COLUMN | How Yankuba Touray’s Legal Adventures Upend Society and Spook the Constitution

 

By Pa Louis Sambou  

It is natural human reaction cum instinct to embrace any, if not the first conviction which comes by, following the occurrence of a crime. In this instance, it was no ordinary crime and, to add insult to injury, its first conviction may with time be laid bare as anything but justice for the victim. The unique brutality which surrounds the circumstances of the case in question and the very long wait for justice may perhaps be qualifications which better explain the gravity of the aforementioned reception as regards news of Yankuba Touray’s murder conviction in the case of late Ousman Koro Ceesay, AFPRC Finance Minister murdered in 1995. For a transgression so brutal in its execution and coverup, the blatant refusal by the rogue State (as it then was) to acknowledge or even recognise such occurrence as a bona fide crime worthy of an investigation, no amount of convictions nor weight and burden imposed by any sentence may sufficiently bring forth a sense of public justice. For the victim’s family, the crime dealt them a life sentence, not to even mention his elderly parents who subsequently departed this world without the comfort of closure. 

 

As the criminal trial under review is a byproduct of what is in many respects an inadequate transitional justice mechanism, any commentary on or, examination of the same which shies away from appropriately crediting the said mechanism would have earned itself the ‘privilege’ of being ruled equally inadequate. So let’s avoid that pitfall here then, shall we? 

 

The unique sensitivities presented by our transitional justice circumstances are such that successful execution relies on due care and skill of exceptional pedigree, robust enough to cut through and deliver the nuggets of justice. I suspect some would argue that this expectation sets too unreasonably high a bar. But does it? Transitional justice is uncharted territory whose navigation even the most serial of critics must accept was always going to present a humongous challenge. However, I am not convinced that this supports an argument for low expectations if not the polar opposite. So effectively, to expect output in this sense to match wider public expectation is a perfectly reasonable position to hold I would contend and, without over-egging the pudding, the just concluded State v Yankuba Touray case may have been a key test case (if not the key test case) in so many respects. 

 

For anyone who followed the public reactions in the aftermath of the verdict and sentencing of Yankuba Touray, the strength of feelings on both sides was palpable. How opinion on what is otherwise a very clear cut black and white issue is so wide apart divided is perhaps one question we may never find ourselves adequately able to address. That said, the far from helpful Supreme Court ruling as regards whether or not Yankuba Touray is entitled to constitutional immunity under paragraph 13 of the second schedule to the Constitution  (Schedule 2(13)) may have done just about enough to arouse suspicion (if not reinforce the belief) that the whole affair constituted a conspiracy with the sole object of dishing out ‘punishment beatings’ to Yankuba Touray for his refusal to testify before the TRRC.  Claims of a conspiracy are perhaps too much of a stretch. However, the irony is, such a position may not be a wholly implausible one to hold in light of everything else, not least the loaded Supreme Court Judgement which truth be told is the jam in the sandwich of the whole affair. 

 

I am not one to bash our judiciary. Thankfully, it is a completely different institution to what it was under the former regime, something which is evidenced by its landmark rulings against the State on a number of highly charged subjects as well as credible public opinion surveys detailing the healthy public confidence it enjoys. Therefore, criticisms advanced in this piece aren’t ones rooted in unhealthy cynicism on my part at all. As a developing democracy, unless we aspire to the polar opposite, institutions of State, their decision and indiscretions should not be beyond criticism. There is indeed a time and place for deference. However, on the big questions, whether silence-in-deference or affirmation-in-deference, I would contend that both are misplaced courtesies cum unconscious self deception and a liability to the vitally necessary constant vigilance, upon which any democratic society relies to survive. Ours is no different and this has to be borne in mind. 

 

There are of course no prizes to be won for guessing my views as regards the Supreme Court ruling on the question of the constitutional (transitional) immunities as regards Yankuba Touray. To begin with, a close study of the relevant constitutional provisions under paragraph 13 of the second schedule reveals that, these were drafted for an explicitly specified purpose, for explicitly specified individuals, as regards explicitly specified actions and for an explicitly specified but limited period of time. Therefore, contrary to the position of the Justices, the immunity isn’t a “general immunity” whose boundaries are either unspecified or ambiguous. I shall substantively revisit this issue later on.

 

At the Supreme Court, the Amici (Learned Counsels Abdoulie Fatty, Gaye Sowe, N.M Cham and Salieu Taal) in particular, in assisting the Court advanced very powerful arguments it has to be said albeit in support of a much narrower question (‘whether Yankuba Touray is entitled to the said immunity?’) rather than against the broader question as to ‘whether the immunity is even valid?’. The thrust and implication of the body of supporting legal authorities they advanced, made a case against the validity of the immunity provisions far more than support the much narrower legal question against which the authorities were pretty weak and hence the absurdity of the judgement. In their judgement, the Justices accepted and even cited the above mentioned authorities all of which are injurious to the healthy standing of the immunity provisions in question but, by some twist of logic they ricocheted to uphold the said immunity provisions as valid anyway and then, proceeded to take a 180 degrees turn in the same breath to conclude that a beneficiary of the immunity provisions (Yankuba Touray) which they upheld as valid law is not entitled to the benefit of that immunity. Confused? Well, you’re not alone; I spent months (and still counting) attempting to walk a straight line between the judgement and reasonable logic but without any success. 

 

To be clear, this is not a criticism of the Amici nor the State — it is entirely up to them what tact they adopt and what arguments they advance. It is their brief and they run it as they see fit. Although, metaphorically speaking, I question the tactical benefit of taking out one pirate passenger rather than sinking the pirate boat. In other words, the legal onslaught of the Amici should have targeted the invalidation of the immunities rather than just one individual seeking to rely on it. Although the counter argument to this would be that the legal effect of the judgement denies immunity to all other potential beneficiaries of the immunity anyway. But, is this reliably conclusive? I have my doubts. 

 

As I set out in my opening gambit, paragraph 13(5) of the second schedule to the Constitution goes to the heart of the subject matter. It is very explicit in its legislative intent; it leaves no room for ambiguity nor any doubt at all. This provision states: 

 

“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.”

 

To be fair, wholesome service may not do justice to the subject matter so I shall breakdown and serve in bite-sized chunks so as to offer a much better comprehension of the water-tight explicitness of this defining provision as follows: 

 

(1)it explicitly ousts the jurisdiction of any judicial probe or inquiry which is subject to the authority of the Constitution: (“It shall not be lawful for any court or tribunal to entertain an action instituted in respect of an act or omission”) (2) for explicitly specified individuals: (“against a person acting or omitting to act on the instructions or authority of the Armed Forces Provisional Ruling Council, or a member thereof”) (3) as regards explicitly specified actions: (“contravention of any law whether substantive or procedural”)(4) and for an explicitly specified period: (“in existence before or during the administration of the Armed forces Provisional Ruling Council”).

 

However, in its judgement, the Supreme court cited and relied on the arguments against immunity under this provision by the Amici as follows: 

 

Limb 1:

“that immunity under this provision only applies to “civil actions” not criminal proceedings”.

 

Limb 2:

“that section 18 of the Constitution (right to life) should prevail” over the immunity under this provision.

 

Limb 3:

That it is inconsistent with international human rights law (supported by persuasive authorities (decisions by European, American and African regional courts on related matters)).

 

Problems with these are: 

 

Problem with Limb 1: 

as highlighted in the earlier bite-sized breakdown above, the provision is very explicit in terms of the actions which it seeks to grant immunity against: “contravention of any law whether substantive or procedural”. This evidently covers every unlawful conduct without exception and in practical terms, as the legislative intent is not ambiguous, an alternative judicial interpretation to such legislative intent is unjustified. 

 

Problem with Limb 2: 

The alleged offence for which immunity was being sought was committed in June 1995 before the coming into force of the Constitution (6 November 1996 – see paragraph 2 of the second schedule of the Constitution which states: 

 

“Notwithstanding any other provision of this Constitution, the person duly elected President of The Gambia in accordance with the Elections Decree, 1996 shall be the first President of the Second Republic of The Gambia and shall assume office as President on the date he or she is sworn in. The first President shall hold the office of President in accordance with the provisions of this Constitution. This constitution shall come into effect upon the swearing in of the first President.”)

 

The Constitution came into force on 6 November 1996. Therefore, section 18 could not have been in force at the time of the alleged offence which occurred in June 1995.  Section 18 is therefore an invalid authority for the Justices to rely on in their judgement. Furthermore, the relevant immunity provision explicitly specified the period for which it is applicable: “in existence before or during the administration of the Armed forces Provisional Ruling Council” i.e. 1994 to 6 November 1996, and this explicitly ousts the jurisdiction of any law which was not effective during this period. I hope I have not lost you but if I have, what I am broadly saying in plain speak is, section 18 of the Constitution may be relied on to support a decision as regards inconsistency and invalidity of paragraph 13(5) of the second schedule to the Constitution but, it cannot be relied on to support a decision or judgement to deny immunity for an alleged offence which occurred at a time when that law (section 18) was not even in existence never-mind in force. 

 

Problem with Limb 3:

These were authorities as regards invalidity of immunities for human rights violations generally. In relying on these, the logical conclusion ought to invalidate the immunity provision (whose construction explicitly immune such), rather than uphold its validity as good law only to contradict that position at the next hurdle to state that by the way it does not apply to a specified beneficiary as if to conveniently suspend its legal effect through some far from desirable gumption.

 

In subsequent paragraphs of its judgement, the Supreme Court correctly identified and applied to the facts of the question before it, the plethora of very powerful and formidably advanced persuasive authorities by the Amici. The case for invalidation of paragraph 13 of the second schedule to the Constitution could not have been advanced any more spectacularly and, by this, I have in mind one particular aspect of the judgement(see pages 34 & 35 of judgement) and which reads as follows: 

 

“In the case of Barrios Altos v Peru (Judgement of 14 March 2001) the Inter American Court of human rights was faced with the question whether Peru, in granting amnesty to State agents who had assassinated some 15 persons in 1991, had violated the conventional guarantees as well as the provisions of the American Convention on human rights guaranteeing the right to life. 

 

The court concluded that: 

 

“All amnesty provisions, on prescription and the establishment of measures designed to eliminate responsibility are inadmissible, because they are intended to prevent the investigation and punishment of those responsible for serious human rights violations such as torture, extrajudicial, summary or arbitrary execution and forced disappearances, all of them prohibited because they violate non-derogable rights recognised by international human rights law.”

 

The Court roundly condemns such self-amnesty provisions as violations of the right of access to justice and to remedies for violation.”

 

The above as well as all others of similar ilk advanced in the judgement are persuasive authorities in favour of an invalidation of schedule 2(13) in its entirety on grounds of incompatibility with the Constitution and nothing else to the contrary. For the Supreme Court to uphold the validity of the provision in question but, flip its legislative intent on its head so that the words used are given a different interpretation other than those intended by the drafters and which by every measure are contrary to the logical and literal meaning of those words as if to pass judgement on Parliament’s legislative wisdom, is an overreach by the Supreme Court. For the avoidance of doubt, under the circumstances and as per the material facts, pursuant to the judicial power conferred under section 120(2) of the Constitution, the Supreme Court was perfectly entitled to rule schedule 2(13) null and void on grounds of incompatibility with the Constitution. However, just like Parliament does not have constitutional authority to exercise its Constitutional legislative authority under section 100 so that a decision by a Court is altered, the Supreme court cannot, in exercising its constitutional judicial authority make a ruling so that a legislative enactment by Parliament is judicially amended.  

 

I have no doubt some may dismiss this position as a polemicise for the sake of it but, it isn’t. This is a very important and serious constitutional issue: the judiciary cannot re-legislate Parliamentary enactment in the same way Parliament cannot re-litigate a judicial decision, this is the principle well, unless separation of powers is no longer applicable. As I suspect some might, I’ll point out that a ‘checks and balances’ argument cannot be successfully advanced in defence of the overreach because, legitimate exercise of ‘checks and balances’ in this instance was to invalidate on grounds of unconstitutionality, not judicially re-legislate the legislative intent. The latter is ultra vires (beyond the judicial authority of the Supreme Court). In fact, rather than a commentary in abstract terms, let’s examine the practical effect of the ruling on paragraph 13(5) of the schedule for example, which would as a result of the judgement (which is case law) now read:

 

“It shall not be lawful for any court or tribunal to entertain an action ‘a civil 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 ‘any civil law’ whether substantive or procedural, in existence before or during the administration of the Armed forces Provisional Ruling Council.”

 

Effectively, the Judgement Judicially amended paragraph 13(5) of the second schedule to the Constitution, so that the phrases “an action” and “any law” are altered to ‘a civil action’ and ‘any civil law’ respectively. But, as per the Constitution (at section 100), alteration of an enactment is the constitutional competence of Parliament, not the Courts. 

So that there’s no confusion and to avoid inviting accusations of misinterpretation of the true intention of the Supreme Court or misconception of the implication of its ruling (judicial amendment of Parliamentary enactment) on this occasion, I guess I should present the ‘exhibit’ itself (which should be read in conjunction with pages 7 to 9 of the judgement as regards paragraph 13(5) of the schedule). The verbatim letter of the relevant aspect of the judgement with the Justices’ diktat underlined, reads as follows: 

 

“These judicial decisions....straddling three continents — Africa, Europe and America are not of course binding on the courts of The Gambia. They are however of persuasive value. 

 

The court is persuaded that their pronouncements accurately reflects the relationship between amnesty and immunity laws on the one hand and entrenched non-derogable rights such as the right to life on the others. The Court finds and holds that a true construction of paragraph 13 of the second schedule to the Constitution and other provisions of the said Constitution and having regard to the persuasive international law and jurisprudence on the subject, the immunity provided for under paragraph 13 of the said schedule does not extend to violations of non-derogable rights such as the right to life, to security and freedom from torture, cruel and other inhuman or degrading treatment or punishment which are guaranteed by the Constitution”

 

Schedule 2(13) being the relevant immunity provision is either valid, in which case Yankuba Touray enjoys its benefit or, it is invalid and in which case it is incompatible with the Constitution and null and void. In my humble opinion, the latter is the correct position and all authorities advanced by the Amici as relied on by the judgement strongly support such position. As for the halfway house judicial amendment judgement, with all due respect to the Justices and without impugning on their motives, they simply do not have constitutional authority to amend Parliamentary enactment. Additionally, the judgement is wholly contradictory to the supporting authorities relied on. Therefore, one cannot help but file this judgement as ultra vires (exceeding legal authority), inconsistent and a bad precedent as far as separation of powers go. Not that I’m an inflexible philistine to creative judicial resourcefulness but rather, I’m merely stating what is, and isn’t permitted under the rules of our constitutional arrangement which we must jealously guard.

 

To Digress back to the High court guilty verdict, the suspicion aroused by the unnecessarily convoluted Supreme Court judgement fermented itself  over the course of the remainder of the criminal trial at the High court. Consequently, what appeared to be a misapprehension of a conspiracy may be one explanation as regards the agitated reaction on the part of allies of Yankuba Touray following his guilty verdict and sentence. 

 

Personally, I am not convinced the conviction was the result of a conspiracy as alleged. If there was any at all, it would be the conspiracy by Yankuba Touray against Yankuba Touray. What I am driving at is this, when accused of a crime, unless one pleads guilty, one can choose to exercise one’s right to silence and remain silent all throughout or, deny the offence and give an alibi (claim to be elsewhere other than at the scene of the alleged crime at the time it occurred) which can be corroborated or reasonably substantiated or, deny the offence and talk freely. However, once one begins to cherry-pick and buccaneer between these options out of convenience, they render themselves less and less believable especially when one declines an invitation to invite one’s own witnesses to corroborate their alibi. To put it politely, his tact was a reckless gallop on so many fronts. I am however conscious of the limits of my exercise of free speech on this issue in that this case may highly likely re-ignite to a live matter once more, given the likelihood that an appeal might follow. So, in exercising disciplined restraint and self - censor I would conclude by stating that the high court judge reached the correct verdict based on the facts which were available to him at the material time. However, had Yankuba Touray took a different tact other than silence and subsequently a hollow defence of alibi, more facts might have been available to the judge, in which case the outcome might have been different and the Ceesay family might have had closure and meaningful justice at last for their loved one. 26 years is a very long time; meaningful justice is most definitely long overdue. 

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