A recent article examines the Supreme Court's July 8 judgment in the case of Coalition of Progressive Gambians v The Attorney General. The author, who has read the full judgment, contends that the plaintiffs had no valid case and supports the Court's decision to dismiss it. This perspective contrasts with Counsel LJ Darbo's belief that the Supreme Court's judgment was incorrect. The author anticipates that the Court's ruling will withstand future scrutiny and be seen as a sound legal precedent in The Gambia. The author firmly believes that the Supreme Court was right to dismiss the case, asserting that the plaintiffs had no substantive legal grounds for their challenge. This conviction underpins the author's argument that the Court's decision will ultimately stand the test of time as a strong legal interpretation.
The Contested Amendment
The 2023 Act introduces amendments to the Commission of Inquiry Act of 1903. This legislative overhaul significantly redefines the operational framework for commissions of inquiry within the Gambian legal system. Prior to 2023, two distinct types of commissions existed: those established under the 1903 Act and those formed under section 200 of the Constitution. This dual system allowed for different legal bases and procedural nuances depending on the commission's origin. The 2023 amendment specifically defines a 'Commission of Inquiry' as one created under section 200 of the Constitution. This redefinition means that the statutory commission of inquiry, as previously understood under the 1903 Act, no longer exists as a separate entity; every commission is now considered a section 200 commission. The effect of this amendment is a consolidation of the legal framework, ensuring that all future commissions operate under the constitutional mandate of section 200.
The legal effect of the amendment is that the 1903 Act is no longer a source of power for establishing commissions but rather serves as a procedural framework. It is intended to implement the provisions of section 200 of the Constitution regarding commissions of inquiry. This shift clarifies that while the 1903 Act continues to provide procedural guidelines, the ultimate authority for establishing and defining commissions now firmly rests with section 200 of the Constitution. The plaintiffs in the case, the Coalition of Progressive Gambians, argued that sections 19, 20, and 21 of the amended Act conflict with several constitutional provisions, specifically sections 200, 201, 202, 203, 204, 205, and 206. Their contention was that the new legislative provisions undermined the constitutional safeguards and principles related to commissions of inquiry. Historically, no President in The Gambia has ever established a commission under the original 1903 Act, noting the long-standing reliance on other mechanisms or the constitutional provisions for such bodies. The implications of the new sections are broad, as they now encompass and provide legal backing for bans issued by the Janneh Commission, further integrating its findings into the updated legal structure.
Judicial Authority and Standing
Counsel LJ Darbo's argument included the assertion that the Constitution's section 204 allows for an appeal to the Court of Appeal as a right, without mentioning amnesty. This point formed a key part of Counsel Darbo's challenge to the Supreme Court's judgment, suggesting that the constitutional provision for appeals should not be circumvented or implicitly altered by new legislation. The author of the article, however, contends that the National Assembly exceeded its authority by passing the amendment. This perspective suggests a belief that the legislative body overstepped its constitutional boundaries in enacting the 2023 Act. The Court, however, stated in paragraph 42 of its judgment that the motive behind legislation does not affect its legal authority. This judicial pronouncement shows the principle that the judiciary's role is to interpret the legality of an act, not to delve into the intentions or motivations of the legislature in passing it. The new sections of the amended Act now encompass the bans issued by the Janneh Commission, solidifying their legal basis. Section 206 of the Constitution further allows an Act of the National Assembly to make further provision for the purposes of the chapter concerning commissions of inquiry, providing a constitutional basis for legislative action in this area.
The Supreme Court, in paragraph 37 of its judgment, clarified the nature of these bodies, stating: "it is trite learning that the findings of commissions of inquiry are administrative in nature and not judicial." This distinction is fundamental to understanding the legal weight and implications of commission reports. This perspective aligns with previous judicial pronouncements, reinforcing a consistent interpretation of the role of commissions. In 2018, Hassan B Jallow CJ, in the case of Feryale Ghanem v Attorney General, SC 001/2018, affirmed that a Commission "is an investigative fact-finding body… not an adjudicatory body." This landmark judgment from the Supreme Court provided significant clarity on the non-judicial character of commissions. The Court of Appeal utilized similar reasoning on June 1, 2020, in the case of MA Kharafi & Sons Limited v The Attorney General, GCA 046/2020, further solidifying this judicial consensus across different levels of the judiciary. These consistent rulings emphasize that commissions are designed to gather facts and make recommendations, rather than to issue legally binding judgments that would typically emanate from a court of law. The administrative nature of their findings means they serve as a basis for executive action or further legal proceedings, but they do not, in themselves, constitute a final judicial determination.
The Supreme Court's judgment also addressed the issue of standing. Paragraph 50 of the judgment states that a suit "that seeks only to protect the Constitution in the abstract without showing a legally enforceable right or interest of the Plaintiff… is incompetent and ought to be struck out for want of jurisdiction." This ruling on standing is critical, as it defines who has the legal right to bring a case before the court. It emphasizes that plaintiffs must demonstrate a direct and tangible legal right or interest affected by the challenged law, rather than merely asserting a general interest in constitutional adherence. The author argues that this paragraph 50 contradicts paragraph 22 of the judgment and also sits uneasily with section 127(1)(b) of the Constitution. Section 127(1)(b) grants the Supreme Court original jurisdiction on questions regarding the powers of the National Assembly. The author's concern stems from the idea that if the Supreme Court has original jurisdiction to rule on the powers of the National Assembly, then a strict interpretation of standing requiring a "legally enforceable right or interest" might unduly limit the ability of citizens or organizations to challenge legislative overreach, even when it pertains to fundamental constitutional principles. This perceived tension between the Court's pronouncements on standing and its constitutional mandate for original jurisdiction represents a point of contention for legal observers.
Legal Precedent and Reporting
The Supreme Court's judgment referenced approximately fourteen authorities, drawing from legal precedents established by the Privy Council and top courts in Nigeria and Australia. These numerous citations demonstrate the thoroughness of the Court's research and its commitment to grounding its decision in a broad spectrum of established legal principles and comparative jurisprudence. Among these citations was the 1947 case of Attorney-General for Alberta v Attorney-General for Canada, a significant case that likely informed the Court's understanding of legislative powers and constitutional limits. These references show the breadth of legal scholarship considered in the Court's deliberations, illustrating a global approach to legal reasoning. The Court's reliance on such diverse and authoritative sources from common law jurisdictions notes its effort to ensure the robustness and intellectual depth of its ruling. This extensive referencing not only strengthens the legal foundation of the judgment but also positions it within a wider international legal discourse, lending it greater weight and persuasive authority.
Despite the reliance on diverse legal sources, the state of published legal reporting in The Gambia presents a challenge. The National Council for Law Reporting has produced four volumes of judgments since its inception in 1993, which serve as official records of judicial decisions. These volumes are key for legal practitioners, scholars, and the public to access and understand the development of jurisprudence in the country. However, the most recently reported case within these published volumes is 18 years old, indicating a significant lag in the official documentation of judicial pronouncements. This substantial delay means that a vast body of more recent case law, including key decisions that shape contemporary legal practice, remains largely inaccessible through official channels.
For example, two cases cited in the larger article, Feryale Ghanem v Attorney General from 2018 and MA Kharafi & Sons Limited v The Attorney General from 2020, are not included in the existing published reports. These cases, despite being relatively recent and directly referenced by the Supreme Court in its judgment, are absent from the readily available official records. This absence means that more recent and relevant judicial decisions, such as those that informed the Supreme Court's reasoning in the current case, are not readily accessible through the official published series. The discrepancy between the Court's use of contemporary precedents and the outdated nature of public legal records notes a gap in legal information dissemination. This gap poses significant challenges for legal research, consistency in judicial application, and public understanding of the law. Without timely access to these judgments, legal professionals must rely on unofficial compilations or direct inquiries, which can lead to inconsistencies and inefficiencies in the legal system.
Recommendations for Transparency
The author of the article recommends that all judgments from the superior courts be posted on the judiciary's official website within seven days of their delivery. This measure aims to enhance timely access to judicial decisions for legal professionals and the public alike, thereby increasing transparency and accountability within the legal system. Such a practice would allow for immediate dissemination of critical legal rulings, ensuring that the most current interpretations of law are available to all stakeholders. To improve legislative transparency, the author also proposes that every Act be published online within seven days of receiving assent, and every Bill be made available on the website within seven days of its introduction. These recommendations seek to ensure that both enacted laws and proposed legislation are readily discoverable, fostering greater public engagement and informed debate on legislative matters. Timely online publication would enable citizens, civil society organizations, and legal experts to monitor legislative developments as they occur, rather than waiting for formal gazetting or delayed physical publications.
The author suggests that efforts to address the backlog of unpublished judicial decisions should commence within one hundred and eighty days. This initiative would focus on making available all judgments issued since 2008, thereby bridging the significant gap in officially documented legal precedents and improving the accessibility of the nation's legal history. This ambitious undertaking would require substantial resources and coordination, but its benefits in terms of legal certainty, research, and public trust would be immense. By systematically publishing these past judgments, The Gambia could significantly enrich its legal corpus, providing a full and accessible record of its judicial evolution. This would not only aid legal professionals in their practice but also contribute to a more informed citizenry and a stronger rule of law.
