Gambia: Justice Jaiteh Set to Rule On Touray's Application for Court to Enforce His Constitutional Immunity

The Banjul High court is set to rule on Yankuba Touray's application for the court to enforce the constitutional immunity accorded to him by the 1997 Constitution.

Retired Captain Yankuba Touray, has recently asked the Banjul High Court to enforce the Constitutional immunity accorded to him by the 1997 Constitution. However, State lawyer Kimbeng T. Tah objected to the application, saying it was premature.

Lawyer Abdoulie Sisoho has faulted the murder charge proffered against his client (Touray), saying it was illegal and contrary to the 1997 Constitution. He argued that the powers of the high court to try retired Captain Yankuba Touray has been taken away by the 1997 Constitution which accorded Mr Touray and all members of the redundant AFPRC government including ministers immunity from legal proceedings, whether civil or criminal.

"I pray that the court strikes out this case because it is illegal and it infringes the rights of the accused [Yankuba Touray]. I humbly submit that the accused person should be discharged because it is illegal to try him under the current constitution," Lawyer Sisoho said.

The 1997 constitution gives the high court original jurisdiction to interpret and enforce fundamental rights and freedoms.

Touray was a member of the defunct AFPRC Government and was a long-serving Minister of Local Government and Lands under both the AFPRC and APRC regimes. The retired military officer is the third defence witness in his trial. According to the indictment, Mr Touray murdered Ex-Minister of Finance Ousman Koro Ceesay in 1995 at his residence in Kololi. Touray pleaded his constitutional immunity, but the court entered a plea of not-guilty on his behalf.

In making his application, Lawyer Sisoho relied on the case of Antoine Bana and Ocean View Resort wherein it was held that the issue of jurisdiction can be raised at any time and in any manner, whether formally or informally, and once so raised, all proceedings must be suspended and the court should address the issue.

The senior lawyer relied on the testimonies of prosecution witnesses including the testimonies of ex-Corporal Alagie Kanyi, Captain Jangum, Ensa Mendy and Lamin Ndour who all testified before the court as prosecution witnesses in the case. He also relied on Yankuba Touray's testimony.

Lawyer Sisoho argued that section 13 (1) and (5) of Schedule 2 of the 1997 Constitution accords Yankuba Touray immunity from civil and criminal proceedings of his actions or omissions between 1994 and 1996.

Lawyer Kimbeng T. Tah who appeared for the Attorney-General, in his response on the application made by the lawyer for Touray, said Yankuba Touray's claimed 'constitutional immunity' is invalid.

Barrister Tah said Touray's lawyer relied on the wrong provision of the Constitution by virtue of an amendment of Schedule Two of the 1997 Constitution which was declared invalid by the Supreme Court of the Gambia in 2001.

Lawyer K. Tah in his arguments said by virtue of the Supreme Court decision in the case of Kemeseng Jammeh and the Attorney-General which is suit number 4 of 2001, Clause 13 (1) of the Second Schedule of the 1997 Constitution as it is currently in the laws of the Gambia 2009, is invalid.

Lawyer Tah said the amendment on Clause 13 (1) of the Constitution was declared null and void by the Supreme Court because the National Assembly Members acted in excess of their powers to make such amendments; that the provision of Clause 13 (1) of the Constitution as it is in the 2009 revised laws of The Gambia is that "no member of the Armed Forces Provisional Ruling Council or any person appointed Minister by the Armed Forces Provisional Ruling Council or other appointees of the Armed Forces Provisional Ruling Council, shall be held liable or answerable before a Court or authority or 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."

Counsel Tah drew the Court's attention to the difference between the words 'answerable' and 'liable'.

The matter was then adjourned to Monday November at 11pm for the court to rule on Yankuba Touray's application on his application for the court to enforce his constitutional immunity.

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