In the civil suit involving two Lawyers versus thirty-one members of the National Assembly (NAMs) and the Attorney General, the Supreme Court is set to deliver a ruling on whether NAMs could be sued.
When the case was called before a Coram of the Supreme Court yesterday March 13th 2019, Lawyers L.K. Mboge and Ibrahim Jallow appeared for themselves as the plaintiffs, whereas Lawyers Bory S. Touray, A.A. Bensouda and Lamin L. Darboe, represented the NAMs. The Attorney General was represented by the Solicitor-General, Cherno Marenah.
This civil suit was triggered by the purported revocation of the nomination of Ya Kumba Jaiteh on the 25th February 2019.
The two Lawyers (Mboge and Jallow), brought this case against the Attorney General and thirty-one National Assembly Members including the Majority and Minority Leaders, Sidia Jatta, Ya Kumba Jaiteh, the Deputy Speaker of the NA, Suwaibou Touray, Alagie Darboe, and several others. The two Lawyers in their writ, urged the Court to declare the action of the president as Constitutional, and sought for six reliefs namely:
1) A declaration that the President has the power to revoke the nomination of Ya Kumba Jaiteh relying on the 1997 Constitution of the Republic of The Gambia, particularly Sections 76 (1) and (2), 91 (1) (b) and 231 (1) and (5).
2) A declaration that the revocation by the president of the Republic of the Gambia on the nomination of the 2nd Defendant as a member of the National Assembly, is Constitutional and valid.
3) A declaration that the purported resolution of the National Assembly signed by the thirty-one defendants on Monday February 25th 2019, is procedurally defective, illegal, unconstitutional, fraudulent and therefore impermissible and contrary to public policy.
4) A perpetual injunction restraining Ya Kumba Jaiteh from occupying the office as a member of the National Assembly on the ground that her nomination as a NAM is revoked by the President who nominated her into that office.
5) An order of the Supreme Court directing the defendants (NAMs) to give effect to the declarations of the Supreme Court
In his objection to the writ, Lawyer Abdul Aziz Bensouda relying on Section 22 of the National Assembly Powers and Privileges Act, told the Court that the service on NAMs was illegal; that the service should be set aside in this case as both the process server and plaintiffs have no powers to serve the defendants (the thirty-one NAMs).
Lawyer Mboge told the Court that the NAMs were not served to appear in Court yesterday; that the matter of the Court was to look in the exparte motion and not the writ that Counsel Bensouda was arguing over.
Bensouda made an application for the Court to grant cost in favour of the defendants since the plaintiffs have no answer to the issue of services; that the time of the NAMs was wasted.
"The plaintiffs have indicated that the business of the day has nothing to do with the defendants today. They (defendants) were served to appear today and their work (function) has been delayed," Bensouda submitted.
Counsel Bensouda told the Court that the reliefs sought in the writ, have no effect on the 3rd to the 32nd defendants except relief three; that the third relief does not indicate which provision of the Constitution has been violated. He added that the relief did not state it is challenging an act of the National Assembly under section 5 (1) (a) of the Constitution. He indicated that the relief did not state that the petition was an act carried out pursuant to an Act. He argued that the relief does not concern the 3rd to the 32nd defendants.
Counsel Bensouda stressed that NAMs may pass Laws or motions which may be bad or unconstitutional; but that the proper course for action was to bring such action under Section 5 of the Constitution and make the Attorney General the defendant. He said the writ and reliefs are incompetent; that they do not stand on any ground to invoke the original jurisdiction of the Supreme Court under Section 5 and Section 127 of the Constitution; that the writ undermines the role and functions of the NA.
Lawyer Bensouda told the Court that if reliefs sought are granted, it would infringe the provisions of the constitution under section 113 and 114 of the Constitution.
"The suit violates the freedom of speech and debate granted to the National Assembly as well as the privileges of members of the National Assembly from criminal and civil suits. If this suit is allowed, it would be catastrophic to our democracy," Bensouda told the Supreme Court.
He urged the Supreme Court to dismiss the suit and award cost in favour of the 3rd to the 32nd defendants.
In his reply to the objection, Lawyer Lamin K. Mboge told the Court that the writ before them seeks the interpretation and enforcement of the Constitution.
"The issues in both the writ and the exparte motion are from the 1997 Constitution," he said; that the reliefs are competent and have effect on the defendants. He cited Section 231 (1) of the Constitution as well as other Laws that the powers to appoint, include the powers to dismiss. He argued that they are citizens of the Gambia and have the right to bring this matter before Court; that the matter is about the enforcement of a provision of the Constitution; that the suit is not frivolous because it relates to the enforcement of the Constitution.
"We did not serve the defendants (as alleged by the Defence Counsel) to appear today. They have not been served to come to Court today. They came voluntarily maybe to witness the case today," Lawyer Mboge submitted.
Lawyer Ibrahim Jallow told the Court that the objection made by Lawyer Bensouda tantamount to the denial of the Constitutional right to invoke the jurisdiction of the Supreme Court, to interpret and enforce the Constitution. He said Lawyer Bensouda's objection is meant to deny the Constitutional right in favour of the 3rd to 32nd witnesses; that the Constitutional provisions that Lawyer Mboge cited are clear and unambiguous.
Cherno Marena told the Court that he was served late and they are yet to advise themselves on the matter.
The matter was adjourned for ruling today at 9:30 am.