Justices Hassan B. Jallow, Raymond Sock, Maimuna M. Sey, Idrissa Fafa M’bai, and Awa Bah will decide whether Touray’s application seeking immunity from prosecution has merit.
The former minister has claimed that Section 13 of the 1997 Constitution shields him from any civil or criminal prosecution.
Banjul High Court Judge Ebrima Jaiteh suspended Touray’s trial and referred his application to the Supreme Court, saying his court lacked jurisdiction to invoke, interpret, or enforce any provision under Paragraph 13 of the Second Schedule of the 1997 Constitution.
The High Court’s proceedings in the murder case will now depend on the orders and directives of the Supreme Court.
The court adjourned after hearing the arguments of the defence. It also heard the briefs of the Attorney General, represented by Principal State Counsel Abdul Maita Yusuf and Senior State Counsel L. Jarju; and the Gambia Centre for Victims of Human Rights Violation, which appears as amicus curiae (friend of the court). The centre is represented by lawyers Gaye Sowe, Salieu Taal, Neneh M.C Cham, and Abdoulie Fatty.
Defence lawyer Abdoulie Sissoho informed the five judges that he was relying on his argument before the High Court. In response to the brief filed by the centre’s lawyers, he said the Constitution was the foundation of the nation and the people had chosen to be governed by it. He argued that Section 7 of the Constitution dealt with the sources of the law of The Gambia. He claimed that Gambia’s obligation to international law and treaties was not recognised, unlike other jurisdictions where international law applied.
“In The Gambia, if we sign treaties, they have to be domesticated and ratified.”
He said Paragraph 13 of the Second Schedule of the Constitution was an immunity clause, which he interpreted to mean protection against any alleged crimes.
“Immunity is a shield to the unknown – it is not a defence,” Sissoho said.
According to him, sub-Paragraph 5 of Paragraph 13 makes provision for ‘any act or omission’, meaning that all members of the Armed Forces Provisional Ruling Council were immune from prosecution for anything they had done between July 1994 and January 1997.
“It cannot be questioned by any court or authority.”
Sissoho told the court that he only disagreed with the State on the question of when to trigger immunity. He said he was of the view that it could be triggered when the indictment was read, while the State thought the defendant should give evidence.
He said Paragraph 13 provided immunity for all categories of offences including those that attract life imprisonment or a death sentence, such as murder.
He said that during a coup, soldiers sometimes broke the law, but that no person or authority could question any of their acts or omissions between July 1994 and January 1997.
“The accused person has immunity not to be prosecuted for crimes allegedly committed between July 1994 and January 1997. [Paragraph 13 of the Second Schedule] is a shield.”
Sissoho claimed that the briefs of the state and the amicus lawyers did not touch on the fundamental issues before the court. He said the four lawyers only deliberated on Paragraph 13 (1), leaving out the other sub-paragraphs.
“The issue before the court is not an international matter for the [Supreme] Court to draw inspiration from. It is a domestic matter,” he said.
He added that the lawyers’ talk of international crimes like genocide and crimes against humanity had no relevance to Touray’s case.
“In our Constitution there is constitutional immunity. All authorities cited by them are irrelevant to the case except one, which is a decided case.”
He claimed that the lawyers’ brief did not address any of the issues before the court in respect of the case.
He accused the State of deviating from its position at the High Court, which he insisted should not be allowed to happen.
“You cannot change here. You are coming up with facts. You have to be consistent. They have changed their brief.”
On his part, lawyer Yusuf said Touray had been charged with murder, contrary to Section 187 of the Criminal Code. He said Paragraph 13 (1) of the Second Schedule was not ambiguous and that persons who committed offences such as murder could not be considered as performing their official duty. He pointed out that Ousman Koro Ceesay was deprived of his life and that this was not envisaged under Paragraph 13.
He insisted that the provision could not override the other provisions of the Constitution – in particular Section 18, which protects the right to life. Yusuf argued that the paragraph in question was a general provision while Section 18 was a specific provision. He said Section 18 provided the right to life and also the basis on how this right could be taken away or deprived.
Yusuf said sub-Paragraph 5 of Paragraph 13 was not applicable in Touray’s case since the charge was murder. He said the provisions of sub-paragraphs 4 and 5 carry “action”, which he interpreted to include civil matters and did not apply to criminal cases. He relied on Section 2 of the Courts Act in his submission.
He said Section 18 of the Constitution was an entrenched clause while Paragraph 13 was not.
Lawyer Sowe said the issue before the court was of national importance as it raised questions on constitutional and criminal law, and human rights issues.
He submitted that the right to life was not only guaranteed by Section 18, but also international law.
“Immunity cannot be used as a shield when right to life or human rights violations are the issue,” said barrister Sowe.
He insisted that Gambian laws were consistent with the international law authorities he and his colleagues had cited in their brief.
He said Section 18 (5) of the Constitution provided the exception to the right to life.
“We have in our law provisions that are consistent with the laws cited,” Sowe said.
The human rights lawyer explained that right to life was about homicide, adding that the general defences to criminal offences were provided for in the Criminal Code, and that they did not include official duty.
“It is not recognised by common law or any other law.”
He said official duty could not be a defence, bearing in mind that the State was duty-bound to investigate human rights violations and punish perpetrators.
Sowe insisted that both domestic and international law did not recognise official duty as a defence in a murder case. He added that the granting of amnesty was not permissible in both Gambian and international law.
He said the amicus brief had cited cases from America, the United Kingdom, and provisions of international law such as ICCPR and the African Charter.
Lawyer Sowe said the duty to investigate goes beyond official action.
“Duty to investigate is not only an international law matter, it is a duty under our domestic laws. It is not a foreign concept. It is a duty you find in the Constitution.
“We submit respectfully that even though this court is not bound by international law, it is very important because it will help in the interpretation of the Constitution.”
He explained that the African Court of Justice and Human Rights had jurisdiction over The Gambia.
“We are not saying the court should give effect to their decisions, but it can use it to help us understand what our Constitution is all about,” Sowe said.
The Supreme Court will announce the date it will release its judgment.
What Section 13 of the Constitution states
(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 that took place on the 22nd 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 no action 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 sub-Paragraph (3) shall have effect notwithstanding that any such action as is referred to in that sub-paragraph 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.
BACKGROUND OF THE CASE
The murder case against Yaruba Touray began in October 2019. The prosecution called nine witnesses, and the defence made a “no case to answer” submission in which Touray’s lawyer urged the court to acquit and discharge his client. However, the trial judge overruled the application and asked Touray to open his defence.
Three people have testified in his defence – Mariama Minteh (his sister-in-law), Mamie Minteh (his wife), and himself. Touray, was supposed to continue with his defence on October 12, 2020, after the court resumed from a one-month vacation, but his lawyer applied for the case be struck out, claiming that his client was under “constitutional immunity”.
On November 2, 2020, Justice Ebrima Jaiteh of the Banjul High Court referred Touray’s constitutional immunity application to the Supreme Court of The Gambia for determination.
Justice Jaiteh said the court lacked jurisdiction to invoke, interpret, or enforce any provision under Paragraph 13 of the Second Schedule of the 1997 Constitution. He suspended the proceedings until the Supreme Court gives directions on the matter.
The Victims’ Bantaba is a virtual platform that will serve as a memorial site of record to events and experiences from The Gambia’s difficult years during the dictatorship of Yahya Jammeh.
It seeks to document the impact of the violations of human rights and atrocity crimes over the 22 years of that regime, particularly on the victims, and explore their continuing significance on the society.