right to life and also the basis on how this right can be taken away or deprived.
Yusuf said subparagraph 5 of paragraph 13 of the 2nd Schedule is not applicable in the current case since the charge is murder. He said the provisions of subparagraphs 4 and 5 carry “action” which according to Yusuf means only civil matters and does not include criminal cases. He relied on section 2 of the Courts Act in his submission.
He said section 18 of the Constitution is an entrenched clause while paragraph 13 is not.
Here are the provisions of paragraph 13 of the Constitution.
(1)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.
(2) After the coming into force of this Constitution, it shall not be lawful for any court or
tribunal to entertain any action or take any decision or make any order or grant any remedy or relief in any proceedings instituted against the Government of The Gambia or any person acting under the authority of the Government of The Gambia, or against any person or persons acting in concert or individually to assist or bring about the change in
Government which took place on the twenty second day of July 1994, in respect of any act or omission relating to, or consequent upon:
(a) the overthrow of the government in power before the formation of the Armed Forces
Provisional Ruling Council; or
(b) the suspension or abrogation of the Constitution of The Gambia 1970; or
(c) the establishment of the Armed Forces Provisional Ruling Council; or
(d) the establishment of this Constitution.
(3) For the avoidance of doubt, it is declared that noaction taken or purported to have been taken in the exercise of the executive, legislative or judicial power by the Armed
Forces Provisional Ruling council or a member thereof, or by any person appointed by the Armed Forces Provisional Ruling Council in the name of the Armed forces
Provisional Ruling Council except judges of the Supreme Court or the court of appeal, shall be questioned in any proceedings whatsoever and, accordingly, it shall not be
lawful for any court or tribunal to make any order or grant any remedy or relief in respect of any such act.
(4) The provisions of subparagraph (3) shall have effect notwithstanding that any such action as is referred to in that subparagraph was not taken in accordance with any
procedure prescribed by law.
(5) 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.
