The Supreme Court of The Gambia on July 8, 2026, unanimously dismissed a constitutional challenge to parts of the Commission of Inquiry (Amendment) Act 2023. The ruling concerned an application brought by the Coalition of Progressive Gambians and activist Kemeseng Sanneh. The court determined that the plaintiffs did not demonstrate that Parliament overstepped its legislative authority by adding sections 19, 20, and 21 to the Act. This unanimous decision by the nation's highest court affirms the legality and constitutional validity of the amendments.
The Supreme Court further concluded that the Coalition of Progressive Gambians and Kemeseng Sanneh failed to discharge the burden of proving that the challenged provisions violated the Constitution of The Gambia. This finding was central to the court's dismissal of the application, emphasizing the plaintiffs' responsibility to present compelling evidence of constitutional infringement.
The Court's Decision
The Supreme Court ruled that the National Assembly acted within its constitutional powers when it passed the Commission of Inquiry (Amendment) Act 2023. Justice Awa Bah delivered the landmark judgment, which was agreed to by Chief Justice Hassan B. Jallow, Justice A.D. Yahya, Justice Cherno Sulayman Jallow, and Justice O.M.M. Njie. The unanimous consensus among the justices showed the strength of the court's findings regarding the legislative authority of Parliament. The challenged provisions of the Act create a legal process allowing individuals banned from holding public office to apply to the President for a commutation of their ban. This new process was a key point of contention in the constitutional challenge.
The Court clarified that the law does not grant the President the authority to overturn, erase, or interfere with the findings of a commission of inquiry, nor does it affect the right to appeal such findings. This distinction was key in the court's reasoning, as it addressed concerns about the executive potentially undermining judicial or quasi-judicial processes. The primary purpose of these amendments is to establish a clear process for a person serving a ban to seek executive clemency. The law explicitly states that it does not authorize the President to cancel or reverse any findings made by a commission of inquiry, thereby preserving the integrity of the original investigative outcomes. The court specifically held that the Coalition of Progressive Gambians and activist Kemeseng Sanneh failed to prove that Parliament exceeded its legislative authority by introducing sections 19, 20, and 21 into the Commission of Inquiry Act.
Applicants seeking commutation must satisfy specific eligibility requirements. These include having served a minimum of three years of their ban and maintaining a clean criminal record throughout that period. This framework ensures a structured approach to potential clemency without undermining the original findings of the commissions. These stringent conditions are designed to ensure that only individuals who have demonstrated a period of rehabilitation and adherence to the law can be considered for executive clemency. The court's decision noted that these provisions establish an executive clemency process, which is distinct from judicial review or the overturning of commission findings.
Arguments Presented
The Coalition of Progressive Gambians and activist Kemeseng Sanneh contended that the National Assembly overstepped its constitutional bounds by enacting the Commission of Inquiry (Amendment) Act, 2023. The plaintiffs primarily challenged sections 19, 20, and 21 of the amended legislation, arguing that these specific sections were unconstitutional. Their argument centered on the assertion that Parliament lacked the authority to introduce a process allowing the President to review bans on holding public office, arguing that such a change would necessitate a constitutional amendment. They maintained that the National Assembly could not unilaterally alter the implications of commission findings without a more fundamental change to the nation's foundational legal document.
The plaintiffs maintained that granting the President the power to commute these bans effectively transferred judicial authority to the Executive branch. They argued that this amounted to an encroachment on the separation of powers, where decisions typically reserved for the judiciary or bodies with quasi-judicial powers were being subjected to executive discretion. They formally requested the Supreme Court to declare sections 19, 20, and 21 unconstitutional, alleging a conflict with sections 200 to 206 of the 1997 Constitution of The Gambia. These sections of the Constitution pertain to the judiciary and the administration of justice, forming the basis of the plaintiffs' claims regarding the usurpation of judicial powers.
In response, the State denied that Parliament had acted beyond its constitutional authority in passing the amendments. State lawyers asserted that sections 19, 20, and 21 were fully consistent with the Constitution and did not infringe upon judicial powers in any manner. They argued that the new provisions established an executive clemency process rather than undermining the findings of commissions of inquiry. The State's position was that the amendments provided a humanitarian avenue for individuals to seek relief after a period of good conduct, without challenging the validity of the initial findings or the legal process that led to them.
Legal Context and Precedent
The Supreme Court holds the exclusive power to interpret and enforce the Constitution of The Gambia. This fundamental principle underpins its role as the ultimate arbiter of constitutional disputes. The court asserted its constitutional responsibility to determine if legislation aligns with the Constitution, confirming its authority to declare provisions invalid if a conflict is found. This stance was evident as the Supreme Court rejected the State's objection, which argued that the court could not strike down legislation passed by Parliament. This rejection showed the judiciary's role in upholding the constitutional framework against legislative enactments and reaffirmed its independence. The court held that it possesses the constitutional responsibility to determine if legislation is consistent with the Constitution and can declare provisions invalid if they conflict. This assertion noted the court's commitment to its constitutional mandate, ensuring that all legislative acts adhere to the supreme law of the land.
In its deliberations, the Supreme Court clarified the nature of Commissions of Inquiry, defining them as investigative and administrative bodies rather than courts of law. This distinction is key for understanding the scope of their findings and the legislative amendments applied to them. By categorizing them as administrative bodies, the court implicitly supported the argument that executive clemency does not interfere with judicial pronouncements. The court also addressed arguments regarding the historical context of relevant legislation. It rejected the assertion that the Commission of Inquiry Act of 1903 became obsolete following the adoption of the 1997 Constitution, a point which had been raised during the proceedings. The Supreme Court affirmed that the Commission of Inquiry Act continues to be recognized as an existing law under the current Constitution, thereby maintaining its legal validity and applicability in the Gambian legal system. This ruling ensures continuity in the legal framework governing commissions of inquiry, bridging historical legislation with the contemporary constitutional order.
