Gambia: No Constitutional Immunity for Yankuba Touray Supreme Court Declares in 2001

The constitutional immunity claimed by Yankuba Touray - a former junta and onetime minister of Local Government and Lands had been declared ineffective and a nullity issued by the Supreme Court of The Gambia in 2001, a legal practitioner confirmed to The Point.

The legal practitioner disclosed that the immunity that Mr. Touray invoked at the TRRC is in Schedule 2 Paragraph 13 of the 1997 Constitution of The Gambia under the Amendment Act 2001 No:6 of 2001 in the transitional and consequential provision.

Schedule 2, Paragraph 13 provides that no member of the Armed Forces Provisional Ruling Council (AFPRC), any person appointed minister by the Armed Forces Provisional Ruling Council, or other appointees of the Armed Forces Provisional Ruling Council shall be liable or answerable before a court or authority 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.

It was disclosed that the APRC deliberately and illegally inserted an Amendment of Paragraph 13(1) of the 1997 Constitution in the reprint of the Constitution in 2002, thus misleading the general public on the provisions of an entrenched clause that has been tempered without an approval by referendum.

It was further disclosed that by strict application of the law, anyone who has aided or abetted in illegally mutilated an entrenchment clause of the Constitution without a referendum has committed serious offence and shall be held accountable.

The Supreme Court five judges unanimously declared that the bill entitled the Constitution of the Republic of The Gambia (Amendment) Act, 2001 No:6 of 2001 passed by the National Assembly on 15 May, 2001 and assented to by the president on 25 May, 2001 was made in excess of the powers conferred on the president and the National Assembly.

The five judges declared that the bill purporting to amend paragraph 13 (1) of Schedule 2 of the Constitution was ultra vires and was declared unconstitutional, null and void and without legal effects.

The current chief justice, Honourable Justice Hassan B. Jallow who was among the panel of judges of the Supreme Court and delivered the lead judgment on 29 November, 2001 in the case between Kemesseng Jammeh and the Attorney General reported in the Gambia Law Report on page 839 (1997 to 2001).

Justice Hassan Jallow found and held that the purported amendment of Paragraph 13, Schedule 2 of the 1997 Constitution contained in the Amendment Act No:6 of 2001 were made in excess of legislative powers conferred in the 1997 Constitution are accordingly null and void and have no effects.

Justice Jallow further declared that the Amendment of Paragraph 13 is severed from the Act.

Then chief justice, Felix Lartey fully concurred in the reasoning and conclusion of Justice Hassan Jallow.

Whilst Justice Wali also concurred with Justice Hassan Jallow and disclosed that Paragraph 13 of Schedule 2 to the Constitution of The Gambia as contained in the Constitution of The Gambia 1997(Amendment) Act No:6 of 2001 which was assented to by the president of the republic without complying with Section 226(4) and Paragraph 17 of Schedule 2 of the said Constitution.

Justice Wali declared that the amendment were unconstitutional and therefore null and void, without legal effect whatsoever.

Our sources revealed that the immunity that Yankuba Touray is invoking has been declared a nullity and with no effect by the Apex Court (Supreme Court) of The Gambia in 2001.

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