Former junta leader Yankuba Touray’s refusal to testify at the TRRC on the basis of a 1997 immunity clause has been faulted by lawyer Sheriff Kumba Jobe.
Touray shocked the country Wednesday after he went to the Truth, Reconciliation and Reparations Commission, but refused to give testimony. He claimed he had immunity from prosecution under the constitution as a former leader of the junta that seized power in July 1994.
According to Jobe, Touray did not amplify to what extent he is immune from testifying before the TRRC. “Thus, he left us in a suspended reality or speculation,” he told The Chronicle.
Jobe affirmed that Section 13, 2nd Schedule, 1997 Constitution of the Republic of The Gambia has among other things, given constitutional immunity to the members of the AFPRC or its proxies from being held liable or answerable for any act or omission committed by them during the transition period.
“It goes further to prohibit any court or tribunal or authority from questioning, determining, making decision or order, giving remedy or relief to anyone in matters relating to the matters or things or crimes they might have committed during the transition period. Therefore, the question that begs for an answer is whether or not the TRRC is included as part of the bodies envisaged under Section 13 of the said schedule of the Constitution.”.
He said as per the TRRC Act and other case laws, there cannot be any doubt that the TRRC is a quasi-judicial body which could be equated at the standing of a commission of inquiry, thus, one could then argue that the TRRC is a tribunal or quasi-judicial authority.
“And if this argument holds water, or legally sustainable, it falls under the language of Section 13, 2nd Schedule of the 1997 Constitution, and thus it may not have the competent jurisdiction to entertain matter relating to the AFPRC or its proxies.”
However, Jobe noted it should also be considered whether or not the TRRC is/was trying to make Yankuba Touray liable or answerable to things he might have done or committed during the transitional period or being question on matter relating to thereto in order to make him liable or answerable to the crimes he might have committed.
“However, at the point he raised the issue, unless we want to speculate, the TRRC cannot be faulted. He should have waited until he was asked questions in relation to crimes committed to raise his immunity and then refuse to say anything regarding those things. In the instant case I think his objection was premature.”
He recalled 2001 when the National Assembly attempted to or purported to have amended Section 13, 2nd Schedule of 1997 Constitution.
“However, the said amendment was challenged in the case of Jammeh vs. Attorney General (1997-2001) for being unconstitutional. The Supreme Court declared the amendment as null and void in relation to this Section 13 2nd Schedule of the Constitution.”
“Therefore as far as the Supreme Court judgment is concerned, the provisions of section 13, 2nd Schedule, of the 1997 Constitution is not part of the Constitutional provisions that could be enforced in any court of law or judicial authority despite the fact that, it is still in the 1997 Constitution.
The controversial provision of immunity is an entrenched clause and can only be amended through a referendum, according to legal experts.